The History and Purpose of New York’s Ethics ‘Watchdog’ Commission
New York’s Ethics “Watchdog” Commission has been in limbo after an ongoing court battle questioning its constitutional validity. The commission’s ability to investigate complaints and impose civil penalties has been suspended, as a state Supreme Court justice issued a stay on the commission’s request to continue performing its ministerial duties.
The New York appellate court is scheduled to hear arguments in February on whether voters should have approved creating the state’s ethics “watchdog” commission. The issue at stake is whether the commission’s structure is constitutional, and the consequences of it being deemed unconstitutional could be significant. The investigation of former Governor Andrew M. Cuomo is at the center of the case. Cuomo is fighting the commission’s efforts to investigate the $5.1 million deal that produced “American Crisis,” the 2020 book about his administration’s handling of the pandemic.
State Supreme Court Justice Thomas Marcelle determined that the commission was unlawfully created and issued an order last week to maintain a stay on the “ severability “ issue — whether the commission can continue doing work other than enforcement, including giving civil penalties. Cuomo’s attorneys have argued that the Executive Law that created the panel should be entirely voided and all commission work shut down.
The appeal of Marcelle’s decision is scheduled to be heard in February, and any decision by that mid-level court is likely to be reviewed by the Court of Appeals, New York’s highest court. Marcelle determined that the commission was formed and assigned enforcement powers in violation of the constitution, partly because it was not done through a constitutional amendment that would have required a vote “of the people.”
Cuomo’s battle with the ethics commission stretches back more than a year. In August 2022, another state Supreme Court justice ruled against the former state ethics commission when it sought to force the former governor to repay the millions he received for writing the book. Acting state Supreme Court Justice Denise A. Hartman’s 17-page ruling scuttled the actions of the former Joint Commission on Public Ethics — which was disbanded a month before she issued the decision — and also found the commission had violated due process when it sought to undo an earlier approval of the book deal by a staff attorney.
The Legislature and Hochul established the Ethics “Watchdog” Commission. Marcelle noted that other independent state commissions, including the Independent Redistricting Commission and the Commission on Judicial Nomination, were authorized through constitutional amendments that allowed voters to decide on their creation.
The ongoing court battle concerns many New Yorkers about whether the commission’s constitutional structure could significantly affect future investigations and enforcement actions. Stay tuned as the New York appellate court prepares to hear arguments on this critical issue.
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