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NY ethics board set for overhaul in 2022

New York state Capitol
Jim Levulis

New York’s latest ethics crisis centers on former Governor Andrew Cuomo’s controversial memoir on how he handled the COVID-19 pandemic. An effort by the state’s ethics commission to force Cuomo to repay $5 million he earned for the book highlights the weaknesses of the body that’s supposed to serve as New York’s ethics police. The current governor, Kathy Hochul, is among those demanding changes in 2022.

The state’s Joint Commission on Public Ethics, or JCOPE, was created by Cuomo shortly after he took office a decade ago. It was dominated by his appointments and was managed by a succession of close Cuomo allies, until he resigned in a sexual harassment scandal in August.

Largely viewed as ineffective, it early on earned the moniker J-JOKE. The commission declined to look into allegations against, among others, former Cuomo top aide Joe Percoco. Federal prosecutors were not so reticent, and Percoco was convicted and served prison time for bribery and kickback schemes.

Investigations into sexual harassment and sexual assault accusations against state lawmakers have languished for years.

John Kaehny, with the government reform group Reinvent Albany, has long advocated for the commission to be restructured.

“JCOPE was completely politicized and undermined by Andrew Cuomo as a deliberate strategy to keep them out of his own hair so he could do what he wanted to, which he did,” Kaehny said. “And to serve as a cudgel to potentially punish political opponents.”

He says the way the commission has handled Cuomo’s $5 million book deal is a case in point.

In the summer of 2020, the commission’s staff signed off on Cuomo’s request to write the book about his management of the COVID-19 pandemic during the height of the crisis that spring. As part of the agreement, Cuomo promised to work on “American Crisis: Leadership Lessons from the COVID-19 Pandemic” on his own time and without any state resources. Some commissioners appointed by the legislative leaders complained at the time that they weren’t told of the approval until after it happened.

In the months that followed, questions were raised about whether the governor broke the public officer's law by using staff to help him write and edit the manuscript, and make copies of drafts on office printers.

State Attorney General Tish James and an Assembly committee looking into whether to impeach the governor found that after examining documents including emails and text messages among employees in the governor’s office, Cuomo did use his staff to help produce the book.

“Cuomo lied to the ethics commission in a couple ways,” Kaehny said. “He had in fact started working on the book before even seeking the ethics commission’s permission. And he had state employees work on the book, which he pledged not to do.”

Cuomo maintains that his aides volunteered to help him on the memoir.

Since the former governor left in late August, the commission has done an about-face. Cuomo’s successor, Governor Kathy Hochul, has replaced nearly all of Cuomo’s appointees on the commission.

In mid-September, after less than a month in her new job, she offered a critique of JCOPE and promised an overhaul.

“What I’m going to do is turn it upside down,” Hochul said on September 15. “And to challenge the premise that an entity that is created by elected officials with their own appointees should be charged with investigating those individuals, should circumstances arise. The whole premise behind it is flawed.”

In November, the commissioners, no longer influenced by the former governor’s appointees, took some of its most decisive action in its 10-year history. It voted 12 to 1 to rescind Cuomo’s book deal, saying he misrepresented the arrangement. They gave him 30 days to reapply for permission.

When Cuomo did not respond, the commission voted in December, also 12 to 1, to force him to give back his earnings so far on the $5.1 million deal. The resolution was read by Commission Chair Jose Nieves, a Hochul appointee, who says the attorney general will be responsible for collecting the money.

“By no later than 30 days from the date of this resolution, that Governor Cuomo pay over to the attorney general of state of New York an amount equal to the amount of compensation paid to him for his outside activities related to the book,” Nieves said.

Cuomo attorney Jim McGuire fought back, calling JCOPE’s actions “unconstitutional” and saying they exceed the commission’s authority to act. McGuire says the vote appears to be “driven by political interests rather than the facts and the law.” He promised a lengthy court battle if the commission and the attorney general try to enforce the ruling.

In the end, asking for the $5 million back was yet another misstep for JCOPE. AG James says she can’t legally pursue the money until a couple of things occur. JCOPE must determine any penalties and fines for Cuomo’s alleged violation of the public officers law, she says. Also, James can't act until JCOPE exhausts all avenues to collect the money itself.

During the fall, Hochul and her staff met with government reform groups, including Kaehny’s Reinvent Albany, as well as reform-minded state legislators to get ideas for a completely new ethics oversight panel.

Kaehny says he thinks the effort is a sincere one.

“I totally believe that the governor and the Legislature will do away with JCOPE this session,” he said. “And replace it with a new and hopefully independently appointed body with new ethics and disclosure rules.”

Details are expected to be released in Hochul’s State of the State speech on January 5.

Karen DeWitt is Capitol Bureau chief for New York State Public Radio, a network of public radio stations in New York state. She has covered state government and politics for the network since 1990.