Last week, New York State’s beleaguered ethics agency refused to release a whistleblower complaint alleging that Governor Andrew Cuomo and Assembly Speaker Carl Heastie spoke about confidential deliberations around a possible probe into Joe Percoco, the former top Cuomo aide now sitting in federal prison for accepting more than $300,000 in bribes.
The Joint Commission on Public Ethics, known as JCOPE, met behind closed doors for almost four hours in Albany and then adjourned, refusing to cast a vote on releasing the complaint or answer questions from reporters. The complaint had prompted the state’s Inspector General to open a probe into leaks involving Cuomo and Heastie.
State Inspector General Letizia Tagliafierro, a Cuomo appointee who recused herself from the leak probe, sent a letter last month saying her office couldn’t substantiate the claim. A great deal of mystery hangs over the entire affair because JCOPE refuses to comment on Percoco or any possible investigation. Several JCOPE commissioners reportedly wanted to release the Inspector General’s report but were shot down by the board’s chairman.
Theoretically, JCOPE is supposed to be an independent agency investigating ethical wrongdoing among elected officials and staffers in state government. In actuality, Cuomo exerts tremendous influence over JCOPE. Here’s what we know, according to the Times Union: on January 29th, a JCOPE commissioner named Julie Garcia was contacted by Howard Vargas, the executive counsel to Assembly Speaker Carl Heastie. Vargas told her that Cuomo had just informed Heastie that the speaker's appointees to JCOPE had voted against the governor on a matter.
It soon became clear that JCOPE had voted on whether it would investigate Percoco and decided against it. Since the governor was in the same Manhattan office suite where Percoco was doing potentially illegal work, it’s possible that such an investigation might have similarly obliged the governor to answer questions under oath.
Garcia would later quit the ethics panel, telling the NY Post she was “disappointed” by the IG’s office inaction on her complaint. (After initially refusing to release their report on the investigation into the leak, the IG's office turned over the three-page letter on Wednesday afternoon.)
A spokesman for Cuomo, Rich Azzopardi, said Cuomo “doesn’t even know who the members are besides his appointees, or how they voted.”
The latest controversy over the unreleased whistleblower complaint did not come as a surprise to JCOPE’s many critics, which include good government groups, progressive Democrats, and even Republicans.
Few in Albany expect JCOPE to serve as a competent watchdog over the governor’s office or any state lawmakers.
“The powers-that-be don’t want JCOPE to work,” said John Kaehny, the executive director of Reinvent Albany, a good government group. “JCOPE as it’s currently constructed is a complete failure.”
The primary problem with JCOPE lies in how easy it is for just a handful of the body’s 14 commissioners to kill any investigation into a politician. Just two of Cuomo’s appointees can veto an investigation or a finding of violation. Three of the legislature’s appointees can do the same.
JCOPE is not subject to FOIL requests and doesn’t have to disclose how frequently investigations are blocked or who gets investigated in the first place.
Since JCOPE was established in 2011, it has played no role in any of the high profile corruption scandals that have rocked Albany. Almost all of have been the product of ambitious federal prosecution. JCOPE drew criticism, however, for clearing Sam Hoyt, the former regional president for Cuomo’s Empire State Development Corporation, of wrongdoing after he resigned his post following sexual harassment and assault charges from a former employee. JCOPE allowed Joe Lhota to serve as MTA chairman while earning millions in outside income as a paid board member at Madison Square Guardian, which sits atop the MTA-controlled Long Island Rail Road terminal.
Is change possible? Two Democrats, State Senator Liz Krueger of Manhattan and Assemblyman Robert Carroll of Brooklyn, are trying to pass a constitutional amendment that would scrap JCOPE altogether and replace it with a new ethics watchdog with more teeth. The new commission would need a majority of commissioners to stop any investigation, not just two. Five out of the nine commissioners under the proposal would be jointly appointed by the chief judge of New York and the four presiding justices of the Appellate Divisions.
Legislative leaders of each party would appoint a total of two commissioners while two commissioners would also be chosen collaboratively by the governor, the attorney general and the comptroller. The new commission would also take up the enforcement of campaign finance violations, taking power away from a State Board of Elections that rarely cracks down on rule-breaking campaigns.
Though Democrats control both chambers and a new wave of progressives were elected to the Senate last year, the amendment to scrap JCOPE has not yet made it to the floor for a vote. Krueger told Gothamist she believes ethics reform is a challenge because legislators, no matter their ideological stripe, are wary of empowering outsiders who can go after them for wrongdoing.
“I would love to tell you I think the new Albany has less tolerance for these kinds of things,” she said. “But there’s still plenty of work to be done. This one is still a heavy lift because it’s all about an entity whose job is supposed to be investigating when we, we being the elected officials and their employees, mess up.”
Krueger and Carroll have been pushing a constitutional amendment because it would be harder to repeal if it becomes law—amendments must pass two non-consecutive legislative classes before going to the voters in a statewide referendum—and the process bypasses Cuomo entirely. The governor does not have the power to veto a constitutional amendment, unlike an ordinary bill. Lawmakers vote and eventually voters across the state weigh in.
Getting the amendment through the Assembly may be harder than the Senate, according to political observers. The Assembly has a larger class of veteran lawmakers who have been more hesitant to take up sweeping good government reforms. When the last speaker, Sheldon Silver, was first indicted, he enjoyed widespread backing in the chamber before public pressure built for him to step down.
Krueger hopes repealing and replacing JCOPE will be a priority in the next session, set to kick off in January.
“JCOPE is not designed to work, which is really the punchline,” she said.