We agree with the four-judge majority of the top court in New York State, the Court of Appeals, that ethics in state government is paramount, but they got it wrong yesterday in ruling that the structure of the ethics commission does not violate the state Constitution.
The decision, authored by Associate Judge Jenny Rivera, has to twist and bend to get the desired result of reversing two lower courts which convincingly found that the Commission on Ethics and Lobbying in Government (COELIG) is unconstitutional. As Rivera wrote, “We emphasize that the Act goes very near the line of what is constitutionally permissible without crossing it.” Actually it does cross the line by denying the governor control of an executive agency where she only appoints three of the 11 members.
Maybe that’s a good thing, to share watchdog oversight authority with the Legislature (six appointees) and the state attorney general and state comptroller (with one each), but such an arrangement needed to be added to the state Constitution with an amendment.
Indeed, when the Legislature was looking at creating COELIG from the wreckage of the previous failed ethics panel, the Joint Commission on Public Ethics (JCOPE), they did consider an amendment, but instead went with just a law that was faster and easier.
The case was brought by Andrew Cuomo, who was governor when the equally unconstitutional JCOPE was created and got JCOPE’s clearance for his terribly wrong COVID memoir. COELIG is trying to undo that book authorization, which is a no-no. Every kid on the playground understands that backsies aren’t allowed on government approvals.
Rivera knows well that when the state government wants to make a significant change, it must take the long process of a constitutional amendment. That’s how the state Commission on Judicial Conduct was created in the Constitution by vote of the people in 1977. Rivera herself is under scrutiny of the commission for her refusal, against court rules, to get a COVID vaccine in a timely manner.
Since Rivera was referred for review she has had to recuse herself from all cases the conduct commission has brought before the Court of Appeals, including one last month of an upstate judge who threatened to shoot Black teenagers. In 2022, when then-Chief Judge Janet DiFiore was under the commission’s eye, we urged DiFiore to open up the secret proceedings. She retired and the matter ended. Rivera should set a better example and waive the secret process and let the public see.
Also in 1977, the public approved creation of the Commission on Judicial Nomination in the Constitution to give the governor names for the court. But in the nearly two years that Rowan Wilson has been chief judge he hasn’t named a single person to the 12-member panel.
Wilson, who joined Rivera’s decision yesterday ruling that the Constitution can be bypassed when needed, has two vacancies, as does Gov. Hochul, so the eight members are short of the legal quorum of 10, unable to meet and select a chair. Since the former chairman died 13 months ago, the constitutional command: “The commission shall designate one of their number to serve as chairperson” has been violated due to Wilson and Hochul.
But violating the Constitution isn’t such a worry for Wilson and Rivera when following it is inconvenient.