Is JCOPE eyeing Cuomo?

ALBANY, N.Y. _ Gov. Andrew Cuomo's Republican challenger for governor is suing to find out if the Democrat is under state ethics investigation as the result of a GOP complaint.

Republican gubernatorial candidate Marc Molinaro and state party chair Ed Cox filed a lawsuit in state Supreme Court in Albany on Friday in an attempt to force the state Joint Commission on Public Ethics to reveal if it has taken up calls to investigate allegations against the governor and his former top aide Joe Percoco, who was convicted on corruption charges in March.

There is a precedent for the success of such a lawsuit: In 2015, several months before announcing his bid for president, Donald J. Trump was successful in suing JCOPE on the same grounds.

Cox filed a complaint with JCOPE in February asking it to investigate Percoco for potentially violating the state Public Officer's Law, which prohibits the use of government resources to benefit political campaigns.

Testimony and evidence in Percoco's trial revealed that the former aide had extensive access to his former Executive Chamber office in Manhattan during an eight-month period in 2014 when he had quit his official post to run Cuomo's 2014 re-election campaign.

Cox also asked the body to probe whether Cuomo or his employees knew of this potentially illegal activity or played a role in it.

In April, Molinaro also filed a complaint with JCOPE alleging Cuomo had broken the law by using state resources for political gain. But neither Cox nor Molinaro have heard anything back from the 7-year-old ethics panel, which has been criticized for its perceived closeness to the Cuomo administration. JCOPE's top staffer is a Cuomo veteran, and six of the body's 14 commissioners are appointed by the governor.

In their lawsuit, the Republicans maintain that JCOPE is required to vote on whether to conduct a probe within 60 days of receiving a sworn complaint.

They also maintain that the law requires JCOPE to notify complainants _ such as Cox or Molinaro _ if it determines no violation has occurred, or if a case has been closed. That must occur in writing within 15 days, they argue.

The suit claims JCOPE was required to vote on whether to pursue Cox's complaint by April 16, and on Molinaro's by June 12.

"The failure and/or refusal of the Commission to inform the petitioners as to the vote on their complaints and even as to whether such a vote occurred is in violation of Executive Law, contrary to the stated purpose of the Commission," wrote their attorney, Michael J. Hutter, in the civil lawsuit.

The suit asks the court to compel JCOPE to reveal the results of any vote on whether to pursue the Republicans' complaints. If such a vote has not been taken, the suit says JCOPE should be forced to hold one, then notify the complainants of the results.

So far, Hutter argues, JCOPE has taken "no or little investigative actions" on the matter.

"In fact, the only investigative actions regarding the complaints appear to have been conducted by journalists and reporters," he writes.

During eight months in 2014 when Percoco was managing Cuomo re-election campaign _ and was off the state payroll _ Percoco continued to use his desk at the governor's office in Manhattan, Cuomo staffers testified at Percoco's corruption trial.

Cuomo's desk in that government office was just steps away from Percoco's, and records obtained by the Times Union show that on several days when Percoco's state phone was used to make campaign-related calls, Cuomo was present in the Manhattan office.

Cuomo has said he was unaware that Percoco was campaigning from his old office, and believed he was merely "transitioning" out of his former position as Cuomo's executive deputy secretary.

Percoco was convicted of taking more than $300,000 from two development firms in exchange for government favors. He is currently awaiting sentencing. While Percoco's possible campaign work in the state office was key context in the trial, it was not itself the basis of any federal charges.

In February 2015, state Supreme Court Judge Henry Zwack ruled against JCOPE in a similar case involving Donald Trump.

Trump, then a private businessman, filed an Article 78 proceeding against JCOPE, seeking to compel the agency to take a vote on an ethics complaint the mogul had filed against then-Attorney General Eric Schneiderman.

Trump alleged that Schneiderman had solicited Trump's daughter Ivanka for campaign donations while the Democrat was investigating Trump University over fraud allegations by former students.

The Trump ethics complaint was filed in December 2013, but nearly two years later JCOPE had not taken a vote.

In his decision, Zwack ruled in favor of Trump, and ordered JCOPE to take a vote. "Surely, the statute's plain language ... is incapable of any other understanding," Zwack wrote in his decision.

Ultimately, JCOPE decided not to pursue an investigation into Schneiderman and had to notify the court of the decision.

David Grandeau _ an attorney who once ran the lobbying enforcement agency that preceded JCOPE _ advised Trump in the Schneiderman case.

"They can close an investigation if they want, but they can't just slide it into the garbage pile and not act on it," Grandeau said.

A JCOPE spokesman, Walter McClure, told the Times Union earlier this year that under its interpretation of the law, the agency is required to notify a complainant that a case has been closed only if JCOPE had previously voted to officially open an investigation.

On Friday, McClure said the agency does not comment on litigation.

The Times Union reported two weeks ago that Percoco's phone records show that over the eight months in question, 68 calls were made from his former state desk phone to Cuomo's Manhattan campaign headquarters _ an apparent violation of state regulations.

The Percoco government phone line was also often used to call Cuomo's fundraisers, campaign consultants and the campaign's election lawyer.

There were 837 calls over 68 days made from his old desk phone at Cuomo's Manhattan office. Percoco's lawyer said that many of the calls were not made by his client, and that the campaign manager did not make campaign-related calls from that office. But swipe card records presented at Percoco's corruption trial indicate he was often present when those calls were made.

In the wake of the Times Union report, Cox called on Cuomo to resign and face prosecution.

In February, Cox also asked Manhattan District Attorney Cyrus Vance to launch a criminal investigation. It's not clear if Vance's office is investigating, either.

The Cox-Molinaro lawsuit notes that JCOPE's executive director, Seth Agata, is a former counsel in Cuomo's office who testified to witnessing Percoco using his old government desk in Albany while Percoco was off the state payroll.

JCOPE's commissioners _ who are appointed by Cuomo, as well as by Senate and Assembly leadership _ stood by Agata in the wake of political opponents' calls for him to resign.

The commissioners have said that Agata would recuse himself in matter involving his prior position in Cuomo's office, which would seem to include any investigation of Percoco's activities.

In the wake of Percoco's conviction, Cuomo told reporters he was not aware of Percoco "violating any rules or using the equipment for non-government purposes."

"Coming back and forth to be a part of a transition and help _ that is fine," Cuomo added. "What's not fine is using government equipment for an unauthorized use, and that is a rule and everybody knows it."

cbragg(at)timesunion.com - 518-454-5619