Appellate court agrees that state ethics commission is unconstitutional

The future of state ethics is in jeopardy after a state appellate court upheld a lower court decision finding that New York’s current ethics watchdog commission is unconstitutional. The ruling marks another victory for former Gov. Andrew Cuomo, who brought the lawsuit after the commission started to investigate his $5 million book COVID book deal.

In a 5-0 ruling, a mid-level appellate panel of judges ruled that the Commission on Ethics and Lobbying in Government, the oversight board that administers the state’s ethics laws, violated the state constitution. The state Legislature originally created the commission in 2022 to replace the previous one – the Joint Commission on Public Ethics – that Cuomo himself had created in 2011. “We find that by enacting the foregoing scheme for the enforcement of the applicable ethics laws, the Legislature, though well intentioned in its actions, violated the bedrock principles of separation of powers,” reads the decision.

Ethical questions

COELIG’s executive director Sanford Berland and chair Frederick Davie condemned the court’s decision in a joint statement. “We respectfully disagree with the result reached by the court and are reviewing all options, including, if appropriate, recommending interim legislation,” they said.

The decision to uphold the state Supreme Court ruling from September of last year puts the fate of the commission in a state of limbo. It has continued to operate thanks to a stay granted by the Appellate Division. Davie and Berland said the commission would work with state Attorney General Letitia James’ office to try to extend that stay for the duration of the appeals process so it could continue administering and enforcing the state’s ethics laws. “Let us be clear, the state ethics and lobbying laws… remain intact,” Davie and Berland said. “The Commission will continue to promote compliance with the state’s ethics and lobbying laws as this matter works its way through the full appellate process.”

Meanwhile, team Cuomo is celebrating their latest victory in the fight over the ex-governor’s book. “As we’ve said from the very beginning, no one is above the law nor the constitution – including the legislature and the executive chamber,” Cuomo spokesperson Rich Azzopardi said in a statement. “The attorney general also never should have defended such a flagrantly unconstitutional law, but since it tracks with her personal politics it’s no surprise.” Before it disbanded, the Joint Commission on Public Ethics had ruled that Cuomo needed to repay the proceeds of his book deal, but a previous court ruling found that that the old ethics watchdog had acted improperly. That decision left the door open to its successor to reopen the investigation into a deal, which Cuomo has been attempting to stop ever since. Blair Horner, executive director of the New York Public Interest Research Group, agreed that this new ruling is a win for Cuomo, but he said that he hopes this is not the end. “We’ll have to see what happens on appeal. But the book deal deserves action,” Horner said. “The former ethics agency concluded that Gov. Cuomo violated the agreement by using public resources.”

Separation of powers

The crux of the argument against COELIG’s constitutionality is that it violates the separation of powers, since the majority of the commission’s members are not appointed by the executive branch, potential nominees are vetted by an unelected review panel of law school deans and the governor does not have the authority to remove members of the commission. The lower court found that this infringes on the executive branch’s constitutionally-mandated authority.

The New York Public Interest Research Group and other ethics advocates had initially opposed the creation of COELIG, feeling that it was not sufficiently independent. But these groups still denounced the appellate decision. “We strongly believe it is constitutional for the Legislature and Governor to pass legislation that adds independence to ethics oversight,” said Rachael Fauss, senior policy adviser for the good government group Reinvent Albany. Her group was one of several that filed an amicus brief with the appellate division court arguing against the lower court ruling. “We strongly believe it is constitutional for the Legislature and Governor to pass legislation that adds independence to ethics oversight,” Fauss said.

Among other things, the amicus brief argued that the standard laid out in the lower court’s decision would mean that any number of other commissions or agencies technically under the purview of the executive branch would also be unconstitutional. “It is worth noting that this case is being brought by someone with a vested interest in the decision – and that by his attorney's logic, JCOPE would have been unconstitutional,” Fauss said, noting that legislative leaders also made the majority of appointments to the old ethics watchdog and the governor only had the authority to remove their own appointees.

But the appellate court unanimously accepted the decision of the lower court. It did not directly respond to the amicus brief filed by Reinvent Albany and other advocates, a decision that Reinvent Albany labeled “feckless.”

Horner said that the appellate decision is bad news for executive oversight in New York. “It further strengthens an already strong executive, moves it into an imperial governor,” he said. According to Horner, the decisions may have even broader implications for state government. “Under this decision, I believe, the governor can never agree to legislation to make any independent process for anything,” Horner said, using the Public Service Commission as an example. The governor alone makes appointments to that commission, with the advice and consent of the state Senate. 

Although COELIG said it was open to “interim legislation,” neither Horner nor Fauss said there are any current bills they are supporting to make changes to the ethics watchdog, with Fauss specifically adding that her group is awaiting a decision by the Court of Appeals. There is no guarantee the Court of Appeals will accept the case, but Fauss said it’s likely considering that a separate state Supreme Court found COELIG was constitutional. That case was brought by former JCOPE commissioner Gary Lavine brought that second case, who argued that the panel of unelected law school deans was unconstitutional after it rejected his appointment. Lavine appealed the decision and the case is currently before a different mid-level appellate court.