ALBANY – The reported decision to allow Gov. Andrew Cuomo’s family and associates special access to coronavirus tests may have run afoul of a state law prohibiting public officials from using their position for personal gain, according to government reform advocates.
Who should lead an investigation, however, has left those same watchdogs perplexed.
Section 74 of the state Public Officers Law makes clear that no public officer can use their position to obtain “unwarranted privileges or exemptions” for themselves or others, including family members.
The Times Union and The Washington Post reported last week that top Department of Health officials were sent to the homes of Cuomo family members and associates – including CNN anchor Chris Cuomo, the governor’s brother – to perform coronavirus tests at the height of the pandemic, when testing resources remained scarce.
On Thursday, The New York Times reported Regeneron, the Westchester-based pharmaceutical company, requested and received tests from Cuomo’s administration for its president, George Yancopoulos, and his family in March.
The VIP testing program at the least raises the question of whether it is in line with the Public Officers Law, government reform advocates said. Violations carry a fine of up to $10,000 plus the cost of the benefit and can be used as grounds for impeachment.
What’s less clear is who should hold the reins of any investigation.
In theory, the state Joint Commission on Public Ethics would be the appropriate entity to enforce potential violations of the Public Officers Law. The state Inspector General’s Office is also tasked with investigating untoward conduct within the executive branch.
But both entities have significant ties to the Democratic governor that may be disqualifying: Cuomo has appointed a string of loyalists and former employees over the years to chair the public ethics commission, which has an earned reputation of working at a glacial pace. And Inspector General Letitizia Tagliafierro worked for Cuomo as far back as his days as state attorney general, though she could recuse herself from any investigation.
Lee Park, a spokesman for the Inspector General’s Office, said the office had “no comment on the matter at this time.” By law, the public ethics commission is extremely limited in what it can say publicly about potential investigations.
Blair Horner, legislative director for the New York Public Interest Research Group, a government watchdog group, said state law makes it clear “you’re not supposed to use your public office for your own personal gain or to personally benefit others.” But, he said, the question of who should investigate points to issues with the state’s existing systems.
“Is there a reasonable explanation for why these tests were given to relatives, for example, or anyone else?” Horner said. “And that would have to be reviewed by (the public ethics commission), and that’s the problem: There’s nobody the community trusts to do the investigation.”
Cuomo already facing three inquiries
Cuomo faces at least three separate investigations that have threatened to derail his political future.
Attorney General Letitia James’ office is overseeing an independent investigation into allegations from at least a half dozen women who say Cuomo sexually harassed them, including an aide who says he groped her after she was summoned to the Executive Mansion to assist with his phone.
The FBI and U.S. Attorney’s Office in Brooklyn is investigating the Cuomo administration’s decision to withhold data about COVID-19 deaths in nursing homes from the public for months.
And the state Assembly Judiciary Committee has launched an impeachment investigation to examine all of the above and determine whether the governor should be removed from office.
It’s the assembly’s investigation that could look into whether Cuomo abused his position in prioritizing his family for tests, though the committee would not have the power to impose fines for violating the law.
Assembly Judiciary Chairman Charles Lavine suggested to Newsday on Wednesday that the probe may look into the recent reports.
“Matters that have come up will certainly receive some attention,” the Democrat said, according to the newspaper. “But the investigation cannot be distracted from its major challenge and won’t be.”
Sen. Todd Kaminsky, a Long Island Democrat who is a former federal prosecutor, said he believes state law is intentionally written in a way to limit who can investigate impartially. State law allows one party’s public ethics commission appointees to band together to block any investigation, for example.
“There can be a political remedy that could begin with the assembly, but I think it’s troubling that there should always be an ongoing professional entity to take complaints, investigate complaints and act on them, and that does not exist right now,” Kaminsky said.
In a statement, the state Attorney General’s Office said it does not have jurisdiction in the testing matter. The office is calling on the public ethics commission to investigate.
Cuomo’s office claims critics are rewriting the past
Cuomo’s office has countered that the criticism over the at-home tests is an “insincere effort to rewrite the past.”
“In the early days of this pandemic, when there was a heavy emphasis on contact tracing, we were absolutely going above and beyond to get people testing – including in some instances going to people’s homes,” Cuomo senior adviser Rich Azzopardi said in a statement last week.
Azzopardi said the effort was aimed at taking “samples from those believed to have been exposed to COVID in order to identify cases and prevent additional ones.”
“Among those we assisted were members of the general public, including legislators, reporters, state workers and their families who feared they had contracted the virus and had the capability to further spread it,” he said.
In 2006, the state Ethics Commission, a predecessor of the public ethics commission, issued a report finding then-Comptroller Alan Hevesi violated Section 74 of the Public Officers Law by using a state worker to chauffer his ailing wife.
Hevesi later pleaded guilty to a felony for defrauding the government and resigned.
In this case, Cuomo appears to have violated the public officer’s law, said Susan Lerner, executive director of Common Cause/NY.
She noted that in the early weeks of the pandemic, people who were sick were encouraged to stay home and leave the tests to those who needed urged medical care – not home visits by state health officials to test Cuomo’s family and associates.
“What does that say about the reliability of what the governor is telling the public?” Lerner said. “Is there one rule for the governor’s family and one rule for the public? That is not the way our state should be run.”
Lerner said the latest revelations add to the woes for Cuomo and the public’s trust in him.
“It feels like we are in a row of dominos with weekly revelations of problematic and potentially illegal activities by our governor at a time when everybody should be focused on the recovery,” Lerner said. “And we should have confidence in the advice that we’re getting from our state government.”
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Jon Campbell is a New York state government reporter for the USA TODAY Network. He can be reached at [email protected] or on Twitter at @JonCampbellGAN.