31 December 2021: JCOPE's Infighting Making Institutional Problems More Visible

Internal strife engulfs New York's ethics panel

Infighting within the highly ineffective Joint Commission on Public Ethics (JCOPE) has become more visible in recent weeks. This report begins with a statement by the new chair of the commision, Jose Nieves, decrying the "leak" of information about a draft letter to the state attorney general staking out the commission's legal argument for why it can proceed with ordering the AG's office to claw back Andrew M. Cuomo's COVID book deal millions:

Jose L. Nieves, chair of New York's ethics commission, issued a searing statement late Wednesday assailing the "unauthorized and improper releases of information by someone associated" with the panel, as well as unnamed sources that he said have unfairly cast the commission as unwilling to investigate top lawmakers.

"These targeted leaks, in addition to allegations made against our professional staff, are nothing more than a coordinated attempt to undermine and discredit the commission and its staff," Nieves wrote. "I feel I must speak up on behalf of the commission staff after seeing them painted in a negative and inaccurate light."

The chairman's statement followed a Times Union story published Monday that reported Sanford Berland, the commission's executive director, had declined to sign a letter that the commission agreed should be sent to the attorney general's office. The letter challenged the attorney general's finding that the commission had not followed the law when it voted recently to have former Gov. Andrew M. Cuomo surrender $5.1 million that he had received for publishing a book about his handling of the pandemic.

Nieves on Wednesday signed an edited version of that letter, which was supported by 12 of the commission's 13 members, after the text had undergone minor changes. The letter took issue with the attorney general's assertion that the order by the state Joint Commission on Public Ethics was invalid. The commissioners contend that under state Executive Law they have "exclusive jurisdiction in authorizing an outside activity involving the head of a state agency or a statewide elected official" and that authority is not set aside by the statutes cited by the attorney general's office.

Nieves, apparently referring to the Times Union's receipt of the draft letter, suggested the leak amounted to the "unauthorized release of confidential information and communications." But the letter, even in draft form, is a record that normally would be subject to release under the state's Freedom of Information Law — if JCOPE were subject to that law, but it is exempt. Still, it's not clear that the letter is "confidential" because it's not related to an active ethics investigation.

That JCOPE's operations are mired in opaqueness is by Andrew M. Cuomo's design, which is not a point lost on one of JCOPE's most prominent critics:

Commissioner Gary Lavine, who has for years openly criticized what he said is the ethics panel's lack of transparency, fired back at Nieves in his own statement Thursday. Lavine noted that for four decades the state's Court of Appeals — New York's highest court — "has held there is a presumption of openness and exceptions to openness are to be strictly construed."

"From the inception of the commission, the Cuomo cohort has exerted itself to maintain a veil of secrecy akin to the medieval Star Chamber," he said, referring to the secretive English court created in the 15th Century to hear legal complaints against powerful individuals.

"The Star Chamber served the monarch not justice," Lavine continued. "JCOPE will meet the same fate as the Star Chamber. Mr. Nieves' censorious defense of secrecy is the last gasp from the JCOPE 'Star Chamber' before it is abolished by Gov. Hochul and the Legislature."

The commission is supposed to be comprised of 14 members. The Senate majority leader and Assembly speaker each appoint three members, while the minority leaders in those chambers each appoint one. Six are appointed by the governor, who also selects the chair. Critics of JCOPE have alleged that some of Cuomo's appointees on the panel have shielded his administration.

As an institution, JCOPE has proven since its inception to be nearly an unmitigated failure in achieving its claimed purpose. Its replacement within New York's state government by a more open, and competent, body has been needed for a very long time.