Not so fast: New York AG’s office says order for Cuomo to return millions in book profits is NOT legal

The saga of Andrew Cuomo in New York continued on Thursday.

After a near-unanimous ethics panel ordered the disgraced former governor to return $5.1 million in book profits to the state earlier this week, the state’s attorney general said ‘not so fast’ on Thursday.

In a letter to the Joint Commission on Public Ethics (JCOPE), Larry Schimmel, general counsel to Attorney General Letitia James, warned the panel that the order was illegal because the committee did not first produce a report outlining how Cuomo violated the Public Officers Law, thus requiring the payback.

“There are procedural steps that the Commission must take before the OAG’s Civil Recoveries Bureau can take any action,” Schimmel noted in an opinion letter addressed the committee’s executive director, Sanford Berland, the New York Post reported.

“Any referral to the OAG’s Civil Recoveries Bureau would need to include a Substantial Basis Investigation Report, or comparable record, related to this matter.”

The letter also said that the panel’s report would have to list findings that showed specifically how Cuomo came to be in violation of the law while also outlining the precise amounts “attributable to penalties and disgorgement.”

The panel approved the order on a vote of 12 to 1 on Tuesday directing the former governor to return profits from his book, “American Crisis: Leadership Lessons from the COVID-19 Pandemic,” to the AG’s office.

The general counsel also advised JCOPE that it has to “exhaust its own collection activity efforts concerning any funds due the State” before making a referral to the AG’s Civil Recoveries Bureau.

“It is therefore premature to ask the OAG to begin collection efforts before a demand for payment is made to Mr. Cuomo, or his counsel, and he has had an opportunity to address the demand,” Schimmel added.

Initially, JCOPE ruled that Cuomo would be allowed to profit from a book sale while the state was still dealing with the COVID-19 pandemic. However, The Post reported, the decision was made by a staffer, not the full board of commissioners, “provoking criticism that the fix was in.”

The approval, however, was rescinded after the panel concluded that Cuomo improperly used state staff in the drafting of his manuscript.

As such, the board voted on Tuesday to order the former governor to return the profits to the AG’s office within 30 days, leaving the AG to decide what to do with the funds.

In the letter, Schimmel said that the panel “appears” to have reached the conclusion that Cuomo “misused government resources” to earn profits on the book.

“If that is the basis, any referral to the OAG’s Civil Recoveries Bureau would need to be accompanied by the record of the administrative process, and the statutory authority for the decision, the amount of the imposed fines and penalties, and a determination concerning the appropriate amount of disgorgement attributable to the violation of law,” the general counsel wrote.

Through his spokesman, Rich Azzopardi, Cuomo blasted the panel’s order and called it illegal.

“This is political hypocrisy and duplicity at its worst,” Azzopardi said. “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,” Azzopardi continued.

David McNamara, who wrote the panel’s order, said that Cuomo “lacked the legal authority to engage in outside activity and receive compensation in regard to the book.”

“Gov. Cuomo is not legally entitled to retain compensation … for any form of outside activity related to the book,” McNamara said.

The FBI and the U.S. Attorney’s Office in Brooklyn are both looking into the book deal as well, The Post reported.

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