Fighting to keep $5M, ex-Gov. Andrew Cuomo wages war on new NY ethics board

Former New York Gov. Andrew Cuomo firmly believes he’s entitled to keep the $5 million he received for writing a book about the early days of the COVID-19 pandemic — and he’s more than willing to blow up the state’s new ethics board to prove his point.

In the coming weeks, state Supreme Court Justice Thomas Marcelle of Albany is expected to rule on Cuomo’s lawsuit, which will ultimately determine if state ethics enforcers can continue investigating whether the former governor illegally used state resources to craft his 2020 book, "American Crisis: Leadership Lessons from the COVID-19 Pandemic."

If Cuomo emerges successful, it could put at least a temporary end to more than two years of efforts to claw back millions of dollars the governor received from Crown Publishing Group, the publisher of his pandemic-era memoir.

But the potential implications are far broader: Cuomo is challenging the ethics board’s very right to exist, arguing that it violates the state constitution. That could leave Albany — which is no stranger to corruption scandals touching the highest levels of government — without anyone to enforce the laws meant to ensure its public officials are acting ethically.

“If the former governor were successful, it would just impede the ability of the Legislature and the governor to do the right thing and to actually give up power in some circumstances where it's appropriate,” said Rachael Fauss, senior policy adviser for Reinvent Albany, a government reform group. “And ethics oversight is absolutely one of those areas where it's appropriate.”

Scandal-scarred ethics agencies

Cuomo’s legal war against the newly minted Commission on Ethics and Lobbying in Government — created last year by current Gov. Kathy Hochul and state lawmakers — has roots in the myriad scandals that helped lead to his resignation as governor in August 2021.

As Cuomo’s daily COVID briefings gave him a turn in the national spotlight, the Democratic governor received permission to publish a book from a previous iteration of the ethics board, the Joint Commission on Public Ethics, or JCOPE, so long as he followed rules that included not using state resources to complete the project.

He published the book in October 2020. Soon after, there were a steady stream of news stories detailing the lengths to which his top government aides worked on the book — though Cuomo’s office claimed then and now that staff members volunteered their time.

JCOPE, which Cuomo himself had a major hand in creating in 2011, launched a formal investigation and later ordered the former governor to pay back the millions he earned. Cuomo sued to have the fine overturned. He won, but the ruling left the door open for a new investigation.

Last year, Hochul and lawmakers created a new ethics watchdog, COELIG, to replace the previous ethics board, which had long been criticized for its close ties to Cuomo. The new board voted to take up the old board’s investigation into Cuomo, which drew a new lawsuit from the former governor earlier this year.

COELIG has oversight over both the legislative and executive branch in New York, with its members nominated by the governor and legislative leaders. But final approval over who sits on the commission rests with a panel of law-school deans required to accept or reject any nominations — which was meant to give the board an air of independence, unlike its predecessor.

Who watches the watchdog?

Therein lies the crux of Cuomo’s argument.

Cuomo’s legal team — led by James McGuire, former counsel to Republican Gov. George Pataki — argues the new ethics board violates the constitution by infringing on the separation of powers between the branches of government. They also claim the board is essentially a new state department that runs afoul of a different section of the constitution that lays out the structure of the executive branch.

COELIG has powers to enforce state ethics law in the governor’s administration, and those are “powers that belong to the executive branch,” McGuire said in a phone interview. He noted the governor doesn’t have any ability to remove any board members she nominates; only fellow board members can remove them.

“That interferes with the governor’s obligation to take care that the laws are faithfully executed, because they’re not accountable to the governor in any way,” he said.

Emily DeSantis, a spokesperson for COELIG, declined to comment, citing the pending litigation.

But state Attorney General Letitia James’ office is fighting Cuomo’s lawsuit on the board’s behalf, arguing that the 2022 law creating the ethics watchdog is firmly constitutional.

In a court filing, James’ office said Cuomo is trying to argue the ethics board is, in essence, “too independent.” The law, the filing claims, is “consistent with traditional New York applications of separation of powers principles, particularly in the context of legislatively formed boards and commissions.”

Fauss says the attorney general’s argument is compelling.

“There's a lot of legal history around this,” she said. “There are other types of commissions and structures that really seek to balance executive power and prevent the abuse of executive power.”

Gearing up for a battle

Cuomo’s attorneys argue that COELIG’s structure requires an amendment to the state constitution, a lengthy process that requires approval by consecutively elected sessions of the Legislature and a statewide referendum approved by voters. Instead, lawmakers passed it as a simple law.

To make that case, they point to a previous proposal to amend the constitution to create a new ethics board, which was sponsored by state Sen. Liz Krueger (D-Manhattan) and Assemblymember Robert Carroll (D-Brooklyn). But the proposal wasn’t identical to what ultimately was passed; most notably, it would have involved judges in the process for approving board members.

Carroll said Cuomo should worry more about proving his book deal was proper and less about tearing down the system.

“Unlike many Democrats in Albany, I am no longer fascinated by Andrew Cuomo or what he decides to do,” he said. “So I don't pay him much mind.”

Bennett Liebman, Albany Law School’s government lawyer in residence, has written about the state’s extensive history with trying to get ethics enforcement right.

Liebman said Cuomo’s case, in part, comes down to whether the state is “improperly delegating authority to a nongovernmental entity” — in this case, law school deans and the people that selected them — “to make a governmental decision.” Either way, he said the state is likely in for “a bumpy ride probably for several years on this case.”

“This case has all the makings of going to the full Court of Appeals,” the state’s top court, said Liebman, who previously worked for Cuomo during his first term.

McGuire said he believes Cuomo will be successful.

“We’re confident that the court thoroughly understands the issues and will rule that the act creating COELIG is unconstitutional,” he said.

Marcelle, the trial court judge, heard arguments in Albany last month. His ruling is expected prior to Sept. 26, when the ethics board has scheduled a closed-door hearing on Cuomo’s book deal.

This story was updated to include additional information about a court ruling regarding Cuomo's book.