Former Governor Cuomo scored a victory last week in his legal fight to keep $5 million for a book about how he handled the COVID pandemic. A state judge ruled that the agency looking into whether the former governor violated the state’s ethics code by using government resources to write his book was unconstitutionally constructed. In doing so, the judge shut down – at least in the short term – the ethics agency’s investigation and may have blown up ethics oversight in New York.
Before a look into that decision, here is some background.
The former governor was widely praised for his presentations on the COVID pandemic – presentations that stood in stark contrast to the too often incoherent and inaccurate messages that came out of the Trump Administration.
Cuomo’s daily COVID briefings became must-see TV for Americans starved for information on the pandemic and how they could best protect themselves. At the height of his popularity, Mr. Cuomo made a decision to write a book and cash in on his national celebrity.
New York’s governor is the best paid in the nation and is considered a full-time employee – one that cannot have outside income, unless reviewed and approved by the ethics agency.
Apparently after initiating the publishing deal, the governor had his government staff seek approval from the state’s ethics agency, then known as the Joint Commission on Public Ethics (JCOPE). The governor’s staff, using official state letterhead and during the workday reached out to JCOPE and quickly obtained permission for the deal. There is more to the story than this, but that agreement was based on a key restriction: that Governor Cuomo could not use public resources – including staff – to write the book. (The book, American Crisis: Leadership Lessons from the COVID-19 Pandemic, was published in 2021.)
It was that provision that a JCOPE investigation found the governor had violated. According to the investigation, the former governor used staff to work on the book, and negotiate with the publisher, and used state resources to assemble the manuscript.
JCOPE had hired an outside law firm to review the situation and that firm agreed with the agency’s previous conclusion: that Governor Cuomo “misused the power and authority of his office to create, market and promote for enormous personal profit a work that not only was derivative of his official duties but could only have been brought into existence and completed on schedule through the . . . assistance of a group of Executive Chamber and other state officials.”
Mr. Cuomo has argued that any staff involvement was done “voluntarily.” The JCOPE investigation found otherwise and it began proceedings to claw back the $5 million Cuomo pocketed from the book agreement. The first round of litigation went to the former governor when a court ruled that JCOPE had violated due process procedures in determining the former governor violated the ethics laws.
After Cuomo resigned, Governor Hochul replaced JCOPE with a new ethics agency, the Commission on Ethics and Lobbying in Government (COELIG). That Commission revived the book deal investigation, and the former governor filed a suit to challenge the authority of the new agency.
Last week’s decision was regarding Cuomo’s challenge to the new agency.
As part of the new ethics commission structure, Governor Hochul made a laudatory attempt to make the entity more independent. One key measure was to allow the deans of New York’s law schools to review ethics commission candidates in order to ensure that they met certain qualifications. As part of his decision, the judge found that the new ethics law’s reliance on those deans to review the qualifications of nominees was an unconstitutional ceding of the governor’s authority. In essence, the judge decided that the state constitution forbids the governor from approving the selection of “independent” ethics commission members and that, when it comes to state ethics enforcement, the governor must police herself.
If the judge’s ruling holds up, it will be back to the drawing board for ethics enforcement in New York. The judge held that the state constitution must be amended for the governor’s appointees to be independent and for the governor to cede ethics enforcement to a state agency.
It has been reported that the state will appeal the decision which will likely keep the status quo in place, but if that appeal upholds the decision, New York’s ethics enforcement law will be vaporized. And if the state’s appeal fails, it may undermine other laws that require governmental appointees to be independent of the governor’s influence. Remember, all these changes were made because of scandals and corruption in New York’s recent political past.
Reformers have long argued that the key to adequate ethics enforcement hinges on the independence of the responsible agency. In addition, previous reforms have required that political appointees pledge they will always put the interests of the public ahead of the interests of the appointing authority. Those reforms now hinge on an appeal. The former governor’s efforts to protect his book-deal millions may make the risk of corruption greater. Time will tell.
Blair Horner is executive director of the New York Public Interest Research Group.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.
