(The Center Square) — New York’s ethics commission can continue to operate despite a state Supreme Court Justice decision that the panel is unconstitutional, according to an appeals court ruling.
The New York Appellate Division’s Third Department ruled on Tuesday that the state Commission on Ethics and Lobbying in Government can continue to meet and carry out its business while the court considers an appeal to a lower court decision that the panel violates the state constitution.
The decision follows a ruling last month by state Supreme Court judge Thomas Marcelle, who determined that the panel was created without a required constitutional amendment and lacks oversight of how the governor and other top officials appoint panel members.
“The court concludes that the commission’s enforcement of the ethics laws through civil penalties and forfeiture is the exercise of executive power belonging to the executive branch,” Marcelle wrote in the 26-page ruling.
The ruling stems from a lawsuit filed by former Gov. Andrew Cuomo alleging the ethics panel doesn’t have the authority to seize $5.1 million from a book he wrote about the state’s response to the COVID-19 pandemic.
In 2020, the Joint Commission on Public Ethics initially approved Cuomo’s request to write the book. But a year later, the commission walked back that approval, alleging that Cuomo had used his staff and state resources on the book. The panel ordered Cuomo to forfeit the $5.1 million a publisher paid him.
Cuomo sued to block the move, alleging it was fueled by politics and deprived him of due process. In August 2022, a state judge overturned the commission’s order after ruling that the watchdog had sidestepped the rules by not holding a hearing on the fines.
In a joint statement, COELIG Chairman Frederick Davie and Executive Director Sanford Berland “to continue its work and fulfill its mission as the appeal works its way through the judicial process.”
“We look forward to resolving this matter expeditiously,” they said.
Gov. Kathy Hochul, a Democrat who took over after Cuomo resigned in August 2021 amid a sex scandal, signed a bill last year disbanding the commission and creating the new panel, which rekindled efforts to clawback the money from Cuomo’s book deal.
Cuomo’s lawyers argued that the move to create the new ethics commission last year “blatantly violates the separation of powers because it creates an unaccountable agency exercising quintessentially executive powers.”
Cuomo’s book deal is one case the watchdog panel won’t be taking up as it waits for its appeal to be heard by the court. Tuesday’s ruling by the Appellate Division states that the commission can’t proceed with the administrative hearing on the allegations against the former governor.
Legal experts have suggested that New York state’s highest court, the Court of Appeals, will eventually hear the case.