ALBANY — The state attorney general's office late Monday informed the Joint Commission on Public Ethics that it will not investigate the leak of confidential information to Gov. Andrew M. Cuomo in 2019.
Attorney General Letitia James, though, called JCOPE's process of investigating the leak a "travesty" in her letter to JCOPE.
"It truly is unacceptable as a matter of public policy," James said.
Gary J. Lavine, a JCOPE commissioner who has pressed the panel to find an outside agency to investigate the leak, told the Times Union that the attorney general's office contends the commission's Aug. 26 vote asking for the investigation was invalid because Cuomo was a statewide elected official and that it requires at least two of his Democratic nominees on the commission to also vote in favor of the motion.
The panel's vote three weeks ago in favor of seeking the outside investigation was split, with eight commissioners appointed by legislators in favor but five commissioners appointed by the governor abstaining, citing a legal issue that they contended needed to be discussed behind closed doors and not made public.
The matter centers on a JCOPE meeting in January 2019 when the commission apparently voted in private against pursuing an investigation of Joseph Percoco, a former top aide to Cuomo who was accused of misusing government resources to work on the governor's re-election campaign. Percoco is in federal prison after being convicted of unrelated bribery and corruption charge.
Julie Garcia, a former JCOPE commissioner, reported after the meeting that Howard Vargas, a top counsel to Assembly Speaker Carl E. Heastie, had called her hours after the 2019 meeting and informed her the governor had called the speaker and expressed displeasure with how Heastie's appointees to the commission had voted that day.
The leak of that information would be a misdemeanor crime. Neither Heastie nor Cuomo have said who provided the information or how Cuomo apparently became aware of the secret vote. The state inspector general's office subsequently investigated the leak but issued a letter in late 2019 claiming it could not substantiate the leak — an investigation that did not include interviewing either Cuomo or Heastie.
Garcia told a state Senate panel last month that the inspector general’s office was either “incompetent or corrupt.” She resigned from JCOPE in the wake of the inspector general's report.
JCOPE's referral asked the attorney general to look into the 2019 leak, the potential for other leaks that might have occurred during the ethics panel's decade in operation, and the conduct of the inspector general's investigation.
It's unclear whether the attorney general's letter declining the request to conduct a new investigation cites a valid reason for doing so. The attorney general's letter said it needs the commission to conduct a "substantial basis vote," which would require at least two of Cuomo's three Democratic appointees to JCOPE to vote in favor. But two of those positions are currently vacant.
It's also not clear why the attorney general's office would request the higher threshold vote: Cuomo is not accused of leaking the information, only of receiving it. The investigation would arguably be focused on identifying a person or others within JCOPE who may have been aware of the committee's secret vote and shared that information in violation of state Public Officer's Law. But the attorney general's analysis, citing state Executive Law, asserts that the special voting rules applies to any state employee.
In June, JCOPE’s commissioners took a similar vote and had deadlocked 6-4, with three commissioners abstaining, leaving the motion two votes short of passage. But two commissioners who abstained that month, Richard Braun and Jim Yates, in August voted in favor of making the criminal referrals. Both were appointed by Heastie.
"I firmly believe that the laws governing these referrals are wholly inadequate and that the Legislature needs to change them," James said in her letter. "It further supports the need for a significant change to the system for regulating ethics in New York. Setting aside the fact that it is over 2 ½ years since the initial alleged incident, it is a travesty that the law does not permit approval of the referral without the consent of specific members of the board."
JCOPE is scheduled to meet Tuesday morning.
Right before the meeting was scheduled to begin, and following the initial publication of this story by the Times Union, Hochul's office announced two appointments to JCOPE: attorney James E. Dering, as the new chair, and prior Suffolk County District Administrative Judge, C. Randall Hinrichs.
Dering is a partner at Garfunkel Wild, P.C., based out of Albany, and the former general counsel to the state Department of Health.
"These appointments are an important first step and reflect the urgency required for the ethics body to conduct its business," Hochul said in a statement announcing the appointments. "We are committed to instituting bold reforms of JCOPE, which is why my administration will work with legislators, good government groups and the public to reform ethics oversight and ensure that the work of this ethics body is beyond reproach."
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