ALBANY — Taxpayers will spend up to $2.5 million defending Gov. Andrew M. Cuomo’s office in a federal investigation examining its alleged suppression of figures showing the true number of nursing home deaths from COVID-19.
That’s according to OpenBookNY.com, a website maintained by state Comptroller Thomas DiNapoli’s office, which discloses information about state contracts. The website states that the Executive Chamber’s $2.5 million contract for legal services with the law firm Morvillo Abramowitz was “approved and filed” on April 27.
A copy of the contract, provided by DiNapoli’s office, says the firm will charge up to $937.50 an hour for work performed by law firm partner Elkan Abramowitz. The contract says the rates are “significantly discounted” from standard hourly rates: By 25 percent for Abramowitz and 15 percent for other attorneys.
The contract gives an indication as to the scope of the Department of Justice investigation. It states that the DOJ and “other law enforcement or investigative entities” have made inquiries and requests for information related to the Executive Chamber’s COVID-19 pandemic response, including related to nursing homes; publication of the COVID-related book authored by Cuomo, “American Crisis,” and “other pandemic related matters.”
According to the contract, expected duties for the law firm include consulting with Cuomo’s office on strategy, document production, witness interviews and communicating with law enforcement.
The federal nursing home investigation is criminal in nature, which means that the subjects of the investigation would be individuals, not the Executive Chamber office.
It’s unclear, however, whether possible subjects of the inquiry, including Cuomo, have hired personal lawyers to respond. If they instead rely on Morvillo Abramowitz’s representation of the Executive Chamber as a whole, that could raise questions about use of taxpayer funds for individuals’ representation in a criminal investigation. Cuomo’s spokesman did not immediately have a comment on whether personal attorneys had been retained for the nursing home inquiry.
Under state law, if a state employee hires a personal attorney to respond to a criminal inquiry, the employee may be eligible for taxpayer reimbursement if acquitted or if an investigation is dropped. But state employees are supposed to front the legal costs themselves for personal criminal defense lawyers.
Although the contract was filed with DiNapoli’s office last week, Cuomo’s office sent the Times Union an open records request response on Monday denying a request for a copy of the contract, stating that public disclosure “would impair present or imminent contract awards or collective bargaining negotiations.” It’s not clear how a contract already approved and filed with DiNapoli’s office would still be subject to an “imminent contract award.”
Cuomo’s office also denied formal requests on Monday for the Executive Chamber’s contract agreement with Arnold & Porter, which has been providing legal services concerning sexual harassment allegations against Cuomo; the administration also denied a request for any contract between the Executive Chamber and the law firm Walden Macht & Haran, which is providing similar legal services. In both instances, Cuomo’s office again said disclosing the agreements could jeopardize “imminent contract awards.”
Cameron MacDonald, executive director of the Albany-based Government Justice Center, said the administration’s explanation for denying the requests was curious, given that the law firms had been responding to the investigations for Cuomo’s office for months. The comptroller’s records, for instance, state that Morvillo Abramowitz has been working for the Executive Chamber since Feb. 15.
MacDonold noted state court rules, which require attorneys to “provide to the client a written letter of engagement before commencing the representation” or under certain exceptional circumstances “within a reasonable time thereafter.” Those letters often serve as a contract, MacDonald said, laying out the scope of the services and the fees to be charged. It would be unusual for a high-powered law firm to represent a client without such a letter in hand, MacDonald said.
“For any law firm like the law firms engaged by the Executive Chamber, that’s standard practice,” MacDonald said.
Alternatively, an attorney can enter into a written retainer agreement with the client, before or within “a reasonable time” after commencing the legal services.
In a statement in April, Cuomo senior advisor Richard Azzopardi said none of the four law firms had been paid money at that time.
“We are in the process of finalizing these contracts and related documents for review and approval by the comptroller’s office,” Azzopardi said. “We are abiding by all applicable rules and standards and in matters like this it is not uncommon for legal representation to begin while the contracts are simultaneously being drafted for submission. Doing it the other way could potentially leave the Chamber and its employees without representation.”
In February, the Times Union first reported the FBI and the U.S. attorney’s office in Brooklyn were examining whether Cuomo’s administration deliberately manipulated data on nursing home deaths during the coronavirus pandemic.
Cuomo aides were involved in reviewing a July report issued by the state Department of Health, which had the stated goal of pinpointing whether a directive issued on March 25, 2020, had contributed to the high number of nursing home deaths in New York. Prior to the report’s release, certain Cuomo aides allegedly cut out information showing a higher death toll in nursing homes caused by COVID-19.
Some of the same government aides were simultaneously involved in the production of Cuomo’s book, which painted a positive portrait of the administration’s response to the pandemic. Upon publication last October, “American Crisis” hit the best-seller list and is expected to earn Cuomo more than $5 million.
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