ALBANY, N.Y. (NEWS10) — New York Supreme Court Justice Thomas Marcelle sided with the plaintiff, former New York Gov. Andrew Cuomo, against the state’s Commission on Ethics and Lobbying in Government, or COELIG. The issue began with JCOPE—the Joint Commission on Public Ethics, COELIG’s predecessor agency—and how it responded to Cuomo’s pandemic-era book, “American Crisis.”
Cuomo’s camp said executive branch staffers donated hours of their private time, volunteering to work on the book off the clock. And initially, when he was still in office, JCOPE approved the publication of the book.
But after a series of scandals, Cuomo fell out of public favor and ultimately resigned. That’s when JCOPE hit the former governor with formal ethics violations, working to block him from profiting off the book. JCOPE was dismantled by the legislature and replaced by COELIG, an entity meant to be more independent of the executive branch and objective in its perspective.
COELIG took up the case of the possible ethics violations. Cuomo sued, arguing that a commission operating without government control violates the state constitution. And indeed, Justice Marcelle agreed, ruling that Executive Law 94, which formed COELIG, was ultimately unconstitutional.
“The question presented is whether the Legislature gave the commission authority that rightly belongs to the executive branch,” Marcelle wrote in the ruling. “And if so, whether such a transfers violates the separation of power doctrine.”
That very independence from and focus on executive influence was meant to hold the state’s top executive accountable, but instead rendered the agency toothless, Marcelle decided. The justice also highlighted the fact that the commission couldn’t punish legislators or members of their staff.
In general, COELIG’s ability to assess punishments, Cuomo argued, encroaches on the powers of the executive branch. “While the Legislature defines a penalty and court possesses the judgment over the severity of the penalty, neither branch may compel the executive to enforce a penalty,” Marcelle affirms.
Through attempting to enforce penalties, the commission—established by the legislature and confirmed by deans at law schools across the state—defies the constitution, according to the ruling. “If investigation a person, charging him, holding an administrative hearing on his culpability, and ultimately imposing penalties and mandating forfeiture of property are not executive operations, in which branch do such powers reside?” Marcelle wrote. “Neither the courts nor the Legislature do such things—and no fourth branch of government exists.”
The ruling concludes with three orders:
- COELIG’s authority in sections of Executive Law 94 violates the state constitution
- COELIG must follow this declaration
- COELIG has until September 21 to schedule a briefing on severability or else be deemed entirely void
Severability refers to the ability of the law or the commission to maintain some authority even if specific portions of the law are thrown out in court.
Longtime Cuomo spokesperson Rich Azzopardi released the following response to the ruling:
“As we’ve said all along, this was nothing more than an attack by those who abused their government positions unethically and—as the judge ruled today—unconstitutionally for political purposes. Those in Albany who created this farce of a commission may not care about—or know—the law, but whether it was five district attorneys rejecting the Attorney General’s sham report’s findings or the courts, every time someone charged with upholding the law looks at the facts we prevail. Truth and reason won, mob rule lost today.”
COELIG responded to the ruling as well. Chair Frederick Davie and executive driector Sanford Berland’s joint statement reads:
We respectfully disagree with the court’s result and are reviewing all options, including, if appropriate, interim legislation.
New Yorkers have the right to an ethics commission that is truly independent and fully empowered to administer and enforce the state’s ethics and lobbying laws objectively, even-handedly, and without regard to the rank, position, or political affiliation of those we regulate and without interference from any branch of government. The Commission intends to move forward, deliberately and with zeal, to fulfill its mission to restore New Yorkers’ faith in government, even as it pursues relief from today’s ruling through the appellate and legislative processes.
Let me be clear, the state ethics and lobbying laws (Public Officers Law §§ 73, 73-a, and 74, Civil Service Law § 107, and Legislative Law Article 1-A) remain intact. While this matter works its way through the courts, the Commission will continue to promote compliance with the state’s ethics and lobbying laws.
Reinvent Albany, a watchdog group, called the ruling woeful and characterized Marcelle as flat out misstating the law. As part of the reasoning behind the ruling, the justice repeatedly pointed to the Independent Review Committee’s involvement in the process as outsized and distinct from public oversight, as they are not elected democratically. In a statement, the group said:
“Reinvent Albany finds today’s lower court ruling declaring the state ethics commission unconstitutional absurd and blatantly flawed. The lower court judge blatantly misstates the law creating the Commission on Ethics and Lobbying in Government (COELIG). The judge repeatedly asserts that the Independent Review Committee of law school deans “appoints” members of the commission. This is simply wrong. The law school deans approve or deny nominees to the ethics commission proposed by the Legislature, Governor, Attorney General, and Comptroller — who are the appointing authorities. The law school deans have no role in determining which appointees are sent to them for review.
This shoddy decision should be immediately overturned on appeal before it paralyzes the important work of the state ethics commission overseeing lobbying activity, guarding against conflicts of interest, and ensuring the ethical behavior of public officials.”
And Susan Lerner is the executive director of another watchdog agency, Common Cause/NY. Her response to the ruling reads:
“Judge Marcelle has imposed an all consuming, and far reaching fidelity to uncontrolled executive power to deny New Yorkers independent oversight of our elected leaders. It is a fundamental tenet of good government that politicians can not police themselves, which this decision seeks to undo. Further, the judge argues that since there is no precedent for independent ethics oversight in New York state, it is somehow proof against concept rather than an argument in its favor. Corruption in New York is what’s exceptional and unacceptable to the public. The Commission on Ethics and Lobbying in Government (COELIG) is a well conceived idea from Governor Kathy Hochul that is a necessary answer to a shameful pattern of past executive overreach. The judge—and plaintiff Cuomo—prefer a toothless watchdog to an effective one. We urge the Hochul Administration and COELIG to appeal this absurd decision.”
COELIG still has a special meeting on the calendar for Wednesday, September 13 at 1 p.m. The public session is slated to be held jointly in Manhattan and Albany—on the first-floor conference room of 540 Broadway—and webcast online at the COELIG website.
Finally, local Assemblyman Angelo Santabarbara also expressed disappointment with the ruling. “It is imperative that we demand accountability from our government, stand firm in our efforts to combat crime, and uphold unwavering honesty and integrity at every level of governance,” he said in a statement to NEWS10. “The widespread disillusionment among many New Yorkers regarding their elected representatives is a stark reality. While I hold great respect for the judgment of state Supreme Court Justice Thomas Marcelle, who declared the state’s ethics commission unconstitutional, the undeniable truth is that New York demands accountability, vigilant oversight, and utmost transparency within its government. We must take decisive steps to restore public trust in state government and implement innovative policies that ensure those who violate ethical standards face the most severe consequences.”
Take a look at the ruling below: