The NY State Capitol. Image Credit: Mike Groll, Governor’s Office
By Elizabeth Fine & Pei Pei Cheng de Castro
New York State needs a strong ethics system to guide state government officials and hold them accountable. Yet, for the past 100 years, this goal has proven elusive. The State has tried more than 12 different ethics board formulations. None survived the test of time.
It seemed that the State had found a winning formula with the 2022 Commission on Ethics and Lobbying in Government (COELIG), only to see it face a serious constitutional legal challenge. But, the New York State Court of Appeals has now upheld the constitutionality of COELIG, thereby clearing the way for the Commission to establish a fair, robust, and lasting ethics system for New York State.
New York is not unique. Most of our public servants devote their lives to the public good, often at great personal sacrifice. And then there is a small minority who use their position for personal gain, taking illegal gifts or otherwise betraying the public trust. Sadly, the actions of these few tarnish the reputation of government officials and lobbyists more broadly.
The public must have confidence that its elected officials and government servants are doing the people’s work and not acting in their own interests. To achieve this, it is vital to have an oversight board that is visibly impartial and fair. In 2021, amid a wave of news articles — whether justified or not — the public lost trust in the Joint Commission on Public Ethics (JCOPE) as that impartial body. JCOPE had a series of rules and procedures that were designed to prevent a politically motivated investigation. Unfortunately, these measures had the reverse effect of creating the perception that politics was influencing the Commission’s work.
Governor Kathy Hochul then set out early in her administration to rebuild the public’s trust through the establishment of a more independent ethics board. She worked with the State Legislature to enact the Ethics Commission Reform Act of 2022. There were several notable changes to the way this new Commission would operate under the new law.
First, the new Commission has 11 members, and an odd number helps ensure majority rule to advance matters. The Governor has three appointments, the Comptroller and the Attorney General each have one (in an expansion of the appointing authorities), and the Senate and Assembly majority and minority leaders split the remaining six. Second, the law assigned to New York’s 15 law school deans the responsibility to approve all nominees to COELIG. Third, the law does away with prior special voting rules and instead allows enforcement actions to proceed by a majority vote of commissioners. And finally, the law extends broader discretion to Commission staff to handle investigations.
This new Commission faced three legal challenges.
One lawsuit related to the qualifications to serve as a commissioner. A second action challenged the authority and role of the law school deans. These two cases, while notable, did not pose an existential challenge to COELIG.
A third action, brought by former Governor Andrew Cuomo, was the most formidable of the three. The central issue in the case was whether the law violated the separation of powers doctrine of the New York State Constitution. In particular, whether because the Ethics Commission Reform Act only authorizes the Governor to appoint a minority of the commissioners and does not authorize the Governor to remove members, the law violates the separations of powers doctrine. The Supreme Court in Albany County and the Appellate Division for the Third Judicial Department agreed with former Governor Cuomo and granted a stay of enforcement activities until the case could be finally decided.
On February 18, 2025, the New York State Court of Appeals — the state’s highest court — issued its opinion holding that COELIG’s appointment structure is valid. The Court of Appeals stated that the separation of powers doctrine is flexible and does not need to be rigidly applied. Furthermore, the Court found that the structure was justified by the need to maintain the public’s trust in government.
The Court of Appeals decision is important for several key reasons.
First, the Governor and the State Legislature can put the issue of legislating ethics behind them for now. Make no mistake, the law could benefit from further changes. But, ethics legislation is always fraught. Rational views do not always prevail. There is constant pressure to impose greater restrictions and penalties on government officials and lobbyists, and that is not always in the public’s interest. There is also distrust that one political party will use the laws as a weapon against political adversaries. More important than new rules, is the need to give COELIG a chance to do its work. So, a hiatus in legislating ethics is welcome.
Second, COELIG can now resume enforcement actions. Most of the enforcement actions, apart from the high-profile investigations that get reported in the press, are confidential. We will not learn about these matters unless and until COELIG settles or enters an order in the case. COELIG closed over 300 enforcement actions before the court enjoined certain enforcement actions in the Cuomo case and is required to report data on enforcement actions under the 2022 law. Without any enforcement a sense of lawlessness takes over.
Third, and most importantly, COELIG can now fulfill its core mission to provide guidance and training for New York State elected officials, officers, and employees, as well as lobbyists. To be effective, the Commission will need to empower and support its staff to act on behalf of the Commission and to provide prompt, user-friendly, accessible, reliable, and practical guidance. Delays in providing guidance leave public officials to wander in the desert of uncertainty. It is unfair and best efforts by the Commission staff are better than no response.
Third, the Commission can build a body of publicly-available jurisprudence, including decisions and advisory opinions, to guide appropriate behavior and deter that which is unlawful. New York State’s Public Officers Law sets out the legal standards for the Commission to implement. COELIG can now make sure that past decisions and advisory opinions reflect this Commission’s interpretation of the law. Several opinions from the past are ripe for review, including an opinion severely restricting gifts to the State. An updating of key interpretations will make it easier, not harder, for government officials to comply with the law. That is the goal we should all share.
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Elizabeth Fine is Principal of Liz Fine Advisory LLC and former Counsel to the Governor. Pei Pei Cheng de Castro is a Partner at Barclay Damon LLP and former Deputy Counsel to the Governor.