How a NY judge ruling a new ethics panel unconstitutional could 'blow up enforcement'

A court battle is underway to determine if a New York state ethics panel is in fact ethical.

A judge in Albany recently ruled that the state's newly formed ethics board is actually unconstitutional. It's also not the first time a governor created an ethics oversight panel in the wake of a scandal.

Blair Horner, executive director of the New York Public Interest Research Group, joined WNYC’s Sean Carlson on "All Things Considered" on Thursday to talk about where the story is going.

An interview transcript is available below. It was lightly edited for clarity.

Sean Carlson: Hey Blair, thanks for coming on "All Things Considered."

Blair Horner: Thanks for having me.

Before we get into this ruling itself, can you explain to us what the state ethics board is and what it does?

Sure. I mean, New York has created an agency that oversees the conduct, both ethical and otherwise, I suppose, of the executive branch, the governor and all of her agencies. It has a little bit of an authority over investigations into the legislative branch and oversees New York's sprawling lobbying industry.

There's about 6,000 lobbyists representing about 3,000 clients and they spent around $300 million seeking to influence government in the last report. So it's an agency that covers a lot of the ethical waterfront of the state of New York.

Bring us up to speed then. Why is a judge saying that it's unconstitutional?

The agency that was created was created really at the behest of Gov. [Kathy] Hochul and in her, I think, laudable efforts to create an agency that was independent of the governor and the legislative leaders and other elected officials.

So she created an agency where the individuals who sit on the commission are vetted by the law school deans of New York state. One of the things that they're investigating is whether former Gov. [Andrew] Cuomo's $5 million book deal was done ethically. And so former Gov. Cuomo has sued.

He's focusing on whether or not the agency is constitutionally established, and the judge has argued that because the governor doesn't essentially control the appointments to the commission directly, it is unconstitutional.

Tell us what your take on this ruling is.

New York state's constitution definitely creates a powerful executive branch. No doubt about that. The judge's decision, though, really could turn on its head, not only the state ethics commission, but other agencies as well, where the governor may not have the majority of the appointees or where the members of various boards have to promise to put the interest of the public ahead of elected officials.

So it's a decision that could have a big deal in New York. And if the judge's decision stands, will certainly blow up ethics enforcement in the state of New York.

Now, this whole hubbub about this ethics panel, it's not the first time we've had an ethics panel. Listeners might remember JCOPE. How is this different from that situation?

Well, the Joint Commission on Public Ethics, which was the predecessor agency, otherwise known as JCOPE, was created at the behest of former governor, Andrew Cuomo. And it was following the commission on public integrity, which was created at the behest of former governor, Elliot Spitzer. And all of these really come out of failures of the predecessor agency to effectively enforce the ethics laws.

And part of the problem is the independence, right? If former Gov. Cuomo has his thumb on the joint commission of ethics in New York, then it's not acting independently. And then that creates all sorts of problems within the agency. There's a few major differences between the agency that exists now and its immediate predecessor.

One is that the law school deans play this vetting role in terms of deciding whether or not a nominee that comes from the governor or the attorney general, the comptroller or the Legislature, is in fact qualified. The current agency is much more publicly accountable in terms of doing more of its work in public.

The predecessor agency defaults that basically everything was done in secret. And so those are two major differences. But the basic framework of the work that it does and the scope of its work is very similar and has been over the years.

The reasons that we keep getting new ones is the predecessors fail and the reason we think that that's the case is because the agencies are not sufficiently independent. And when it comes to ethics enforcement, independence is key.

Where do we go from here? I mean, are we just going to get a new ethics panel every governor until the end of time? Or is there going to be a situation where we get one that sticks and it is able to do its job?

Obviously, if an appeal of the judge's decision ends with the judge's decision standing the Legislature and the governor are going to have to do something because the agency can't effectively do its job. And to do it right, what the judge even talks about, is you need to amend the constitution. The state has in its state constitution a commission on judicial conduct, which oversees judges in New York. It's enshrined in the state constitution and that's sort of a model that we think should be in place for the executive and legislative branches.