State ethics commission faces new constitutional challenges

ALBANY — Two lobbying firms have joined David Grandeau in a lawsuit filed with the State Ethics and Lobbying Commission challenging new regulations that prohibit lobbyists from appointing a third-party individual to prepare and file mandatory disclosure statements.

Grandeau, who served as executive director of a previous state ethics commission from 1995 to 2007, owns a Niskayuna firm that prepares and files lobbying disclosure forms for more than 60 firms.

The lawsuit was recently filed in State Supreme Court in Albany and states that the commission requires lobbyists to submit forms stating that a client consents to representing their interests before government officials. But the new regulations, which are set to take effect next week but have already been posted on the commission’s website, prohibit lobbyists from authorizing a representative to submit disclosure reports.

Grandeau’s lawsuit alleges that the regulations would interfere with lobbying firms’ rights to do their business and increase their exposure to fines and penalties.

The new rules state that the applicant must be an employee or member of the lobbying organization and list numerous examples of positions that might meet that standard, including chief executive officer, president, vice president, deputy director or general counsel.

But the lawsuit argues that the ethics commission, created in 2022 to replace the beleaguered Joint Commission on Public Ethics, lacks the authority to issue new regulations, in part because courts have ruled the Executive Act gives the commission the authority to change its own regulations. It was stated that it was unconstitutional.

That claim is based on a decision two years ago by State Supreme Court Justice Thomas Marcelle, who ruled in favor of former Gov. Andrew M. Cuomo, finding that the new ethics commission was established and given enforcement powers in violation of the state constitution. . In the Marcelle decision, which the state appeals court unanimously accepted 5-0, it was stated that the commission was not established through a constitutional amendment that would require a “people’s” vote.

Marcelle also emphasized in her decision that the 11 ethics commissioners were effectively selected by an independent panel of law school deans who had not been sworn into public office and selected the candidates through a confidential process. Deans of accredited New York law schools review three candidates selected by the governor; two nominations each by the Senate majority leader and House speaker, and one each by the attorney general, state comptroller and Senate and House minority leaders.

Cuomo’s lawyers had argued that because most of the new commission’s appointees were nominated by the Legislature, the comptroller and the attorney general, the commission violated the separation of powers doctrine and was not truly an executive branch commission.

The state has filed an appeal of the appellate division’s decision to the Court of Appeals, New York’s highest court, in a case expected to be decided next year. Oral arguments in the case are scheduled for Jan. 7.

Officials at the ethics commission stated that the moratorium was still in effect, allowing them to continue their work.

But lawsuits questioning the commission’s constitutionality are piling up. In addition to the lawsuits filed by Grandeau and Cuomo, former state Sen. Jeffrey D. Klein filed a similar legal challenge in May.

Klein has been the subject of a long-running investigation by the state ethics commission over allegations that he forcibly kissed a female employee nine years ago. Citing rulings in Cuomo’s case, the lawsuit also seeks a court order stating the panel lacks constitutional authority to try Cuomo.

Klein’s case has been postponed pending the outcome of Cuomo’s case in the Court of Appeals. Cuomo has defied the ethics commission’s efforts to investigate the $5 million settlement he received in exchange for writing a book about his administration’s response to the pandemic. The ethics investigation focused on allegations that Cuomo improperly used incumbent government staff to help him conduct research and write the book; He denies the accusations.

From 2011 to 2018, Klein led the Independent Democratic Conference, a group of Democratic senators who joined the minority Republican conference in voting to impeach him.

Klein launched his legal bid in late 2020 to thwart an investigation by the former state Joint Commission on Public Ethics (later disbanded), and unsuccessfully tried to have a judge seal records of his attempt to block the now-defunct commission from conducting an investigation. listening on the topic.

Klein accuser Erica Vladimer’s allegations were made public more than six years ago. Klein, who was still the influential leader of the Senate’s Independent Democratic Caucus at that point, immediately wrote a letter to the ethics commission in January 2018, urging the panel to conduct an “independent investigation” into Vladimer’s allegations. The former MP released a copy of this letter as he held a press conference declaring his innocence.

Vladimer had previously said that it was “truly surprising to witness how much energy and resources Klein devoted to evading an investigation that he requested.” “This is a clear example of taking advantage of Cuomo’s situation for personal gain, an act that should not go unnoticed.”

Vladimer never filed a formal complaint against Klein and left his IDC job a month after the alleged encounter. He co-founded the Sexual Harassment Working Group, an organization made up of former legislative aides who say their complaints about sexual harassment in the workplace were mishandled.