New aspects to leak inquiry
Heastie acknowledges he spoke to JCOPE member about Cuomo’s complaint
At a state ethics commission meeting last week, Commissioner Jim Yates made an extraordinary disclosure: In 2019, Yates had been a witness to an apparent crime involving information that was illegally leaked to Gov. Andrew M. Cuomo.
On Jan. 29, 2019, the Joint Commission on Public Ethics had voted behind closed doors on whether to launch an investigation targeting Joseph Percoco, a former top aide to Cuomo. Last week, for the first time, Yates disclosed that within an hour of the 2019 vote, the governor somehow became aware of Yates’ confidential vote — and was not pleased.
“It came to my attention that the governor was complaining about my vote at that meeting,” Yates said last Tuesday during a regular public session of the ethics panel. “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. Yates reported the leak to the state inspector general’s office.
But in the three-minute-long revelation, Yates omitted a key fact: The identity of the person who’d informed Yates about Cuomo’s anger with the commissioner’s confidential vote.
Following the JCOPE meeting last week, Yates declined to answer questions from the Times Union about the identity of that person.
But a Times Union interview with a former JCOPE commissioner, and a subsequent statement provided by Assembly Speaker Carl E. Heastie on Friday evening, confirm that Heastie called Yates about Cuomo’s complaints.
The Times Union had previously reported that after the January 2019 meeting ended, Cuomo quickly confronted Heastie concerning the ethics commission. The newspaper also reported that Heastie called Yates that same day, but the speaker had declined to say what they discussed.
“Jim Yates is somebody that I speak to quite frequently,” Heastie said in December 2019. “He is my former counsel; he is someone I consider a friend and a mentor whose judgment I trust immensely. I have never spoken to Jim Yates or any other appointee about any matter or matters before JCOPE. Jim and I talk all the time.”
In a recent statement to the Times Union, Heastie again said that “Jim (Yates) and I have never talked about what happened in any JCOPE meeting.”
Heastie later provided a more detailed account, acknowledging that on Jan. 29, 2019, he had called Yates about a Jcope-related scolding from the governor.
“I have never been involved in any JCOPE matter with Jim Yates or any other commissioner,” Heastie said in the statement. “I have no knowledge about any discussions between commissioners. As I said in the past, on that day in question I received a blistering call from the governor that was less than a minute in which he ranted to me about numerous things that he was upset about, including JCOPE. I then reached out to Jim, who was my former counsel and someone I trust, to share with him this difficult conversation. Both Jim and I agreed this concerned JCOPE and that we could not talk about it, and the call lasted less than a minute.”
Yates said last week that Cuomo complained specifically about Yates’ confidential vote; Heastie declined to answer a question about whether that is what they discussed.
Still, Heastie’s statement, by far his most specific about the matter, raises new questions about the leak investigation that followed.
Nine months after the apparent leak, the state inspector general’s office issued a report to JCOPE concerning its inquiry into the allegations, an investigation that was secret until it was reported by the Times Union in late 2019.
In its October 2019 letter to JCOPE, the inspector general’s office contended that it could not confirm the allegation of an illegal leak, in part because the allegation was based on hearsay.
“The referral from JCOPE set forth general allegations with no supporting facts; no individual was able to provide firsthand knowledge of any leak or the potential perpetrator; and any information provided was admittedly based on supposition and speculation,” wrote Spencer Freedman, the deputy inspector general who directed the probe.
Yet the investigation did not include interviews with key individuals embroiled in the allegations, including Cuomo, Heastie and Howard Vargas, who is counsel to Heastie. It was Vargas’ call to another commissioner, Julie Garcia, that set off the investigation. Garcia reported that Vargas had told her the governor was not pleased with how Heastie’s appointees to the commission had voted at the January 2019 meeting.
The inspector general’s report also failed to note that Yates had informed the investigators that Heastie had told Yates about his conversation with Cuomo.
The alleged leak stems from a JCOPE meeting that month when the panel — forced by a court order — held a closeddoor vote on whether to investigate complaints filed by Republicans that Percoco had violated the law by using government resources while he was managing Cuomo’s 2014 re-election campaign, and that Cuomo knew about it.
Although the Heastie appointees cast votes that allegedly upset Cuomo, by all indications, the commission voted down initiating an investigation into the Percoco matter.
Before Yates’ statement last Tuesday, only one JCOPE commissioner — Garcia — was publicly revealed to have reported the alleged leak to the inspector general’s office.
Garcia, a former district attorney, resigned from JCOPE after the inspector general’s office said it could not substantiate the leak. After receiving the call from Vargas that day, she had immediately informed JCOPE’S executive director of the apparent leak. She also called Yates and told him about Cuomo’s unhappiness with how they’d voted.
In a recent interview with the Times Union, Garcia disclosed she also spoke to Yates again about a week after the troubling phone calls.
During that second call, according to Garcia, Yates apologized for previously not being entirely forthright and informed her that the day the leak occurred, he had also spoken to Heastie. He added that the speaker had said he was confronted by the governor concerning the votes of Heastie’s appointees, Garcia said.
“I don’t know why Jim (Yates) doesn’t just confirm that,” Garcia said last week. “This constantly misleading and covering up for people needs to stop.”
In December 2019, when pressed about the specifics of his call with Yates, Heastie had quickly walked away from a Times Union reporter, and into an area of the Capitol restricted by security.
On Friday, Heastie provided more details to the Times Union only after being asked about Garcia’s account.
Meanwhile, as Heastie has stayed relatively quiet about the 2019 incident — and has not been pressed on the matter by any of his Assembly colleagues — the Assembly’s Judiciary Committee is conducting an investigation into whether to impeach Cuomo over unrelated allegations. In those matters, some witnesses and Republicans believe the Assembly is intentionally dragging out the process to aid the governor.
Yates, a former judge, was for a time one of the most powerful unelected officials at the state Capitol. He served for four years as counsel to Assembly Speaker Sheldon Silver and, after Silver was forced to resign the position following his arrest on corruption charges, Yates briefly worked under Heastie before retiring in 2015.
Garcia said she believes Yates is an honest person and would have testified truthfully about his conversation with Heastie to the inspector general. In remarks at last Tuesday’s JCOPE meeting, Yates stated that he told the inspector general’s office how he’d learned of Cuomo complaining of his vote.
By his own admission, Yates made last week’s public statement about being a witness to the leak — two and a half years after the alleged incident — out of selfinterest.
As Yates made his remarks Tuesday, JCOPE commissioners were poised to vote on whether to seek a criminal investigation into the alleged leak and the inspector general’s subsequent lackluster probe.
In his remarks before the vote, Yates wanted to explain that as a witness who’d reported the incident to the inspector general’s office, he needed to abstain from voting — but that his abstention did not in any way indicate he’d participated in the leak. (Because Yates and another Heastie commissioner abstained, the panel fell two votes short of making the criminal referral necessary for Attorney General Letitia James to investigate.)
Republican JCOPE commissioners were seeking a criminal investigation from James’ office because they believe that the inspector general’s “sham” investigation effectively served to “cover up” the leak to Cuomo.
State Inspector General Letizia Tagliafierro, a former Cuomo aide, was appointed to the position by Cuomo in 2019. Because Tagliafierro is also a former top staffer at JCOPE, however, she recused herself from the leak investigation. Instead, it was handled by Freedman, who also once worked under Cuomo.
Freedman’s phone records from 2019, obtained by the Times Union through a request under the Freedom of Information Law, show that on the afternoon of Jan. 31, 2019, Freedman made two phone calls to Yates. Presumably, the phone calls concerned the allegation that Yates’ confidential vote was leaked to Cuomo two days earlier.
The next day, Feb. 1, 2019, the phone records show that Freedman placed a call to the office of Cuomo’s governmental counsel, who at the time was Cuomo confidant Alphonso David.
Through a spokeswoman, Freedman declined to say whether his phone call to Cuomo’s counsel, a day after he made calls to Yates, concerned the leak allegations involving the governor.
The only witnesses interviewed by the inspector general’s office were Garcia, Yates and THEN-JCOPE Executive Director Seth Agata.
In response to another Freedom of Information Law request, the inspector general’s office provided the Times Union with copies of notes taken from its witness interviews. They’re so heavily
redacted, however, it’s difficult to discern much about what Yates told the inspector general.
During Cuomo’s decade-plus as governor, several people in positions to investigate the governor have later received high-level appointments from Cuomo, including several former leaders of JCOPE. For instance, JCOPE’S former chair, Janet Difiore, is now New York’s chief judge.
In March, Freedman left the inspector general’s office and began working as a special counselor and senior adviser to State University of New York Chancellor Jim Malatras, another close Cuomo confidant.
Last week, Freedman declined to answer questions about why he left the inspector general’s office. Asked about the reasons for Freedman’s hiring, a SUNY spokeswoman said that he had a “long and distinguished career as a public servant for the state of New York.”
“He is a special counselor and senior adviser to the chancellor and in this capacity he is critical to SUNY’S work to ensure a full return of students to campus this fall,” said the SUNY spokeswoman, Holly Liapis. “In addition, Mr. Freedman’s extensive background is the reason he leads SUNY’S climate change policy work and co-leads SUNY’S task force to develop its marijuana policy for students, and collaborates on any number of issues impacting our students and their ability to achieve a postsecondary education.”
The inspector general’s office has asserted that it conducted a thorough inquiry of the alleged leak, 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.”