Cuomo's new book

Gov. Andrew Cuomo’s new book was released Tuesday.

ALBANY (TNS) — At a meeting of New York’s ethics enforcement agency, commissioners appointed by Gov. Andrew M. Cuomo killed a measure that would have required more scrutiny of state officials’ requests to earn outside income.

The debate at the Joint Commission on Public Ethics on Tuesday arose following the oversight panel’s approval of Cuomo’s deal for a new book, “American Crisis,” which was published on Oct. 13.

Since then, JCOPE’s commissioners have held two unusually heated meetings debating whether similar approvals should be made by the 14-member commission, and not JCOPE’s staff, which is the current practice. While Cuomo’s book was never mentioned during the debates, it was apparent the book’s approval by the ethics panel’s staff was the unstated impetus for the contentious discussions.

The meeting once again pitted Cuomo’s six appointees on the panel against the six appointees of legislative leaders of both parties. The vote on a proposal put forward by Commissioner Jim Yates, an appointee of Assembly Speaker Carl E. Heastie, died in a 6-6 deadlock. It’s the second meeting in a row where an initiative to change the approval process ended in the same deadlock.

Democratic leaders of the Legislature could appoint two more commissioners, giving the Legislature an 8-6 numerical advantage over the Cuomo appointees. But despite a law requiring Heastie and Senate Majority Leader Andrea Stewart-Cousins to replace vacant commissioner spots within 30 days, the two slots have been vacant for more than a year.

JCOPE’s staff has long issued informal “advisory opinions” to public officials seeking advice about how to conduct themselves properly under state ethics and lobbying laws. Indeed, in 2012, the commissioners passed a resolution allowing staff to do that work between meetings.

At the same time, state law requires JCOPE to engage in a formal process: Approving or disapproving requests by state employees to earn over $5,000 in outside income.

In practice, however, JCOPE’s “informal” advisory opinions have become conflated with the formal approval process. JCOPE staff has used the opinion letters to approve or disapprove the formal requests to earn income — even though nothing in the 2012 resolution passed by commissioners granted staff that authority.

Yates’ resolution would have clarified that while staff would retain the authority to give informal advice, JCOPE’s 14 commissioners would need to approve all formal requests to earn outside income.

Other legislatively appointed commissioners expressed concern about whether staff had taken on responsibility without legal authority.

”This is a pure question of law,” said Commissioner Marvin Jacob, another appointee of Heastie.

The “informal” staff advice also should not bind the commissioners’ hands if they later disagreed with the staff’s advice, and wanted to pursue an enforcement action, Yates said.

Commissioner Daniel Horwitz, a Cuomo appointee and the body’s former chair, responded that there had been at least two instances where the commissioners had brought enforcement actions against state employees, who, after getting a staff advisory opinion, “didn’t fully disclose information, or twisted proper advice.”

Horwitz also questioned whether JCOPE’s commissioners had the time or expertise to approve the many outside income approval requests coming before the panel every month.

Commissioner George Weissman, a Senate Republican appointee, suggested commissioners could approve the requests “by consent” at meetings, since most would not be controversial. After reviewing a log of the last 22 months of staff opinions, Weissman said, in only one instance did he definitively question the advice given.

Commissioner Gary Lavine, a Senate Republican appointee, has raised the related issue of whether certain Cuomo commissioners — JCOPE Chairman Michael Rozenand Horwitz — are being clued in on certain outside income requests, while other commissioners were being left in the dark.

The commission’s top staffer, general counsel Monica Stamm, responded that there was a single matter related to outside income where she was not involved, but where Rozen was solely aware of a matter. Stamm said that, generally, commissioners are informed about “high-profile” matters.

It’s not clear whether the commissioners were aware of Cuomo’s book approval before the publishing deal was announced in August.

At the Tuesday meeting, Horwitz and Rozen emphasized that this entire, 90-minute discussion should have been conducted in a closed-door executive session.

After the vote deadlocked 6-6, Lavine introduced a provocative motion that would have required JCOPE to immediately publish all of its outside income opinions over the past 36 months — which presumably would have included the opinion given to Cuomo. But after Stamm and Rozen questioned whether that would be legal, Lavine withdrew the motion.

”American Crisis,” detailing Cuomo’s response to COVID-19, landed on the best-seller list. But Cuomo’s authorship of a 300-page book in the midst of a pandemic that hit New York harder than any state in the country has also raised questions.

{p class=”krtText”}Richard Azzopardi, a senior advisor to Cuomo, has refused to provide the Times Union with copies of the paperwork Cuomo was required to submit to JCOPE, which according to the agency’s website must detail the times and days when work was performed. Azzopardi also declined to provide a copy of any approval letter JCOPE gave to Cuomo.

{p class=”krtText”}In the backdrop of the JCOPE debate is the deadlock over the appointment of a new agency executive director the past 17 months.

{p class=”krtText”}Cuomo commissioners favor Stamm, the general counsel who is acting as the current top staffer, while the legislative appointees want someone not connected to New York’s state government to be appointed for the first time in JCOPE’s nine years history.

{p class=”krtText”}If Yates’ measure had passed Tuesday, it would have removed significant authority from the panel’s staff, which some perceive as too close to Cuomo, and restored more authority to the legislative commissioners.

{p class=”krtText”}©2020 the Times Union (Albany, N.Y.) Visit the Times Union (Albany, N.Y.) at www.timesunion.com Distributed by Tribune Content Agency, LLC.

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