New York judge declares state ethics panel unconstitutional

(The Center Square) — New York's ethics watchdog commission remains toothless after a state judge ruled that the newly created panel is unconstitutional.

The ruling issued by Supreme Court judge Thomas Marcelle effectively sidelines the work of the state Commission on Ethics and Lobbying In Government, which he says was created without a required constitutional amendment and lacks oversight of how the governor and other top officials appoint panel members.

"The court concludes that the commission’s enforcement of the ethics laws through civil penalties and forfeiture is the exercise of executive power belonging to the executive branch," he wrote in the 26-page ruling.

The ruling stems from a lawsuit filed by former Gov. Andrew Cuomo alleging the ethics panel doesn’t have the authority to seize $5.1 million from a book he wrote about the state’s response to the COVID-19 pandemic.

In 2020, the Joint Commission on Public Ethics initially approved Cuomo’s request to write the book. But a year later, the commission walked back that approval, alleging that Cuomo had used his staff and state resources on the book. The panel ordered Cuomo to forfeit the $5.1 million a publisher paid him.

Cuomo sued to block the move, alleging it was fueled by politics and deprived him of due process. In August 2022, a state judge overturned the commission's order after ruling that the watchdog had sidestepped the rules by not holding a hearing on the fines.

Gov. Kathy Hochul, a Democrat who took over after Cuomo resigned in August 2021 amid a sex scandal, signed a bill last year disbanding the commission and creating the new panel, which rekindled efforts to clawback the money from Cuomo's book deal.

In a 46-page complaint, Cuomo's lawyers argued that the move to create the new ethics commission last year "blatantly violates the separation of powers because it creates an unaccountable agency exercising quintessentially executive powers."

Cuomo spokesman Richard Azzopardi said the ruling confirms the former governor's allegations that the effort to claw back the book deal proceeds was "nothing more than an attack by those who abused their government positions unethically ... and unconstitutionally for political purposes."

"Those in Albany who created this farce of a commission may not are 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," he said. "Truth and reason won, mob rule lost."

In a joint statement, COELIG Chairman Frederick Davie and Executive Director Sanford Berland disagreed with the judges, ruling and vowed to appeal the decision.

"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," they said.

The group Reinvent Albany called the judge's ruling that the panel is unconstitutional "absurd and blatantly flawed" and pointed out that the law doesn't require the Independent Review Committee to appoint members of the commission, only review nominations made by the governor, attorney general and state comptroller.

"This shoddy decision should be immediately overturned on appeal before it paralyzes the important work of the state ethics commission overseeing lobbying activity, guarding against conflicts of interest, and ensuring the ethical behavior of public officials," the group said.