ALBANY, N.Y. (CN) — Appealing a civil lawsuit brought by former New York Governor Andrew Cuomo, New York’s Commission on Ethics and Lobbying in Government asked the state Court of Appeals to reverse a lower appellate court’s order and declare that the watchdog commission’s enabling act is constitutional.
New York’s State Commission on Ethics and Lobbying in Government was formed by state lawmakers and current Governor Kathy Hochul in 2022, to replace a previous ethics commission — Joint Commission on Public Ethics — that was widely criticized for not being independent enough.
New York Assistant Solicitor Dustin Brockner defended the ethics monitor’s need to exist independently to enforce state ethics and lobbying laws.
“We know what happens with an ethics commission when it is not sufficiently independent; It is unable to do its job,” he said. “It cannot help protect the public’s trust in government. In fact, if it’s thought that it’s under the thumb of the political branches, it erodes the public’s trust in government.”
But Cuomo urged the state’s top appeals court to affirm that New York lawmakers’ creation of the replacement ethics watchdog in July 2022 unconstitutionally violated “bedrock” separation-of-powers principles.
During 67-minute oral arguments on Tuesday, Justice Madeline Singas echoed Cuomo’s accusations that the commission impinged on the governor’s executive power.
“This is an encroachment, arguably, one branch encroaching on the quintessential function of another branch to execute the laws,” she said. “I mean, these are bedrock principles that we teach our middle schoolers from sixth grade through high school through our law school classes and state government.”
Cuomo’s attorney Gregory Dubinsky told the appellate panel that the state’s respective branches can discipline themselves, including the executive branch, “and if they don’t do a good job, the governor can be voted out.”
Dubinsky, a Holwell Shuster & Goldberg partner, argued in an appeal brief that the commission violated the separation-of-powers doctrine by vesting ultimate authority to appoint the commission’s members in a group of private persons and giving legislative leaders the power to name the majority of the commission’s members, and insulating the commission’s members from removal and oversight by the governor, because only the commission can remove its own members.
Brockner meanwhile insisted there was no encroachment of separation-of-powers principles. The commission argued in its appeal brief that the separation-of-powers doctrine in New York “is practical, flexible, and permits overlap between the branches of government.”
It says the act is constitutional because its “structure is designed to meet a compelling and legitimate institutional need: It ensures that the commission is sufficiently insulated, both in fact and in appearance, from the political branches it monitors and thereby able to fulfill its mission.”
The commission also argued that that the state’s executive branch, the governor, agreed to the commission’s structure and has retained meaningful influence and supervision over the its composition, funding and operation.
In December 2021, the Joint Commission on Public Ethics voted 12-1 to force former Governor Andrew Cuomo to forfeit $5 million he netted from writing “American Crisis: Leadership Lessons From the Covid-19 Pandemic,” his memoir about his administration’s handling of the deadly Covid-19 pandemic.
During the State of the State three years ago, Hochel announced a plan to replace the Joint Commission on Public Ethics with a new, truly independent agency to investigate possible ethics and lobbying violations by state officials, employees, lobbyists and their clients.
“It is clear that JCOPE is irreparably broken and has failed to earn the public’s trust,” the Democratic governor pledged in 2022 as part of the first budget she passed. “We must replace JCOPE with a new, truly independent watchdog with real teeth. This new ethics agency will prioritize transparency and integrity, crack down on any wrongdoing, and ensure compliance and ethical governing throughout State government. New Yorkers deserve nothing less.”
New York legislators said they wanted to restore public trust in government after Cuomo’s 2021 resignation amid a sexual harassment scandal.
Three months after Hochul announced the plan to install a revamped ethics commission, Cuomo sued Joint Commission on Public Ethics in Albany State Supreme Court, where Justice Thomas Marcelle sided with the former governor in September 2023, ruling that the new Commission on Ethics and Lobbying in Government was created unconstitutionally, and removed enforcement powers from the governor.
“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.
Hochul vowed to appeal, which triggered an automatic stay of the disbandment of the ethics watchdog.
The seven-judge panel of the New York Court of Appeals did not immediately rule from the bench on Tuesday on the commission’s appeal.