Book deal approval may be nixed
If motion passes, ethics commission could try to force Cuomo to return proceeds
At a special meeting on Thursday, New York's ethics commission is expected to vote on whether to revoke its staff's approval of Gov. Andrew M. Cuomo's lucrative book deal last year.
Gary Lavine, a Senate Republican appointee to the Joint Commission on Public Ethics, plans to introduce the motion revoking Cuomo's permission to write "American Crisis: Leadership Lessons from the COVID-19 Pandemic," which was published in October 2020 and recounts the governor's early handling of the COVID-19 pandemic.
Lavine believes that JCOPE staff never had the authority to approve the outside income request without seeking JCOPE commissioners' approval. In addition, Lavine says that Cuomo's special counsel, Judith Mogul, made material misrepresentations by promising that Cuomo would not use his government staff to help produce the book, when in fact, Cuomo had already been doing so when she sought the approval in July 2020. If the motion passes, JCOPE could try to force Cuomo to return the millions in proceeds from the $5.1 million publishing deal.
Lavine is also planning to introduce a motion on Thursday seeking a criminal investigation by the state attorney general's office into the apparent 2019 leak of confidential JCOPE information to Cuomo. While a similar motion failed by two votes in June, the dynamics on the panel may be different with the governor no longer in power. Cuomo was set to leave office Monday night.
A JCOPE spokesman declined to provide a copy of the meeting's agenda, which would provide more information about the reasons for the special meeting outside the agency's normal monthly schedule.
While generally pliant to Cuomo, JCOPE may now be more prone to taking action when he's out of office – especially since JCOPE faces a greater threat of being eliminated by critics, who say its been ineffectual.
One factor that could shape JCOPE'S actions going forward is whether Cuomo's six appointees to the panel will remain.
In a letter written to incoming Gov. Kathy Hochul on Friday, Republican state Sen. Anthony Palumbo called on Hochul to seek the resignations of the Cuomo-appointed commissioners.
"Under its current structure, the governor exerts outsize control on the decision making and operations of JCOPE," Palumbo wrote. "Your comments regarding cleaning up the toxic environment in the governor’s office leads me to hope that you are more amenable to revamping JCOPE than your predecessor ever was. As such, I would encourage you to seek the resignations of the commissioners appointed by Andrew Cuomo and replace them with your own."
One Cuomo appointee, JCOPE Chair Camille Joseph Varlack, had already announced her resignation. (It's not clear whether Varlack, who had been planning to resign Aug. 15, will attend Thursday's meeting.)
As for the other five Cuomo commissioners, Hochul does not have the authority to replace them. Under state law, JCOPE commissioners have fixed, five-year terms, and could only be removed by Hochul for "substantial neglect of duty, gross misconduct in office, violation of the confidentiality restrictions" or "inability to discharge the powers or duties of office."
The two motions Lavine is putting forward on Thursday will be voted on in public, and only require eight commissioner votes to pass. If all eight legislatively appointed commissioners vote in favor, votes from the Cuomo appointees will not be needed.
But for any confidential investigations into Cuomo that the panel might pursue, the voting rules may be more complex.
When Cuomo was governor, it was difficult for an investigation into his administration to move forward.
Under state law, two of the three Democratic commissioners appointed by Cuomo had to vote in favor of opening a full investigation into the governor. A similar rule applied for imposing any penalties upon Cuomo.
If the same rule applies with Cuomo out of office, then conceivably, the two remaining Cuomo-appointed commissioners on the panel — Daniel Horwitz and Rob Cohen — could remain, and block any JCOPE investigations into Cuomo.
According to state law, when the subject of a JCOPE investigation "is a statewide elected official," at least two of the person's appointees, who are also members of the same political party, must vote in favor for a full investigation to proceed.
The law does not address, however, whether the same rules apply to former statewide elected officials.
If the Cuomo commissioners remain, the public may never know how these questions will play out. If investigations are killed, it will be done in closed-door, confidential votes.
Meanwhile, JCOPE has a time limit for pursuing investigations: In order for JCOPE to retain jurisdiction, the subject of an inquiry must be notified of an alleged violation within one year of having departed state government.
There are an array of Cuomo-related areas JCOPE could investigate, as referenced in Palumbo's letter: They include the alleged "cover up" of COVID-19 deaths in nursing homes, sexual harassment allegations and attempts to retaliate against an accuser, misuse of state resources to produce the book, and special access to coronavirus testing for Cuomo friends and family. JCOPE is already investigating a round of political calls made by Cuomo's "vaccine czar."
On Sunday, the Times Union also reported on Cuomo's alleged use of State Police to perform personal tasks related to his daughters, a possible misuse of state resources, which bears similarities to a 2006 ethics case brought against ex-state Comptroller Alan Hevesi.