State ethics panel questioned

ALBANY -- The state's powerful new ethics commission billed as an "independent" watchdog surprised even some of its members yesterday by declaring it's an executive branch agency under Gov. Andrew M. Cuomo and his appointed inspector general.

The news came from the Joint Commission on Public Ethics' executive director, Ellen Biben, at her first meeting. The former Cuomo appointee said the commission is part of the executive branch and operates under the jurisdiction of the governor's appointed state inspector general.

"It's not clear to me this agency is an executive agency," said commission member Pat Bulgaro, a 25-year veteran of state government who was appointed by Assembly Speaker Sheldon Silver.

Silver said boards that have most members appointed by legislative leaders have traditionally been under the jurisdiction of the legislature, as was the former lobbying commission. He said the jurisdiction can affect how the commission operates, including in how it appoints personnel.

"I think we have an open question on it," Bulgaro said after the explanation by Biben, who had served Cuomo as inspector general and in other roles since Cuomo's term as attorney general.

Board member Ravi Batra urged that Biben "preserve and protect" the commission's independence and to respect the constitution's separation of powers between branches of government. Batra, a lawyer, was appointed by Senate Democratic leader John Sampson.

The panel was created in 2011 and described publicly as an "independent commission" and "independent enforcement unit," according to Cuomo's news releases at the time and repeated in public statements by legislative leaders. The 2011 law creating the new commission states it is an executive agency and that the inspector general has jurisdiction to investigate any leaks of confidential information by commissioners or personnel, punishable by a misdemeanor charge.

The commission succeeds the Commission on Public Integrity created by former Gov. Eliot Spitzer and the legislature. The legislature, however, refused to provide that panel jurisdiction over the legislature, where ethics cases were handled by a legislative ethics committee. Then-Inspector General Joseph Fisch found the executive director of that panel made unlawful contact with a Spitzer aide while investigating the administration.