NYS court rules watchdog that pursued Cuomo for book money created unconstitutionally

ALBANY — New York State’s embattled ethics commission was created unconstitutionally and has no power to force former Gov. Andrew M. Cuomo to forfeit the $5.1 million he received from his COVID-19 pandemic book, a midlevel court ruled Thursday.

The Appellate Division of state Supreme Court ruled 5-0 the Commission on Ethics and Lobbying in Government is unconstitutional because its structure for appointing and removing members violates separation of powers guarantees in the New York constitution. 

“We find that by enacting the foregoing scheme for the enforcement of the applicable ethics laws, the Legislature, though well intentioned in its actions, violated the bedrock principles of separation of powers,” Justice Mark L. Powers wrote for the court.

The ruling could be appealed to New York's highest court. On Thursday, aides to Gov. Kathy Hochul and State Attorney General Letitia James — both Democrats, like Cuomo — said they were reviewing the decision.

The case stems from a lawsuit filed by Cuomo challenging efforts to force him to pay back the money he received for writing a book about his administration’s work during the COVID-19 pandemic. State officials, including members of an Assembly investigative committee, have said Cuomo used state resources and employees to write the book. Cuomo has denied the allegation, saying staff members volunteered their time.

The Joint Commission on Public Ethics had granted Cuomo to publish his pandemic book. But the agency later started an investigation into the approval process and, after Cuomo resigned in 2021 amid sexual harassment allegations he has denied, charged him with ethics violations.

After Cuomo's departure, Hochul and the State Legislature dismantled JCOPE, which was created by Cuomo and criticized for a lack of independence. It was replaced with the Commission on Ethics and Lobbying in Government. The new agency decided to proceed on the charges originally brought by JCOPE.

The Appellate Division, upholding a lower court decision, determined the law creating the new agency was unconstitutional and, therefore, would have no power to pursue Cuomo.

The new commission has 11 members appointed by the governor, legislative leaders, the state comptroller and the state attorney general. The appointees must be approved by an “Independent Review Committee” composed of law school deans and vice deans.

The midlevel court took issue with the use of an external nongovernmental entity to approve appointees, saying the committee is “made up of people who are in that position solely by virtue of their employment and do not answer to the populace.”

The law creating the ethics commission gives executive power to the agency to investigate and impose penalties for ethics law violations while remaining outside the control of the executive branch, Powers wrote.

“Thus, it usurps the governor's power to ensure the faithful execution of the applicable ethics laws,” Powers said. 

Cuomo spokesman Rich Azzopardi applauded the decision.

“This has been a three-year exercise to bend the law to fit the political will of those in charge and hopefully after this second — and unanimous — court decision, this partisan and baseless prosecution will finally end,” Azzopardi said.

Commission Chairman Frederick A. Davie and Executive Director Sanford N. Berland said: “We respectfully disagree with the result reached by the court and are reviewing all options, including, if appropriate, recommending interim legislation.”

They also will seek continuation of a stay issued in September that has allowed the panel to operate.