Thank you for the opportunity to submit this testimony on behalf of the Commission on Ethics and Lobbying in Government (COELIG, or “the Commission”) and to emphasize the necessity of providing the Commission with a budgetary appropriation for Fiscal Year 2025-2026 that will enable it to perform its critical governmental functions and to fulfill its salutary and essential legislative mandate: to restore public confidence that our state’s government is, indeed, working in the public’s interest. We believe that the essentially flat appropriation set forth in the Executive Budget for the Commission – $8,316,0001 – is inadequate to meet the Commission’s minimum needs for the coming year and request that the final budget provide the full amount request by COELIG in its budget submission, $8,910,300, which is attached.
Without the full requested appropriation, the Commission will be unable fully to perform its duties with the thoroughness and speed that its legislative mandate demands. The lack of adequate funding will come at the detriment of public confidence that state government is indeed committed to ensuring that government is working in the public interest. While complications beyond the Commission’s control and unrelated to its work have up to now impeded the Commission’s ability to complete its staffing plan, those factors (specifically the consequences of litigation over the Commission’s structure and composition brought by the former Governor within a year of ECRA’s enactment and before the Commission was a year old) will soon reach final resolution, whether by judicial fiat or legislative action, or both. The Commission, whether in its current form or in some modified iteration, will then be enabled to fulfill all of its responsibilities, and will need - and will have the capacity to hire - the full complement of personnel called for by its staffing plan. In order to have that capacity, the Commission requires a personal services appropriation for fiscal year 2025-2026 of $7,686,000, as stated in its budget request.
Background. The Commission is the product of the Ethics Commission Reform Act of 2022 (ECRA) (L. 2022, Ch. 56, Part QQ) and replaced the former Joint Commission on Public Ethics (JCOPE). The Commission statutorily came into being on July 8, 2022, but did not have a bare quorum of formally approved and appointed Commissioners for several months, holding its first meeting on September 12, 2022. Commissioners and staff immediately set about building an agency within the framework dictated by ECRA, with the robust capabilities essential to meeting the ambitious goals and objectives established by that statute.
Among other things, the statute’s goals and objectives include substantially strengthening the Commission’s capacity and capabilities in its most crucial areas of jurisdiction, including investigations and enforcement, lobbying regulation and oversight, and state official, workforce and lobbying guidance and supervision as well as overseeing and administering an unprecedented and nationally unique program of ethics training for the state's entire executive branch workforce – encompassing over 300,000 individuals – and for virtually all lobbyists and lobbying clients in the state. It should be particularly noted that this expanded training mandate alone, which is dictated by Section 94(8) of the Executive Law, represents a more than ten-fold increase in the number of affected state officers and employees, and more than thirty times as many trainings, over the triennial ethics training program administered under prior law by JCOPE for policymakers and high earners. Moreover, unique among the state’s lineage of ethics and lobbying regulatory agencies, COELIG is now subject to the state’s Freedom of Information Law and Open Meetings Law (“FOIL” and “OML,” Articles 6 and 7 of the Executive Law), transparency innovations that have been welcome but also costly from the perspective of agency resource consumption.
Adequate funding of the Commission’s varied and complex operations is essential for the Commission to carry out its duties with the thoroughness and zeal our mission demands and to avoid the delays, limitations, backlogs, and systemic frustrations that bedeviled our predecessor, not only in the handling of investigative and enforcement matters, but also in the processing and review of the many tens of thousands – collectively, more than one hundred thousand – financial disclosure statements and lobbying registrations, reports, and amendments that the Public Officers Law and the Lobbying Act require the state’s ethics and lobbying agency to review every year and which are indispensable to our state’s system of ethical transparency and compliance. In recognition of the need to ensure adequate funding and to supply COELIG with the means to meet its substantially expanded responsibilities, ECRA called for a substantial and necessary increase in the Commission’s funding over that of its predecessor in Fiscal Year 2021-2022, and the Governor and Legislature followed suit in the two subsequent fiscal years. While those increases were appreciable, they were not lavish or excessive and represented amounts the Commission expected it would require on an annual basis to fulfill its many responsibilities, conduct its varied and demanding functions, and fulfill its ambitious but essential mission: to restore the public’s trust in their state government by holding every person who works for that government, regardless of position or office, and those who seek to influence it, to the highest levels of ethics and accountability.
The Cuomo litigation and its impact on the Commission. In April 2023, barely seven months after the first COELIG commission meeting, former Governor Andrew Cuomo filed a civil action in state Supreme Court, Albany County, seeking an injunction to prevent the Commission from moving forward with an enforcement proceeding against him and a declaration that the Commission’s structure contravenes separation of powers principles in violation of the state constitution. In a decision and order dated September 11, 2023, Supreme Court granted the former Governor’s motion and entered a preliminary injunction effectively prohibiting the Commission from exercising its investigative and enforcement functions and any related powers. The Commission moved for, and the Appellate Division, Third Department granted a partial stay of the preliminary injunction. On May 9, 2024, the Appellate Division affirmed Supreme Court’s order but subsequently granted the Commission permission to appeal its ruling to the Court of Appeals. The Commission’s appeal was argued in the Court of Appeals on January 7, 2025; a decision is expected imminently. See Cuomo v. New York State Commission, 76 Misc. 3d 1036 (Sup. Ct. Albany County, September 11, 2023), aff’d, 228 AD23d 175 (3d Dep’t, May 9, 2024), lv. to appeal to New York Court of Appeals granted (3d Dep’t June 5, 2024), appeal pending (New York Court of Appeals, argued January 7, 2025).
By virtue of a partial stay granted by the Appellate Division, Third Department, it has been possible for the Commission to avert some of the most dire operational consequences of the preliminary injunction in the Cuomo action. Thus, and as detailed below, the Commission has been able to oversee ethics training for hundreds of thousands of state employees, provide advice and guidance to the entire executive branch workforce, process and make available to the public tens of thousands of lobbying filings and financial disclosure statements, conduct audits and targeted and random reviews of several thousand of those filings, and investigate scores of complaints, referrals, and self-initiated matters involving potential violations of the Lobbying Act, the Little Hatch Act, and Sections 73, 73-a and 74 of the Public Officers Law.
There are two things, however, that the Commission has not been able to do. First, because of the readiness of Supreme Court to apply its Cuomo holding to other enforcement matters, see, e.g., Klein v. New York State Commission, Index No. 905075 (Supreme Court, Albany County, June 7, 2024) (granting temporary restraining order), it has been unable to prosecute enforcement matters through to hearing and the possible imposition of penalties. Second, because of the cloud of uncertainty cast by the pending litigation, compounded by the overall difficulty government agencies are now facing in attracting qualified applicants, it has been frustrated in its efforts to complete its staffing plan, leaving a number of key positions vacant. While this has made it possible to stay within budget in the current fiscal year by enabling the reallocation of unused personal services amounts to cover non-personal services expenses, expenses that the Commission would not otherwise be able to pay, once the vacancies in these essential positions are filled that will not be possible, and the full amount of our requested appropriation will be required in order for the Commission to fulfill its mandate.
COELIG’s Operations. The Commission performs its statutory duties across five principal divisions and two shared units, pursuant to an organizational structure that is primarily dictated by the express requirements of Executive Law Section 942. The Commission’s advisory and financial disclosure functions are within the Ethics Division. The Commission’s lobbying guidance and filings programs constitute the Lobbying Division. The Commission’s education and auditing programs and training functions are shared between the Ethics and Lobbying Divisions in, respectively, the Education Unit and the Compliance Audit and Review Unit. The Communications and Public Information Division coordinates the Commission’s external communications; oversees the release of public information; plans the Commission’s statutory annual public meeting; provides and manages content on the Commission’s website, social media channels, and newsletters; receives requests for public records and handles the Commission’s media, stakeholder, and legislative relations, as well as provide technical coordination of the logistics for the Commission’s public meetings, which are livestreamed and recorded for subsequent viewing. Staff is assigned accordingly throughout the agency, and many employees have joint responsibilities to afford necessary flexibility in the performance of critical functions and in meeting the Commission’s broad and varied mandates. Underlying the Commission’s Fiscal Year 2025-2026 budget request is a staffing and expense plan that is indispensable if the Commission is to avoid backlogs and delays and perform its mandated functions in a timely, efficient, comprehensive and effective manner, as follows:
Ethics Division – Guidance and Ethics Training. ECRA has not only vastly increased the number of individuals – from over 30,000, to as many, by our latest calculation, as 330,000 – for whom live/live-online comprehensive ethics training and intervening ethics refresher training is to be administered by COELIG (in conjunction with agency ethics officers) but also increased the frequency of mandatory comprehensive live/live-online training – from every third year to every two years.3 The markedly expanded training requirement has posed equally marked staffing challenges, not only for our agency, but for every one of the nearly four hundred agencies encompassed by the new ethics training requirement. To help meet that challenge, we have introduced a comprehensive online on-demand course to supplement existing live/live-online training capabilities.
Both to address the expanded overall training requirements and to meet the expanded needs within our own agency, we have created and staffed a new executive-level position, Deputy Director of Learning Innovation, added three additional trainer position and created an additional training associate position (for which recruiting efforts are ongoing) to expand and improve training, tracking, and communication modalities and to keep up with markedly increased administrative and reporting obligations (see, for example, Executive Law § 94(8)(f), which requires quarterly and annual reporting of the status of training compliance to the Governor and the Legislature). We have also added two associate counsel positions in the Ethics Division, to respond to growing demands for guidance stimulated by the increased reach and frequency of mandatory ethics training and to which our Advice and Guidance unit is required by law to respond4 and to provide added, as needed, training capabilities.
To date, there have been over 330,000 live-in-person, live-online, and on-demand comprehensive ethics training completions. The Commission’s comprehensive workforce ethics training implementation plan calls for all executive branch officials and employees to have received at least one ethics training by the end of 2024 and to have completed a full ethics training cycle – i.e., one live (in person or online) comprehensive training and one refresher training – on or before December 31, 2025. In addition, over 10,000 lobbyists and lobbying clients received online lobbying ethics training in the biennial lobbying cycle that ended on December 31, 2024.
To facilitate our handling of the unprecedented ethics training mandate, we have worked with the Office of Information Technology Services to develop and implement a Statewide Ethics Training Application that, among other things, monitors training compliance at the individual employee level to create, for the first time, a record of each of the more than approximately 330,000 state officers and employees required to complete ethics training. The application went live in mid-June 2024, and when fully populated – it currently has data for approximately 260,000 state employees – it will identify, schedule, track, and report ethics training compliance at the individual employee level across the more than 380 departments, commissions, and agencies that make up the state’s executive branch. Further, the Commission has also projected the necessity of leasing a modest amount of additional Training Unit office space in Albany to expand the number of simultaneous live-online ethics trainings to help meet the challenge, shared with executive branch agencies, of providing such live-online training to at least half of the executive branch workforce each year.
Compliance Audit and Review Unit/FDS Unit. The Compliance Audit and Review Unit is also a shared unit, jointly supporting both the Lobbying Division and the FDS unit, which is housed in the Ethics Division. Under our staffing plan, we have filled positions for an additional Compliance Auditor and an additional Compliance Analyst in the Compliance Audit and Review unit and have created an additional Compliance Auditor for which recruiting efforts have been ongoing. With the elimination of the lobbying filing processing backlogs that had resulted from short staffing in prior years, throughput is now commensurate with filing rates, making the need for robust staffing in this unit to prevent downstream processing delays and backlogs and in ensuring that our audits and reviews are always performed in a timely, thorough, and comprehensive manner. For like reasons, we previously filled vacancies in the positions of Assistant Director of FDS and Assistant Filings Specialist (Filings Examiner) in our FDS unit and in the past year created and filled Assistant Director positions in both units to improve oversight and workflow.
Lobbying Division. As was noted in our budget submissions, lobbying activity remains at historically high levels – the lobbying industry spending reached an all-time record of $360.6 million in 2023, and we expect the number for 2024, when all of the data has been assessed, to be at least as high. The Commission anticipates that lobbying registrations, reports, and amendments will continue to be filed, and lobbying guidance and filing assistance will be sought at historically high rates. To ensure the timely processing and review of the tens of thousands of filings the unit handles every quarter, and to facilitate prompt follow up, we have improved the division’s supervisory structure and we have been actively recruiting to fill vacancies in a number of filing specialist positions. Filling these vacancies is essential to achieving our overall compliance goals.
Investigations and Enforcement Division. Under the predecessor agency’s staffing plan, this was nominally an eight-person unit, but fiscal limitations meant that only six positions were filled. The Commission’s approved staffing plan calls for expanding the division to at least nine FTEs, both to expedite the disposition of the significant number of open and pending investigative and enforcement matters carried over from JCOPE and to accommodate the expeditious handling of new matters, as well as to meet the demands of the series of significant and complex investigative and enforcement matters that the Division has been handling.
In the first part of 2023, we successfully recruited highly capable new leadership for the Division, including both a new Director of Investigations and Enforcement and a Deputy Director of the division (a newly created position), both of whom who have extensive experience investigating and pursuing public integrity matters. We also created, and filled, a Senior Investigative Counsel position and brought in and promoted two highly experienced Senior Investigators, providing the Division with a core team of investigators and counsel with diverse and deep backgrounds that include public integrity and sex crimes investigations. However, our efforts to fill a second investigative counsel (who will also serve as a liaison for investigation and enforcement purposes to the agency's Lobbying Division), a third investigator (to work out of our New York City office), and an electronic document specialist position to support the handling and trial of complex enforcement matters have been stymied by the ongoing Cuomo litigation. While Division staff has been assiduous in handling the growing the number and breadth of investigations and enforcement matters that the Commission has received and is pursuing, once the evidentiary hearing process resumes, the filling of these positions will be crucial.
Administrative Division, Executive Staff, and Communications/Public Information. In its first year of operation, the Commission filled the then-vacant key Executive Staff positions of General Counsel and Deputy General Counsel and the vacant Administrative Division position of Administrative Assistant/Executive Assistant for our New York City office (this last is the sole administrative support position situated in our New York City office). In 2024, it created and filled the position of Deputy Director of Administration, necessary to support a growing staff with widely increased duties. In the Communications/Public Information Division, it created the core, and demanding, position of Director of Communications and Public Affairs and Public Information Officer and successfully recruited an exceptionally well qualified and highly skilled communications expert for the position, who also serves as its Freedom of Information Law Records Access Officer; created and filled the position of Assistant Communications Director; and filled the position of Communications Assistant. And earlier this year, it added to the Executive Group the position of Research Data Analyst, both to provide the public with more timely and accessible reporting of information collected by the agency and to enable the Commission more readily to identify, evaluate, and deploy technological tools to improve its efficiency and expand its capabilities.
These positions are each essential and indispensable to the efficient and effective operation of our agency and to achieving our goal of maximizing, to the full extent possible within statutory and practical bounds, the transparency of our operations and our openness to public scrutiny. Indeed, the Division went on to create and continuously update and improve the Commission’s website and the sites’ two principal filing applications – FDS and lobbying – now afford greater public access to information and streamline the reporting processes for filers and staff. Further, the Commission has made the entire lobbying database publicly available on the OpenNY data platform, where it is by far the largest dataset hosted on that platform with more than 200 million records. The maintenance and upgrading of these systems, both to meet new statutory requirements and to address heightened security concerns – particularly in the wake of a cyber-attack in 2022 – requires significant staff and technological resources.
Commissioner Per Diems. These are also part of the personal services component of our budget and are statutorily intended to encourage and facilitate active engagement by Commission members in oversight of the agency’s overall operations. (See Executive Law §94(4)(f).)
Non-Personal Services. This component of our budget is comprised of lease and utility costs for the Commission’s offices in Albany and New York City; office equipment and information technology costs; audit and case management software and systems; livestreaming fees (livestreaming of Commission and committee meetings is required by the OML); document scanning and imaging charges (needed to render the Executive Law § 166 appearance forms submitted to the Commission by covered agencies electronically accessible); professional services and related items; travel costs for in person attendance at Commission meetings (mandated by the OML); legal services (projections for hearing officer fees, hearing transcription services and service of subpoenas); auditing of agency audit randomization (required by the Lobbying Act at Legislative Law § 1-d(b)); postage and electronic transmission charges; social media and communications charges; telecommunications equipment and charges; and other infrastructure related costs (including a modest addition to its leased space in Albany to accommodate its expanded ethics training unit).
While the Commission’s actual nonpersonal services costs have fluctuated each year since its inception, they have unavoidably exceeded the appropriated amount, which has been flat, in each of those years. Once the $250,000 attributed in the Governor’s proposed 2025-2026 budget to the payment of liabilities incurred by the former Joint Commission on Public Ethics is netted out, the nonpersonal services appropriation proposed for COELIG for the coming fiscal year is once again the same appropriation – $912,000 – the Commission has received in its enacted budget for every preceding fiscal year. COELIG’s requested nonpersonal services appropriation of $1,224,300 represents a reasonable projection of the minimum amount the Commission will require in fiscal year 2025-2026 to meet its necessary and indispensable nonpersonal services costs.
Conclusion. As before, the Commission recognizes the reality that the state fisc is not unlimited, that state resources must be carefully minded and prudently managed, and that difficult fiscal challenges may lie ahead. Respect for government and the acknowledgment that its resources are the public’s resources is core to the Commission’s ethos and its mission, and the Commission remains committed to doing its part to address that challenge. Commission staff members have, and will continue, to identify measures to improve the Commission's efficiency and accountability to New Yorkers, as well as to demonstrate its leadership in ethics and lobbying compliance.
The Commission must be emphatic, however, that its ability to meet these mandates is entirely dependent upon it having funding sufficient to maintain the requisite levels of appropriately trained and qualified staff in all positions. The vastly increased mandatory ethics training requirements – which equate to a more than thirty-fold increase in the number of individuals to whom ethics training must be provided annually by the Commission and employing agencies, as well as the ever-increasing demand for greater accountability and disclosure by public officers, state employees, and those seeking to influence government decisions, mean that the Commission must have the resources dictated by its mandate and statutory mission, and commensurate with its needs. Without the requisite funding, the Commission cannot succeed in providing the training, guidance, and compliance monitoring called for by the state’s ethics and lobbying laws nor can it adequately enforce the ethical standards mandated by those statutes or ensure the unambiguous transparency that is critical to rebuilding trust in our state’s government. The central importance of our mission and of assuring adequate and protected funding of our agency is expressed in the same section of ECRA that created the Commission:
The annual budget submitted by the governor shall separately state the recommended appropriations for the commission on ethics and lobbying in government. Upon enactment, these separately stated appropriations for the commission on ethics and lobbying in government shall not be decreased by interchange with any other appropriation, notwithstanding section fifty-one of the state finance law.
Executive Law §94(1)(f). I trust that the foregoing sufficiently communicates why adequate budgetary support at the level requested in its Fiscal Year 2025-2026 budget submission is indispensable if the Commission on Ethics and Lobbying in Government is to perform its statutory functions and fulfill its mandate in the coming fiscal year.
Please do not hesitate to let me know if you have any questions about our agency and its budgetary needs, or if there is any additional information that would be helpful to you, the Committees, and Legislature at large in the budgetary process or otherwise.
Thank you,
Sanford N. Berland
Executive Director,
New York State Commission on Ethics and Lobbying in Government
