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By Bennett Liebman*

June 29, 2023

Introduction

In 2022, the New York State Legislature established the Commission on Ethics and Lobbying in Government (COELIG) as the latest iteration in government ethics and lobbying oversight.[1] The eleven-member body, situated within the Department of State, will handle the legal review of ethics and lobbying issues in New York State. The commission replaces the former Joint Commission on Public Ethics (JCOPE).[2] While COELIG represents a new era in ethics oversight, the constitutionality of the new commission has recently come into question in two separate cases. Both cases question the use of an “independent review committee”[3] to approve each candidate nominated to serve as a member of COELIG.

In order to assure the qualifications of COELIG members, an independent review committee is required to screen potential members, who are nominated by statewide elected officials and legislative leaders. That committee is composed of “the American Bar Association accredited New York state law school deans or interim deans, or their designee who is an associate dean of their respective law school, tasked with reviewing, approving, or denying the members of the commission as nominated by the selection members . . . .” [4]

If the review committee finds that nominees possess “the qualifications necessary for the services required based on their background and expertise,”[5] they will be appointed as commission members. While the statute is silent on the manner in which the review committee makes its determination, the committee is required to “publish on its website a procedure by which it will review the qualifications of the nominated candidate and approve or deny each candidate.”[6] Additionally, the review committee’s activities are confidential.[7] Its meetings are not subject to the Open Meetings Law,[8] and the members of the committee are neither public officers nor subject to the Public Officers Law.[9] There is no mechanism for elected officials to remove members of the review committee, but the committee as a whole can remove its members for misconduct or neglect of duty.[10]

The utilization of the independent review committee to vet nominees for COELIG has now been challenged in two separate proceedings. In one proceeding, Gary Lavine,[11] who had been rejected as a nominee for COELIG, challenged the utilization of the law school deans as a reviewing authority as improper under the State Constitution. Lavine’s challenge was rejected by the State Supreme Court in Onondaga County earlier this year.[12]

The constitutionality of COELIG and the independent review committee has also been challenged by former Governor Andrew Cuomo. Governor Cuomo is challenging COELIG’s scheduled adjudicatory hearing into his contract to write a highly compensated book, American Crisis: Leadership Lessons from the COVID-19 Pandemic.[13]

While the individual challengers to the constitutionality of COELIG may have little in common, their arguments are likely to be similar. In essence, they are arguing that the appointments to the independent review committee are improper under Article 5, § 4, of the State Constitution, which governs the appointment and removal of department heads and board and commission members (hereinafter “appointments clause”). The second argument is that the required Constitutional separation of powers does not permit the delegation of powers to a private entity (in this instance, the independent review committee) to make the ultimate determination of which people are authorized to serve on COELIG.

The Appointments Clause

Article 5, § 4, of the State Constitution states,

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.

On its face, COELIG is a commission whose members are not solely appointed by the Governor[14] and are not removable by the Governor at all.

While the appointments clause has been in the State Constitution since 1925, relatively few court decisions have addressed its meaning. The Court of Appeals has never issued a decision on the reach of the provision.

The few cases on the appointments clause have restricted the reach of the clause to the formal departments of the state.[15] In the leading case of Cappelli v. Sweeney,[16] the direct appointments by the Governor to the Unemployment Appeals Board—which did not require Senate confirmation—were challenged as an Article 5, § 4, violation. The Supreme Court ruled that, based on the history of the appointments clause, the direct appointments were valid because the appointments clause applied only to heads of departments and did not apply to subsidiary boards and commissions. The decision was upheld by the Appellate Division based on the opinion written by the trial court.[17]

The two courts that have considered Article 5, § 4, since Cappelli have reached the same conclusion. In Soares v. State, the court, following Cappelli, wrote that the provision “is meant to apply only to such commissions or boards that serve as ‘heads of departments’ in the executive branch.”[18] In alignment with the case brought by Gary Lavine, the trial court found that the requirement of Senate confirmation applied only to judicial appointments and appointments to the heads of departments.[19] The court held that, since appointments to COELIG involved none of these categories, there was no violation of Article 5, § 4.[20]

Notably, the Court of Appeals has never ruled on the reach of Article 5, § 4, and the federal case law on separation of powers would prevent legislative appointments to an executive department.[21] Additionally, it can be argued that the text of the appointments clause requiring gubernatorial nomination, senate confirmation, and gubernatorial removal is clear on its face, and there is no reason to resort to a review of legislative history.

Delegation of Powers to Private Entities

The other issue raised in the COELIG litigation involves the delegation of power to a private group.[22] In relation to COELIG, there is a series of private delegations of authority. The statute grants vetting power to “the American Bar Association accredited New York state law school deans or interim deans, or their designee who is an associate dean.”[23] Thus, the power to determine the appropriate law schools is delegated to the American Bar Association.[24] The law schools then delegate the power to the deans, and the deans may delegate their authority to associate deans.

In theory, delegations of government authority to private groups would seem to be invalid. In Fink v. Cole,[25] the Court of Appeals reviewed the licensing authority governing thoroughbred horse racing, which had been granted to the private Jockey Club. The court summarily found the grant of licensing power to a private body to be unconstitutional, concluding that “the delegation by the Legislature of its licensing power to The Jockey Club, a private corporation, is such an abdication as to be patently an unconstitutional relinquishment of legislative power in violation of section 1 of article III of the Constitution of this State.”[26] Other decisions—principally in the horse racing field—have echoed the finding of the Fink case.[27]

In Murtha v. Monaghan,[28] the Supreme Court, citing Fink, found invalid a rule of the State Harness Racing Commission which required that a racing official have a license from the private United State Trotting Association. Similarly, in Halpern v. Lomenzo,[29] the trial judge found that certain rules of the State Harness Racing Commission granting regulatory powers to the Jockey Club and licensing powers to the racing stewards (two of the three stewards were appointed by private bodies) were improper.

In theory, the Fink case “appeared to rule out any significant transfer of state governmental authority to private hands.”[30] Yet, in practice, the apparently broad ban on delegation to private organizations has been somewhat porous. The Court of Appeals found constitutional New York City’s rent stabilization law, which gave substantial power to the Real Estate Industry Stabilization Association, a private group of apartment building owners, to administer rent control. The Court found that, while the private organization played a major role in the administration of the law, the City had not surrendered its sovereign powers. The Stabilization Association was still subject to the City Housing and Development Administration, the Rent Guidelines Board, and the Conciliation and Appeals Board. The Court concluded that, given the governmental constraints placed on the Stabilization Association, “no one could seriously entertain a fear that government has yielded any real sovereign power.”[31]

Similarly, the Court of Appeals sanctioned the use of private arbitrators in City of Amsterdam v. Helsby.[32] That case involved the constitutionality of a law that required disputes between a public employer and its fire and police unions to be submitted to a panel for binding arbitration. The panels were private, but under the jurisdiction of the State Public Employment Relations Board. The Court quickly disposed of the delegation issue, finding that legislative delegation of power with reasonable safeguards was certainly proper.[33]

Perhaps most relevant is the case of Lanza v. Wagner.[34] The Lanza case involved the restructuring of the New York City Board of Education. Members of the Board were to be chosen by the Mayor from a list of nominees submitted by a selection board composed of three universities in the city and eight other organizations interested in education. Plaintiffs contended that the delegation of the nominating authority was improper. One of the dissenting judges termed the selection board, “not merely a civic advisory committee, but a quasi-executive committee with mandatory power to limit the appointive prerogative of a duly elected public official.”[35] The Court of Appeals, in a four-to-three decision by Judge Stanley Fuld, found nothing unconstitutional about the delegation. The use of the private nominating board was authorized by the Constitutional provision allowing the legislature free reign in the determination of the appointment of officials not mentioned in the Constitution. The court pointed to its finding in Sturgis v. Spofford,[36] that the members of the Office of the Commissioner of Pilots could be appointed directly by “members of the chamber of commerce, and [. . .] by the presidents and vice presidents of the marine insurance companies of the city of New York.”[37]

Moreover, in the Lanza case, the selection board only nominated the officials; the Mayor of New York City made the actual choice of which officials would serve on the Board of Education. The court pointed out that most jurisdictions found the use of private nominations to be constitutional[38] and cited numerous instances in which the New York State Legislature had authorized private nominations.

Citing the Lanza case, the Onondaga County Supreme Court in the Lavine case concluded that the delegation to the independent review committee was constitutional since the method of appointments to COELIG was “entirely within the discretion of the legislature to direct as it sees fit.”[39]

Although the precedents might seem to favor the constitutionality of COELIG, there are several possible ways to distinguish the COELIG cases from the Lanza case. First, in the COELIG cases, the independent review committee, unlike the selection board in Lanza, makes the ultimate appointment approval decision, which gives the independent review committee arguably more sovereign authority than the selection board in Lanza. Secondly, the constitutional provision on which Lanza relied—former Article 9, § 9, which seemed to authorize wide legislative discretion in the manner of appointment—was repealed as part of the overall reorganization of the Local Government Article in 1963.[40] Finally, most of the examples offered by Judge Fuld of appointments by private bodies to state boards have been repealed.[41]

It should also be noted that New York State has been considered one of the states with a fairly strict non-delegation doctrine.[42] Given the minimal standards imposed on the independent review committee[43] and the inability to appeal from a decision of the committee, there is some potential that the delegation of powers may be found to be excessive.

Finally, overhanging the private delegation debate is the potential position of the United States Supreme Court on private delegations. The Supreme Court has not invalidated a private delegation since the Carter Coal case in 1936.[44] Nonetheless, it is clear that the majority of the Justices of the Supreme Court wish to revisit the private delegation issue, and a new era questioning delegations has likely begun.[45] There are cases in the pipeline that challenge private delegations, including National Horsemen’s Benevolent and Protective Association v. Black.[46] If the Supreme Court wishes, it can change the direction of that issue.

While New York courts are not obliged to follow the views of the United States Supreme Court on private delegation,[47] the New York courts have pretty closely followed the lead of that Court on this subject.[48]

An Uncertain Future

Although the future is uncertain, it appears likely that the appellate courts in New York will be obliged to weigh in on the constitutionality of COELIG. Both the meaning of the appointments clause and the breadth of the private delegation doctrine are likely to be decided in the near future. As Bette Davis’ character said in the movie All About Eve, “Fasten your seat belts, it’s going to be a bumpy night.”[49]

The Government Law Center provides the nonpartisan legal research and analysis that state and local governments need to better serve their communities. Our role is to explain, not to advocate for a particular position or course of action.

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