Former Gov. Andrew Cuomo speaks during a news conference at...

Former Gov. Andrew Cuomo speaks during a news conference at Yankee Stadium on July 26, 2021. Credit: AP/Richard Drew

ALBANY — The constitutionality of New York State’s embattled Commission on Ethics and Lobbying in Government was the center of debate Friday morning as an attorney for the watchdog agency appealed to a panel of state Appellate Division judges to overturn a lower court’s decision that deemed the commission unlawful.

The state Supreme Court in September 2023 ruled that the composition of the commission, created in 2022 to enforce ethics rules for the state’s employees and elected officials, was too independent and thus violated the state’s constitution.

The lawsuit was filed by former Gov. Andrew M. Cuomo in April 2023 to fight the commission’s effort to force him to pay back the $5 million he received for writing a book about his administration’s work during the COVID-19 pandemic.

The ethics commission appealed to the state Supreme Court Appellate Division, Third Department, maintaining that its composition — which requires nominees to be approved by an Independent Review Committing composed of accredited state law school deans — is essential to hold the executive and legislative branches accountable.

“It’s unique, but we’re dealing with a unique problem,” ethics commission attorney Dustin J. Brockner told the judges Friday. “There is a distinctive need for independence.”

The State Legislature and Gov. Kathy Hochul created the new commission in an effort to restore public trust in government following Cuomo’s resignation in 2021 following an investigation by state Attorney General Letitia James into sexual harassment allegations. Cuomo has denied the allegations.

The new commission replaced the previous ethics body known as the Joint Commission on Public Ethics, which had been created by Cuomo and criticized for not being independent enough.

Attorney Gregory J. Dubinsky, representing Cuomo, maintained that while the policy goal behind the creation of the new commission may be “venerable,” it’s the governor who is in charge of ensuring the laws are faithfully implemented.

“The governor has zero removal authority,” he said, adding that there’s “zero accountability to anyone, that’s why the act is blatantly unconstitutional.”

When asked by the judges whether the commission could be considered lawful if it had been created through an amendment to the state’s constitution, Dubinsky replied: “Yes, if it were passed by a constitutional amendment, it would by definition be legal.”

To amend the state’s constitution a measure must be passed by two independently elected State Legislatures and then be put on the ballot for a public vote.

Several legal and watchdog groups, including the New York City Bar Association, Common Cause New York, and the New York Public Interest Research Group, filed a brief in favor of the state’s argument, stating that the governor and legislature came to an agreement on the new agency’s structure in an effort to “address a serious problem impacting public confidence in government, deter corruption through enforcement of high ethical standards, and hold those accountable who violate the ethical standards.”

The groups agreed that the new structure improved upon the way the old ethics commission works. “The courts should respect that agreement,” they said in the brief.
The Appellate Court in October granted a stay so the ethics commission could continue its work as the case continues. 

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