Before The New York State
JOINT Commission
on Public ETHICS
david grandeau,
Complainant,
v.
Joint Commission on public ethics executive director
seth agata
Respondent.
IN THE MATTER OF AN INVESTIGATION
INTO MISCONDUCT BY Joint
Commission on public ethics executive director seth agata
INTRODUCTION
David Grandeau
(“Complainant”) files this Complaint and based on the information
detailed herein, respectfully petitions the New York State Joint Commission on
Public Ethics (the “Commission”) to investigate the misconduct of Joint
Commission on Public Ethics Executive Director Seth Agata (the “Respondent”)§ 74 et seq.
Seth Agata, an
employee of the JCOPE has violated Public Officers Law § 74(3)(d), (f) and (h)
by engaging in acts that have violated the trust of the public and are being
pursued to advance Mr. Agata’s non-governmental interests.
Mr. Agata’s
statements and conduct evidence a motive that is inconsistent with his former
role as Acting Counsel for Governor Cuomo and his current role as Executive
Director of the Commission.
While employed as Acting Counsel to
Governor Cuomo in July 2014, Mr. Agata, engaged in a pattern of misconduct to
the detriment of both complainant and the State of New York. Respondent
has used state resources, to support his efforts to secure privileges for Joseph
Percoco, a private citizen, when there is no legitimate state purpose for doing
so. Respondent has also continued to use
his state position as Executive Director to benefit Mr. Percoco when there is
no legitimate state purpose for doing so.
Such actions, clearly raise suspicion that they were being
undertaken in violation of the respondents’ public trust and were not made to
further either New York State’s nor the Commission’s legitimate interests but
rather to benefit Respondent and Joseph Percoco and give reasonable basis for
the impression that Respondent has been improperly influenced in the
performance of his official duties.
Background
In July of 2014, Respondent, while
employed by the State of New York, provided legal advice and counsel to Joseph
Percoco, a non-state employee, with no right to receive legal counsel from the
respondent, while Respondent was acting in his official capacity as Acting
Counsel to Governor Cuomo.
Mr. Agata in recent testimony in a
Federal criminal trial of Mr. Percoco testified under oath as follows,
establishing that Joseph Percoco was not a state employee in July of 2014:
Q. Turning back to Joseph Percoco, you said he was the
executive deputy secretary?
A. Yes.
Q. When did he hold that title?
A. He held that title from - - as far as I know, he came in
with that title January1, 2011. He left
the chamber sometime in spring of 2014, came back later in the year and resumed
that title. (Percoco
transcript page 1105)
He then testifies as follows
regarding the provision of legal advice to Mr. Percoco:
Q. Before you get to that, where did the second occasion
occur?
A. It occurred in Joe’s office in July of 2014. Joe’s office in Albany, the office he had in
Albany.
Q. Let me pause you there.
You said it occurred in July of 2014.
That was after Joe Percoco had left to go work on the governor’s
campaign: correct?
A. That’s correct. . . .” (Percoco transcript page 1127)
Then Mr. Agata continued as follows:
Q. So, generally. What did Joe Percoco ask you about in this
second conversation in July of 2014?
A.Joe was sitting at his desk, and he asked me to come
over. And he had mentioned to me that he
was looking to get - - do some work for a law firm and earn some money doing
work for a law firm, and, you know what kind of restrictions - - what kind of
problems would he have with, you know - - if any would he have with working
there. I asked him, does this law firm
have any business in front of the state? Would he be doing any work in front of
the State? And he said No. He said it
would be municipal work, labor work. And
I said, well, that’s - - anything, any projects at all in front of the
state? He said, No, nothing at all I said that’s great. . . (Percoco transcript page
1128)
Mr. Agata further testified that he
documented his guidance to Mr. Percoco in a memo which was admitted into
evidence (Percoco transcript page 1129 - 1130)
In addition Respondent testified under
oath that he had provided Mr. Percoco with legal guidance regarding the use of
private aircraft for the governor’s campaign (Percoco transcript page 1147) and
the use of private aircraft for the New York State Democratic Party (Percoco
transcript page 1148).
JURISDICTION OF THE COMMISSION
The
Commission is authorized by Executive Law §94(13)(a) to commence inquiries into
credible violations of Public Officers Law § 74.
Pursuant to Executive Law §94(17)(c), the Commission is authorized to conduct
any investigation necessary to carry out the provisions of Executive Law §94.
Pursuant to this power and duty, the Commission may administer oaths or
affirmations, subpoena witnesses, compel the attendance of targets or
witnesses, and require the production of any books or records that it may deem
relevant or material.
When the
Commission determines there has been a violation of § 74(4), it is authorized to assess a civil penalty in
an amount not to exceed ten thousand dollars and the value of any gift,
compensation or benefit received as a result of such violation.
In addition to any penalty contained in
any other provision of law any such officer, member or employee who shall
knowingly and intentionally violate any of the provisions of § 74 may
be fined, suspended or removed from office or employment in the manner provided
by law.
New York Public Officers Law
The conduct of Respondent Agata
has violated multiple provisions of New York law, summarized below, and justify
further investigation by the “Commission”.
A. Section 74(3)(f) and (h)
Under Section
74(3)(f), a state official “should not by his conduct give reasonable basis for
the impression that any person can improperly influence him or unduly enjoy his
favor in the performance of his official duties.” Public Officers Law Section 74(3)(h) requires that a state official “should endeavor to pursue a course of
conduct which will not raise suspicion among the public that he is likely to be
engaged in acts that are in violation of his trust.”
Respondent has violated these sections of the Public Officers Law by offering
legal services to Joseph Percoco that were not part of his official duties as
Acting Counsel to Governor Cuomo. Respondent further violated these sections by
failing to recuse himself before engaging or refusing to engage in regulatory
actions affecting Joseph Percoco in respondent’s present position as Executive
Director of the “Commission”.
Respondent’s actions in providing
legal advice to Joseph Percoco regarding employment by Mr. Percoco after he had
left State service clearly raises suspicion that such actions were not made to
further New York State’s legitimate interests but rather to benefit Respondent and
or Mr. Percoco personally, and further raises suspicion that such actions were
in violation of the respondents’ public trust and give reasonable basis for the
impression that he has been improperly influenced in the performance of his
official duties.
Respondent’s actions in providing legal
advice to Joseph Percoco regarding the use of a private airplane for travel by
Governor Cuomo’s campaign clearly raises suspicion that such actions were not
made to further New York State’s legitimate interests but rather to benefit
Respondent and or Mr. Percoco personally, and further raises suspicion that
such actions were in violation of the respondents’ public trust and give
reasonable basis for the impression that he has been improperly influenced in
the performance of his official duties.
Respondent’s actions in providing legal
advice to Joseph Percoco regarding use of private aircraft by the State
Democratic Party clearly raises suspicion that such actions were not made to
further New York State’s legitimate interests but rather to benefit Respondent and
or Mr. Percoco personally, and further raises suspicion that such actions were
in violation of the respondents’ public trust and give reasonable basis for the
impression that he has been improperly influenced in the performance of his
official duties.
Respondent’s actions in providing Mr.
Percoco a waiver from filing a financial disclosure report by May 15, 2015 clearly
raises suspicion that such actions were not made to further New York State’s
legitimate interests but rather to benefit Respondent and or Mr. Percoco personally,
and further raises suspicion that such actions were in violation of the
respondents’ public trust and give reasonable basis for the impression that he
has been improperly influenced in the performance of his official duties.
Respondent’s actions in failing to report
Mr. Percoco’s use of state offices and resources after he had left state
service and was working for Governor Cuomo’s campaign clearly raises suspicion
that such actions were not made to further New York State’s legitimate
interests but rather to benefit Respondent and or Mr. Percoco personally, and further
raises suspicion that such actions were in violation of the respondents’ public
trust and give reasonable basis for the impression that he has been improperly
influenced in the performance of his official duties.
B. Section 74(3)(d)
Under Section 74(3(d), no official
“should use or attempt to use his or her official position to secure
unwarranted privileges . . . for himself, herself or others including, but not
limited to, the misappropriation to himself, herself or to others of the
property, services or other resources of the state for private business or
other compensated non-governmental purposes.”
Here, Respondent has used his official position to engage in a series of
actions that have no legitimate State purpose. In doing so, Respondent has used
state resources, such as employee time and state equipment, to support his
efforts to benefit Mr. Percoco. In
addition, Mr. Agata has secured privileges for himself by continuing his actions
when there is no legitimate state purpose for doing so.
When Respondent provided Joseph
Percoco a legal opinion related to employment after he had left state service
and at a time when Mr. Percoco was a private citizen and not a state employee.
Respondent used or attempted to use his official position to secure unwarranted
privileges for Mr. Percoco. Such action,
rather than vindicating any public right or obtaining any public relief clearly
raises suspicion that it is being undertaken in violation of the respondents’
public trust and were not made to further New York State’s legitimate interests
but rather to benefit Mr. Percoco and give reasonable basis for the impression
that Respondent has been improperly influenced in the performance of his
official duties.
E. Section 74(4)
Section 74(4) of the Public Officers
Law provides: “In addition to any penalty contained in any other provision of
law any such officer, member or employee who shall knowingly and intentionally
violate any of the provisions of this section may be fined, suspended or
removed from office or employment in the manner provided by law.” It provides further that for intentional
violations of certain subsections, such as Section 74(3)(d), violators “shall
be subject to a civil penalty in an amount not to exceed ten thousand dollars
and the value of any gift, compensation or benefit received as a result of such
violation.”
CONCLUSION
In conclusion, the complainant
believes that the evidence leads to the inexorable conclusion that Respondent’s
actions have violated several New York State laws governing the ethics of
public officials. We respectfully submit
that this matter warrants your immediate consideration and a thorough
investigation.
All I can do is keep tilting at windmills and hope some JCOPE commissioner is willing to do their job and not simply follow orders
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