Is it time to replace JCOPE?

Governor Cuomo has complained about JCOPE appointees voting against him.
Governor Cuomo has complained about JCOPE appointees voting against him.
Office of Governor Andrew Cuomo
Governor Cuomo has complained about JCOPE appointees voting against him.

Is it time to replace JCOPE?

A constitutional amendment could reduce Cuomo’s influence on ethics enforcement.
December 12, 2019

There was much celebration among good-government advocates and elected officials when state leaders reached a deal on ethics reform eight years ago. Among other changes, the Public Integrity Reform Act of 2011 created the state Joint Commission on Public Ethics to hold members of the legislative and executive branches accountable for wrongdoing in a state capital frequently tainted by corruption. “This bill is the tough and aggressive approach we need,” Cuomo said in a statement at the time. “Government does not work without the trust of the people and this ethics overhaul is an important step in restoring that trust.” But JCOPE never really lived up to that promise. From the beginning, it was criticized as a “toothless” body “chock full of cronyism” – a reputation it would not shake in subsequent years.

JCOPE has faced renewed scrutiny in recent weeks. It was criticized for pursuing a case against an alleged rape survivor because it said she spent too much in support of the Child Victims Act and didn’t register as a lobbyist – a case the ethics commission ultimately dropped. Then came reports that a member of the commission had illegally leaked information on a confidential vote. The fact that the commission waited two years to hold a hearing about an allegation that former state Sen. Jeff Klein forcibly kissed a staffer has hardly inspired confidence that JCOPE has lived up to its mission of weeding out corruption.

“Something has to be done because JCOPE does not work and has repeatedly been shown not to work and (was) designed not to work,” said John Kaehny, executive director of the good-government group Reinvent Albany. Now, state lawmakers are looking to take action in the upcoming months.

A proposed state constitutional amendment would create a nine-member Government Integrity Commission – modeled on the existing state Commission on Judicial Conduct – to address many of the perceived shortcomings of JCOPE. But even if it garners support, change would not happen overnight because it is a multiyear process to adopt constitutional amendments. Two successive state Legislatures have to pass an amendment, which would then go before voters – with the amendment taking effect in 2022 at the earliest.

If that happens, it would mark a big break from the current system for enforcing state ethics laws. The governor and legislative leaders would have much less control over the process. Employees of the legislative and executive branches would be easier to fire. There would even be a constitutionally mandated level of funding equivalent to about five times the approximately $5 million the state currently spends on JCOPE. However, many constitutional amendments get proposed, but few become law – especially when one of the hurdles is the difficulty inherent to convincing lawmakers to weaken their own power.

"JCOPE does not work and (was) designed not to work." - John Kaehny, Reinvent Albany executive director

The sponsors, state Sen. Liz Krueger of Manhattan and Assemblyman Robert Carroll of Brooklyn, will not be alone in pursuing the changes, which were developed with the help of attorney Evan Davis, a counsel to then-Gov. Mario Cuomo. Good-government groups say they support the effort and aim to mobilize public support with rallies at the state Capitol as well as lobby lawmakers in the upcoming session. “We’re in the beginning stages of trying to push this,” said Blair Horner, executive director of the New York Public Interest Research Group, a good-government group. He added that while the amendment had to take a back seat to other issues this past session, this has unexpectedly resulted in a renewed effort now that state ethics laws are back in the headlines. “The most recent controversy around the inspector general report of JCOPE heightens concerns that something has to be done,” Horner said.

The Times Union reported in November that Cuomo had called Heastie in January to complain that the speaker’s JCOPE appointees had voted against the governor in a closed-door meeting apparently involving former gubernatorial aide Joseph Percoco. Heastie has acknowledged talking to Commissioner James Yates that day since he is “a friend and a mentor,” but he did not say what they discussed. A secret investigation by the state inspector general’s office was not able to substantiate any wrongdoing by the commissioners, Cuomo or Heastie, though the governor and speaker were not interviewed by investigators. Even if more facts come to light, they might reflect more on the shortcomings of the current ethics laws rather than legal violations by state leaders or their staffs. “Remember, legally, the only legal obligation is on the commissioners not to disclose,” Cuomo said in late November, according to the Daily News. “That’s why they talked to the commissioners because the commissioners are the only ones who have a legal obligation.”

The proposed amendment would prohibit elected officials from having private “ex parte” conversations with the commissioners they appoint, a provision which aims to prevent the appearance of wrongdoing. The proposal would also dramatically alter how commissioners are appointed in the first place. The state legislative leaders and the governor currently choose all of the members of JCOPE. The new proposal would have five seats appointed by judges and the remaining four appointed by elected officials. Two of these would be appointed by the leaders of the legislative conferences and the rest by a joint agreement among the governor, state comptroller and state attorney general. Elected officials would have their influence further diluted because the commission would be able to act with a majority vote, unlike the current system whereby as few as two commissioners out of the 14 can block investigations. To add some legal teeth to its enforcement, the commission would also be empowered to compel testimony through subpoenas and could refer investigations to state or federal prosecutors.

An executive director and staff would be authorized by the amendment to conduct the day-to-day work of the commission, which would assume many of the noninvestigative roles of JCOPE, like public education and compliance with the state’s lobbying laws. The amendment also includes provisions that make the new commission responsible for the administration and enforcement of the state’s campaign finance laws. Though the state public financing commission has already issued binding recommendations to change the state’s campaign finance law, the amendment would grant authority to the Government Integrity Commission to recommend to the Legislature new limits on campaign contributions to candidates and political organizations. 

Krueger said that the amendment would ensure additional transparency to address a common criticism of JCOPE as a secretive body, though the legislative language itself is fairly vague on this point. “Right now, you can bring a complaint and you might never ever learn whether JCOPE even had a discussion or (a) vote to follow up on an investigation,” Krueger said. An example of this is a complaint brought by former legislative staffer Erica Vladimer, who has alleged that Klein forcibly kissed her outside an Albany bar in 2015. An investigation was launched three years after the alleged incident came to light, but Vladimer told Politico that she was left in the dark about the progress of the investigation, which will be the subject of an upcoming hearing. The amendment states that the proposed commission would be subject to all “transparency and public access laws,” though “reasonable exceptions for pending confidential investigations” would be made.

Majority votes of the 63-seat state Senate and 150-member Assembly are needed to pass the amendment. The number of co-sponsors in both chambers – a rough measure of support – is currently well short of the numbers needed for passage. Two key lawmakers – state Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie – have yet to sign on to the legislation or speak publicly in support of it. Members of both Democratic conferences met in early December to discuss their priorities for the upcoming session, but other issues like the controversial new public campaign financing laws took precedence over ethics reforms. Given Krueger’s stature as a longtime senator and chairwoman of the Finance Committee, it appears more likely that she would be able to get the proposed amendment through her chamber. More than two dozen Democratic and GOP senators have already signed on, so just a few more votes are presumably needed to ensure passage. In the Assembly, only about half of the 76 members needed for passage are co-sponsors. For now, neither Krueger nor Carroll are making promises that the amendment will pass in the upcoming months. “It’s up to Sen. Krueger and I to do the hard work to convince our colleagues,” Carroll said. “That’s a tough task, but it’s not outside the realm of possibility.”

A representative of JCOPE said that the commission is agnostic about the proposed amendment, though the agency does have reform proposals of its own. “It’s up to the executive and the Legislature to make decisions about the laws that govern what we do and how we do it,” said Walter McClure, a JCOPE spokesman. The commission’s website includes numerous proposals of its own on how to increase oversight and tweak the state ethics laws. McClure rejected criticisms that the commission is not proactive enough in pursuing investigations, noting the confidentiality laws preclude the commission from disclosing much of its work. State and federal law enforcement also occasionally request that the commission avoid pursuing a case while a criminal investigation is being conducted, added McClure, who noted that ethics investigations are just one part of what the commission does. “The core mission of our agency is essentially a compliance agency,” he said. “We’re here to provide training and information to help state employees and state officials to follow the law.”

While lawmakers do not need to change the state constitution in order to reform the state’s ethics laws, the amendment process would not require gubernatorial approval. Amending the constitution also would make the changes more permanent. “They’re very hard to pass (but) they’re also very hard to undo,” Krueger said.

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Zach Williams
is a staff reporter at City & State.
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