Court decision on Cuomo ethics commission under scrutiny, appeal

ALBANY, N.Y. (NEXSTAR) — Legal representatives for the state of New York and former Gov. Andrew Cuomo faced off on Tuesday before the state's top court. The Court of Appeals hearing concerned Cuomo's lawsuit against the Commission on Ethics and Lobbying in Government (COELIG).

The New York State Legislature created the 11-member commission to handle concerns about corruption among state officials and lobbyists. Top members of the state's executive branch—the governor, attorney general, and comptroller—appoint five members between them, and top members of the legislative branch—the Senate and Assembly majority and minority leaders—appoint six more.

COELIG formed to improve the old ethics commission, JCOPE, which had existed for over a decade and didn't face the same constitutional scrutiny. That's because the governor controlled it as a subset of the executive branch. Cuomo attorney Gregory Dubinsky quoted founding father James Madison: “If any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.”

But as Dustin Brockner argued before the court on behalf of the state, that gubernatorial control made New Yorkers doubt its effectiveness and impartiality. The legislature aimed to create an independent body to oversee ethics when they made COELIG.

But a sharp interrogation from the seven-justice panel focused on whether the commission represents a power grab, an attack on the executive branch from the legislative branch. After all, a prior court ruling already declared COELIG unconstitutional. Does its independence, designed to perform checks and balances, actually violate the separation of powers instead?

The new commission received the power to investigate, assess fines, and recommend discipline—employment actions like firing—of officials. However, it has different enforcement powers over members of the legislative branch compared to members of the executive branch. The justices asked whether that difference reflects the legislature's encroachment on executive duties.

Dubinsky argued against COELIG's constitutionality, challenging its authority to impose and enforce penalties on government officials. But Brockner defended its constitutionality on that fronts and many others: its mission and goals, its appointment process, its independence from the governor, and the procedure that created the statute in the first place.

He referenced a previous case before the Court of Appeals, “Delgado,” where the court held that a governor signing a law—even if it's a law that limits the governor's power—represents agreement and consent. But Justice Michael Garcia questioned whether an individual—the governor—really has the unilateral authority to cede a Constitutional responsibility.

The justices did not rule on Tuesday, they just listened to arguments and proposed questions. They created several hypotheticals to highlight their considerations:

1. What if the governor had vetoed the COELIG legislation and the legislature had overridden the veto?

2. What if COELIG only had the power to recommend disciplinary action?

3. How should an independent ethics commission be created without violating separation of powers?

“We are optimistic that the Court will rule in our favor and confident that if the Court, nonetheless, finds any shortcoming in the current statute, it will be quickly rectified by the governor and legislature,” read a joint statement from COELIG Chair Leonard Austin and Executive Director Sanford Berland released after the hearing. “The state’s ethics and lobbying laws remain fully in effect and unimpaired.”

But, “Six judges have previously and unanimously ruled this commission to be unconstitutional—because it is,” said longtime Cuomo spokesperson Rich Azzopardi. “We expect those decisions to stand.”

Cuomo faced scrutiny for his pandemic-era book, “American Crisis.” His administration approved staff assistance on the book, but after multiple scandals and his resignation, JCOPE—COELIG's predecessor—revisited the matter. They issued formal ethics violations and sought to block him from collecting a profit on book sales.

Cuomo later sued over the investigation into the ethical dilemma. Eventually, State Supreme Court Justice Thomas Marcelle ruled in Cuomo’s favor, declaring that COELIG violated the state's Constitutional separation of powers by stealing executive authority for the legislature.

The state appealed; Cuomo’s legal battles wore on. He sued the Comptroller’s Office for refusing to reimburse legal fees related to investigations into his alleged misconduct in scandals involving COVID and workplace sexual harassment. The state spent millions on Cuomo's legal defense.

In May 2024, a state appeals court upheld the previous declaration of COELIG's unconstitutionality. COELIG again appealed, bringing the matter before the Court of Appeals.