Ethics panel votes down referral

Commission shoots down an investigation request into leaked confidential information

New York’s ethics commission voted against seeking a criminal investigation into whether someone from within its own ranks leaked confidential information to Gov. Andrew M. Cuomo, even as new details emerged about the 2019 incident.

At a Tuesday meeting of the Joint Commission on Public Ethics, six members of the body voted in favor of seeking an investigation by Attorney General Letitia James’ office — two votes short of the number necessary to formally pursue such an inquiry.

Four commissioners, all appointed by Cuomo, voted against making the criminal referral, which James’ office would need in order to pursue the matter. None of the Cuomo-appointed commissioners explained their votes opposing the probe, which would have directly touched a governor already facing multiple, unrelated investigations.

The fifth Cuomo commissioner present, Colleen Dipirro, abstained from voting. Dipirro, who has been a JCOPE commissioner for two-and-a-half years, said she didn’t feel “qualified” or “educated” enough on the issue to cast a vote.

Still, the motion could have passed if all eight legislatively appointed commissioners on the panel voted in favor. But two appointees of Assembly Speaker Carl E. Heastie — James Yates and Richard Braun — likewise abstained from voting.

In explaining his decision, Yates offered previously undisclosed details of events immediately following the apparent 2019 leak. Yates said he was abstaining because he was in fact a witness who’d reported the apparent leak to the state inspector general’s office.

The alleged leak stems from a JCOPE meeting held on Jan. 29, 2019. Commissioners — forced by a court order — held a closeddoor vote on whether to investigate complaints filed by Republicans that former top Cuomo aide Joseph Percoco may have violated state law by using state resources while he was managing Cuomo’s 2014 re-election campaign, and that Cuomo knew about it.

Soon after the 2019 JCOPE meeting, Heastie’s top counsel, Howard Vargas, called THENJCOPE commissioner Julie Garcia. She said Vargas told her that Cuomo had complained to Heastie about how the speaker’s appointees to JCOPE had voted that day.

Garcia, a Heastie appointee, immediately reported the apparent breach of confidentiality, launching the investigation by the inspector general’s office. The probe was kept secret until it was disclosed in late 2019 by the Times Union.

At Tuesday’s meeting, Yates, another Heastie appointee, disclosed that he’d also reported the leak to the inspector general soon after the January 2019 meeting.

Yates said that Cuomo somehow became aware of Yates’ vote within an hour of the meeting ’s

end.

“It came to my attention that the governor was complaining about my vote at that meeting,” Yates said. “I reported that, because obviously, if the governor right after the meeting knew about the vote, that means that the vote and the executive session had somehow or other been leaked to the governor.”

It’s a misdemeanor crime to leak information about JCOPE’S confidential deliberations.

In December 2019, the Times Union reported that Heastie called Yates shortly after the Assembly speaker had a heated conversation with Cuomo about the ethics panel’s actions that day.

In his remarks on Tuesday, Yates did not specify whether it was Heastie who’d informed him that Cuomo was complaining about Yates’ confidential vote.

In December 2019, Heastie told the Times Union that, “I have never spoken to Jim Yates or any other appointee about any matter or matters before JCOPE.”

When asked in 2019 if his conversation with Cuomo that day prompted him to call Yates, Heastie declined to answer the question.

At Tuesday’s meeting, Yates detailed his interactions with the inspector general’s office after reporting the leak. Yates said he answered every question in an hour-long interview with the office, and relayed to investigators how he’d learned about “someone having leaked to the governor.”

In October 2019, the inspector general’s office issued a letter to JCOPE stating it could not substantiate the allegations that a leak to Cuomo had occurred. Yet Cuomo nor Heastie were interviewed by the inspector general’s office about how the governor apparently learned of the Heastie appointees’ votes.

“I don’t know whether the inspector general ever interviewed the governor and asked him the very, simple basic question: ‘Hey, governor, who leaked to you?’” Yates said Tuesday.

“I do think it’s a little preposterous that under the rules and the law, the inspector general is to investigate and write a report to the governor,” Yates said. “So when you think about it, it’s a little ‘Alice in Wonderland.’ The inspector general investigates who leaked to the governor, by not interviewing the governor, maybe ... and then reports to the governor — on who leaked to the governor.”

The inspector general’s office also did not interview Vargas, who placed the call to Garcia that set off the investigation.

State Inspector General Letizia Tagliafierro, a former Cuomo aide, was appointed by Cuomo. Tagliafierro is a former top staffer at JCOPE and had recused herself from the leak investigation. It was handled by deputy Inspector General Spencer Freedman, who also once worked under Cuomo.

In March, according to his Linkedin profile, Freedman took a job working as a special counselor and senior advisor to State University of New York Chancellor Jim Malatras, another close Cuomo confidant.

The inspector general’s office has asserted that it conducted a thorough inquiry, including requiring JCOPE officials to sign sworn affirmations stating they did not leak confidential information. The office also subpoenaed phone and text message records.

Cuomo’s office has maintained that while Cuomo and Heastie “have talked about ethics over the years,” they “have not had any conversations that were inappropriate.”

The conversation on Tuesday was sparked by a motion put forth by JCOPE Commissioner Gary Lavine. Along with other Senate Republican appointees to the panel, Lavine has for months been seeking a criminal investigation of the alleged leak and the inspector general’s handling of the case.

Late last year, the Republican-appointed commissioners sought an investigation by Manhattan District Attorney Cyrus Vance, Jr., and later, by Albany County District Attorney David Soares. Both offices declined to pursue the matter.

Soares’ office suggested the JCOPE commissioners make a referral to the attorney general’s office, and the Republican commissioners wrote James a letter earlier this year.

But James’ office needed a referral from the executive director of JCOPE to potentially pursue an investigation. Lavine’s motion Tuesday seeking that referral failed by two votes.

Braun, the second Heastie commissioner who abstained, said he didn’t have enough information on the two-and-a-half year old matter to make a decision. Heastie’s third appointee, Marvin Jacob, voted in favor of making the referral.