NY Judge Rules Independent State Ethics Commission is Unconstitutional

By Matis Glenn

A New York judge ruled Monday that the state’s independent ethics commission is unconstitutional, signaling a win for former Governor Andrew Cuomo, who has been under its investigation for years, the Times Union reports.

Justice Thomas Marcelle wrote that the commission undermines the authority of the governor, enforcing ethics laws that are “the exercise of executive power belonging to the executive branch.” Marcelle also said that such a committee would require an amendment to the state constitution to be formed.

Former Gov. Andrew Cuomo has long fought the ethics commission’s investigation into his $5 million publishing deal he received for authoring a book on his leadership during the pandemic. The ethics commission alleges that Cuomo inappropriately employed government workers to assist him in writing and carrying out research for the book.

The commission, established by Cuomo’s successor Gov. Kathy Hochul together with the legislature, is made up of 11 members, appointed by state law school deans. Government commission assignments are generally chosen by elected officials; the reason given for the change was to create independence from the political world.

But Marcelle says that being exempt from the biases of politicians also means not being held accountable by the public who elects them.

“It may not make a hill of beans one way or another, but I’m troubled by it,” Marcelle said from the bench, describing the law school deans as “academic elites.”

Marcelle also objected to what he said were subjective qualifications used in the selection process for commission members, including “lived experiences.”

The judge further stated that the appointment of commission members was through a “secretive” process, and that they have taken no oath to serve the public.

“Our constitution, which so carefully allocates power among the three branches, will not permit those powers to be transferred to (an) independent commission amounting to an unsanctioned fourth branch of government,” Marcelle wrote. “The government belongs to the people of the state of New York. They established it, and only they can alter it. … If the people should choose to be governed by those who are not politically accountable to them or their governor, who swear no oath of allegiance to them, and who come as a class composed of urban academics and who are not reflective of the cross-section of the people whom they govern, the people may do so. But it is for the people to decide and only the people. Here, the Legislature has done by statute what was required to be done by constitutional amendment.”

Marcelle noted that the commission in its current form had punitive capabilities.

“Thus, the commission is more than a watch dog, it is an attack dog,” he wrote. “A dog that barks is one thing; a dog that bites is quite another. One can be ignored, the other not so much. Indeed, in the estimation of other state courts, when an independent ethics commission has the capacity to impose penalties, it crosses an impermissible constitutional line.”