A New York state judge on Friday questioned a key component of the law creating the state’s new ethics board, which former Gov. Andrew Cuomo is trying to dismantle as part of his effort to hang on to the $5.1 million he reaped from his 2020 book on the COVID-19 pandemic.
In Albany County Court, state Supreme Court Justice Thomas Marcelle heard two hours of arguments about Cuomo’s lawsuit, which seeks to quash the newly minted Commission on Ethics and Lobbying in Government’s ability to investigate alleged misdeeds — such as Cuomo’s book, the subject of an upcoming hearing — and impose any penalties.
Cuomo’s attorneys argued the new ethics commission, which is known as COELIG and was created last year by Gov. Kathy Hochul and lawmakers, violates the constitutional separation of powers, in large part by giving final approval of its members to a group of deans from New York’s 15 law schools and preventing the governor from removing any of them.
“It’s a quintessential example of who is watching the watchers,” said Gregory Dubinsky, one of Cuomo’s lawyers. “Only themselves, apparently.”
On that point, Marcelle appeared sympathetic — though he cautioned it may not be indicative of how he may ultimately rule.
The judge took issue with language in the law allowing the deans to accept or reject a nominee based on their “lived experience,” which he said was a subjective criteria. Marcelle said he’s “a little concerned” the law doesn’t hold the deans, whom he called the “1% of the 1% of the 1%,” accountable to the public.
“As you can tell, I’m not a big fan of that, the Cornell Law School dean notwithstanding,” said Marcelle, a Cornell alum.
Cuomo filed the suit against COELIG earlier this year after the board notified him it had scheduled an ethics hearing on his book, “American Crisis: Leadership Lessons from the COVID-19 Pandemic.”
Cuomo, who was still in office at the time and enjoying a boost in fame thanks to his daily televised COVID briefings, struck a $5.1 million deal with Penguin Random House to write the book, which was published in October 2020.
The former governor sought and received permission from the Joint Commission on Public Ethics, or JCOPE, a predecessor to the current ethics board created during Cuomo’s tenure. But various news reports revealed Cuomo wrote the book with extensive help from his government staff, which led JCOPE to accuse Cuomo of violating the terms of its permission and began the process of recouping his millions of dollars in proceeds.
Cuomo spokesperson Rich Azzopardi contends the ex-governor’s aides volunteered their time to work on the book.
Hochul and lawmakers abolished JCOPE — which had long been criticized for its close ties to Cuomo — last year, replacing it with COELIG. The new board’s key feature is its independence, with its 11 members nominated by lawmakers and the governor but formally appointed by the law school deans, who have the power to accept or reject the nominations.
Much of Friday’s hearing focused on Cuomo’s argument that the arrangement violates a clause in the state constitution granting the governor oversight of the executive branch. The law creating the board gives a majority of nominations to the Legislature — and final authority to the deans — despite the board having the ability to impose penalties on executive branch employees.
In effect, Cuomo’s attorneys argued COELIG’s members are too independent — in violation of the constitution.
“People who are appointed by a specific branch know where their bread is buttered,” Dubinsky said, arguing in favor of direct gubernatorial appointments.
Ryan Hickey, an assistant state attorney general representing the new ethics board, took issue with the suggestion.
“The line of accountability is to that elected official” that nominated them, Hickey said.
While Marcelle was open-minded to Cuomo’s primary argument, he took issue with Cuomo’s secondary argument, which claims the law creating the ethics board violates Article V of the state constitution — which lays out the general structure of state agencies — by housing it within the New York State Department of State, despite the board not reporting to anybody within the department.
“Do you think there’s any credence to their [Article] V argument?” Marcelle asked Hickey.
“I do not, your honor,” Hickey said.
“Neither do I,” Marcelle replied.
Marcelle is expected to rule before September, when Cuomo’s ethics hearing is scheduled to take place.
This story was updated to include comment from a spokesperson for Cuomo.
#ExGov #Andrew #Cuomos #book #deal #case #heads #court