The New York ethics commission that pursued former Governor Cuomo is unconstitutional, a judge says

A judge has ruled that a commission created last year to enforce ethics rules for New York state’s employees and elected officials is unconstitutional because it is too independent

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A commission created last year to enforce ethics rules for New York state's employees and elected officials violates the state's constitution because it is too independent, a state judge ruled Monday in a decision that could gut the body's power to combat corruption and influence-peddling.

The ruling came in a lawsuit filed by former Gov. Andrew Cuomo, who has been fighting an attempt by the Commission on Ethics and Lobbying in Government to force him to forfeit $5 million he got for writing a book about his administration’s efforts during the COVID-19 pandemic.

The commission was formed by the Legislature and Gov. Kathy Hochul to replace a previous ethics body that had been criticized for not being independent enough. The lawmakers said they wanted to increase public trust in government after Cuomo’s 2021 resignation in a sexual harassment scandal.

The Commission investigates potential ethics and lobbying violations by state officials, employees, lobbyists and their clients. Commission findings involving state lawmakers are referred to the Legislative Ethics Commission for enforcement.

But in his decision, New York Supreme Court Justice Thomas Marcelle said the commission's very independence makes it a problem under the state constitution.

Specifically, the judge said enforcement of ethics laws is a power that belongs to the executive branch. The commission makes that impossible, he said, because the governor can't control its members, force them to explain their actions, or remove them for neglecting their duties.

“Our Constitution, which so carefully allocates power among the three branches, will not permit those powers to be transferred to (an) independent commission amounting to an unsanctioned fourth branch of government,” Marcelle wrote.

The judge said it would require an amendment to the state constitution to give that sort of power to an independent body.

State officials immediately said they were looking at appealing the trial-level judge's decision.

“Taking office in the midst of scandal and a crisis in State government, Governor Hochul worked with the Legislature to craft a new, truly independent ethics body that could begin to restore New Yorkers’ faith in their public officials,” Hochul spokesman Avi Small said. “Today’s decision undermines the independent ethics commission created by Governor Hochul and we will work with the Commission to support an appeal.”

The commission issued a statement saying it would continue to promote compliance with the state’s ethics and lobbying laws while the case works its way through the courts. Commission officials said they are reviewing all options, including legislation.

“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,” read the joint statement from commission chair Frederick Davie and executive director Sanford Berland.

Cuomo has battled both the commission and its predecessor, the Joint Commission on Public Ethics, over his book earnings. State officials have claimed Cuomo hadn’t kept a promise not to use any state resources on the book. Cuomo has denied those allegations.

Cuomo filed his current lawsuit in April, arguing the commission lacked the constitutional authority to prosecute him.

“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 purpose," Cuomo spokesman Rich Azzopardi said in a prepared statement.

Cuomo resigned in August 2021 after the attorney general released the results of an investigation that concluded the then-governor had sexually harassed at least 11 women. Cuomo has denied the allegations.

"Every time someone charged with upholding the law looks at the facts, we prevail,” Azzopardi added.