Why NY doesn’t have an investigative body for Cuomo

Allegations of sexual harassment against Gov. Andrew Cuomo are making him fight for his political life, as an investigation overseen by Attorney General Letitia James gets underway. A growing number of Democrats and Republicans are calling for his resignation and his political donors are reportedly getting skittish. 

Yet, despite the ways that the scandal appears to be endangering his political future, it remains entirely possible that the three-term governor will face no consequences at all from lawmakers, even if a report concludes the allegations are true. 

It is just really, really hard for lawmakers to hold a New York governor accountable for his personal behavior. Impeaching a chief executive is no easier, or less politically fraught, in Albany than it is in Washington, D.C. The Joint Commission on Public Ethics in theory could do something, though its 10-year track record suggests it is better at protecting political insiders than it is at exposing wrongdoing and imposing punishments. This is especially the case with the governor, who appoints six out of the 14 members of the commission, while three each are chosen by the leaders of the legislative majorities and one each for their counterparts in the minorities.

A different system might have been on the way had COVID-19 not disrupted a push last year to replace the much-criticized JCOPE with a 13-member Government Integrity Commission featuring fewer gubernatorial appointments – and more checks and balances. So efforts to establish new accountability in Albany were delayed by at least two years. 

“This is why we need a truly independent body to oversee the Legislature and Executive,” Assembly Member Robert Carroll of Brooklyn, who proposed the amendment with state Sen. Liz Krueger of Manhattan, both Democrats. “We shouldn’t have to rely on the attorney general stepping in.”

Establishing the commission through the normal legislative process would risk a gubernatorial veto, as the proposal would undermine his power, so ethics reformers sought a state constitutional amendment. Amending the state constitution requires that two successive Legislatures pass a proposal, which then requires ratification by a majority of support from voters to go into effect. This could have happened as soon as next year, had the Legislature passed a proposed amendment last year, but they did not at a time when deadly pandemic and historic calls for police reforms were at the top of the political agenda. 

A key part of the proposed commission is that judges, rather than the governor, would produce most appointments to the proposed commission. “This is stronger than other states,” Evan Davis, an attorney and one-time counsel to former Gov. Mario Cuomo, told City & State last year when lawmakers were beginning a push to pass the amendment just days before the first confirmed case of COVID-19 in the state. “You have to do (this) if you're trying to build confidence and working from a place where nobody has any confidence.”

Judicial appointments make sense, considering the recent history of JCOPE. Long before Cuomo faced scandals about nursing homes and alleged sexual harassment,  there was the saga of his one-time top aide Joe Percoco. The details of the bribery scandal and the 2018 conviction that eventually landed Percoco in prison are complicated, but it was still causing Cuomo some big political headaches one year later when the Times Union reported that Cuomo was meddling with a JCOPE investigation of Percoco. 

The governor had apparently called Assembly Speaker Carl Heastie to complain about how one of the commissioners the speaker appointed had voted on an ethics probe of Percoco. An aide for the speaker then reportedly pestered the commissioner, later identified as Julie Garcia, about the vote, which was supposed to be confidential. Cuomo and Heastie both denied that they meddled in the process and neither of them ever faced any sanctions from the ethics body. The state inspector general’s office never interviewed them, though it did release a summary of how it could not substantiate the allegations. 

The Percoco matter is hardly the only example of when JCOPE has seemingly taken a light hand when people in power are accused of wrongdoing, even while it investigates seemingly unimportant accusations of wrongdoing by others involved with state government matters. It has taken the commission more than three years to even approach the stage of holding a hearing on a sexual assault allegation made by former Senate staffer Erica Vladimir against former state Sen. Jeff Klein, yet it found time to go after an activist who bought a billboard in favor of the Child Victims Act for not registering as a lobbyist. Former leaders in the Legislature who have gone to prison for corruption charges, including former Assembly Speaker Sheldon Silver and former State Senate Majority Leader Dean Skelos, have never been punished by JCOPE. 

That was not exactly what Cuomo was saying back in 2011 when he and state lawmakers were touting how a new ethics agency would usher in a new era of accountability and transparency in a state Capitol long shadowed by scandal. Cuomo and state lawmakers created JCOPE in 2011 to replace the Commission on Public Integrity, which was also seen as too beholden to the governor.

"The Joint Commission on Public Ethics is an independent monitor that will aggressively investigate corruption and help maintain integrity in state government,” Cuomo said in a press release at the time. “The Commission will be the toughest ethics enforcer in our state's history." His February 2021 appointment of ex-aide Camille Joseph Varlack as chair is hardly instilling confidence that he has made good on that promise a decade later. 

A Cuomo representative referred City & State’s inquiry for this story to JCOPE. 

“The fact that the law bars us from commenting on specific cases, may contribute to unwarranted criticism that JCOPE is ineffective,” Walter McClure, a spokesperson for JCOPE, said in a statement. He added that it is ultimately up to the state Legislature and governor to decide what system of oversight works best for the state, but JCOPE has nonetheless racked up some victories when it comes to holding elected officials accountable. An engineering firm tied to the son of disgraced former state Senate Majority Leader Dean Skelos was fined $10,000 by JCOPE just last month. 

State lawmakers cannot overhaul JCOPE in the short term, even if they passed a constitutional amendment today. But a new deal on reducing the governor’s emergency powers suggests they are looking to assert their status as a coequal branch of government. Changing a state law that requires the governor to give a referral to the attorney general before she could investigate wrongdoing appears to be another step that Democratic legislators could take to make it easier to hold governors accountable moving forward. “An effective oversight body would be able to handle issues like this,” Carroll said of the ongoing allegations sexual harassment against the governor. “It’s got to be on the table.”

Correction: An earlier version of this story used an incorrect title for JCOPE Chair Camille Joseph Varlack.