Judge Strikes Down New York State Ethics Panel

Governor Kathy Hochul says she will try to appeal a court ruling that struck down the state’s ethics panel, saying its structure was unconstitutional.

Shortly after Hochul took office two years ago, she and the Legislature created the state’s Commission on Ethics and Lobbying in Government. At the time, they said it would restore the public’s faith in government after multiple scandals that included the resignation of her predecessor, former Governor Andrew Cuomo.

But State Supreme Court Justice Thomas Marcelle ruled (Monday) that the panel violates the state’s constitution because it is too independent of the governor and her executive powers.

The ruling also says the commission, whose members are chosen by a rotating panel of law school deans, creates essentially an “unsanctioned fourth branch of government.”

“It basically blows up ethics enforcement in New York,” said Blair Horner, with the reform advocacy organization, the New York Public Interest Research Group.

Horner says the panel joins a long list of failed attempts to police ethics in New York, a state that has seen four Senate leaders and an Assembly Speaker convicted of corruption charges in the past couple of decades.

Horner’s group did not back the legislation that created the current ethics panel. They instead favored a constitutional amendment to establish a truly independent commission. He agrees with the judge that the law school deans were not the right people to choose the commissioners.

“The law school deans are not independent, really, because they represent entities that are regulated by the ethics agency,” Horner said. “That created, in our mind, a conflict that was a serious flaw.”

Ironically, says Horner, the judge’s ruling stems from a lawsuit brought by former Governor Cuomo. He sued the ethics panel after they tried to force him to return earnings from a $5 million dollar memoir that he wrote in the first year of the COVID-19 pandemic. A previous ethics panel, known as the Joint Commission on Public Ethics, or JCOPE, had initially approved the book deal, then revoked it, saying Cuomo had misrepresented the details of how the book would be produced.

Judge Marcelle also ruled that JCOPE, which was initially created by Cuomo and the Legislature in 2011, was unconstitutionally structured as well.

A spokesman for Cuomo, Rich Azzopardi, applauded the ruling. He said in a statement that the panel’s investigation into the former governor's book deal “was nothing more than an attack by those who abused their government positions unethically and -- as the judge ruled today -- unconstitutionally for political purposes.”   

A spokesman for Hochul (Avi Small) says the judge’s decision “undermines” the ethics commission, and that they will help the panel appeal the ruling.  

In a statement, the chair of the ethics commission, Frederick Davie, and its executive director, Sanford Berland, say they “respectfully disagree with the court’s result and are reviewing all options” including asking the governor and Legislature to amend the law that created the panel.  

And they say the commission will continue to “promote compliance” with the state’s ethics and lobbying laws, while the case winds its way through the courts. 

If higher courts ultimately uphold the ruling, and a constitutional amendment is required, New York State could be without any ethics policing until at least 2026.