The New York State Supreme Court has held the New York State Commission on Ethics and Lobbying in Government (the “commission”) is unconstitutional in violation of the separation of powers. The ruling comes in Cuomo v. New York State Commission on Ethics and Lobbying in Government, filed by the former governor in relation to the commission’s investigation into ethics violations surrounding his book, American Crisis: Leadership Lessons from the COVID-19 Pandemic.

Case Background and Legal Challenge

The commission was created by Governor Kathy Hochul as part of the 2022 budget, which amended Executive Law § 94 to replace the Joint Commission on Public Ethics (“JCOPE”) after it garnered criticism over its handling of possible ethics violations by former Governor Cuomo related to the publishing of his book. Cuomo sued the commission in May 2023 to halt any further investigation or enforcement effort, arguing the commission “operates without government oversight or control and thus violates New York State’s Constitution.”

The commission is comprised of 11 members. Commission candidates are as follows: three from the Governor, two from the Senate Majority Leader, two from the Speaker of the Assembly, and one from the Attorney General, Comptroller, Senate Minority Leader and Assembly Minority Leader. Upon selection, potential commission members must then be appointed by an Independent Review Committee (“IRC”), which is comprised of the deans of New York’s 15 law schools. The IRC must review each candidate’s background and experience and, if the candidate is deemed to have the “qualifications necessary for the services required,” the candidate is appointed to the commission. However, Executive Law § 94 did not define what qualifications will be necessary and instead the IRC — without the possibility for public scrutiny — creates its own procedure to review and select members.

The court held 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.” Additionally, the court concluded the commission violates this core constitutional tenant by operating beyond the governor’s reach. The governor has no capacity to control the commission because she only selects three out of the 11 commission members. Further, she has no legal authority to call commissioners to have them explain their actions, and she cannot remove commissioners who misuse their office or fail in their duties. Indeed, as the governor explained, the whole reason for the commission’s existence was to be “independent” from any government control.

Ultimately, the court held the commission was unconstitutional and noted “[i]f 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.” The court implied that should the people truly value an independent commission, such commission must be authorized via constitutional amendment.

Impact on the Future of the Commission

Executive Law § 94 does provide for a savings clause which creates a presumption in favor of severability, which allows the remainder of Executive Law § 94 to remain effective even if one or more portions of the law were severed and found to be unconstitutional, as the New York Supreme Court has done here. However, the court noted that a severability clause would not apply if the unconstitutional provisions were found to be the fundamental core of the entire Executive Law § 94. The court did provide the commission with 10 days to request the court to schedule a briefing and argument on the severability question if the commission believed it should survive even without the ability to perform any action related to the ethics law. Absent a request, the court held that Executive Law § 94, and thus the commission, would be deemed void in its entirety.

As of the date of this writing, on September 20, 2023, the commission filed a request with the court for a briefing schedule on the issue of severability, and on that same day, the commission filed a notice of appeal to the New York State Appellate Division.

While the issues before the court and Appellate Division play out, it is recommended that lobbyists and clients of lobbyists remain in compliance with New York’s Lobbying Act and the Comprehensive Lobbying Regulations.