NY Ethics Body Deemed Unlawful In Win For Ex-Gov. Cuomo

Law360 (September 11, 2023, 4:47 PM EDT) — The ethics commission charged with looking into former New York Gov. Andrew Cuomo’s alleged self-dealing related to his $5 million pandemic book deal violates the constitutional separation of powers, a New York state judge ruled Monday in a win for the embattled former governor.

The state’s new Commission on Ethics and Lobbying in Government is charged with carrying out executive branch functions, such as investigating and punishing those who violate ethics rules, but is outside the executive branch and the governor’s control, New York Supreme Court Justice Thomas Marcelle ruled.

That means the commission runs afoul of the separation of powers between the legislative and executive branches established in New York’s constitution, Justice Marcelle said.

“If investigating 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?” Justice Marcelle wrote. “Neither the courts nor the Legislature do such things — and no fourth branch of government exists.”

Under the Ethics Commission Reform Act of 2022, which created the new commission, the governor selects only three of COELIG’s 11 members. One each are chosen by the attorney general and the comptroller. Meanwhile, six commission members are tapped by legislative leaders.

An independent review committee made up of 15 New York law school deans then reviews and officially appoints those members. Only a majority of the commission can vote to remove a fellow commissioner. The governor has no power to remove commissioners or hold them accountable for their decisions, the justice said.

“Indeed, the whole reason for the commission’s existence is to be independent from any government control,” Justice Marcelle pointed out.

The Legislature can create commissions to act as public watchdogs, even if those bodies have some executive functions. But commissions with the power to decide whether and how severely to punish ethics violators cross “an impermissible constitutional line,” the justice said.

“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,” Justice Marcelle said.

“The judge noted that he had asked the commission to give him an example, from all of American history, for an arrangement such as this, and they could not do so, either at the hearing or in their papers,” an attorney for Cuomo, Gregory J. Dubinsky of Holwell Shuster & Goldberg LLP, said on Monday.

“What the Legislature did here was to grant core executive law enforcement authority to a completely unaccountable body that has total discretion about how to enforce the ethics laws, against whom to enforce the ethics laws, and what penalties to impose on both private individuals and public officials, which is a trampling of the structural safeguards that protect liberty,” Dubinsky added. “So we’re very, very happy about the decision.”

Cuomo spokesman Rich Azzopardi echoed that sentiment in a statement, saying, “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.”

The New York attorney general’s office did not respond to a request for comment.

Cuomo sued to challenge the new ethics commission’s constitutionality in April, ahead of a hearing in his ethics case over the proceeds of his $5.1 million book deal originally scheduled for June 12 but then put off.

The commission’s predecessor, the Joint Committee on Public Ethics, originally filed charges against Cuomo related to his alleged use of his employees’ state-paid work hours to work on his book, “American Crisis: Leadership Lessons from the COVID-19 Pandemic.”

The Legislature dissolved that committee in 2022 and passed the Ethics Commission Reform Act, which created its successor agency, which then picked up the charges against Cuomo.

But the state constitution vests all executive power to ensure that laws are faithfully executed in the governor, and since a majority of the commission’s members are selected by legislative leaders and appointed by an independent body, it runs afoul of the separation of powers, Cuomo argued in his suit.

The court agreed on Monday, ruling that the commission’s powers to investigate and punish ethics violators are unconstitutional.

A severability clause in the law, though, means the commission could survive without “the ability to perform any act consistent with enforcing or administering the ethics law,” the justice said. He gave the commission 10 days to request briefing and argument on the question of severability.

Cuomo is represented by James M. McGuire, Gregory J. Dubinsky, Zachary A. Kerner and Sarah E. Maher of Holwell Shuster & Goldberg LLP and Rita Glavin of Glavin PLLC.

The ethics commission is represented by Shannan C. Krasnokutski and Ryan W. Hickey of the New York Attorney General’s Office.

The case is Andrew M. Cuomo v. New York State Commission on Ethics and Lobbying in Government, case number 903759-23, in the Supreme Court of the State of New York, County of Albany.
–By Jack Karp.  Additional reporting by Frank G. Runyeon. Editing by Leah Bennett