{"id":3134,"date":"2025-01-06T10:50:46","date_gmt":"2025-01-06T15:50:46","guid":{"rendered":"https:\/\/www.nypirg.org\/capitolperspective\/?p=3134"},"modified":"2025-01-06T10:50:46","modified_gmt":"2025-01-06T15:50:46","slug":"this-week-could-have-a-big-impact-on-new-york","status":"publish","type":"post","link":"https:\/\/www.nypirg.org\/capitolperspective\/this-week-could-have-a-big-impact-on-new-york\/","title":{"rendered":"This Week Could Have a Big Impact on New York"},"content":{"rendered":"\n

Lawmakers return to Albany this week for the start of a new two-year session<\/a>. In addition to orienting some new members, the Legislature will tackle some of the big issues of the day. And while the legislative session could have a big impact, what will be happening in New York\u2019s courts could be also hugely consequential.<\/p>\n\n\n\n

That\u2019s because this week also begins the final saga of former Governor Cuomo\u2019s $5 million book deal. The book was written during the early days of the COVID pandemic \u2013 a time when Cuomo was lauded for his daily pandemic briefings.<\/p>\n\n\n\n

At that time, the former governor negotiated a multi-million-dollar book deal in order to tell his story on New York\u2019s handling of the devastating pandemic. The then-ethics agency\u2019s staff approved the deal on the condition that Cuomo did not<\/em> use public resources to write the book. Subsequent investigations documented that the former governor did<\/em>, in fact, use public resources. When the ethics agency began its procedure to possibly force the former governor to give back the book deal payday\u2019s proceeds, Mr. Cuomo sued.<\/p>\n\n\n\n

This week, the state\u2019s highest court \u2013 the Court of Appeals \u2013 will hear oral arguments<\/a> about the former governor challenge to the constitutionality of New York\u2019s ethics law.<\/p>\n\n\n\n

Some background. 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> a book deal to a publisher.<\/p>\n\n\n\n

The reason the former governor needed ethics approval was because he was a full-time public servant. Full-time employees of the executive branch must get approval to \u201cmoonlight<\/a>\u201d in order to ensure that there are no conflicts of interest and that the work is done off hours. The New York Governor has the highest<\/a> salary of any governor and has free access to the governor\u2019s mansion and other benefits. Thus, any request to obtain outside income must be carefully scrutinized and monitored.<\/p>\n\n\n\n

At that time, the ethics staff<\/a> approved the book deal \u2013 without <\/em>bringing the question to the ethics agency\u2019s commissioners. However, the approval stated that the governor could not<\/em> use public resources in writing the book.<\/p>\n\n\n\n

It was that provision<\/em> that the then-ethics agency, the Joint Commission on Public Ethics (JCOPE), investigated and found had been violated by the former governor. JCOPE had hired an outside law firm to review the situation and that firm<\/a> agreed with the agency\u2019s previous conclusion: that Governor Cuomo \u201cmisused 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.\u201d<\/em><\/p>\n\n\n\n

JCOPE concluded<\/a> that the former governor had violated<\/a> the agreement and had to again either request<\/a> approval or<\/em> pay the money back to the state. However, soon thereafter the entity was disbanded and replaced under legislation advanced by the current Governor Hochul.<\/p>\n\n\n\n

The new ethics agency, the Commission on Ethics and Lobbying in Government (COELIG), decided to investigate<\/a> 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. Cuomo is not challenging the investigation directly; instead he is directly attacking the legality of the new ethics agency itself and doing so in order to stymie the ethics agency\u2019s look into the book deal.<\/p>\n\n\n\n

The former governor has, so far, been successful. A state Supreme Court judge found<\/a> that the ethics agency is indeed unconstitutionally constructed and blocked it from further investigating the book deal. That decision said that the ethics agency\u2019s independence from the governor violated the state Constitution\u2019s separation of powers principle. The state appealed and the appellate court also ruled<\/a> in Mr. Cuomo\u2019s favor. The state is now challenging that decision before the state\u2019s highest court.<\/p>\n\n\n\n

The implications for New Yorkers go beyond whether the former governor can keep the $5 million. There is now a bigger question: The courts have ruled that the governor does not<\/em> have the authority to cede<\/a> her own power, in this case to an \u201cindependent\u201d ethics watchdog.<\/p>\n\n\n\n

To date, the courts have ruled that the state Constitution mandates that any agency established within the executive branch must<\/em> be controlled by the governor\u2019s authority. Thus, since the current ethics commission contains only three of eleven appointees of the governor, it is not fully under her control. As a result, the courts have so far found that the ethics commission is unconstitutional (and cannot investigate the former governor\u2019s book deal).<\/p>\n\n\n\n

Moreover, any entity within the executive branch must be controlled by the governor\u2019s authority. Under this legal theory, all gubernatorial appointees must be directly chosen by the governor and there can be no executive entity that is fully independent of the governor\u2019s appointment authority \u2013 unless it is explicitly structured that way in the state Constitution.<\/p>\n\n\n\n

This logic challenges the independence of agency regulatory bodies. How can decisions be made by independent entities \u2013 for example the setting of utility rates \u2013 if the governor controls the majority of the commissioners? Most obviously, how can an ethics agency investigate the governor or her staff when they are appointed directly by the governor? How can an ethics agency that is controlled by the governor be an effective watchdog over the chief executive?<\/p>\n\n\n\n

If the court rules in favor of the former governor, he has a greater chance of keeping the $5 million. If the former governor wins, it\u2019s back to the drawing board for ethics enforcement and perhaps even the independence of state agency decision-making. And that would be a bad thing for ethics oversight in New York and toss a hot potato to the Legislature. Stay tuned.<\/p>\n","protected":false},"excerpt":{"rendered":"

Lawmakers return to Albany this week for the start of a new two-year session. In addition to orienting some new members, the Legislature will tackle some of the big issues of the day. And while the legislative session could have a big impact, what will be happening in New York\u2019s courts could be also hugely […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-3134","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/3134","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/comments?post=3134"}],"version-history":[{"count":1,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/3134\/revisions"}],"predecessor-version":[{"id":3135,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/posts\/3134\/revisions\/3135"}],"wp:attachment":[{"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/media?parent=3134"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/categories?post=3134"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nypirg.org\/capitolperspective\/wp-json\/wp\/v2\/tags?post=3134"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}