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With Cuomo gone, Legislature, Hochul seek to revamp ethics board

The New York State Joint Commission on Public

The New York State Joint Commission on Public Ethics meets on Nov. 27, 2018 in Albany. Credit: Albany Times Union

ALBANY — The state ethics board created by former Gov. Andrew Cuomo and still led by his appointees is in the crosshairs of state legislative leaders and Gov. Kathy Hochul, who have called for overhauling a system long criticized as too secretive and ineffective.

Here’s a look at how the Joint Commission on Public Ethics was created, why it’s under fire for its handling of some high-profile cases and what may change to make it more accountable and more aggressive.

What is JCOPE?

Shortly after Cuomo took office in 2011, he drafted a bill to create JCOPE. It replaced the Commission on Public Integrity after that board was criticized as being too close and too protective of then-Gov. Eliot Spitzer.

JCOPE would have a broader jurisdiction than its predecessors with the ability to monitor and investigate legislators, statewide elected officials, candidates for state office, political party leaders, workers in public authorities and in the State University of New York and City University of New York, as well as lobbyists and their clients.

What does JCOPE do?

It provides advice, guidance and training to officials; collects 36,000 financial disclosure statements each year from state elected leaders and policymakers; provides some data on the personal financial interests of state elected officials, candidates for public office and most top policymakers; collects reports from 8,300 lobbyists and 4,500 clients on $298 million of lobbying, and investigates potential violations of the state Public Officers Law and Lobbying Act. JCOPE has the power to assess civil penalties, remove officials from the jobs and refer evidence to prosecutors.

It has 46 full-time equivalent employees and a budget of $5.9 million, according to the state Division of Budget.

Who runs JCOPE?

JCOPE has 14 commissioners. One is appointed by the Senate’s Democratic majority leader and three are appointed by the Senate's Republican minority. That breakdown stems from the law under which JCOPE was created in 2011 when Republicans controlled the Senate's majority in 2011. Three members are appointed by the Assembly’s Speaker, a Democrat; and one is appointed by the Assembly’s GOP minority. Six commissioners are appointed by the governor and lieutenant governor and the governor chooses the chairperson. Past chairpersons were appointed by Cuomo and many top staffers had worked for Cuomo. The executive director is chosen by the commission, but Cuomo’s choices have prevailed through a series of appointments. Since Cuomo resigned, effective Aug. 24, three of his appointees have indicated they will leave the board, according to the Albany Times Union.

How are complaints handled?

JCOPE can receive a complaint by mail, email, its tips phone line, through news reports or from a referral by a government entity.

After a preliminary investigation by staff, the JCOPE board can choose to drop the case or vote to that there is a "substantial basis for investigation."

The case may go to an independent hearing examiner or can be referred to the state inspector general, who is appointed by the governor, or to criminal prosecutors.

If the case remains with JCOPE, a hearing officer then sends a report to the JCOPE board, which can accept or reject it.

JCOPE Executive Director Sanford Berland said "very few cases" go through this process without being settled.

If the board determines there is a "substantial basis" that the allegation is true, it can assess a civil penalty to a state employee that could result in termination. If the subject is a legislator, the case is referred to the Legislative Ethics Committee for its review and ruling.

Who can block an investigation?

To authorize an investigation, at least two members of the same party or branch of government as the subject of the complaint must vote to investigate.

Why the secrecy?

JCOPE commissioners and staff are prohibited by law from talking about cases unless expressly authorized by the board, which rarely happens. Violation of this order is a Class A misdemeanor, punishable by a civil penalty of $10,000.

Under public criticism that it is ignoring complaints and delaying probes, JCOPE is beginning to confirm investigations under certain conditions, particularly if they are made public by the subject first.

JCOPE meets mostly behind closed doors. Its records, including its votes, are exempt from the state Freedom of Information Law. In creating JCOPE, Cuomo and legislative leaders said they didn’t want accusations or details of cases against elected officials to be made public unless and until there was a settlement. They argued elected officials could suffer irreversible damage to their reputations.

What is the criticism?

JCOPE has been dogged by criticism from legislators and good-government groups as being conflicted and a poor watchdog since its first meeting in December 2011. Critics also note that most high-level corruption cases in Albany have been prosecuted by the U.S. Attorney’s Office, not JCOPE. Those federal cases included the conviction in 2015 of former Senate Majority Leader Dean Skelos (R-Rockville Centre) and the 2018 conviction of former Assembly Speaker Sheldon Silver (D-Manhattan), both on corruption charges.

In February, the New York City Bar Association’s Government Ethics and State Affairs Committee called for abolishing JCOPE: "The status quo at JCOPE is unacceptable. A lack of strong ethics oversight and ineffective regulation of conflicts of interest, as we have seen in recent years, can pose significant, if not fatal, risks to democratic norms and values."

What may happen now?

Legislators are pushing bills that would make JCOPE more transparent in the complaints they receive and in the cases they pursue. Berland said last week that the agency needs more funding to hire more investigators and to be able to hire experts as needed, such as forensic accountants, if JCOPE is to take on more complaints.

Sen. Liz Krueger (D-Manhattan) has proposed a constitutional amendment to end the pattern of new governors creating new ethics boards. Her proposal would replace JCOPE and the Legislative Ethics Committee.

The commission would have 13 members to avoid gridlock. The governor would make two appointments, but one would have to have been enrolled in the opposing major party of the governor within the previous five years. The Senate majority leader and Assembly Speaker would each make one appointment. Seven members would be appointed by the state’s chief judge and the presiding justices of the each of the state’s appellate divisions; they would include Democrats and Republicans and one wouldn’t be in enrolled in either party. The president and immediate past president of the state Bar Association would propose a list of 14 potential appointees and make two appointments from it.

However, the proposal was still in committee in the Senate and Assembly at the close of session in June. Approving a constitutional amendment can take at least two years because it must be approved by two separately elected Legislatures before it is put on the ballot for voters to decide.

Meanwhile, several pending bills could be acted upon in the 2022 session that begins in January. They include a bill by Sen. Alessandra Biaggi (D-Bronx) that would end the rule that at least two members of a target’s party or branch of government must agree to investigate for a full probe to begin. Another bill sponsored by Sen. Andrew Lanza (R-Staten Island) would require JCOPE to abide by the state Open Meetings Law.

In this effort, the State Legislature has support in the governor’s office. "Ethics will be a hallmark of my administration," Hochul said Thursday.

Editor's note: An earlier version of this story misstated the number of Senate appointments made by the majority and minority parties.

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