What has JCOPE actually done?

Former state Senate Majority Leader Dean Skelos and his son, Adam, were convicted a second time on charges of bribery, extortion and conspiracy last month. Just five days earlier, SUNY Polytechnic Institute founder Alain Kaloyeros, who helped oversee state economic development projects, and three upstate executives were all found guilty on counts of wire fraud and wire fraud conspiracy. In May, the former leader of the state Assembly, Sheldon Silver, was also convicted a second time on counts of extortion and honest services fraud. And in March, Gov. Andrew Cuomo's former top aide Joe Percoco was convicted on three corruption charges for soliciting and taking bribes.

“Can you stop people from doing stupid things? No,” Cuomo said following Kaloyeros’s conviction. “Can you stop people from doing venal things? No. Can you stop people from doing criminal things? No.”

But there is a body in place meant to monitor and catch ethics violations in state government in the first place. The Joint Commission on Public Ethics, which was created in 2011, has been blamed at times for Albany’s corruption epidemic – and so too has Cuomo, who created it and fills a number of its posts. JCOPE has always been headed by a director that previously worked for Cuomo, while he was either governor or attorney general. And despite the fact that 15 state legislators have been convicted of crimes since JCOPE’s founding, it has found misconduct in only two legislators.

“Make no mistake about it: JCOPE is a direct political appendage of Andrew Cuomo,” Republican gubernatorial candidate Marc Molinaro said in June after a former Cuomo aide was cleared by JCOPE. Cuomo’s Democratic challenger, Cynthia Nixon, has been equally critical, calling JCOPE a “puppet body controlled by the governor” with no credibility.

But to what degree are these critiques, along with the many others surrounding JCOPE, valid? The commission is not subject to Freedom of Information laws that other state agencies are generally subject to for confidentiality reasons, making it difficult to assess its effectiveness. But there is a wealth of information in the cases they have taken enforcement action on, news reports and in the very structure of the organization to determine if JCOPE is doing its job.

“Make no mistake about it: JCOPE is a direct political appendage of Andrew Cuomo.” –Republican gubernatorial candidate Marc Molinaro

Sam Hoyt, the former regional president for the Empire State Development Corporation, waved his letter from JCOPE like a victory flag. He had resigned from his position as JCOPE looked into claims by a former state employee, Lisa Cater, that he had sexually harassed and assaulted her. The publicity this past year was poor for Hoyt, who paid $50,000 to Cater to keep their relationship secret, in what was now his second scandal for sexually inappropriate behavior. As an assemblyman, he had an affair with an intern and was then barred from hiring any more.

But this time, Hoyt had good news from Seth Agata, JCOPE’s executive director – he was all clear.

"The Commission does not find Mrs. Cater or any of her claims to be credible," Agata wrote in the letter publicized by Hoyt’s lawyer. "Indeed, Ms. Cater was, more often than not, evasive and unresponsive, initially refusing to meet with and then refusing to answer many questions, or provide additional documents to the Commission.”

Even so, the results of the investigation spurred more outrage. Agata himself was former counsel to Cuomo, and Hoyt was a Cuomo ally and appointee. Molinaro called the decision a “whitewash” and the commission a “kangaroo court,” while Nixon’s campaign maintained it had “zero-credibility.”

In fact, no one from Cuomo’s executive office has ever been penalized, even though JCOPE has taken action against employees of various state agencies.

JCOPE doesn’t tell the public when it chooses to not investigate people, but lets those being investigated reveal it themselves. This is how the public knew about the results of the Hoyt case – but the public also has no idea what is going on with the vast majority of the group’s pending or dropped investigations.

In the seven years JCOPE has existed, the commission has produced settlements against only two state legislators. For comparison, the New York City Conflicts of Interest Board found five New York City Council members in violation of the law over the course of three years, from 2007 to 2010, in a legislative body that is a quarter of the size of the state’s.

JCOPE’s first public case against a legislator was that against former Assemblyman Vito Lopez, who JCOPE sanctioned in 2013 for sexually harassing his staffers. JCOPE faced strong public pressure to investigate Lopez in 2012, to the point they revealed they were conducting an investigation against their own precedent to stay quiet. The investigation notably did not implicate Sheldon Silver, who, as Assembly speaker, facilitated secret payments to Lopez’s accusers, though the commissioners did publicly criticize Silver’s behavior. Earlier leaks to the media indicated that the commission blocked an investigation into Silver’s payments, a claim commission members later denied.

The second settlement was against former Assemblyman Dennis Gabryszak, also for sexually harassing seven former employees. JCOPE began its investigation two months after his resignation and media articles outlining incriminating evidence were published, including a video of the lawmaker imitating a sex act that former employees said he sent to them. JCOPE ended up fining him $100,000 two years later when its investigation ended. No cases against a legislator have been completed on issues of corruption.

Both the Lopez and Gabryszak cases were publicized in the media before JCOPE took action. “The cases where they acted are really the cases that are the best of circumstances where the stars align,” said Blair Horner, executive director of New York Public Interest Research Group.

JCOPE has also settled only one case against a member of the executive chamber: Peter Kiernan, who served as counsel under former Gov. David Paterson. He was penalized in 2012

for a minor violation of a post-employment rule that prevents former members of the executive chamber from appearing or practicing before a state agency. While working at a private law firm, Kiernan signed on as lead attorney on two project proposals with the state, which were both denied. JCOPE’s predecessor did implicate Paterson and four other members of the executive chamber from before Cuomo’s tenure. JCOPE has not found anyone in Cuomo’s executive office to be in violation of the law.

This is notable considering that in March, Percoco, Cuomo’s former top aide, was convicted on corruption charges. Critics were even more concerned when Agata, the head of JCOPE, testified in Percoco’s trial that he advised Percoco about his outside employment while Agata was counsel to the governor. JCOPE had also failed to flag information indicating Percoco was receiving money from businesses that worked with state government in his 2013 and 2015 financial disclosures, which the commission collects. Agata defended the commission, which has limited staffing and budget, though he said it also learned to pay “closer attention” in its audits.

JCOPE has defended its executive director despite his role in the Percoco trial, saying that Agata has recused himself from any relevant discussions.

Molinaro and GOP state chairman Ed Cox filed a lawsuit against JCOPE in late July to force the commission to reveal whether the commission is investigating Percoco and the governor.

Barring any incoming information revealed from the lawsuit, it is too early to say whether JCOPE’s current inaction on Percoco means much. A spokesman for the commission, who wouldn’t comment on specific cases, told City & State that it is “not uncommon” for JCOPE to step aside during criminal investigations, often for what are considered “high-profile” cases. Percoco, Silver, the Skeloses and Kaloyeros were all prosecuted by the U.S. Attorney for the Southern District of New York, although it's unclear if JCOPE even began looking into any of the allegations that the federal government investigated.

Mark Davies, former head of New York City’s ethics board, said this practice is standard and that one needs to consider that investigations can be complex. “These ethics cases, it’s not like, you know, a hit-and-run case or something,” Davies said. “It can be very complicated and it takes sometimes a long time to investigate. I mean, a year is not unusual at all.”

But Davies also did note that after a certain amount of time, the ethics commission should start its own investigations. "You don't just let a case sit there for five years," Davies said.

JCOPE has also garnered criticism on other kinds of cases. JCOPE last summer approved Metropolitan Transportation Authority Chairman Joe Lhota’s earning of outside income, despite conflict of interest concerns. Over email, Agata approved Lhota’s argument that, because he has delegated his CEO responsibilities and takes no salary from the MTA position, he should be considered a per-diem employee allowed to take outside income.

Lhota has private sector positions as a paid board member of Madison Square Garden, which has business before the MTA, and chief of staff at N.Y.U. Langone Health, a hospital network. Good governments groups have decried his argument and criticized Agata for deferring to Lhota.

“To have the head of (the MTA), in our view, publicly defy basic ethics rules and codes of conduct seems like an extremely big problem,” John Kaehny, executive director of Reinvent Albany, said.

And in another case submitted to JCOPE, former state Senate staffer filed a complaint in January against state Sen. Jeff Klein for alleged sexual harassment, though she told the Gotham Gazette in June she had no clue what was going on with the investigation.

Lobbyists and low- to mid-level state employees make up most of JCOPE’s enforcement actions. This is frustrating for skeptics who can’t look behind the curtain to understand why it is that some of New York’s officials have avoided the agency’s scrutiny.

Three years ago, four JCOPE commissioners, all appointed by members of the state Legislature, penned a letter to their peers. Letizia Tagliafierro, JCOPE’s executive director at the time and Cuomo’s former director of governmental operations, had just resigned. And in her departure, she appointed three former Cuomo aides in top staff positions in JCOPE. These four commissioners were especially critical of hiring Kevin Gagan, the former State Police first deputy superintendent, to the joint position of chief of staff and special counsel.

“Needless to say, this appointment and the cavalier approach taken only foretells more bad news for JCOPE,” their letter reads. “Designed to be ‘independent’, the incessant interference continues. If the next Executive Director is not hired from outside State government after an exhaustive search, the public trust will be inexorably destroyed.”

JCOPE’s current executive director, Agata, has an extensive background in state government. And the letter seems to have accurately foreshadowed the criticism he now faces. State Sen. John DeFrancisco, a Republican who briefly ran for governor, and Democratic attorney general candidate Zephyr Teachout have separately called for Agata to resign or be fired, particularly because of his connection to Percoco.

Similar criticisms have also been launched at JCOPE’s predecessor organizations, including the Commission on Public Integrity, which was created by former Gov. Eliot Spitzer in 2007 and was mostly staffed by his own appointees. The State Inspector General found in 2009 that the commission, and namely its executive director, had leaked information about an investigation into the governor to one his aides. The commission never determined Spitzer violated any laws, though it did implicate four of his aides. Only one, Darren Dopp, Spitzer’s director of communications, was fined for $10,000. Richard Baum, former secretary to Spitzer, William Howard, assistant secretary for Homeland Security, and Preston Felton, acting superintendent to the Division of State Police, settled with no civil penalty.

At the same time, there was the separate Legislative Ethics Commission, which then had sole investigative abilities of the state Legislature and didn’t initiate a single investigation until 2010.

Although the 2011 ethics law Cuomo signed did make changes like giving JCOPE investigative power over both the legislative and executive branches, some still see the same problems in the ethics commission. Every one of the three executive directors the ethics commission has appointed was closely connected with the governor. The governor also appoints 6 of the 14 commission members, forming the largest bloc of appointees from one entity in the commission.

Many groups say that JCOPE and the LEC should be combined. The LEC, half of which is made up of legislators, still holds the power to dole out fines and penalties against legislators once JCOPE has determined a violation. Having two separate ethics boards is also often confusing for lawmakers and their staff.

“Some things go to JCOPE, some things go to the LEC,” state Sen. Liz Krueger said. “Sometimes people are told, ‘Well, we’re not sure which venue, so try them all.’”

Legislative leaders and the governor are also seen by critics as having too much influence in appointments. The leaders of Assembly and state Senate each appoint three people and the minority leaders of each house appoint one each. The rest of the six commissioners are appointed by the governor and the lieutenant governor, and the governor picks the commission’s chairperson among the them. The commission then appoints the executive director separately.

Then, there is also the unique veto structure in JCOPE, which experts say no other ethics commissions in the country has. Generally, a vote of eight of the 14 commissioners constitutes a majority. However, the law dictates that when JCOPE decides whether to investigate a legislator, for example, at least two of those voting in favor of investigating must be legislative appointees of the same party.

Similarly, investigations of state employees or officers must have the approval of at least two executive appointees. And when it comes to statewide elected officials, such as the governor, attorney general and comptroller, or one of their direct appointees, at least two executive appointees of the same party must sign off the on the investigation. This means a hypothetical ethics investigation into Cuomo, for example, would have to be approved by at least two of his three Democratic appointees.

This process allows two commissioners to block investigations against people of the same party and branch of government as their appointers, even if the majority of commissioners supports an investigation. This is even more problematic if both houses of state government are governed by the same party, as that means only two legislative appointees from the minority will even be in JCOPE. This gives those two members alone undue influence to block investigations for people of the same party.

JCOPE does not disclose how frequently investigations are blocked, only its general voting patterns on the cases it does investigate. JCOPE voted unanimously to start 12 out of its 14 investigations in 2017.

All of JCOPE’s criticisms center on the fact that it is difficult to see how the commission functions. Good government groups frequently call for JCOPE to be subject to FOIL, including its voting tallies. Even JCOPE itself has called for increased transparency.

Just this week, Jim Yates, a commissioner appointed by Assembly Speaker Carl Heastie, proposed a law to allow JCOPE to confirm whether they were moving forward on investigations by a vote of the commissioners. The commission also called for the change during a review of JCOPE in 2015, and suggested that the legislature should look into changing its FOIL exemptions.

However, there is nothing in the current law that explicitly prohibits the commission from revealing names of those being investigated. David Grandeau, former executive director of a JCOPE predecessor organization and frequent JCOPE critic, has suggested that the current law allows the commission greater flexibility on transparency than they argue. It does prevent commissioners and staff from sharing “testimony received or any other information obtained” with people outside the commission. A spokesman for the commission said its decision to not name those being investigated was an “interpretation of the law.”

“Our interpretation is it tells us that basically anything that’s involved in an investigative matter is confidential until it’s not,” he said.

“The cases where they acted are really the cases that are the best of circumstances where the stars align.” –Blair Horner, NYPIRG executive director

This year’s corruption trials have made ethics reform a hot campaign topic for candidates throughout the state. Molinaro, the Republican gubernatorial candidate, has gone as far as producing a 23-page ethics plan. Molinaro’s plan includes support for a bill similar to one sponsored by Krueger and Assemblyman Robert Carroll, either in the form of a constitutional amendment or regular legislation. Nixon has called for abolishing JCOPE, and a spokeswoman for her campaign said she would support much of the structure Molinaro proposed. Both Cuomo and Spitzer created new state ethics commissions upon entering office, and it seems likely Cuomo’s opponents would do the same if elected.

The bill sponsored by Krueger and Carroll would fuse JCOPE and the LEC and change the body’s appointment structure. Under the bill, the majority of commissioners, five out of nine, would jointly be appointed by the chief judge of New York and the four presiding justices of the Appellate Divisions. The legislative leaders of each major party in either house would jointly appoint a total of two commissioners and a total of two executive appointees would be jointly chosen by the governor, the attorney general and the comptroller.

Evan Davis, the manager of the Committee to Reform the State Constitution and a former chief counsel to Gov. Mario Cuomo, helped Krueger and Carroll craft the proposed constitutional amendment. He said he drew inspiration from the judicial branch’s ethics body, the Commission on Judicial Conduct, which is mostly composed of appointees from the legislative and executive branches rather than the judicial branch. Similarly, most of the commissioners under this bill would be from a different branch of government than those it investigates.

The bill would also make the commission subject to FOIL, and Davis has said the bill would protect confidentiality for pending investigations. The bill also would give the body new powers like the ability to issue subpoenas and to censure, suspend, demote or remove state employees.

The Committee to Reform the State Constitution, a group formed this year to push for the passage of this bill, has been contacting candidates to gain support for the bill. The group got all eight incumbent former members of the Independent Democratic Caucus and their primary challengers for the state Senate to agree to support and co-sponsor the amendment if elected. However, there’s always a challenge in trying to get legislators to support a body that could investigate them.

“And I don’t think it’s because they’re necessarily against the idea of an independent watchdog,” Horner said, “but they can’t imagine that an independent entity could ever be created, that it would have a bias, ideological, partisan. And those considerable powers could be used against them, and they would be at the short end of the stick.”

Krueger said she introduced the bill too late last session to gain any traction, though she expects to push for it again next session. But skeptics remain after decades of back-and-forth on perfecting an ethics commission.

“I don’t know if we’ll ever get JCOPE changed,” Davies said. “Have to wait until the next big scandal, I guess.”