hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues November 2022


State’s new ethics panel off to rocky start


Contributing writer


When Kathy Hochul took over as New York’s governor last year after the resignation of Andrew Cuomo, one of her first promises was to strengthen the state’s system for policing the ethics of its top officials.

The state’s ethics watchdog at the time, the Joint Commission on Public Ethics, known by the acronym J-COPE, had faced years of criticism for its dysfunction and secrecy — and for its coziness with the elected officials whose actions it was supposed to monitor.

Among many other controversies, the commission had been widely faulted for granting advance approval to a publishing deal through which Cuomo collected $5.1 million for a book about his handling of the Covid-19 pandemic. Later, after reports that Cuomo had relied on state workers and resources to support the book project, the panel demanded that he turn over the proceeds to the state, but a state judge blocked that effort.

“Restoring trust in government is a top priority for my administration, and that includes strengthening ethics oversight,” Hochul said in her State of the State speech in January.
As a result of Hochul’s effort, the state budget adopted in April abolished J-COPE and replaced it with a new ethics panel, the Commission on Lobbying and Ethics in Government. Although the new commission is still made up of political appointees, Hochul and other supporters argued that its structure would make it more insulated from politics than its predecessor.

But the new commission, which held its first meeting in September, is already facing questions about its independence.

Last month, the Times Union of Albany reported that the panel’s interim vice chairman, Leonard Austin, who had been nominated by Assembly Speaker Carl Heastie, attended a political fundraiser for a top Assembly Democrat, Charles Lavine of Long Island.

State law prohibits members of the new commission from contributing to any campaigns for state-level offices. However, Lavine told the newspaper that it was Austin’s wife who paid to attend the Oct. 9 fund-raising brunch and that Austin, a former state appellate judge, had not contributed to his campaign.


New watchdog, old tricks?
The incident drew swift criticism from government reform groups and some elected officials.
“That doesn’t pass the smell test for anybody,” said state Sen. Dan Stec, R-Queensbury.
Stec said he sees little difference between the new commission and the one it replaced.
“It’s like they’re shuffling the deck chairs on the Titanic,” he said.

Some have suggested that the new panel might just become the latest in a line of failed ethics watchdogs in New York.

“It is not possible to predict with any certainty the life cycle of the new commission,” Benjamin Lichman wrote in an essay for the Government Law Center of Albany Law School. “The lives of ethics agencies in New York state, since the passage of the state’s ethics laws in 1954, have been tenuous.”

But others say the structure of the new panel is an improvement over the old one, even if the changes don’t go far enough.

“It is structurally better but still has some flaws,” said Rachel Fauss, senior policy adviser at Reinvent Albany, a government reform advocacy group.

“We did not support it,” she added, referring to the legislation that established the new commission. “We would have preferred a much more independent commission.”
Reinvent Albany is among eight public interest groups that recently issued a series of recommendations to make the new ethics commission more effective.

“The creation of the new commission provides the opportunity to reset public and state officers and employees’ expectations about state ethics oversight,” the groups said in a joint press release.

Other groups in the coalition are the New York Public Interest Research Group, Citizen Union, Common Cause NY, the New York League of Women Voters, the New York City Bar Association, the Committee to Reform the State Constitution, and the Sexual Harassment Working Group.

Among the groups’ recommendations for the commission are:
• Prohibiting ethics commissioners from contacting the elected officials who appointed them, either directly or through intermediaries.
• Fully using the commission’s powers under state law to fulfill its mission of restoring trust in government.
• Pursuing enforcement matters promptly, including matters that were under review by the former Joint Commission on Public Ethics.
• Ensuring state workers feel confident in reporting allegations of misconduct.
• Requiring trauma-informed harassment training for all commissioners and senior staff.
• Increasing transparency and access to public information through use of open data for financial disclosure reports, improving the lobbying database, collaborating with the state attorney general’s New York Open Government portal, and developing clear guidelines regarding disclosing the status of investigations.


Independent review of nominees
Unlike the prior commission, which effectively was controlled by gubernatorial appointees, the new panel’s members will be chosen by a wider range of state officials — and their nominations are subject to review by an outside group of legal experts.

The new commission, when fully seated, will have 11 members: three appointed by the governor, two by the state Senate majority leader, one by the Senate minority leader, two by the Assembly speaker, one by the Assembly minority leader, one by the state attorney general, and one by the state comptroller.

Commission members cannot have been a lobbyist, a member of or employee of the Legislature, a statewide elected official, a cabinet member or a political party chair within two years prior to being appointed.

The legislation creating the new commission also established a panel of 15 law school deans to vet appointees and approve or reject their appointments. Hochul originally proposed having the law school deans choose the members of the commission directly, but legislative leaders balked at that idea.

So far, seven commission members have been seated, enough for a quorum.
“It was important that they start their work,” said Fauss, of Reinvent Albany.
The panel of law school deans has rejected three nominees so far — one from Heastie, one from Attorney General Letitia James, and one from Senate Minority Leader Rob Ortt, R-North Tonawanda.

Ortt’s appointee, Syracuse-area lawyer Gary Lavine, has filed a court challenge seeking to overturn his rejection. He was a member of the former commission that was dismantled.
Ortt has said appointments to the commission should be subject to confirmation by the state Senate rather than the law school deans.

Assemblywoman Carrie Woerner, D-Round Lake, said the new commission is an improvement over the previous one.

“Specifically, I think the voting rules are now more appropriate and less likely to be driven by politics,” she said. “I think the review panel of law school deans is a good way to vet candidates who have been nominated to serve on the commission.”

Woerner said she was disappointed the selection process did not include an opportunity for the general public to make nominations.

Stec said he was disappointed the new ethics commission was established as part of the state budget rather than through stand-alone legislation.