Former Governor Cuomo’s attorneys were back in court last week in their ongoing effort to protect the former governor’s $5 million payday for the book written during the covid pandemic.  Their tactic is innovative – destroying the legal authority of the ethics agency (the Commission on Ethics and Lobbying in Government or COELIG) that is looking into whether the former governor had received the book deal money illegally. 

COELIG had begun an investigation into whether Cuomo had violated the law in the use of his staff to research and write the book for which the former governor was so handsomely rewarded.  When Cuomo was still governor, his staff had persuaded the ethics agency at that time (then known as the Joint Commission on Public Ethics or JCOPE) to allow the former governor to write a book on his experiences in dealing with the covid pandemic.  The former governor needed that approval since as a full time employee of the state (the New York Governor has the highest salary of any governor) he was not allowed to “moonlight” without ethics approval.

The former governor was widely praised for his communication of how government and the public should handle the unprecedented threat from the virus.  At the peak of his popularity, the former governor pitched a book deal to a publisher.  At around the same time the former governor’s lawyer told the ethics agency staff that they had the authority to approve the deal based on previous decisions.  The ethics staff approved the book deal — without bringing the question to the ethics agency’s commissioners.  However, the approval stated that the governor could not use public resources in writing the book.

It was that provision that a JCOPE investigation found the governor had violated.  According to the investigation, the former governor used staff to work on the book and negotiate with the publisher and used state resources to assemble the manuscript.

JCOPE had hired an outside law firm to review the situation and that firm agreed with the agency’s previous conclusion: that Governor Cuomo “misused the power and authority of his office to create, market and promote for enormous personal profit a work that not only was derivative of his official duties but could only have been brought into existence and completed on schedule through the . . . assistance of a group of Executive Chamber and other state officials.”

JCOPE then concluded that the former governor had violated the agreement and had to again request approval or pay the money back to the state.  However, soon thereafter the entity was disbanded under legislation advanced by the current Governor Hochul.

The new ethics agency, COELIG, then decided to investigate the JCOPE conclusion that Cuomo had violated the book deal agreement.  It was that renewed investigation that the former governor is trying to block in court.  He is now, however, not seeking to challenge the investigation directly, instead he is seeking to undermine the legality of the new ethics agency itself and in doing so stymie the ethics agency’s look into the book deal.

In September, the former governor won the first round.  A state Supreme Court judge found that the ethics agency is indeed unconstitutionally constructed and blocked it from further investigating the book deal.  That decision said that the ethics agency’s independence from the governor violated the state Constitution’s separation of powers principle.  Last week, the appeal of that decision was heard. 

At the appellate court argument, lawyers for the state and the former governor battled it out over the authority of the governor to cede her authority to an “independent” ethics watchdog.  The law establishing the current ethics agency should be allowed, the state Attorney General’s lawyer argued, since the constitutional framing of the separation of powers should rely on flexibility and common sense.  It can’t be so inflexible a principle that a governor cannot address a public crisis in confidence in government by establishing an entity that can have some oversight over the executive branch.  After all, the state ethics agency is tasked with overseeing the ethics of the governor.  How can that happen if they are under the authority of the governor?

The lawyer representing the former governor disagreed.  His argument was that the state Constitution mandates that any agency established within the executive branch must be controlled by the governor’s authority.  Thus, since the current ethics agency contains only three of eleven appointees of the governor, it is not under her control.  As a result, it is unconstitutional (and cannot investigate the former governor’s book deal).

Whichever way the court rules, it is likely that the losing party will appeal to the state’s highest court.  If that court rules against the former governor, he could be out $5 million.  If the former governor wins, it’s back to the drawing board for ethics enforcement and Cuomo will be able to keep his covid book windfall.