Josefa Velasquez, THE CITY
This article was originally published
Gov. Kathy Hochul plans to overhaul the state government’s ethics agency as she runs for election and tries to distance herself from scandal-wrecked former governor Andrew Cuomo, THE CITY has learned.
State Sen. Liz Krueger (D-Manhattan) said she’s been working with Hochul’s office to revamp the Joint Commission on Public Ethics (JCOPE) — an effort she expects the governor to announce in her annual State of the State address next month.
The former governor “wasn’t coloring within the lines,” Krueger said.
Update 2-20-2023: Hochul never came through. Two years down the road, she’s arguably as unethical as Governor Cuomo.
“So this is a wonderful time to really stare at the lines and what got crossed and make clear that we need to fix our statutes to make it much clearer where those lines are and why you can’t cross them,” she added.
The latest chapter in the Cuomo saga may force the issue.
On Tuesday, JCOPE ordered Cuomo to return the proceeds of his $5.1 million pandemic memoir, after an investigation commissioned by the state Assembly concluded that state employees had devoted staff time to the project, defying the commission’s guidance.
A lawyer for the former governor, Jim McGuire, declared that JCOPE’s actions are “unconstitutional, exceed its own authority and appear to be driven by political interests rather than the facts and the law,” adding: “Should they seek to enforce this action, we’ll see them in court.”
Krueger is the sponsor of a bill that would replace the largely governor-controlled JCOPE with a more independent government integrity commission that would have the power to initiate investigations and even remove non-elected officials from their jobs.
The proposal, which has previously failed to advance in the state Capitol, would require voters to approve a constitutional amendment. That could happen no sooner than 2023, even if the state Legislature takes action in the session that starts next month.
Hochul hasn’t yet hinted at her gameplan, which could include measures short of a total teardown.
Hazel Crampton-Hays, a spokesperson for Hochul, said in a statement that the governor “is committed to instituting real ethics reforms and restoring trust in government, and we will continue to work with legislators and good government groups to reform JCOPE and improve ethics oversight to better serve New Yorkers.”
Cuomo Probe Offers Blueprint
Lawmakers have their work cut out for them, if the thousands of pages of emails, text messages and interview transcripts released by the office of state Attorney General Letitia James as evidence in its investigation of Cuomo are any indication.
Independent investigators concluded in an August report that Cuomo had sexually harassed multiple women who worked for him, and that his staff retaliated against women who had gone public with their allegations. Cuomo resigned soon after.
Ethics watchdogs say the materials from James’ office are rife with red flags that Cuomo and members of his inner circle may have crossed lines.
They also point to vast gray areas where private and public interests intermingle without oversight.
Good-government advocates expressed particular concern about the role of private advisors, some of whom worked for companies seeking business deals or legislative changes from state officials at the time.
Cuomo also got national TV airtime from his brother, Chris Cuomo, who was fired by CNN earlier this month after transcripts revealed the lengths the younger Cuomo went to head off media coverage of his sibling’s accusers.
Among the issues on the radar of reformers:
- Members of Cuomo’s circle sought to keep their involvement shielded from public view, including individuals who were representing private interests before the state.
- Professionals gave advice for free without state contracts, despite a ban on gifts to public officials.
- Campaign dollars helped pay for the governor’s bench of advisors — even though political funds are supposed be kept separate from official business.
Susan Lerner, executive director of the civic-minded nonprofit Common Cause, said that while governors are entitled to seek advice from a “kitchen cabinet” of people outside government, the Cuomo administration’s practice was “so pervasive, that it became normalized.”
“What we’re learning from these transcripts is how pervasive the disregard for the rule of law and ethics was in the executive chamber.”
‘Agents of the Governor’
Cuomo is not the first New York elected official to get called out for entanglements with outside advisors.
Mayor Bill de Blasio continued to pay key members of his 2013 campaign team via a nonprofit called the Campaign for One New York, raising $4 million. Many donors did business with city government.
Letters released last week by the city’s ethics agency show that de Blasio twice received warnings — but no sanctions — after he violated a ban on asking for money from people who sought City Hall approvals.
De Blasio also fought efforts by journalists to see emails with his outside political advisors, deflecting with a claim by then-counsel Maya Wiley that the five men were “agents of the city” who were in effect working for city government. Ultimately, that argument lost in court and de Blasio released a trove of correspondence.
The Cuomo transcripts show that the former governor’s lawyer tried — and failed — to mount a similar “agents” defense, to prevent details of the scramble to lash back at Cuomo accusers from going public.
Investigator Ann Clark sought in a June interview of Cuomo state counsel Beth Garvey to find out more about the contributions of two key outside advisors — political consultant Lis Smith and pollster Jefrey Pollock — both of whom had been previously on Cuomo’s campaign payroll.
“My understanding is that they were viewed as agents of the governor for purposes of this conversation,” Garvey told Clark.
Garvey did not respond to requests for comment from THE CITY.
The released evidence also shows Cuomo advisors covering their tracks.
Smith told investigators she had already been assisting with crisis management related to the Cuomo administration’s reporting on nursing home deaths when top Cuomo aide Melissa DeRosa enlisted her in February to help respond to sexual harassment allegations.
Smith indicates in the deposition that she sought compensation for “a time-consuming endeavor.”
In response, DeRosa and Pollock offered her money from Cuomo’s campaign funds, she attested. Smith told investigators that she “dropped” discussions because accepting the dollars would have led to her involvement being publicly disclosed on campaign finance filings with the state Board of Elections.
“I didn’t relish the idea of being attacked in the New York Post for being paid to give advice to the governor on this stuff,” Smith said.
Instead, the governor’s campaign committed to reimburse Smith for the legal bills for the investigation, she said in her deposition.
Smith and Pollock did not respond to requests for comment from THE CITY. DeRosa declined to comment.
State campaign finance laws give politicians broad latitude to spend campaign cash in connection with seeking or holding office, as long as the money isn’t for personal use. For instance, politicians are permitted to use campaign funds to pay for their legal defense.
But whether campaign cash can foot the legal bills for someone else is an untested question, according to Lawrence Mandelker, a longtime election lawyer.
“We are in terra incognita here,” said Mandelker.
‘How It’s Always Been’
Aides to Cuomo joked that working for the Democrat resembled the Eagles’ “Hotel California” — an administration where you can check out any time but can never leave.
So-called revolving-door restrictions forbid ex-state employees from dealing with their former agencies for two years after leaving — but loopholes let two Cuomo attorneys, Alphonso David and Steve M. Cohen, stay in close range. Neither had a retainer agreement or state contract defining their roles.
David at the time ran the national LGBT advocacy group Human Rights Campaign, which had a vested interest in Cuomo’s actions.
Headlining HRC’s 2020 gala, the then-governor had promised to repeal an anti-loitering law often used to arrest transgender women of color, and David’s organization thanked Cuomo on Feb. 3, 2021, for signing the repeal into law.
In between, the documents released by James’ office show, David participated in December 2020 efforts to disseminate a damaging personnel memo labeled “privileged and confidential” about Cuomo accuser Lindsey Boylan — an operation that executive chamber lawyers warned could amount to retaliation, the transcripts reveal.
DeRosa also tapped David for guidance on the legality of recording phone calls. She subsequently asked former chamber employees to record calls with women who went on to accuse the governor of harassment, according to her testimony.
David — who was fired in September from the HRC following his involvement with Cuomo’s sexual harassment defense — told investigators that he had consulted with the governor’s office on “transition-related activities” after he left government employment in the summer of 2019.
An attorney for David, Si Aydiner, said in an email that “lawyers are obligated to provide information to their former client in connection with matters they worked on or their experiences in general.”
Ayinder added: “As Mr. David testified, he was contacted numerous times by the Executive Chamber on a variety of topics after his employment concerning matters he worked on or was familiar with. This is not unusual for attorneys in high level positions.”
Transition activities are a permitted exception to the state’s two-year revolving-door ban on business with an employee’s former agency.
Another loophole: Cuomo used pandemic powers to rewrite ethics rules so private employees who’d left the state payroll could also do government work. That let Cuomo enlist Cohen to co-lead recovery efforts for the state, even as companies within the attorney’s private firm lobbied the state.
Cohen left state employment in 2011 but was a constant presence in Cuomo’s inner circle, DeRosa told investigators: “The governor hates when I say this, but it’s like — it’s how it’s always been with Steve.” Cohen declined to comment.
Two other outside Cuomo advisors whose organization had an interest in state decisions were former press aides Josh Vlasto and Rich Bamberger, then managing directors at public affairs firm Kivvit — which has millions of dollars in state contracts.
Rich Azzopardi, a spokesperson for Cuomo, defended the outside advisors’ involvement, saying “virtually every elected official has a kitchen cabinet of trusted advisors who they turn to in times of adversity and this was no different.”
Quest for the ‘Bright Line’
The transcripts and records raise new questions about when advice crosses the line and becomes a free service, said Lerner.
Public officials are prohibited from accepting any goods or services worth more than $15, and barred from accepting gifts of any value from someone with business before the state.
“At what point does it become ‘services’ as opposed to advice from people that you know and trust?” Lerner asked. “Clearly in this instance it’s gone over the line. Ongoing advice, ongoing counsel, more than just a random phone call.”
Making a case against the former governor and his aides for improperly accepting free services could prove to be difficult, three longtime Albany ethics experts told THE CITY, and depends on circumstances and specifics.
“A governor is an elected official, a public officer, and the titular head of his political party all rolled into one person. As a result, they have both governmental colleagues and political advisors, and obligations inside and outside of government,” one ethics lawyer said, asking to remain anonymous because of clients with business before the state.
“The area of what is and is not permissible in those circumstances can be the truest shade of gray. There are no black-and-white answers for this issue.”
Enforcing ethics laws and investigating questionable practices would have to involve a proactive ethics oversight agency — something many critics say JCOPE isn’t equipped to be.
“Ethics is only as good as the people enforcing it, and for the last decade the people enforcing ethics in New York state, J-JOKE, are the single most corrupt agency in New York,” said David Grandeau, an ethics compliance lawyer who led JCOPE’s predecessor agency.
Critics point to JCOPE’s track record of failing to respond proactively to alleged Cuomo administration misconduct.
Rebecca Roiphe, a former Manhattan prosecutor and professor at the New York Law School who specializes in lawyers’ ethics, says the relationship between former employees and the executive chamber raises questions over access.
“If all of these outside lawyers are coming in here and providing advice, why? What are they getting out of that? Because lawyers don’t usually pro-bono give their advice to somebody rich and powerful,” she said.
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