Explaining the Ethics Commission Reform Act of 2022

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by Bennett Liebman *

The Government Law Center’s explainers concisely map out the law that applies to important questions of public policy.

September 15, 2022

Introduction

Part QQ of Chapter 56 of the Laws of 2022 established the Ethics Commission Reform Act of 2022 (ECRA), which fundamentally changed the structure of the entity enforcing New York State’s ethics laws. The legislation was passed on April 8, 2022, as part of the Governor’s overall budget legislation, the same day the Governor issued messages of necessity to each house to advance the legislation. The Governor signed the legislation on April 9. The ECRA went into effect on July 8, 2022, “the ninetieth day after it shall have become a law.”[1] This explainer provides an overview of the structure and authority of the new commission and compares it to the previous ethics commission: The Joint Commission on Public Ethics (JCOPE).

What Entity Enforces Ethics Laws in New York State?

The new entity that will enforce the law will be the New York Commission on Ethics and Lobbying in Government (hereinafter called “NewCom”). It is an 11-member organization. Three members are to be appointed by the Governor, two members each by the Temporary President of the Senate and the Speaker of the Assembly, one member each by the minority leaders of the Senate and the Assembly, one member by the Attorney General, and one by the State Comptroller. The nominees are to be vetted by an “independent review committee” composed of the law school deans in New York State. The committee “will review the qualifications of the nominated candidate and approve or deny each candidate.” The law school deans can “reject someone not found to have ‘undisputed honesty, integrity and character.’”[2] The chair of the independent review committee will be selected by the members of the committee.

The NewCom replaces the Joint Commission on Public Ethics (JCOPE), which was a 14-member organization. Six members were appointed by the Governor and Lieutenant Governor and three each by the Speaker of the Assembly and the Temporary President of the Senate. The minority leaders in the legislature each appointed one member. Three of the members selected by the Governor and the Lieutenant Governor were required to be from the major political party in which the Governor was not enrolled.

Who May or May Not Serve on the Commission on Ethics and Lobbying?

While the ECRA does not place any formal requirements on who may serve on the NewCom, it does restrict some individuals from serving on the commission. Commissioners cannot have served as a lobbyist, a member or employee of the legislature, a statewide elected official, a “commissioner of an executive agency appointed by the governor,”[3] a political party chair, a state officer, or a state employee within two years of their appointment.

These limitations on NewCom membership are somewhat similar to the ones that have been in place for JCOPE under the Public Integrity Reform Act of 2011 (PIRA).[4] The exceptions are that the revolving door/waiting time provision for appointees has been shortened from a three-year bar to a two-year bar, and legislative employees, state officers, state employees, and those who have served as “a commissioner of an executive agency appointed by the governor” have been added to the restricted list.

The phrase “commissioner of an executive agency appointed by the governor” is likely to have some potential for controversy. For example, can a current member of JCOPE be reappointed to the NewCom? Is JCOPE an executive agency appointed by the governor? Governor Kathy Hochul’s office maintains that JCOPE is an executive agency appointed by the governor.[5] On the other hand, JCOPE member Gary Lavine claims that he is eligible for appointment to the NewCom since the fact that JCOPE had appointing officials other than the governor removes JCOPE from being considered an “executive agency appointed by the governor.” Any challenge to appointments along these lines may call upon the provisions of Article V, Section 4 of the State Constitution, which requires that:

Except as otherwise provided in this constitution, the heads of all other departments and the members of all boards and commissions, excepting temporary commissions for special purposes, shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner to be prescribed by law.[6]

How Will the NewCom Function Procedurally?

The members of the NewCom will serve staggered four-year terms, and are limited to two full terms. The members, by majority vote, select the chair, who serves a two-year term and is limited to no more than two terms.

The members also select the executive director of the NewCom, who serves a four-year term. A quorum of the NewCom consists of the majority of its members, and the NewCom may act by a majority of the votes of the total number of its members without vacancy. Current JCOPE employees who transition to the NewCom will be transferred “without further examination or qualification and such employees shall retain their respective civil service classifications, status and collective bargaining agreements.”[7]

The NewCom is required to meet at least once quarterly and can meet upon the call of the chairman or the majority of the members of the NewCom. The NewCom is required to hold a public hearing at least once a year to solicit public input regarding its operations and potential changes in the law. Under the PIRA, the Governor selected the chair of JCOPE, and the chair served at the pleasure of the Governor. The members served five-year terms. The members of JCOPE selected the executive director. The executive director of JCOPE did not serve a fixed term.[8]

JCOPE was subject to a unique super-majority requirement governing the conduct of its investigations. Ostensibly, in order to prevent political witch hunts against members of a political minority, “any investigation would require consent from at least eight members of the commission, with at least two “yes” votes by appointees from the same party and branch of government as the subject of the investigation.”[9] It was said that “this appointment process virtually guarantees the factionalizing and politicizing of JCOPE.”[10]

What Is the Jurisdiction of the NewCom?

The NewCom will have jurisdiction over statewide elected officials, members of the legislature, legislative employees, state officers, state employees, lobbyists and their clients, political party chairs, and candidates for the state legislature and statewide office.[11] It also has jurisdiction over individuals and entities that formerly held such positions.

The NewCom is authorized to enforce Sections 73, 73-a, and 74 of the Public Officers Law, Section 107 of the Civil Service Law, and Article 1-A of the Legislative Law.[12]

The jurisdiction of the NewCom is identical to the jurisdiction of JCOPE.[13]

What Is the Disciplinary Authority of the NewCom?

The NewCom has no disciplinary or penalty authority over legislators, legislative employees, or candidates for legislative office. Instead, after an investigation, due process hearing, and a finding by a majority of the NewCom that there was a substantial basis for finding a violation, it is required to “prepare a written report of its findings and provide a copy of that report to the legislative ethics commission.”[14]

For intentional violations of Section 73 of the Public Officers Law and Section 107 of the Civil Service Law, the NewCom may issue a civil penalty of up to $40,000 and “the value of any gift, compensation or benefit received as a result of such violation.”[15]

For an intentional violation of Section 74 of the Public Officers Law, the NewCom may issue a civil penalty of up to $10,000 and “the value of any gift, compensation or benefit received as a result of such violation.”[16]

Intentional violations of Article 1-A of the Legislative Law are subject to civil penalties based on the provisions of that article.[17]

By a majority vote, the NewCom can refer the matter to a law enforcement authority for further investigation.[18]

The NewCom has jurisdiction to act against violators within two years after their separation from state service.[19]

Finally, the NewCom can recommend to the employer of the penalized party that the employee be further disciplined. In the case of statewide elected officials, the NewCom can only recommend impeachment.[20]

The ECRA’s provisions on discipline are generally similar to those that existed under the PIRA. However, under the PIRA, JCOPE had to resort to its super-majority requirement both before it could proceed with a due process hearing and before it could impose any discipline itself or recommend discipline to the Legislative Ethics Commission. Additionally, JCOPE could only act against parties within one year of their separation from state service.

Does the NewCom Provide Guidance and Training?

The NewCom is required to establish at least five separate units. There are mandatory units for advice and guidance, training, financial disclosure, lobbying, and investigations and enforcement.[21] For the training unit, the NewCom is mandated to develop a live online ethics training course, followed by an online refresher ethics course.

JCOPE was required to provide extensive training for individuals subject to its jurisdiction, but there was no requirement for separate units for its other duties.

What Are the Disclosure Requirements for the NewCom?

NewCom members and staff are required to sign non-disclosure agreements.[22] Under the ECRA, “the status of an investigation, testimony received, or any other information obtained by a commissioner or staff of the commission, shall not be disclosed by any such individual to any person or entity outside of the commission during the pendency of any matter.”[23] Any NewCom staff member or commissioner who intentionally releases confidential information would be guilty of a class A misdemeanor.[24]

On the other hand, there is nothing formally preventing the Open Meetings Law[25] and the Freedom of Information Law[26] from applying to the NewCom. The NewCom is required to operate a website that would include information on civil assessments and settlements of complaints.[27]

When the NewCom “determines a complaint or referral lacks specific and credible evidence of a violation,”[28] the NewCom’s vote must be disclosed publicly, although personally identifying information may not be disclosed.[29]

By comparison, the PIRA also required non-disclosure agreements,[30] and intentional disclosure of confidential information was a Class A misdemeanor.[31] However, the Freedom of Information Law was expressly made inapplicable to JCOPE except for relatively few instances involving financial disclosure statements, civil assessments and terms of settlements which included a fine or penalty.[32]

Similarly, it limited the application of the Open Meetings Law to only circumstances under which it was required under Article 1-A of the Legislative Law and where “expressly provided otherwise by the commission [JCOPE].”[33]

Did the New Law Change the Substantive Provisions governing the Conduct of New York State Government Officials and Employees?

There are few substantive changes in the laws governing conduct of state government officials and employees.

Are There Particularly Pertinent Legislative Background Materials?

Given the swiftness with which the ECRA was passed, there are no significant legal materials explaining the legislation. There is also no sponsor’s memo for Chapter 56.

However, in announcing the 2022 budget agreement, Governor Hochul issued a press release stating:

The Budget will improve ethics and restore New Yorkers’ trust in state government by creating a new entity, the “Commission on Ethics and Lobbying in Government,” to replace the broken Joint Commission on Public Ethics. Nominees for the 11-member Commission will be put forward by the Governor, Senate, Assembly, Comptroller, and Attorney General and then reviewed by law school deans for approval or denial. The Commission will work differently and more transparently than before with special voting requirements eliminated, the body and votes subject to the Open Meetings Law and FOIL, any breach of confidentiality referable to the Attorney General, and improved training of staff and notice to victims who have suffered harm by their perpetrators.[34]

While there was significant media coverage about the workings of JCOPE during its decade of existence, there have been few legal reviews.[35] Most significant is the New York Ethics Review Commission report of 2015.[36] There was a major review of the PIRA in “New York State Whiffs on Ethics Reform.”[37] There were also discussions of the PIRA in “An Administrative Alternative to the as-Applied Challenge: New York’s Public Integrity Reform Act and the Future of Disclosure Statutes,”[38] and in “Constitutionalizing Ethics.”[39] In sum, there are surprisingly few legal discussions of New York’s ethics code.

Conclusion

It is not possible to predict with any certainty the life cycle of the NewCom. The lives of ethics agencies in New York State, since the passage of the State’s ethics law in 1954, have been tenuous. There has been the advisory committee on ethical standards,[40] Governor Carey’s boards of public disclosure,[41] Governor Mario Cuomo’s board of public disclosure,[42] the temporary state commission on regulation of lobbying,[43] the state ethics commission,[44] the commission on the public integrity,[45] and JCOPE.[46] What comes next in New York State’s pursuit of ethics reform is not foreseeable.

Notes