Ethics
Ethics/JCOPE

Introduction

What’s wrong with the Joint Commission on Public Ethics (JCOPE)

1. Votes to investigate corruption are secret, and are not subject to the Freedom of Information Law (FOIL).

Unlike all other government offices, JCOPE proceedings occur in secret, and cannot be made public through a FOIL request.  This means that, when the committee decides not to investigate a candidate or elected official, voters cannot hold JCOPE and the officials that nominated JCOPE members accountable.

2. Just two partisan members of JCOPE can veto an investigation.

When the Commission uncovers evidence of unethical behavior, an 8-member majority must vote to investigate.  However, this majority must include members belonging to the same branch and party of the individual under investigation.

For example:

If the person accused is a Democratic member of the Executive Branch…

Any two of the Governor’s three Democratic appointees can veto an investigation, even if 12 of the 14 members of JCOPE vote to investigate.

Members selected by the Legislature can also veto investigations. 

For instance:

If the person accused of an ethics violation is a Republican legislator, candidate, or staffer…

Any three of the four members appointed by Republican leaders in the Legislature can veto an investigation, even if 11 of the 14 members vote to investigate.

JCOPE’s fundamental flaws have been discussed at length by journalists, good government advocates, and elected officials:

New York Times, "Ethics Reform, Albany Style" (June 6, 2011):

"While these changes are commendable, the new 14-member Joint Commission on Public Ethics created to monitor elected officials, legislators and lobbyists is so deeply flawed in its structure as to be wholly ineffective."

"In fact, 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. This provision would essentially give legislative leaders the ability to squelch any investigation or even any public release of the allegations."

Michael Gormley, Wall Street Journal (April 2, 2012):

"I think this is disturbing," said Bill Samuels of the New Roosevelt group, which seeks greater openness and accountability in government. "What is the big deal about making a vote transparent? There's no reason. The specific FOIL (request) is an indication of a culture that eventually is going to have problems ... This is not an open, transparent administration."

New York Times (June 5, 2012):

"Cuomo administration officials argue that the governor pushed hard for ethics reform last year that, among other things, would require 501(c)(4) groups to disclose their donors. The legislation has a worrisome loophole that allows donors to remain secret if disclosure could lead to them being harassed or threatened. That is the claim made by business groups at the national level that are fighting disclosure.”

 

Background

JCOPE and the Public Integrity Reform Act of 2011

The Public Integrity Reform Act of 2011 created the Joint Commission on Public Ethics (JCOPE), convened to “oversee and investigate compliance with the financial disclosure and other ethics requirements by executive and legislative employees and elected officials in both branches of government.” 

This mission statement includes authorization for JCOPE to tighten ethics regulations and strengthen tools for monitoring how public officials get their money and how lobbyists spend it.

Appointing Members to JCOPE

As stipulated in the Public Integrity Reform Act, JCOPE consists of 14 voting members and one non-voting Executive Director.  These members are appointed both by the Governor and Lt. Governor, and by both houses of the Legislature.

The Governor and Lt. Governor appoint 6 of JCOPE’s 14 members.  At least 3 of these appointees must belong to the major party that is not the Governor’s.  Governor Cuomo, a Democrat, must therefore appoint at least 3 Republicans to JCOPE.

The Legislature appoints the remaining 8 members of JCOPE.  The Senate appoints 4, 3 by the Senate President and 1 by the Senate Minority Leader.  The Assembly appoints the final 4, 3 by the Speaker and 1 by the Minority Leader.

The following table illustrates the appointment structure.

 

Total Appointments

 

Required by Law

Governor/Lt. Governor

6

Appointees Belonging to Governor’s Party

≤ 3

Appointees Belonging to Major Party other than Governor’s

≥ 3 (No More than 4)

Legislature

8

Nominated by Temporary President of Senate

3

Senate Minority Leader

1

Speaker of Assembly

3

Assembly Minority Leader

1

Total

14

 

 

The Commission elects an Executive Director by majority, with the support of at least one Republican and one Democrat among both the Governor’s and the Legislature’s appointees.  It is the duty of the Executive Director to manage staffing and any other roles delegated by the Commission, including conducting ethics investigations.

Voting to Investigate Corruption

When the Commission uncovers evidence of unethical behavior, an 8-member majority must vote to investigate.  However, this majority must include members belonging to the same branch and party of the individual under investigation.

If the individual suspected of wrongdoing is a member of the Legislature or legislative staff, “at least two of the eight or more members who so vote to authorize such an investigation must have been appointed by a legislative leader or leaders from the major political party in which subject of the proposed investigation is enrolled.” 

If a Republican Assembly Member is suspected of violating ethics law, at least two Republican JCOPE members appointed by the Senate or Assembly must vote to investigate.

Similarly, if the suspect of a proposed investigation is employed in the Executive branch, at least two of the eight member majority must be appointed by the Governor and belong to the subject’s political party.

 

Conclusion

JCOPE: “Deeply Flawed” and “Wholly Ineffective”?

When the Commission uncovers evidence of unethical behavior, an 8-member majority must vote to investigate.  However, this majority must include members belonging to the same branch and party of the individual under investigation.

Unfortunately, this power structure allows the Governor to veto investigations into his own administration, and party leaders in the Legislature to block investigations into their party’s legislators. 

Imagine that Governor Cuomo comes under suspicion of wrongdoing.  Of the three Democrats the Governor appoints to JCOPE, two must vote for an investigation into any accusations. 

Therefore, as stated in the introduction:

If the person accused is a Democratic statewide official or employee, including the Governor…

Any two of the Governor’s three Democratic appointees can veto an investigation, even if 12 of the 14 members of JCOPE vote to investigate.

There is an obvious conflict of interest with this veto power, as it is almost impossible to imagine the Governor’s appointees investigating claims that he behaved unethically, especially if they share his party membership.     

As a result of this structural flaw, JCOPE is little more than a paper tiger, the subject of countless campaign speeches on meaningful ethics reform that ultimately exempts power holders from investigation. 

To truly achieve change, the Governor and Legislature’s vetoes must be dropped in favor of a simple majority vote, empowering JCOPE to investigate all claims of wrongdoing.  Only when the law is enforced evenly between the Executive and the Legislature and across party lines will the “Public Integrity Reform Act” be more than just words.

Authored by

 

ARTICLE I

Bill Of Rights

§6. ...any public officer who, upon being called before a grand jury to testify...refuses to sign a waiver of immunity against subsequent criminal prosecution...shall be disqualified from holding any other public office....

ARTICLE II

Suffrage

§3.The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

ARTICLE VI

Judiciary

§22. a. There shall be a commission on judicial conduct.

 

 

 

NEWS BEHIND THE CONSTITUTION
New York Times
Tuesday, October 8, 2013
When Gov. Andrew M. Cuomo created the Commission to Investigate Public Corruption in early July, he promised a muscular response to bad behavior by legislators that included allegations of bribe taking, favor trading and embezzlement.
Link to Original Source - Link to Cached Version
 
New York Times
Thomas Kaplan
Thursday, February 7, 2013
In November, the state comptroller instructed Mr. Boyland, 42, whose father and uncle both served in the Assembly, to repay the state $67,497 in travel reimbursements he had received by claiming to be in Albany on hundreds of days when, an...
Link to Original Source - Link to Cached Version
 
NBC
Michael Gormley
Friday, September 7, 2012
 The most independent member of the state's ethics board quit on Friday hours after he called for a federal probe into what he said was corruption on it. 
Link to Original Source - Link to Cached Version
 
OPINION EDITORIALS ON THE CONSTITUTION
Daily News
Bill Hammond
Tuesday, May 21, 2013
The neutered ethics watchdog was Silver's idea, so he bears responsibility for its profound failures.
Link to Original Source - Link to Cached Version
 
Daily News
Celeste Katz
Monday, April 8, 2013
State Comptroller Thomas DiNapoli has a simple solution to the scandals that have rocked Albany in recent days: Try electing more honest people.
Link to Original Source - Link to Cached Version
 
Daily News
Friday, April 5, 2013
“People do stupid things, frankly. People do illegal things. People in power abuse power. It’s part of the human condition,” the [Cuomo] said, employing a cliche to divert attention from the seamy truth that surrounds him.  It...
Link to Original Source - Link to Cached Version
 
New York Times
Wednesday, April 3, 2013
The corruption scandal that blew up in Albany this week is the equivalent of a Russian nesting doll: a federal prosecutor accusing a state senator of conspiring with county party bosses and a city councilman to buy a spot on a city ballot and to steer...
Link to Original Source - Link to Cached Version
 
Newsday
Editorial
Tuesday, August 7, 2012
 For the first time, lobbyists working to influence legislation in New York State will have to publicly disclose where their money comes from. That's a triumph for transparency and an important first in the nation at a time when the...
Link to Original Source - Link to Cached Version
 

 

 

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