Ethics commission refers voting leak to attorney general

State Joint Commission on Public Ethics Executive Director Judge Sanford Berland answers senators’ questions Wednesday during a public hearing on the state’s system of ethics oversight and enforcement. Kate Lisa/Johnson Newspaper Corp.

ALBANY — The state ethics commission known for its questionable enforcement attempted to regain credibility Thursday by referring a 2019 alleged voting leak to the state attorney general more than two-and-a-half years after the incident.

Thirteen commissioners on the state Joint Commission on Public Ethics were divided for hours Thursday morning at their monthly August meeting to change the agenda and refer an alleged January 2019 voting leak and also referred a potential cover-up by the state Inspector General’s office to state Attorney General Letitia James’s office for separate probes.

“This is bullshit,” one commissioner said while the panel mulled voting on the issue a second time.

Others argued Thursday’s review of the issue was necessary following former commissioner Julie Garcia’s stunning testimony to senators the previous day.

Garcia, who served on JCOPE from August 2018 through fall 2019, testified during a Senate hearing Wednesday the state Inspector General’s Office failed to investigate an alleged leak — a misdemeanor offense violating state Public Officers Law — about her Jan. 29, 2019, vote to investigate Joe Percoco, a former top aide and longtime friend of former Gov. Andrew Cuomo, and his misuse of government resources.

Percoco was sentenced to six years in prison in 2018 for accepting more than $300,000 in bribes.

Later that day, Garcia received a call from the office of Assembly Speaker Carl Heastie, who appointed Garcia to the commission. She was told Cuomo was displeased with her vote to investigate Percoco.

The attorney general’s office did not receive the referral from JCOPE on Thursday, according to representatives from James’s office.

“But we will review it when we do,” they said.

Commissioners also voted to refer potential misconduct in the inspector general’s office in failing to pursue the alleged criminal breach of confidentiality.

“There was and is no ‘cover-up,’” Deputy Inspector General for Public Affairs Lee Park said Thursday. “Inspector General (Letizia) Tagliafierro was and remains fully recused from this matter.

“We stand by the investigation and will fully cooperate with any review.”

JCOPE referred the alleged leak to the state Inspector General’s Office on Jan. 30, 2019. The office released a letter Oct. 4, 2019, concluding there was insufficient evidence to substantiate the allegations a leak occurred. Disheartened, Garcia resigned from JCOPE later that month.

“When I reported the leak to the IG, I did what any good lawyer would do — I produced to them voluntarily text messages, emails and phone logs ... all three of which demonstrated clearly that there was a leak,” commissioner James Yates countered of the IG’s probe during Thursday’s meeting. “That was presented as hard, corroborative material included in those materials.”

State Inspector General Tagliafierro, who was appointed by Cuomo and is JCOPE’s former executive director, recused herself from the 2019 investigation.

“The matter was investigated and found to be unsubstantiated,” Park said of his office’s probe. “The investigation included interviews, document and record reviews, and signed affirmations under penalty of perjury from JCOPE staff and commissioners in attendance at the executive session of their Jan. 29, 2019 meeting, which included, among other representations, that they did not disclose information regarding any matter discussed in the executive session.”

Commissioners Gary Lavine, Marvin Jacob, James McCarthy, David McNamara, Juanita Bing Newton and George H. Weissman voted to refer both matters to James’s office for investigation.

Five commissioners — James Dering, Robert Cohen, Colleen DiPirro, William Fisher and Daniel Horwitz — abstained from voting publicly on the referrals, requesting private advice from the commission’s counsel about the legality of open discussion. JCOPE General Counsel Monica Stamm suggested the referrals be discussed and voted on in executive session.

Lavine, one of the most vocal supporters of referring the investigations to James’s office Thursday, retorted the leak was discussed in a public forum with senators who plan to change the ethics panel’s operations or overhaul the state’s watchdogs — especially in wake of the scandals surrounding Cuomo and his recent resignation.

“It is unlikely we will even be in existence at the end of six months,” Lavine said adding the conversation was not confidential under the law in any respect. “... we have to now try to restore some modicum of credibility with what JCOPE is trying to do.”

Dering was particularly dismissive about changing the agenda or voting to refer the matters to the attorney general.

Others pushed until the public vote took place.

“Recent history has shown, when we put something off to executive session, people leave and we don’t end up with a vote,” Yates said.

Yates waited to see if his vote was necessary to break the split before publicly voting in the affirmative for both referrals.

Debate to make the referrals lasted nearly two hours before the panel entered executive session for several hours more.

“Sorry about your golf game,” one commissioner said to another before executive session commenced.

“It’s at 2:30,” the other replied. “I’ve been here before.”

Commissioners were expected to make a decision about Cuomo’s controversial pandemic memoir published during the public health crisis for which he received $5.1 million, but the vote was referred to the ethics panel’s next meeting scheduled for Sept. 13.

Little to no legal precedent makes it unclear how the panel will handle the alleged misconduct. The panel could fine the former governor any amount. JCOPE Executive Director Judge Sanford Berland said Wednesday fining Cuomo $5.1 million or requiring he return the royalties is not off the table.

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