Disgraced ex-Gov. Andrew Cuomo could prevail and keep the profits from his controversial $5.1 million book deal despite a reversal by the state’s ethics watchdog agency of its approval for him to write the book, legal experts tell The Post.
The Joint Commission on Public Ethics voted 12-1 Tuesday to revoke its prior approval of the book contract — paving the way to potentially impose fines or claw back profits.
But legal experts said they wouldn’t bet the ranch that JCOPE’s action would withstand a court challenge by Cuomo because of its history of dysfunction and politically driven decisions.
One former appointee who served on JCOPE described its actions and deliberations over the years as “inconsistent” and “bizarre.”
Former JCOPE commissioner Ellen Yaroshefsky said she believes the watchdog panel acted within its authority by concluding that Cuomo violated the agreement not to use government resources when canceling its prior approval of the publishing of his book, “American Crisis: Leadership Lessons from the COVID-19 Pandemic.”
Cuomo rushed through preparation and publishing of the big-bucks book in the middle of the pandemic, amid the death of tens of thousands nursing home residents and other New Yorkers, provoking outrage and federal and state investigations.
But Yaroshefsky, an ethics law professor at Hofstra University, said the problem is the new decision is “consistent with JCOPE’s pattern of inconsistency.”
“They should win in court — but you never know. It’s also political,” said Yaroshefsky, who served on JCOPE after its creation from 2012-2014 and resigned in protest over meddling in its deliberations by Cuomo’s office.
“There’s a question of whether JCOPE followed their own processes. It’s not a slam dunk in court because of the bizarre history of JCOPE,” she said.
The panel took three votes this year to revoke its approval of Cuomo’s book contract. The first two votes failed to garner a majority under the law before the third passed near unanimously.
Cuomo lawyer Jim McGuire said the three separate votes shows JCOPE’s revocation is “transparently political on its face” and vowed to contest “this baseless and improper decision” in court.
Yaroshefsky said JCOPE’s dysfunction and inconsistency could pose a problem.
“The entire process has been political from the very beginning [of JCOPE’s creation]. That could affect things. The book contract didn’t go to the full commission. Now it goes to the full commission. It’s bizarre.”
Cuomo’s book deal was initially approved by a top JCOPE staffer last year and was never reviewed or approved by its commissioners. Some commissioners slammed the lack of input and JCOPE has hired an outside firm to investigate the circumstances surrounding the initial OK of Cuomo’s book.
Cuomo may have a due process argument, agreed John Kaehny of the watchdog group Reinvent Albany. He said there are many other examples of JCOPE delegating authority to staffers — rather than its governing board — to issue opinions on behalf of the agency.
“The irony is that Cuomo is saying the system is rigged when he rigged it first,” said Kaehny.
Another ethics lawyer said it will be difficult for JCOPE to get Cuomo to give up his book profits.
“JCOPE will never get the money back unless Cuomo settles,” said David Grandeau, a former state ethics official.
“The Public Officers Law requires a `knowing and willful’ violation to sustain a violation and impose fines. Doesn’t take a genius or even a JJOKE lawyer to realize you can’t prove knowing and willful at the time the book was written when you gave him permission,” said Grandeau.
“They [JCOPE] will say he knew he was violating their approval by using state resources, he will say they were volunteers….As to commissioners voting 3 times it pretty much proves what a star chamber JJOKE is.”
A JCOPE insider rebutted the doubters.
“The burden is now on Cuomo, not the commission,” the JCOPE source said.
The insider said the law creating JCOPE clearly gives it the power to reverse actions when a public official violates the terms of an agreement with the agency.
Despite the legal uncertainty, government watchdog applauded JCOPE for finally doing the right thing by revoking it approval of the Cuomo book contract.
“The Joint Commission on Public Ethics was right to rescind its approval of former Governor Cuomo’s book. The findings that he used public resources in the writing of the book, despite his representations that he would not, appear to establish that the book was not written in compliance with his agreement and with the law,” said Noah Bookbinder, president of the D.C.-based Citizens for Responsibility and Ethics.
CREW also had filed a separate complaint with the state Board of Elections alleging Cuomo illegally used campaign resources to promote his book.
“Returning his profits from the book or donating them to charity, rather than tying up the Commission with litigation, would be a first step toward addressing the many ethics problems arising from this book project,” Bookbinder said.
Months of litigation is likely.
If Cuomo were to reapply for book deal approval, the full JCOPE board — not staff — will rule on the matter, officials said.
If JCOPE denies the book deal on resubmission, it can open an investigation into whether Cuomo violated the state Public Officers Law for using state resources to produce the book and levy potentially millions of dollars in fines, an insider said.
Also, JCOPE could move to “disgorge” the book profits, forcing Cuomo to return royalties back to the publisher, Crown Publishing — though some have questioned whether it has the authority to do so.