Percoco's trial leaves unanswered questions

ALBANY, N.Y. _ When U.S. Attorney Preet Bharara filed corruption charges against former top Cuomo administration aide Joe Percoco in 2016, Bharara said he hoped the case would go to trial "so that all New Yorkers can see, in gory detail, what their state government has been up to."

The trial, which ended Tuesday with Percoco's conviction on three corruption charges and his acquittal on three others, did not disappoint.

While the case will be remembered for the conviction of Cuomo's longtime right-hand man, its testimony and evidence also suggested that the Cuomo administration may have crossed some legal lines, actions that were not the subject of the prosecution.

Percoco was found guilty Tuesday of swapping his considerable influence as Cuomo's executive deputy secretary for more than $300,000 in cash bribes.

Campaign work

One running theme of the trial that was not the subject of direct criminal charges was the overlap of Cuomo's governmental staff with his successful 2014 re-election campaign, which was managed by Percoco. Under state law, governmental resources cannot be used to benefit political campaigns.

Early in the trial, the jury heard testimony from Linda Lacewell, Cuomo's governmental chief of staff and counsel, who testified that part of her duties had included "vetting" contributions to the governor's campaign from people with business before state government.

Lacewell was serving as an unpaid volunteer for the campaign, according to her testimony.

Asked specifically if Lacewell's campaign work had been performed outside the confines of Cuomo's governmental office, Cuomo spokesman Rich Azzopardi responded that every employee "is trained on the appropriate use of state resources and we expect that training to be followed. There was no suggestion otherwise during this trial."

Another 2014 campaign volunteer was Seth Agata, who currently serves as executive director of the Joint Commission on Public Ethics, the state's ethics watchdog _ the panel that may be tasked with investigating fallout from the Percoco matter.

Agata's day job in 2014 was serving as counsel in Cuomo's office, but he also testified that he "gave some of my time" to the state Democratic Committee, a vehicle for Cuomo's campaign operation, as well as to the Cuomo campaign itself.

Agata testified that Percoco had asked him for legal guidance about Cuomo's use of private aircraft (donated by private interests) for Cuomo campaign events or for the state Democratic Party.

Azzopardi, Cuomo's spokesman, reiterated that Agata was volunteering his time. Asked if Agata's campaign work had been performed outside of Cuomo's governmental office, Azzopardi referred again generally to training in the appropriate use of state recourses, and said there was no suggestion of wrongdoing during the trial.

A spokesman for JCOPE did not respond to questions.

Percoco left the Executive Chamber payroll in April 2014 to manage Cuomo's reelection campaign.

Several months later, Percoco sought advice from Agata about other outside employment opportunities. In response, Agata prepared for Percoco _ who was at the time not a government employee _ a two-page memorandum on the permissibility of Percoco's activities. It was dated July 9, 2014. The memo was headlined with Executive Chamber letterhead.

David Grandeau, the state's former top lobbying official and a frequent critic of Agata and JCOPE, has filed a complaint with the agency charging that Agata violated state law because he allegedly used state resources to further Percoco's private business interests.

Grandeau noted that in the past, JCOPE has issued guidance to state employees that they "not use your agency letterhead to write a letter regarding ANY personal matter" not relating to agency business.

Azzopardi said it is "perfectly appropriate for a counsel to give advice to a former employee on complying with a two-year lobbying ban."

The question of whether various Cuomo employees used government resources for campaign activity is especially relevant because evidence showed Percoco extensively used his Executive Chamber office in Manhattan after leaving state service to run the 2014 campaign.

Prosecutors presented evidence showing that from May 1 to Dec. 7, 2014, Percoco made 837 calls from his government phone at Cuomo's office in Manhattan. The calls were made on 68 separate days. During that period, Percoco was working extensively for clients with business before state government, clients who were his co-defendants in the trial.

Cuomo's public schedules show that the governor was often present when Percoco was using the government desk while on leave, The New York Times reported.

On Wednesday, Cuomo told reporters that he believed Percoco was doing "transition work" whenever the former aide would return to his old government office during the eight-month period in 2014 in which Percoco was serving as campaign manager.

"When he left state government, he would come back into the office to handle transition matters," Cuomo said in a Manhattan Q&A. "He was there (in the administration) for a long time, he was in an important position, and he would come back and he was handling the transition. Which is fine. But there should be no other work done from a government office besides that transition work. And in the trial, there was a suggestion that there was _ and that's a violation of the rules."

In fact, it's a violation of state Public Officers Law _ something noted in a complaint recently filed with JCOPE by state GOP Chairman Ed Cox. If Cuomo knew Percoco was doing campaign work from the government office, he could face sanction.

In her testimony, Lacewell said she observed Percoco at his Executive Chamber office after he had resigned and taken his new campaign job. Agata also testified he observed Percoco using his old desk.

Azzopardi referred to the governor's statement that he believed Percoco was handling "transition matters" when asked whether Agata or Lacewell had flagged Percoco's activities.

Private email

While running for office in 2010, Cuomo promised to make his administration the "most transparent" in state history. The trial raised new questions about that assertion as well.

Todd Howe _ a cooperating prosecution witness who in 2016 pleaded guilty to conspiring with Percoco _ testified that he communicated with a long list of top Cuomo administration officials on their private email accounts. The officials' use of private email would make it difficult, if not impossible, for reporters or the public to unearth the communications through open-records requests. The practice would also violate longstanding state policies meant to promote transparency.

Under questioning, Howe said it was actually Cuomo officials who had often asked the lobbyist to shift to private email to discuss state business.

"But (in) many instances, they particularly said, 'Don't email my government email; email me on my personal account,'" Howe testified.

"The administration's position is that government email should be used for government business and government email should not be used for non-government reasons," Azzopardi said. "Any action that deviates from this is against administration policy."

One person on Howe's list of email contacts was Jim Malatras, the former state operations director. In fact, Howe said that Malatras was not only one of his private email correspondents, but recommended Howe communicate with an app called Wickr that auto-deletes text messages. (Howe said he couldn't recall if he had downloaded the app.)

Malatras has declined to comment on the matter. Asked if administration officials used the Wickr app more broadly to communicate, Azzopardi said he had "never heard" of it.

Cuomo's schedules

Questions also arose during the trial about the accuracy of Cuomo's public schedules. In her testimony, Lacewell stated that the Cuomo administration leaves events off Cuomo's schedules _ which are prepared after the fact and released months later to the public _ and may not always include the names of everyone present.

Azzopardi said that her testimony was intended to "account for mistakes and human error in record-keeping and the disclosed limitations" of schedules, noting that when the schedules are posted online, there is a disclaimer that "unofficial and personal events" as well as "information that might tend to compromise security" is not included.

Calls for change

In response to the verdict, reform groups are calling for the closure of the "LLC loophole" in state election law, limits on campaign contributions for those seeking state government contracts, more effective ethics oversight watchdogs, and more contracting and budget transparency and accountability measures.

Asked on Wednesday whether ethics reform would go to the top of his priority list, Cuomo said he would push to ban outside income for state officials _ the "single best ethics reform which makes everything else moot."

The outside income of elected officials _ many of whom have pushed back on the idea _ was not a subject of the Percoco trial.

In his comments Wednesday, Cuomo batted back when asked about Republican criticism that his close ties to Percoco demonstrated he allowed a culture of corruption to fester in his administration.

"Look at the facts, right? We're in the political silly season and people can say whatever they want to say," Cuomo said. "But there are still facts. This was a two-year trial (and) investigation. There was absolutely no suggestion ever made that I had anything to do with anything. Right? An exhaustive trial, and there was never any suggestion about any involvement by me."

Cuomo called Percoco's crimes "a violation of everything my administration stands for."

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