Former Gov. Andrew Cuomo picked up a big win in his quest to keep the proceeds from his $5.1 million COVID-era book deal, dealing a major blow to New York’s new ethics board in the process.
The state Appellate Division in Albany unanimously decided in Cuomo’s favor Thursday, upholding a lower court’s ruling that effectively strips the newly formed Commission on Ethics and Lobbying in Government (COELIG) of its enforcement powers.
The decision marks a major victory for Cuomo, who has spent the last three years fighting off attempts by state ethics regulators to claw back the money he received for writing a book on the early days of the COVID pandemic, before his abrupt fall from grace over sexual misconduct allegations.
But the implications could be far broader: The court’s decision could leave Albany without any entity to enforce the state’s ethics laws, which are meant to ensure public officials are actually acting in the public’s interest.
The mid-level appeals court upheld Supreme Court Justice Thomas Marcelle’s September decision.
“The Legislature, though well intentioned in its actions, violated the bedrock principles of separation of powers,” Associate Justice Mark Powers wrote in the 5-0 decision.
State Attorney General Letitia James’ office could still choose to appeal to the state’s top court, the Court of Appeals. But because the Appellate Division’s ruling was unanimous, the appeal likely isn’t automatic — the Court of Appeals will have to agree to hear the case.
In a joint statement, COELIG chair Frederick Davie and executive director Sanford Berland said they’ll work with James’ office to seek an appeal. They also said they hope to receive a stay that would preserve their enforcement powers while the case is argued.
“We respectfully disagree with the result reached by the court and are reviewing all options, including, if appropriate, recommending interim legislation,” they said in the statement.
In their ruling Thursday, the judges found the 2022 law creating the ethics panel violates the state constitution in two key ways.
The first was by taking enforcement powers away from the executive branch and giving it to the board, a majority of whose members are appointed by the legislative branch. As structured in the law, COELIG has broad power to investigate and enforce ethics law violations by executive branch employees, including by imposing fines.
The court ruled that structure violates the constitutional separation of powers.
The second constitutional violation has to do with an entity known as the Independent Review Committee, a panel of law school deans tasked with approving or denying nominees to the ethics board depending on their credentials.
The court found that the committee amounts to a new state agency with executive power, also in violation of separation of powers.
“It usurps the Governor’s power to ensure the faithful execution of the applicable ethics laws,” the court ruled.
The battle over Cuomo’s book, “American Crisis: Leadership Lessons from the COVID-19 Pandemic,” dates back to before he resigned from office in 2021 under the weight of various scandals.
Then a rising national star thanks to his daily televised COVID briefings, Cuomo inked a multi-million-dollar deal to write the book in 2020. The leadership of the ethics commission at the time, known as the Joint Commission on Public Ethics (JCOPE) — which he created during his tenure — gave him permission to write the book, so long as he followed rules that included not using state resources to complete the project.
JCOPE ordered Cuomo to turn over his book proceeds after a steady stream of news stories detailed that many of Cuomo’s top government aides worked on the project alongside the then-governor, though the governor’s office said they willingly volunteered their time. Cuomo successfully sued to overturn the fine, though the ruling allowed for a new investigation to proceed.
After current Gov. Kathy Hochul and state lawmakers approved a law creating a new state ethics board in 2022, COELIG launched a new investigation — prompting Cuomo to sue, which led to Thursday’s decision.
In a statement, Cuomo spokesperson Rich Azzopardi said “no one is above the law nor the constitution, including the Legislature and the Executive Chamber.”
“This has been a three-year exercise to bend the law to fit the political will of those in charge and hopefully after this second — and unanimous — court decision, this partisan and baseless prosecution will finally end,” Azzopardi said.