9 April 2022: The Developing Plan to Replace JCOPE

Read: The plan to replace JCOPE

New York's Joint Commission on Public Ethics (JCOPE) was designed and operated by Andrew M. Cuomo and his allies in the NY assembly for one basic purpose over the first 10 years of its existence. That purpose was to provide the appearance of addressing corruption among public officials in New York's state government while doing almost nothing to restrict their ability to engage in corrupt acts.

While today's JCOPE's commissioners are trying to correct the decade of permissive abuses their predecessors were all too willing to sign off upon to benefit Cuomo and his cronies, they're still hamstrung by the legal structure that Cuomo and his pals established to ensure it would never be meaningfully effective in holding powerful figures like themselves to account. This report describes how lawmakers are trying to fix the hapless ethics commission by replacing it. Here's an overview of their plan:

Since the Times Union reported last week on the outlines of the plan, good-government groups have repeatedly slammed the fact that leading state politicians will continue to appoint the ethics commissioners. During its 11-year existence, a frequent criticism of JCOPE was that the 14-person panel lacked independence from the politicians it regulated.

But there are also a number of significant, if more incremental, changes to how the new commission would operate. A few highlights:

— Three members of the commission would be nominated by the governor, two by the Senate majority leader, two by the Assembly speaker, one by the Assembly minority leader, one by the Senate minority leader, one by the attorney general and one by the comptroller.

Based on who currently holds those offices, Democratic elected officials would collectively make nine appointments and Republicans only two. For Republicans, that might well raise concerns that the panel could engage in partisan inquiries.

— An “independent review committee” made up of New York law school deans or their designees would have 30 days to confirm or deny the qualifications of the nominees based on factors such as their backgrounds and expertise. The review committee would publish on a website the procedures by which its reviewing the nominees. If a nomination was rejected by the committee, the politician charged with making that appointment would nominate a new person as a commissioner.

— Commissioners will by majority vote determine the panel's chair. That is a change from JCOPE, where that power was conferred on the governor. In another shift, members of the commission can be removed by a majority vote of the other commissioners for “substantial neglect of duty,” misconduct, or a violation of confidentiality restrictions.

— The commission shall meet “at least quarterly.” JCOPE holds meetings at least once a month.

— The executive director of the office will be appointed through a majority vote of the commission, another break from JCOPE, which had complex voting and veto rules for hiring the agency’s top staffer. And the executive director, not the commissioners, will hire the rest of the staff.

— Instead of JCOPE’s “special voting rules,” which allowed a small minority of commissioners to veto an investigation into a politician that appointed them, decisions about whether to proceed with an investigation, or accept staff’s recommendations about another form of action, would be made by a simple majority vote.

Based on what we're reading, these changes are little more than changes in the window dressing that do little to correct the incompetence and ineffectiveness that Cuomo built into the the original JCOPE. New York lawmakers really do need to go the extra mile and amend the state constitution to make the ethics commission an independent body.

Beyond that, rather than appointing members or drawing upon individuals who already serving in bureaucratic positions in state-funded institutions, we would argue it would be much more worthwhile to have the state's ethics commissioners be elected by voters in nonpartisan elections every two years from different geographic regions, or districts, in the state. But that's just the way we think, where we want the public to both have ready access to the state ethics commissioners they might choose and to be able to easily replace them if they think their performance in holding state officials accountable falls short.

Knowing New York politicians however, we see little chance of them wanting to be held accountable for their ethical failures. They'll want to continue having influence over who gets to decide how any ethics case against them is judged. Which is why there are only changes in the state ethics commission's window dressing.