A judge ruled Monday that the state ethics commission cannot...

A judge ruled Monday that the state ethics commission cannot force former Gov. Andrew M. Cuomo to pay back millions of dollars he received in a book deal. Credit: Kendall Rodriguez

A state judge ruled Monday that New York’s ethics agency is unconstitutional and has no power to try to make former Gov. Andrew M. Cuomo pay back millions of dollars he earned for writing a book about the pandemic.

The decision is not only a lucrative win for the ex-governor but also throws the future of New York’s ethics agency in legal limbo — meaning it eventually could be abolished.

In a 26-page decision, Justice Thomas Marcelle of state Supreme Court in Albany said the agency, the New York State Commission on Ethics and Lobbying in Government, is unconstitutional because its structure violates separation of powers guarantees in the state constitution. He wrote the commission is "enjoined" from taking any action against the former governor.

The Supreme Court is the lowest of New York’s three-tiered court system, meaning the case is all but certain to be appealed, which when filed would stay the ruling and keep the panel in place through the legal process, officials said. Gov. Kathy Hochul said she'd back such an effort by the ethics commission, which said it is studying all options, including proposing new legislation.

At issue was the ethics agency’s attempt to force Cuomo to turn over to the state $5.1 million he received for the book “American Crisis: Leadership Lessons from the COVID-19 Pandemic,” published when Cuomo was being hailed for his stewardship and before controversies about the book, sexual harassment allegations and other matters triggered his resignation in August 2021.

The agency said Cuomo didn’t receive the necessary ethics approval before writing the book and then didn’t abide by requirements that he not use state employees or state resources to help write or edit it.

Cuomo contended he had received approval from the forerunner to the current ethics agency, that staff who helped him did so on a volunteer basis and, further, the agency had no authority to force him to return the money.

Marcelle, in sum, said the agency’s powers rest in executive branch law, but the executive doesn’t appoint a majority of its members and cannot remove members — unlike, say, the state Gaming Commission.

Instead, the 11 ethics agency members are nominated by various elected officials (governor, attorney general and others) but vetted by a review panel comprised of 15 law school deans from around the state.

While lawmakers intended this method to give appointees a certain amount of independence and qualification, Marcelle said the structure makes the commission not “answerable to the people.”

"Since a commissioner can only be removed by fellow commissioners [and not the governor], the commission answers to no elected officers," Marcelle wrote. "This arrangement runs counter to a republican form of government."

Rich Azzopardi, Cuomo's spokesman, said in a statement that the ethics commission's decision "was nothing more than an attack by those who abused their government positions unethically and — as the judge ruled today — unconstitutionally for political purposes."

In contrast, an Albany watchdog group called the decision "factually wrong" and "blatantly flawed" when Marcelle said the law school deans appoint ethics panelists.

"The law school deans approve or deny nominees to the ethics commission proposed by the legislature, governor, attorney general and comptroller — who are the appointing authorities. The law school deans have no role in determining which appointees are sent to them for review," the group, Reinvent Albany, said. "This shoddy decision should be immediately overturned on appeal before it paralyzes the important work of the state ethics commission."

Hochul aide Avi Small defended the way lawmakers put together the commission, which was done after Cuomo resigned amid scandal.

"Today's decision undermines the independent ethics commission created by Governor Hochul, and we will work with the commission to support an appeal," Small said.

In a joint statement, Ethics Commission chairman Frederick Davie and executive director Sanford Berland said: "We respectfully disagree with the court’s result and are reviewing all options, including, if appropriate, interim legislation."

With Michael Gormley

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