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JCOPE is beyond repair

New York State Attorney General Letitia James on

New York State Attorney General Letitia James on Jan. 7, 2020. Gov. Cuomo requested that James appoint an outside investigator to look into claims made about public nursing home data, among other issues. Credit: Charles Eckert

The news from Albany has, once again, been disturbing.

We have seen reports of the administration of Gov. Andrew M. Cuomo stonewalling state lawmakers about nursing home deaths due to COVID-19, a judge ruling that the state illegally withheld from the public nursing home data, the state attorney general’s report documenting that the administration had undercounted by 50% the number of nursing home COVID-19 deaths, state legislators’ alleging that their political careers were threatened by Cuomo and his administration, and now three women accuse Cuomo of sexual harassment.

Not surprisingly, there are calls for an independent investigation. Yet, no one seriously considered that the state’s top ethics watchdog — the Joint Commission on Public Ethics — be the entity that undertakes a probe.

Why?

JCOPE is universally seen as lacking the independence needed to undertake such an investigation. Instead, under significant public pressure, Cuomo relented and requested that state Attorney General Letitia James appoint an outside investigator to look into the claims and make a public report.

JCOPE’s lack of credibility is not just limited to cases involving the governor. The commissioners are appointed by the governor and the state legislative leaders — the very people whom JCOPE is supposed to police. There is evidence that at least some commission members have reported back to the politicians who appointed them to share internal discussions relating to ethics investigations — despite such leaks being prohibited by law.

Commissioners maintain special veto rights over investigations and adverse findings of persons of the same political party as the political leader who appointed them. While there are many other problems with JCOPE, the design flaws in the appointment process and voting rules are fundamental and beyond repair.

To advance the public good, we grant great power to government — power that can be abused. The first line of defense against official corruption is vigorous promotion and enforcement of the rules and standards forbidding official misconduct that falls short of being a criminal violation. This is what we call ethics. JCOPE is supposed to be the state’s ethics watchdog and it is this central role that it totally fails to do.

JCOPE needs to be replaced with an independent entity. A constitutional amendment supported by many civic groups — including our organizations — introduced by State Sen. Liz Krueger and Assemb. Robert Carroll, would do just that. Under the Krueger-Carroll legislation, the judicial branch would choose the majority of the new commission’s membership. All members of the new commission, and its staff, would be prohibited from being involved in partisan politics or representing clients before government, and they would have to pledge their loyalty to the public, not political entities or individuals.

New York has the most poorly structured ethics oversight body in the nation — no one has its convoluted voting structure designed to expressly protect political interests. The serious allegations made against Cuomo can create an occasion to move New York to the forefront of ethics enforcement with effective, independent, and regular oversight that leaves no one above the law.

Let’s hope that the controversies lead to action, action that fixes what ails Albany the most — ineffective ethics oversight.

Blair Horner is executive director of the New York Public Interest Research Group. Evan Davis, former counsel to Gov. Mario Cuomo and former president of the New York City Bar Association, is manager of the Committee to Reform the State Constitution.

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