Team Cuomo Response to JCOPE

By Team Cuomo | December 14, 2021

Statement from Jim McGuire, Attorney for the 56th Governor of the State of New York Andrew M. Cuomo Regarding JCOPE

“JCOPE’s actions today are unconstitutional, exceed its own authority and appear to be driven by political interests rather than the facts and the law.

“Should they seek to enforce this action, we’ll see them in court.”

Statement from Rich Azzopardi, Spokesman for the 56th Governor of the State of New York Andrew M. Cuomo Regarding JCOPE

“This is political hypocrisy and duplicity at its worst. Governor Cuomo received a JCOPE opinion and advice of counsel stating that government resources could not be used — and they weren’t — and any staffer who assisted in this project did so on their own time, which was reflected on their timesheets. If Speaker Heastie, Majority Leader Stewart-Cousins, and Governor Hochul’s JCOPE appointees have created a new standard whereby government staffers cannot volunteer their own time for non-governmental purposes, they should all be equally prosecuted under the same standard and be forced to repay the state for volunteer work on their re-election campaigns.”

To:      Files

From:  Judith Mogul

Date:   August 19, 2020

Re:       JCOPE Approval and Ethics Guidance re GAMC Book American Crisis

With the announcement Monday, August 17, 2020, of the Governor’s forthcoming  book chronicling his experience leading the state through the first wave of the Corona Virus pandemic, this memorandum memorializes my communications with JCOPE related to obtaining outside activity approval and my guidance regarding work on the book consistent with state ethics laws and rules.

Even prior to contacting JCOPE, I confirmed that no state resources would be used in writing the book, and that any staff who were assisting the Governor on the book would do so on their own time, either on evenings or weekends, or by taking leave.

I reached out to JCOPE on or about July 9, 2020 to obtain outside activity approval for the Governor before he negotiated a contract with a book publisher.  By that time, we had already narrowed the potential publishers to those that did not pose an actual or potential conflict of interest by virtue of having business before the state (either through contracts or lobbying).  I spoke first with Monica Stamm, who referred me to Martin Levine who explained to me that JCOPE staff had authority to decide all outside activity approval requests.  I explained in broad terms that the Governor was writing a new memoir, with a focus on the COVID-19 crisis, and that we wanted to make sure he had outside activity approval prior to negotiating a contract with a publisher.

On July 10, 2020, I submitted a letter to Mr. Levine formally requesting approval for the Governor to author the book, and representing that (1) he would abide by the nine specific factors governing when a public officer may author a book for compensation that JCOPE had articulated in multiple advisory opinions and in its approval of his previous book and (2) that the publishers he was considering were not “interested sources” and would not present a conflict or the appearance of a conflict of interest.

Following submission of the request for outside activity approval, I informed Mr. Levine over the telephone that the Governor had selected Penguin Random House/Crown as the publisher for the book.  On Monday, July 13, Mr. Levine and I had a telephone conversation in which he conveyed that the Staff had granted provisional approval of the outside activity request, such that the Governor could negotiate a contract with Penguin Random House/Crown, but that the Staff would require additional information concerning the terms of the contract before providing final approval.  I confirmed that conversation in an email with Mr. Levine on July 13.  The additional information we agreed to provide to the Staff included any obligations the Governor would assume beyond delivery of a manuscript, and a representation from the publisher that the terms were usual and customary.

Thereafter, on July 16, 2020 I provided Mr. Levine with a letter from Penguin Random House/Crown that the terms of the contract were usual and customary based on the surrounding circumstances, which I explained in a telephone conversation included the keen national interest in the Governor’s management of the COVID-19 crisis.  During conversations on July 16 with Mr. Levine I also conveyed the additional information Mr. Levine had requested before final approval, including and that the Governor had agreed to record an audio book and to do 10 media appearances within a 60-day window of the book’s publication.

On the evening of July 16, 2020, Mr. Levine confirmed that JCOPE Staff had approved the Governor’s request and that we would be receiving a written approval on the following day, July 17, 2020.  It is my impression that Mr. Levine was consulting with the JCOPE Chair in addition to other members of the Staff throughout the process and before providing that approval.  We received the written outside activity authorization on July 17, 2020.

Mr. Levine and I specifically discussed that the Governor could write about his management of the COVID crisis without running afoul of the third factor (“the subject matter is sufficiently unrelated to the individual’s job responsibilities so that authorship, advice, or material provided in the book could not be viewed as part of his official position”).  That factor was designed to prevent public officers from being compensated for publishing materials that the state paid them to author as part of their official duties.  Accordingly, as with its approval of the Governor’s prior book project, Mr. Levine confirmed, as subsequently explicitly memorialized in the written approval, that the presence in the book of material or knowledge acquired by the Governor in the course of performing his official responsibilities would not violate the third requirement.  I have read the final draft manuscript prior to publication and confirmed that the book is entirely consistent with the JCOPE guidance.

I also spoke with Martin Levine on August 19 after the press stories announcing the book broke and he expressed no concerns.