Watchdog's bark silent for Cuomo

ALBANY, N.Y. _ Gov. Andrew Cuomo's administration has not received any notification that New York's ethics agency is investigating possible legal violations by the governor or a former top aide, Joe Percoco, a Cuomo spokesman told the Times Union.

While that's good news for the governor, it means the Joint Commission on Public Ethics is not actually following clear requirements of state law, according to David Grandeau, the state's former top lobbying official.

When a sworn complaint is filed with JCOPE, the law explicitly requires the agency to send any "subject" of such an ethics complaint a letter outlining possible legal violations and give them 15 days to respond, Grandeau said.

In the case of Cuomo, both his Republican challenger for governor, Marc Molinaro, as well as Republican state party Chairman Ed Cox submitted sworn complaints this spring requesting JCOPE launch investigations into Percoco's possible use of state government resources while he was managing Cuomo's 2014 campaign, as well as the governor's potential knowledge of those activities.

But Rich Azzopardi, Cuomo's government spokesman, said the administration had not gotten a "15-day letter."

"As we have said previously, we would comply with any review into this matter," Azzopardi said Tuesday.

The Cuomo campaign also has not gotten a 15-day letter from JCOPE, according to campaign spokeswoman Abbey Collins.

Grandeau, a former top lobbying enforcement official and now a frequent JCOPE critic, said that means there is "now no doubt that JCOPE is not following the law."

New York law lays out a clear protocol for what should occur if JCOPE receives a sworn complaint alleging a violation of state public officer's law by someone subject to it _ a category that includes both Percoco and Cuomo.

After receiving a sworn complaint, "the commission shall notify the individual in writing, describe the possible or alleged violation of such laws, provide a description of the allegations against him or her and the evidence, if any, supporting such allegations," the law states.

The JCOPE letter also "shall" set forth the "sections of law alleged to have been violated" and "provide the person with a 15-day period in which to submit a written response," the law reads.

A JCOPE spokesman, Walter McClure, declined comment, citing the ongoing litigation.

Percoco was convicted this spring of taking more than $300,000 from two development firms in exchange for government favors, and is scheduled to be sentenced on Thursday. While Percoco's possible campaign work in his state office _ during an eight-month period in 2014 when he was managing Cuomo's campaign, but not working for the Executive Chamber _ was key context in the trial, it was not the basis of any federal charges.

In addition to filing a complaint with JCOPE, Cox also formally requested the Manhattan district attorney's office to launch a criminal probe of Percoco's campaign work from his taxpayer-funded office.

In July, Percoco's attorney Barry Bohrer told the Times Union he didn't know whether JCOPE or the Manhattan DA's office were investigating Percoco's campaign work.

In recent court papers, JCOPE's counsel, Monica Stamm, did note that the "sworn" Molinaro-Cox complaint relied on media accounts and court records in making accusations about Percoco, rather than the Republicans' firsthand knowledge of potential misconduct.

It would be unduly burdensome for JCOPE if such second-hand accounts required the agency to take investigative action, Stamm argued.

Percoco's crimes are a flashpoint in November's race for governor: Molinaro has repeatedly hammered Cuomo about the revelations concerning Percoco's 2014 activities, as well as his conviction.

Court records show that last week, JCOPE sought the dismissal of a lawsuit filed in July by Molinaro and Cox that attempts to force the agency to reveal whether it's investigating the matter.

The civil lawsuit, filed in state Supreme Court in Albany, seeks to compel JCOPE to take a vote on whether to investigate Percoco's activities _ and then disclose the results.

The court records show that JCOPE has retained outside counsel, the law firm Gleason Dunn Walsh & O'Shea, after acting state Attorney General Barbara Underwood recused her office from the matter, citing a possible conflict of interest.

In February 2015, state Supreme Court Judge Henry Zwack ruled against JCOPE in the similar case involving President Donald J. Trump, who was then a private businessman.

Zwack's decision ordered JCOPE to take a vote on whether to investigate an ethics complaint Trump had filed against then-Attorney General Eric Schneiderman.

"Surely, the statute's plain language ... is incapable of any other understanding," Zwack wrote in his decision.

In the court filing last week, Stamm argued that there are differences between the Molinaro-Cox case and the 2015 ruling involving Trump.

Stamm notes evidence in the Trump case included a number of sworn firsthand statements about the allegations from Trump, his daughter Ivanka, and their attorney Michael Cohen.

The Molinaro-Cox complaint relies on testimony from Percoco's corruption trial this spring, as well as investigative news reports _ not firsthand accounts of the former aide's activities.

If people without direct knowledge of potential ethics violations are allowed to force JCOPE to take votes on investigations, it would swamp the agency with work and "seriously disrupt" its operations, Stamm maintained.

"These are significant tasks requiring much work and judgment by commission staff," she wrote.

Stamm also pointed to a 2015 state court decision _ issued after the Trump decision _ in which a woman named Maureen Koetz unsuccessfully tried to force the agency to investigate former Assembly Speaker Sheldon Silver.

While the Cuomo administration said Tuesday that no "15-day-letter" had been received from JCOPE, the Executive Chamber has not yet filled the Times Union's open records request _ filed in late July _ seeking any such letters.

During the eight months in 2014 when Percoco was managing Cuomo's re-election campaign after resigning from the Executive Chamber, he continued to use his desk at the governor's office in Manhattan, Cuomo staffers testified at the former aide'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 the aide's state phone was used to make campaign-related calls, the governor was present in the Manhattan office.

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

Percoco's phone records show that over the eight months in question, 68 calls were made from his former state desk phone to call 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 the taxpayer-funded phone in Percoco's old 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.

Molinaro's campaign has also sought an investigation into Percoco's activities from Comptroller Tom DiNapoli's office. But in a late August letter, DiNapoli's office rejected that request, in part citing the possibility that JCOPE might also be probing the same issues.

JCOPE, created in 2011, has faced abundant criticism that its rules prevent the public from knowing whether or not it is pursuing an investigation. It has also been the subject of criticism for its close ties to Cuomo, who appoints a plurality of its commissioners.

Since its inception, all of JCOPE's executive directors have been former Cuomo attorneys. Its current top staffer, Seth Agata, was an administration counsel and campaign volunteer for Cuomo in 2014. He testified at Percoco's trial about offering the aide advice on his plan to seek private consulting clients after leaving the Executive Chamber.