New York deserves an effective ethics enforcement agency. The Joint Commission on Public Ethics (JCOPE) should be dissolved and replaced with an agency whose members are independent and empowered to impose penalties on corrupt officials.
What is JCOPE?
Back in 2011, New York’s legislature passed the Public Integrity Reform Act. One of the elements of the Act was to create an independent monitor to investigate corruption (JCOPE).
What are the problems with JCOPE’s structure?
Even at the time of its founding, the New York Times said JCOPE “is so deeply flawed in its structure as to be wholly ineffective…so clearly driven by the aim of protecting those in office that it is certain to lead to more paralysis.”
All the commission’s fourteen members are appointed by the governor and legislative leaders. Any [corruption] 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. At the same time, it only takes two of the governor’s appointees to veto an investigation or a finding of a violation. Just three of the legislative appointees can do the same.
According to a story in CIty & State, JCOPE is not subject to FOIL public records requests and unwilling to disclose how frequently investigations are blocked or who is investigated.
How has JCOPE failed to effectively pursue ethics violations?
At least 41 New York officials have been accused of corruption just over the last 5 years, and JCOPE played almost no role in any of the investigations.
Recently, JCOPE decided to pursue an alleged rape survivor for giving money in support of the Child Victims Act while not registered as a lobbyist (a case they ultimately dropped), but did nothing about an actual sexual predator, Eric Schneiderman.
Then came reports that a member of the commission had illegally leaked information on a commission vote that should have been confidential.
The fact that the commission waited two years to hold a hearing about an allegation of sexual misconduct against former state Sen. Jeff Klein [then the head of the IDC], has hardly inspired confidence that JCOPE has lived up to its mission of weeding out corruption.
Also, JCOPE played no role in the corruption convictions of Joe Percoco, Cuomo’s most powerful aide, or SUNY Polytechnic Institute founder Alain Kaloyeros, who oversaw state economic development projects in Buffalo, Syracuse, Rochester and other upstate cities.
How do other states handle public ethics matters?
Generally states are rather pathetic on this front. According to the Center for Public Integrity, some 41 states have government bodies that oversee and enforce state ethics laws. But many of them do little more than provide a false sense of security. In fact, the State Integrity Investigation — a first-of-its-kind probe of accountability in state government — gave grades of either D or F to 28 of those state ethics panels.
California may do better than most. In CA, the Fair Political Practices Commission – founded as a reaction to Watergate – is a five-member independent, non-partisan commission that has primary responsibility for the impartial and effective administration of the Political Reform Act. The Act regulates campaign financing, conflicts of interest, lobbying, and governmental ethics.
The FPPC is composed of five members appointed for staggered four year terms. The Chair and another member from a different political party are appointed by the Governor. Other members are appointed by the State Controller, Secretary of State and the Attorney General. No more than three Commissioners may be from the same political party.
The FPPC is subject to public records requests, and issues an Annual Report of its activities.
A proposed state constitutional amendment would create a thirteen member Government Integrity Commission – modeled on the existing state Commission on Judicial Conduct – to address many of the perceived shortcomings of JCOPE. The sponsors are state Sen. Liz Krueger of Manhattan and Assemblyman Robert Carroll of Brooklyn.
To change the Constitution, two successive state Legislatures have to pass an amendment, which would then go before voters.
The new proposal would have some seats appointed by judges and the remaining seats 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.
The commission would be able to act only with a majority vote. 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 non-investigative roles of JCOPE, like public education and compliance with the state’s lobbying laws.
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.
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.
“Ethics Reform, Albany Style,” New York Times Editorial, 6/6/2011. https://www.nytimes.com/2011/06/07/opinion/07tue1.html
“Replace JCOPE with an independent body,” Ross Barkan, City & State, 3/26/19 https://www.cityandstateny.com/articles/opinion/opinion/replace-jcope-independent-body.html
“Is it time to replace JCOPE?” City & State, 12/12/19.