Cuomo wins initial legal fight to unravel new ethics commission

On Monday, a state court judge ruled that New York’s revamped ethics commission is unconstitutional, handing a win to former Gov. Andrew Cuomo in his ongoing legal battle against the panel.

The Commission on Ethics and Lobbying in Government, known as “COELIG,”  violates the separation of powers by taking away constitutionally prescribed authority from the executive branch, state Supreme Court Justice Thomas Marcelle ruled.

The ruling bars COELIG from pursuing ethics investigations and enforcement actions, including one against Cuomo that is seeking to compel him to return $5 million in proceeds from his pandemic-era memoir.

“As we’ve said all along, this was nothing more than an attack by those who abused their government positions unethically and – as the judge ruled today – unconstitutionally for political purposes,” Cuomo spokesperson Rich Azzopardi wrote in a statement. “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."

COELIG promised to appeal Monday’s ruling.

“The Commission intends to move forward, deliberately and with zeal, to fulfill its mission to restore New Yorkers’ faith in government, even as it pursues relief from today’s ruling through the appellate and legislative processes,” COELIG Chairman Frederick Davie and Executive Director Sanford Berland wrote in a joint statement.

Gov. Kathy Hochul’s office also criticized the ruling and indicated it would support the commission’s appeal.

“Taking office in the midst of scandal and a crisis in state government, Gov. Hochul worked with the legislature to craft a new, truly independent ethics body that could begin to restore New Yorkers' faith in their public officials,” Avi Small, press secretary for Hochul, wrote in a statement to City & State. “Today's decision undermines the independent ethics commission created by Gov. Hochul and we will work with the commission to support an appeal.”

Constitutional ethics

Cuomo’s battles with New York’s ethics watchdogs have been raging ever since COELIG’s predecessor agency – the Joint Commission on Public Ethics, known as JCOPE – attempted to force the former governor to return $5 million in proceeds from his pandemic-era memoir, “American Crisis: Leadership Lessons from the COVID-19 Pandemic.” Last year, a judge ruled that JCOPE couldn’t compel Cuomo to turn over the money, but COELIG was free to resume the investigation into Cuomo’s book proceeds.

Once COELIG took over the investigation into Cuomo, the former governor challenged the ethics commission’s constitutionality, arguing that the state Legislature had overstepped its authority by creating an ethics panel insulated from meddling by the executive branch.

The former governor found a receptive audience in Marcelle, a conservative judge who was elected to the state supreme court in 2022. The former Albany County Attorney is a member of the Federalist Society and previously worked as counsel for the Albany County legislature’s Republican minority. He has been nominated to federal judgeships three times, once by former President George W. Bush and twice by former President Donald Trump, but those nominations have been blocked by U.S. Sens. Chuck Schumer and Kirsten Gillibrand.

The main crux of Marcelle’s ruling hinges on the powers of the commission, and whether its appointment process, removal provisions and enforcement abilities take away powers that the state constitution reserves for the executive branch. 

Under the law, COELIG commissioners are nominated by the state legislature, governor, comptroller and attorney general. Those nominations are then reviewed by an Independent Review Committee composed of 15 deans from New York law schools.Once appointed, the commissioners can only be removed by the commission itself – not by the governor.

Marcelle took particular issue with this structure, especially given the commission’s ability to levy stiff penalties in addition to investigating potential ethical violations.

“The commission decides if and how severely to punish ethics violators. Thus, the commission is more than a watch dog, it is an attack dog,” Marcelle wrote in his ruling. “A dog that barks is one thing; a dog that bites is quite another. One can be ignored, the other not so much.”

Marcelle argued that the inability for the governor to remove commissioners presents another violation of the separation of powers spelled out in the state constitution.

“Indeed, removal restrictions on the executive pose a greater constitutional evil than appointment defects – as between the ability to hire and fire those who implement the laws,” he wrote.

Marcelle’s decision on Monday was limited to those sections of the law dealing with COELIG’s ethics investigations and enforcement. But the judge has asked the commission to present arguments within the next 10 days as to why he shouldn’t scrap the law altogether, which would force the panel to dissolve.

In the meantime, COELIG will appeal the decision, and the appeal will likely put the case before a panel of judges from the Appellate Division of the Third Judicial Department. Unless Cuomo’s case is rejected or upheld unanimously, the case could then be appealed all the way to the Court of Appeals, New York’s highest court.