Placing Limits on a New Governor

Posted by NYPIRG on August 23, 2021 at 11:11 am

This week, Governor Cuomo is expected to resign effective just before midnight Monday into Tuesday.  The current Lt. Governor Kathy Hochul will be sworn in as the state’s first woman governor.  Cuomo is leaving office under a cloud – a devastating report issued by the state’s Attorney General documented claims of sexual harassment and a “toxic” environment in the governor’s office. 

Governor Cuomo maintains his innocence, but nevertheless is resigning.  Without getting into too much detail, the AG’s report documented an out-of-control executive branch that was more interested in settling political scores than following standards of professionalism, and (in the case of the governor), state, and federal anti-discrimination laws.

Coincidentally, this week the state Senate Ethics Committee will be holding a hearing to examine the effectiveness of the state’s ethics laws and their enforcement.  The hearing had been planned in advance, so its timing as the new governor enters office is fortuitous.  Thus the Senate is to begin a long-overdue review of ethics laws and – in the context of the controversies that have driven Governor Cuomo from office – to develop a blueprint to ensure that professionalism and ethics are the standards for public servants in New York.

One important lesson from the current scandal is that New York’s executive is too powerful.  The state’s Constitution grants New York’s governor extraordinary powers and, in the hands of an extremely skilled politician, that power can overwhelm the checks and balances necessary to safeguard the state’s democracy.

Recent court decisions have granted New York’s governor powers not dreamed of by his predecessors.  As we’ve seen, using those powers a governor can install allies into key positions, including the agencies that have been established to watchdog governmental excesses.

A prime example has been the state’s ethics watchdog, the Joint Commission on Public Ethics (JCOPE), which has been widely viewed as an extension of the governor’s office.  The first three executive directors all came from the governor’s staff (or when he was attorney general).  Both of the governor’s book deals – generating nearly $6 million in combined outside income for the governor – were approved by JCOPE staff without going to the full Commission. 

Under state law when the JCOPE Commissioners meet behind closed doors to discuss investigations, those deliberations are supposed to be secret.  Two Commissioners have come forward to say that the person who appointed them – the Assembly Speaker Carl Heastie – was called by the governor with a complaint about their comments in a private session.  That private meeting was to discuss whether the JCOPE should take action against the governor’s former aide Joseph Percoco for corruption.  Apparently, the governor didn’t like what those commissioners said.  How did he find out?  And was this the only time that secret Commission discussions were leaked to the governor in violation of state law?

Another entity that needs to be reformed is the state’s Inspector General.  The Inspector General was charged with investigating the JCOPE leak, but she said she could find no evidence of it – yet there was no interview of the governor or the Assembly Speaker – itself a scandal.

The list goes on, but it stems from an executive that simply has too much power.  American democracy is supposed to be based on a system of “check and balances” to ensure that no one branch of government dominates the others.

In New York, the separately elected state Attorney General and the state Comptroller are supposed to have the independence to act as a check.  But one of the first actions of newly elected Governor Cuomo in 2011 was to pull back the oversight powers of the Comptroller.  It could be argued that scandals have resulted.  It was the lack of oversight of state contracts awarded to an arm of the State University’s “Buffalo Billion” program that led to the corruption convictions of Joseph Percoco and another top aide to the governor.  Governor Cuomo was not charged in that scandal.

At the core of the governor’s immense powers is his constitutionally protected ability to drive policy decisions as part of the state budget.  The state Constitution has granted the executive the upper hand in budget negotiations.  This conflicts with the central tenet that there should be a balance in lawmaking, with the executive proposing plans and the Legislature considering and then approving them.  In our system, the Legislature is the primary policymaking body.

It has become clear, however, that the advantage granted to the executive in the budget process has given the governor the leverage to expand his control more broadly over governmental decision-making.  Keep in mind that the state’s budget – now topping $200 billion and the largest state budget in the nation – is the foremost action taken by the Legislature each year.

Legislation to change the Constitution is needed to better establish a system of “checks and balances” to limit the policymaking authority of the governor in his budget.  It is this system of checks and balances that keeps one branch from dominating policymaking.  It is that balance – coupled with the establishment of truly independent ethics watchdogs – that will ensure that the executive branch doesn’t lose its professional and ethical moorings in the future.

Let’s hope that this latest gubernatorial resignation will force New York State to establish balance between the branches.