Ethics panel eyes action

Concerns about inspector general’s leak investigation could lead to criminal complaint

Members of the state’s Joint Commission on Public Ethics are contemplating whether a criminal complaint should be filed in connection with a leak investigation last year by the state inspector general’s office that failed to confirm allegations Gov. Andrew M. Cuomo had received details of JCOPE’S confidential vote on a matter involving a former top aide to the governor.

The apparent leak — which would be a criminal offense — surfaced when Assembly Speaker Carl E. Heastie’s top counsel, Howard Vargas, called commissioner Julie Garcia and told her that Cuomo had complained to the speaker about how his appointees to the commission had voted on the matter.

Garcia, as required, reported the apparent breach of confidentiality to JCOPE Executive Director Seth Agata, who notified the inspector general’s office and triggered the investigation, which was kept secret until

it was disclosed last fall by the Times Union.

“Since the IG report is in the public domain there is no question that an individual commissioner can make a criminal referral without full commission approval,” said JCOPE commissioner Gary Lavine. “I have not yet determined if individual action is otherwise appropriate.”

Albany County District Attorney David Soares has said his office has not examined the matter because it did not receive a complaint. The State Police have jurisdiction to launch an investigation of the leak, but have not done so.

The allegations of misconduct may not involve only the alleged leak that came to Garcia’s attention.

Some JCOPE commissioners are deliberating whether the inspector general’s investigation of the alleged leak, which was closed without Cuomo or Heastie being interviewed, had been scuttled before it issued a letter last October saying the office had been “unable to substantiate” the allegations. The release of the letter preceded Garcia’s resignation from JCOPE; Agata resigned as executive director a year ago.

A 2017 decision by New York’s highest court upheld the conviction of a Nassau County police officer who had taken part in a plot to prevent the arrest of a teenager accused of burglary and whose father had personal connections to the department. The Court of Appeals decision found that it is not “discretionary” for a government official to abdicate their responsibility to pursue wrongdoing if that decision is being made to benefit someone personally.

“Certainly, a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance,” the court ruled in upholding the police official’s conviction. “However, when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance.”

In the letter to the ethics commission last year, Deputy Executive Inspector General Spencer Freedman wrote that “the investigation was unable to substantiate whether or by whom confidential information was in fact improperly disclosed. Specifically, the referral from JCOPE set forth general allegations with no supporting facts; no individual was able to provide firsthand knowledge of any leak or potential perpetrator; and any information provided was admittedly based on supposition and speculation.”

The matter that was discussed by JCOPE on the day of the alleged leak involved a complaint filed against the governor’s former top aide, Joseph Percoco, who is serving six years in prison for his federal conviction on bribery and corruption charges. The panel had considered whether to probe Percoco for allegations he had used the governor’s office to conduct campaign business — information that surfaced in testimony at his federal criminal trial.

Heastie, who last year acknowledged that he had also called another JCOPE commissioner the same day that his chief counsel called Garcia — did not respond to a request for comment on whether he would support an independent investigation of the alleged leak. Heastie has declined to say what he and the commissioner discussed.

A spokesman for Cuomo did not respond to a request for comment.

Last week, the Times Union reported that six members of the commission had called on the panel’s chairman, Michael K. Rozen, to conduct a search for an “independent” executive director amid longstanding criticism that the commission’s leadership and operations have been too closely aligned with Cuomo and the Legislature.

A search committee within JCOPE that had been tasked with finding Agata’s successor received more than 100 applications from candidates, many of them highly qualified and with no apparent ties to the governor or Legislature. But last year, as that list was whittled to about nine contenders who were to be interviewed, the committee’s effort to hire a replacement suddenly ended.

The candidate favored by the governor, Monica J. Stamm, is JCOPE’S general counsel and has been largely serving as the acting executive director since Agata’s departure. Stamm worked with Cuomo when he was state attorney general, serving as his office’s deputy bureau chief in the public integrity unit.

Despite six of the commission’s 12 sitting members being appointed by Cuomo, including Rozen, sources said there are not enough votes in favor of appointing Stamm, who is regarded as a highly qualified attorney, to the executive director position.

“Impressive credentials aside, the appearance of any possibility of any continuing political allegiances runs contrary to JCOPE’S mission and hampers its capacity to inspire public trust,” states a March 6 letter that was sent to Rozen and signed by six JCOPE commissioners, all of whom are legislative appointees. “Given the voting structure embedded in JCOPE, it is imperative that we select someone free of encumbrances. We call into question independence from the executive and legislative branches of government.”