Some dispute ‘voluntary’ work on Cuomo book
Current, former staffers say participation was “expectation” in office
When news broke that Gov. Andrew M. Cuomo used government staff to help produce a for-profit book, his spokesman asserted that the arrangement was legal: The work was performed voluntarily, he said, and was not a misuse of taxpayerfunded resources.
But several current and former Cuomo staffers, or people speaking on their behalf, disputed that their work on “American Crisis” last year was truly voluntary. Instead, they told the Times Union the work was expected within the culture of Cuomo’s office, and that book-related assignments were made in the context of normal, daily duties.
One former staffer, who was among those asked to perform tasks related to Cuomo’s book, said there was a “clear expectation that we would do political work to help with his campaign and run the governor’s personal errands in the Executive Chamber.”
“It was not optional,” said the former staffer, who spoke on condition of not being identified. “It was considered a part of your job. Everyone knew that you did what was asked of you and opting-out was never really an option.”
State law prohibits a state employee, including Cuomo, from using governmental resources to forward private business interests. The assertion from Cuomo’s office — that staff was volunteering to help on “American Crisis,” even as the COVID-19 pandemic raged — is central to any claim that the work was legal.
“As is permissible and consistent with ethical requirements, people who volunteered on this project did so on their own time,” Cuomo senior adviser Richard Azzopardi said last week.
It’s not in dispute that two of Cuomo’s closest advisers — Secretary to the Governor Melissa Derosa and Director of Governor’s Offices Stephanie Benton — did extensive work on the book. But both are well-paid, salaried employees. More junior staffers also did work on the book. In those instances, the work was assigned by supervisors.
A second person, who has direct knowledge of a more junior Cuomo staffer’s work, called it “patently ridiculous” that the staffer had volunteered on the book. The work on “American Crisis” was done during the regular course of daily government duties, the person said.
Early on in the book-writing process, assignments were said to include taking notes from Cuomo’s digital dictations, and then typing up passages of what would become “American Crisis.” (Later on, Cuomo used an app that directly transcribed words that the governor would speak into a smartphone.) After the book’s October publication, staff tasks included getting Cuomo’s autograph on copies of the book, and then mailing them out.
Another person, with direct knowledge of a third Cuomo staffer’s book work last year, likewise stated that the work was done in the midst of normal government work.
At least two junior Cuomo staffers, who performed bookrelated work last year, earned substantial overtime payments in 2020, according to records provided by the Empire Center for Public Policy and state comptroller’s office.
Cuomo’s office, however, said no overtime was paid to staffers for book-related work; instead, “overtime is requested to help assist in the operation of state government.”
“Any state official that advised the governor on the book was voluntary, in compliance with state ethics laws and done on their personal time,” Azzopardi said. “Every effort was made to ensure that no state resources were used in connection with this project — to the extent an aide did something like printing out a document, it appears incidental.”
Contrary to an account provided by one person, Azzopardi disputed that any lower-level staff transcribed parts of the book. Instead, he said, words outputted by the “speech-to-text” app used by Cuomo were then cleaned up by Benton, working in a volunteer capacity.
Azzopardi said the voluntary nature of Benton’s work was reflected in her time sheets, though he did not provide a copy of them.
Asked if there was documentation demonstrating that junior staffers were asked whether they wanted to opt-in to volunteering on Cuomo’s book, Azzopardi did not provide any such records.
Cuomo’s book deal, inked after his nationally televised COVID-19 briefings increased his national profile, apparently came with a multi-million dollar advance from the publisher. The New York Times reported that Cuomo began writing as early as last June; the book was completed rapidly and published in October, becoming a best-seller. Assistance from government staff helped to quickly turn around the 311-page recounting of his administration’s response to COVID-19 and the “leadership lessons” gleaned.
Assignments to work on Cuomo’s book were often made by Benton, who has long served as a gatekeeper and key confidante to Cuomo.
In July 2020, Derosa made substantial edits to Cuomo’s manuscript, according to a draft copy of the book obtained by the Times Union. Benton then instructed a lower-level assistant to print out a copy of the edited version and bring it to the governor’s mansion on July 5, a Sunday.
“Sorry lady can u print this too and put in a binder,” Benton wrote to the governmental assistant. “And drop at mansion.”
The Times reported that Benton made a similar directive to a staffer on June 27, and that Derosa had at one point sat in on online book pitch meetings.
Ethics inquiry
Last July, when Cuomo formally sought approval to write “American Crisis,” his government counsel Judith Mogul explicitly stated that governmental personnel would not be used.
“Specifically, he will write the book entirely on his own time, without the use of state resources or personnel,” Mogul wrote to the Joint Commission on Public Ethics on July 10.
A week later, a top staffer at the ethics commission approved Cuomo’s book deal, with the caveat that “no state property, personnel or other resources may be utilized for activities associated with the book.”
Between 1989 and 1998, a predecessor agency to JCOPE, the state Ethics Commission, published five advisory opinions concerning whether state employees could earn book royalties. The opinions consistently stated that government personnel could not be utilized for a for-profit book, and Mogul herself had referenced those “established requirements” in her letter to JCOPE.
In response to questions on the matter last week, Cuomo’s office asserted that there is “nothing in law or regulation that speaks to a ban on state workers volunteering for a for-profit venture — this simply is not legally a ‘thing.’”
“While state workers need outside-activity approval for several specified compensated and uncompensated outside activities (such as board service), there is nothing in any of the laws or regulations that requires approval for, or in any way limits, how a public officer spends his or her free time,” Azzopardi said in a statement. “In fact, many public officers do engage in for-profit activities for themselves or others, and it is entirely OK to volunteer to do work for a for-profit project.”
The five Ethics Commission opinions, however, were issued as formal interpretations of state law. The relevant law says that no state employee “should use or attempt to use his or her official position to secure unwarranted privileges ... using property, services or other resources of the state for private business or other compensated non-governmental purposes.”
In a press release last week, the government-reform group Reinvent Albany noted that over 20 JCOPE enforcement actions have cited that provision, including a 2014 case in which a Metropolitan Transportation Authority employee was fined $1,500 for using state “printers, computers, and other software … to benefit his private engineering company.”
Senate Minority Leader Robert Ortt, a Republican, has asked JCOPE to investigate the book work. But it’s unclear that JCOPE will launch a probe. The 10-year-old ethics agency has been dogged by accusations that Cuomo exerts influence over its actions; under the law creating the panel, special voting rules often protect politicians from scrutiny.
Of the 14 commissioners, six are appointed by Cuomo — three of them Republicans and three Democrats. Under the special voting rules, two of the three Democratic commissioners appointed by Cuomo would have to vote to authorize any formal investigation into the governor, a highly unlikely scenario.
Indeed, JCOPE staff fought in court for months to avoid holding a vote on whether to investigate a former senior aide to the governor, Joseph Percoco, whose campaign work in Cuomo’s government office was revealed at Percoco’s federal corruption trial. When JCOPE lost the lawsuit, a vote was finally held in secret in January 2019. By all indications, there was not enough support on the commission to investigate whether Percoco misused state resources and whether Cuomo knew of the activities.
On Friday, JCOPE’S commissioners are scheduled to hold a special meeting outside its normal schedule. If the Cuomo staff ’s book work is discussed, it will take place in a closeddoor executive session, and any vote on whether to begin an inquiry would also be held in secret.
John Kaehny, executive director of Reinvent Albany, said that if the book work was truly voluntary and aboveboard, that assistance would have been disclosed to JCOPE when Mogul sought approval, as well as to the public.
“It’s fatuous in our view,” Kaehny said of the Cuomo administration’s explanation that the work was voluntary. “It’s made up, and if JCOPE was real, it would not fly. But because this is enforced by JCOPE, and the judge and jury is JCOPE, it might be enough of a fig leaf for them.”