Will lawmakers cede control in order to clean up Albany?

State lawmakers have three months to realize their goal to replace the much-criticized Joint Commission on Public Ethics by the end of 2021. That is because they aim to do this through the state constitutional amendment process, which requires that lawmakers pass the proposal again next year before it could go to voters. 

Dozens of lawmakers have signed on to the proposal, but at the Capitol on Wednesday supporters said they are still short of the critical mass of support they need to move the idea forward. A key reason why is a provision that would give the judicial branch seven appointments to the proposed 13-member Government Integrity Commission. The governor would get two, and each legislative conference leader would get one. 

“The composition of this commission is questionable,” said Assembly Judiciary Committee Chair Jeffrey Dinowitz, a co-sponsor whose committee oversees the bill. “Whether there's going to be a vote on this session, I really don’t know.”

The proposed amendment would require lawmakers to cede a lot of control over ethics oversight to the judiciary – a big break from the current system, in which legislative leaders and the governor control appointments to JCOPE and another ethics agency that oversees them. While the new role for the judiciary is not the only controversial provision in the proposal, the independence that judges would bring to ethics oversight is a key part of the argument that lawmakers are making to convince their colleagues to back ethics reforms with just three months to go until the legislative session ends June 3. 

“Time is of the essence,” Assemblyman Robert Carroll of Brooklyn, who is sponsoring the proposal with state Sen. Liz Krueger of Manhattan, said at a Wednesday press conference in the Capitol. “We must pass this amendment. Democracy and transparency should not put fear in our hearts. Sunlight is the best disinfectant.” He was joined by other lawmakers and good government organizations like the New York Public Interest Research Group, Reinvent Albany and Citizens Union, which are joining the push to get more lawmakers on board.

Ever since JCOPE and the Legislative Ethics Commission (which lawmakers control) were established in 2011, they have been criticized by lawmakers, activists and the media for a lack of independent and investigatory rigor. By replacing these bodies with the proposed Government Integrity Commission – which would also oversee the enforcement of campaign finance laws – state ethics enforcement would be less vulnerable to political meddling, according to Evan Davis, an attorney and former counsel to Gov. Mario Cuomo. “I don't think a judge is going to and tell the commissioner: ‘I want you to go easy on this guy,’” said Davis, who was among the advocates at the Capitol supporting the proposal on Wednesday.

A bipartisan majority of state senators and about three dozen members of the Assembly have signed on as co-sponsors, but that does not mean the bill is going to pass anytime soon. The matter is on the legislative back burner as budget talks continue and as state Attorney General Letitia James reviews the proposal, a standard part of the multi-step legislative process to pass a constitutional amendment. While lawmakers first submitted a bill last year, its sponsors still have to wrangle more support from their colleagues before legislative leaders will allow their full conferences to discuss it. If all goes well, the state Senate Judiciary Committee could advance it in the coming months. “I think it is on track,” said state Sen. Brad Hoylman, the committee’s chairman.

Getting to that point, however, will require that supporters rally more support. “I can't say that there's been a huge groundswell of support,” Dinowitz said. “I haven't had members coming to me to ask to move the bill.” If dozens of more lawmakers did get behind the proposal, its success would still depend on state Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie deciding that a new investigative body that they do not control is better than the status quo. 

Calls to reform JCOPE have also grown in the wake of recent scandals that have raised new questions about its independence. A 2019 investigation by the Times Union reported that Gov. Andrew Cuomo, for example, had received details of a confidential JCOPE hearing investigating his former aide Joseph Percoco, who is currently serving a sentence for a federal bribery conviction. JCOPE has also faced criticism for its handling of sexual harassment cases and its decisions to pursue an investigation into spending by an activist who pushed for passage of the Child Victims Act. Stewart-Cousins cited ongoing dysfunction in JCOPE as the reason why she has not appointed an additional commissioner to its board. 

Giving judges a majority of the appointments to the new commission would be the type of change necessary to restore confidence in the state’s ability to ensure public officials act ethically, according to Davis, who has studied how other states have pursued similar goals. “This is stronger than other states,” he said of the proposal to give judges appointments to the commission. “You have to do (this) if you're trying to build confidence and working from a place where nobody has any confidence.” 

But a desire to improve ethics enforcement is not the same as supporting the proposed amendment in its current form, which Dinowitz said raises constitutional concerns over the balance of power in state government. “I think if this ever came before the Assembly, it would be in a different form,” he said. The governor appoints the chief judge and the presiding justices of the state appellate divisions. They might not be as independent of the executive branch as the proposal intends, he added.

Discussions of the bill could also hinge on lawmakers’ appetite for making it easier to fire employees of the Legislature (as well as the executive branch staffers) for misconduct. The success of the commission would also depend on whether a provision survives that would mandate that the new commission receives a level of funding each year that is roughly five times what JCOPE currently gets.

At least one aspect of lawmakers’ latest ethics push is already clear. Even though they could make the changes they want through the normal legislative process, passing a constitutional amendment has strategic benefits. They are hard to pass, but they are also hard to undo. There is also an important political consideration, according to Krueger. “I actually think Gov. Cuomo is the one person who might like the way it's working now,” she said. “And he doesn't get a vote in a constitutional amendment.”