Taxpayers must pay for Cuomo's air commute, report says

ALBANY, N.Y.

The opinion by the Joint Commission on Public Integrity says, however, that Cuomo would have to reimburse the state if he uses aircraft to commute daily, or if he uses even part of the trip to attend a political fundraiser. Cuomo has said he doesn't use state aircraft to or from fundraisers and won't use aircrafts for daily commuting.

The report posted on the website of the Joint Commission on Public Integrity states that the cost of a state police drive to and from Westchester is about $50. The cost of a charter flight is more than $1,000 each way.

Cuomo had no immediate comment on the report; JCOPE wouldn't comment on it either. The governor's office and JCOPE said the advisory opinion, dated March 28, was posted to the website Thursday.

The Associated Press reported in August 2011 that Cuomo started or finished more than a dozen trips to Albany, New York City and other cities statewide in his first months in office, along with some trips only between Albany and Westchester, according to records obtained through the state Freedom of Information Law. State records show that Cuomo continues to use state aircraft in trips to and from his house. State aircraft must then take a "dead head" flight from the Westchester airport to Albany, where it must be stored when not in flight.

In 2011, Cuomo spokesman Josh Vlasto defended the trips as clearly appropriate. He said Cuomo's counsel and his chief of staff at the time approved the flights and Cuomo didn't need to seek an opinion by the ethics board that operated at the time. Vlasto said then that the AP was fabricating a story. The administration wouldn't say why it sought an opinion on Jan. 31 of this year.

"I am troubled by the near-blank check issued by JCOPE to Gov. Cuomo," said former JCOPE Commissioner Ravi Batra, who resigned last year saying JCOPE lacked political independence from Cuomo. "This is not JCOPE's finest hour. New York is fast becoming 'Casablanca,'" Batra said, citing the classic film in which police ignored open gambling.

JCOPE was created a day after the Aug. 14, 2011, AP story. Cuomo dissolved the previous ethics board, which could have considered the issue, when he signed into law his "Public Integrity Reform Act of 2011," but JCOPE didn't begin regular meetings until 2012 when commissioners were appointed.

Cuomo appointed the chairwoman and some members of the 14-person board. The executive director is among five of JCOPE's seven top staffers who had previously worked for Cuomo.

"It was done in secret," former state lobbying regulator David Grandeau said of the formulation of the aircraft opinion. "It should have been done in public," said Grandeau, now an attorney who represents private clients before JCOPE and a frequent critic of the board.

On Friday, the Cuomo administration said it has never reimbursed the state for dozens of commutes to and from his home. Cuomo doesn't live full time in the governor's mansion in Albany, but rather shares a Westchester home with his girlfriend, food TV star Sandra Lee, and Cuomo's daughters. He has offices in Albany and Manhattan.

Most state employees are supposed to pay for commuting to and from home when issued a state vehicle. Former spokesmen for Govs. George Pataki, Eliot Spitzer and David Paterson said their bosses either didn't use state aircraft to commute, reimbursed the state or paid taxes on the commuting use of state aircraft and motor vehicles.

As state attorney general, Cuomo had investigated use of state aircraft by the Spitzer administration. That led to sanctions against some staffers while further eroding Spitzer's relationship with the Legislature and popularity.

Internal Revenue Service guidelines show the free commutes could be a taxable fringe benefit.

The Cuomo administration had no immediate comment on whether Cuomo has paid any taxes on the free commutes. It stated in its request to JCOPE for a legal opinion that it was not seeking a discussion of "tax treatment." His past tax returns showed none of this "imputed" benefit.

IRS spokeswoman Dianne Besunder declined to say whether free commuting by air should be taxed. She provided guidelines for fringe benefits and when an employee should be taxed for the benefit. It includes: "All of an employee's use of a qualified nonpersonal-use vehicle is a working condition benefit."

There was no clear description of the case involving air fare and a government executive.

JCOPE cited state law in decision which states, "No officer or employee ... should use or attempt to use his or official position to secure unwarranted privileges or exemptions" in using state resources.

But JCOPE found as long as the "primary purpose" of the flight was for state business, such as going to the Albany office or a news conference, the trip was to be paid for by the state. JCOPE supported its findings by noting Cuomo's counsel approved the guidelines.

JCOPE also decided the one trip Cuomo did reimburse the state for didn't have to be reimbursed. Cuomo had taken his daughter and a friend on a trip and he paid for the cost of the air fare for his daughter's friend. JCOPE also now permits Lee to ride state aircraft for free with the governor and his family under the expansive opinion on use.

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