Testimony: Stronger Ethics Commission and Laws, Stronger Public Trust

Good morning, members and staff of the Commission on Ethics and Lobbying in Government (COELIG). My name is Rachael Fauss, the Senior Policy Advisor for Reinvent Albany. We advocate for a more transparent and accountable New York government.

First, thank you for holding this hearing and conducting this comprehensive review as required by the 2022 Ethics Commission Reform Act (ECRA). We appreciate you regularly asking New Yorkers what would make them more confident that their state government is working for the broader public good and is not warped by special interests, cronyism, and corruption. 

Starting with the positive, Reinvent Albany especially supports your proposal to improve technology systems and update the lobbying and financial disclosure platforms. These improvements are a win-win for both those having to file statements and the COELIG staff overseeing compliance with lobbying and ethics laws. We look forward to providing specific recommendations in these areas as staff further develop the technology upgrades. 

We are glad you put the most important question to the public first: “Is New York State’s ethics and lobbying regulation system effective?” Unfortunately, our answer is a resounding “No.” This is not COELIG’s fault. The problem here is the Governor and Legislature have not been willing to pass laws that illuminate the obvious potential conflicts of interest that occur when people attempting to influence state government contribute to the political campaigns of elected officials. Until this changes, the public is right to question whether Albany is putting their needs first or the desires of special interests. 

Below are our comments on dozens of the proposals in the review. However, we want to highlight what we believe are the top five proposals for strengthening New York’s ethics rules and laws in your comprehensive review.

Reinvent Albany’s Top 5 Proposals for COELIG to Implement and Support

1. Streamlining and tightening investigation and enforcement processes and timelines; this is crucial to building public confidence and ensuring that enforcement matters are handled swiftly. Whatever COELIG can do administratively here, it should. 
2. Reporting by lobbyists of their campaign contributions. This is currently required in New York City.
3. Reporting of position on lobbying, i.e., whether action was taken in support or opposition to legislation or a governmental action.
4. Overhauling COELIG’s technology systems to modernize filing systems for both lobbying statements and financial disclosures. 
5. Overhauling the financial disclosure questions and form; this simply should not be in state law, but subject to rulemaking by COELIG.

Comments on Specific Proposals in Comprehensive Review

Our comments below address the various categories of proposals in your comprehensive review – note that we have also catalogued our positions on all 43 proposals in the review. Below presents more thorough commentary and prioritization of proposals we would most like to see advanced.

Lobbying Proposals

We are generally supportive of all the lobbying proposals in your comprehensive review. We note that several items we have already supported from your legislative agenda, including electronic filing of lobbying reports, and establishing late fees for failure to complete training on time. Regarding the other proposals:

1. STRONGLY SUPPORT: Explore technological options and legislation to enhance the Commission’s automation of review of lobbying filings. We encourage the Commission to do everything it can in this area outside of legislation, however, given that improvements should not wait for a legislative change that could take years.
2. STRONGLY SUPPORT: Reporting of position on lobbying. We were pleased to see our recommendation to require reporting of position on lobbying among the potential proposals. Please see our draft legislation that was provided to you in our 2024 testimony.  
3. STRONGLY SUPPORT: Requiring lobbyists to report their campaign contributions among its potential proposals. This system works well in NYC, and should be adopted at the state level. Because New York State no longer allows lobbyists’ contributions to be matchable under the new public matching system, we believe lobbyists’ contributions should be subject to greater transparency. 
4. STRONGLY SUPPORT: Prohibit or restrict campaign donations from lobbyists and clients, or prohibit lobbyists and clients from lobbying officials to whose campaigns they have contributed. We strongly support limiting campaign donations from lobbyists as part of doing business restrictions, like those used in NYC. At the state level, lobbyists’ contributions are currently not eligible to be matched under the public matching program. It is only logical to also limit the donations. We caution, however, that prohibitions on contributions are subject to greater constitutional scrutiny than limits, so any proposal must be carefully drafted.
5. STRONGLY SUPPORT: Requiring lobbyists to provide additional details on the lobbying activity in which they engage, including the time spent lobbying each bill, subject, and target. Reinvent Albany already collects this data as part of our own internal lobbying reporting, and we believe this data would vastly improve the usefulness of lobbying filings and data. We note, however, that the regulated community will likely have concerns about this and it should be carefully delineated.

Regarding items not on your list, we continue to support S7883 (Gianaris) / A8618 (McDonald), to require reporting of lobbying on nominations subject to Senate confirmation. The bill was amended in 2024 to no longer be retroactive following a veto from Governor Hochul in 2023. We urge COELIG to include this bill in its legislative agenda.

Financial Disclosure Proposals

We appreciate COELIG’s past support for posting the financial disclosure statements of candidates for office and electronic filing of all disclosure statements. Regarding your other proposals, below are our positions:

1. STRONGLY SUPPORT: COELIG developing and implementing a modernized financial disclosure system. Similar to improvements to the lobbying database, this will greatly aid both filers and COELIG in conducting reviews of the data. We also support corresponding proposals for increasing the number of audits using automated tools that flag for risks.  
2. STRONGLY SUPPORT: Revising the current FDS forms, and giving COELIG authority to update forms via regulation. The forms for financial disclosure statements do not belong in statute. The Legislature has passed amendments to the FDS forms in recent years that should have been subject to simple rulemaking – clarifying that cryptocurrency holdings must be reported (signed by Governor), and deleting archaic questions (passed only by the Senate). The forms are confusing, and we have found numerous errors made by filers because there are two separate classifications of income ranges, depending on the question, among other unnecessarily confusing features. 
3. SUPPORT: Lawmakers should be required to file FDS forms directly with COELIG and to respond directly to COELIG’s requests for additional information. 
4. SUPPORT: COELIG should promulgate regulations to provide greater clarity and uniformity in the designation of policymakers. As part of this rulemaking, COELIG should consider requiring state agencies to file lists of policymakers, which should also be made available to the public, as done by the NYC Conflicts of Interest Board. 
5. SUPPORT: Additional enforcement recommendations, including legislation to provide the Commission with subpoena power to compel recalcitrant FDS filers and third parties to comply with requests for additional information or verify the accuracy or completeness of filings. 

Ethics Advice and Guidance Proposals

See our positions below regarding COELIG’s proposals for ethics advice and guidance:

1. SUPPORT: Clarifying outside activity approval regulations, and agree there should be uniform handling across all agencies. We also strongly support the Commission approving activities for agency heads.
2. SUPPORT: Reviewing travel approvals for agency heads to reduce the appearance of conflict of interest and ensure that it is not to curry favor.
   1. However, we strongly believe that a ban on outside travel payments from third parties is far preferable, particularly given recent scandals in New York City regarding the Adams administration. See our recent comments to the NYC Conflicts of Interest Board on this topic; COIB is in the process of amending their own regulations in this area. 
3. OPPOSE IN PART: We support clarifying gift regulations to clearly state that the limit applies to all gifts, not just food and beverage. 
   1. However, we are concerned about changes being made to the thresholds for the state. COELIG questioned whether increasing the threshold to $25 makes sense. We note that there is currently a different threshold for gifts in New York City of $50. We support aligning the levels at the state and city levels, however, we think that NYC’s limit of $50 is currently too high. We have also not seen a rationale articulated as to why New York State’s limit should be increased above $15. 
4. OPPOSE: We are concerned about extending advice and guidance confidentiality beyond agency heads to employees seeking guidance from their agency ethics officers. We supported COELIG issuing an advisory opinion to ensure that confidentiality of guidance is waived in certain instances – including when the requestor makes misleading, inaccurate, or incomplete statements regarding the request or guidance provided – but we do not know if it is feasible to extend this waiver to agency-provided advice, or whether agencies would have the right incentives to correct misleading statements by their own employees.

Investigations and Enforcement/Audits

We were glad to see COELIG’s legislative agenda would add sexual harassment to the NYS Code of Ethics; this proposal is also included in the comprehensive review.  However, we ask COELIG to support S7137-A (Gounardes) / A9279 (Kelles) because it includes both sexual harassment and discrimination as ethics violations and is already supported by legislators and advocates. We also continue to support the proposal to add accessorial liability. See below our positions on other new proposals:

1. SUPPORT: Simplify and streamline the investigative and enforcement process for certain matters. Enact legislation to simplify and streamline investigative procedures to afford due process in an efficient and timely manner for certain minor violations. We support efforts to speed up the enforcement process, as public confidence can be eroded when it appears that enforcement matters are not handled promptly. 
2. SUPPORT: Re-assess the enforcement process for tighter timeframes and enhanced opportunities for consensual resolution. We urge COELIG to do everything it can to speed up enforcement timeframes through regulations and administrative action while it assesses legislative fixes. 
3. SUPPORT IN CONCEPT: Enact legislation to create uniform rules of discovery and evidentiary procedures while continuing to vest a necessary quantum of discretion in hearing officers in their management of discovery and evidentiary matters to prevent abuse, delay, and unfairness but confine that discretion within practical, consistent, and predictable limits.
   1. However, COELIG should also pursue regulatory and administrative improvements. Given that COELIG’s hearing officers have only begun their work due to delays from the Cuomo v. COELIG lawsuit, we urge the Commission to pursue other means of improving to the hearing process including:
      1. Requiring training for hearing officers regarding sexual harassment cases to ensure trauma-informed handling of cases with appropriate sensitivity.
      2. Creating uniform standards of proof for demonstrating whether there is a substantial basis to support hearing officers’ decisions.
4. SUPPORT IN CONCEPT: Clarify the Commission’s authority to impose non-financial penalties. Enact legislation to authorize COELIG to direct the imposition of discipline, including suspension or discharge, upon a substantial basis determination, whether or not financial penalties are being or may be imposed. We support this conceptually, however we note that this authority was discussed at length by the Court of Appeals as part of the Cuomo v. COELIG lawsuit, so may raise constitutional separation of powers concerns.
5. NEEDS REVIEW: Authorize the Commission to seek emergent relief. The proposal would require legislation to authorize COELIG to render or seek swift emergent relief when necessary to interdict current or ongoing violations of statutes over which it has jurisdiction. We urge COELIG to share with the public the types of instances where this would be appropriate – while we understand its use in other legal contexts, its application in the ethics realm would be novel.

Communications and Data Accessibility 

We appreciate that COELIG’s recommendations in this category overlap with its efforts to improve lobbying and financial disclosure filing systems – which we support. Our comments below address COELIG’s proposals related to communications with the public about pending investigations and records disclosures under the Freedom of Information Law.

1. SUPPORT: Allow the Commission greater latitude to comment on pending investigative matters. We support this proposal, provided that due process considerations are taken into account. One source of frustration from the public has been the lack of information after a complaint has been filed. If a matter is already out in the public realm, the public should be able to know if a complaint has been dismissed, or is still under investigation.
2. SUPPORT: Allow the Commission greater latitude to comment on advice and guidance requests. We supported COELIG’s advisory opinion to establish a waiver process for advice if it is misrepresented by the requester, and also support legislation to give the Commission greater latitude to comment on advice and guidance requests when they are already in the public realm.  
3. OPPOSE AS WRITTEN: Delineate statutorily those records the Commission must disclose and those that must remain confidential. An important feature of ECRA was ensuring that COELIG is subject to the Freedom of Information Law. We oppose changing the ECRA in a way that would be inconsistent with how enforcement matters are handled for other agencies under FOIL. We suggest instead that all remaining exemptions to FOIL be removed from ECRA. For example in Executive Law Section 94(10(m):: “If the commission determines a complaint or referral lacks specific and credible evidence of a violation of the laws under its jurisdiction, or a matter is closed due to the allegations being unsubstantiated prior to a vote by the commission, such records and all related material shall be exempt from public disclosure under article six of the public officers law, except the commission’s vote shall be publicly disclosed in accordance with articles six and seven of the public officers law.”

Thank you for your consideration. 

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