State Supreme Court Judge Rules New York’s Commission on Ethics and Lobbying in Government Unconstitutional

On Monday, September 11th, State Supreme Court Justice Thomas Marcelle ruled that the state’s Commission on Ethics and Lobbying in Government (COELIG) is unconstitutional, leaving the state with no agency to enforce ethics in government. The ruling was the result of a lawsuit filed by former Government Andrew Cuomo after the new Commission continued to probe the $5 million book deal Cuomo entered into during the COVID-19 pandemic.

In his ruling, Justice Marcelle states that the independent Commission, which was formed by Governor Kathy Hochul in her first Budget and replaced the former, Cuomo-created, Joint Commission on Public Ethics (JCOPE), violates the state constitution because it was not formed with a constitutional amendment. “If the people should choose to be governed by those who are not politically accountable to them or their governor, who swear no oath of allegiance to them, and who come as a class composed of urban academics and who are not reflective of the cross-section of the people whom they govern the people may do so. …Here, the Legislature has done by statute what was required to be done by constitutional amendment,” Justice Marcelle wrote.

Marcelle also notes that the commission divests the Governor of her authority and by attempting to enforce penalties, the commission is using powers the constitution does not grant them. “If investigating a person, charging him, holding an administrative hearing on his culpability, and ultimately imposing penalties and mandating forfeiture or property are not executive operations, in which brand do such powers reside,” Marcelle said in his ruling. “Neither the courts nor the Legislature do such things – and no fourth branch of government exists.” He also added, “Thus the commission is more than a watch dog, it is an attack dog. A dog that barks is one thing; a dog that bites is quite another. One can be ignored, the other not so much. Indeed, in the estimation of other state courts, when an independent ethics commission has the capacity to impose penalties, it crosses an impermissible constitutional line.”

After the ruling, spokesman for Governor Hochul Avi Small said the ruling “undermines the independent ethics commission created by Governor Hochul and we will work with the commission to support an appeal,” adding “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.”

COELIG Chair Frederick A. Davie and Executive Director Sanford N. Berland released the following joint statement:

“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 us 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.”

The ruling has already led some lawmakers and good-government groups to advocate for a constitutional amendment affirming the ethics commission. “If COELIG needs to be approved properly, that means we need to – this year and then another year – go, and pass legislation to get it on the ballot as a constitutional amendment, hopefully by 2025,” said Assembly John McDonald, who chairs the Assembly Governmental Operations Committee. “That’s the earliest it could be. So, then the question is what happens for the next two years.”

Marcelle’s ruling gives COELIG until September 21st to schedule a briefing to discuss severability or be deemed completely void. However, it is expected that the ruling will be appealed quickly, resulting in the commission temporarily regaining its powers.