Bridgegate scandal's new front? Andrew Cuomo, Pat Foye and what the New York side knew

Top NY appointee to Port Authority thought laws were being broken, but public wasn't told. Now there's a subpoena

Published May 2, 2014 4:48PM (EDT)

  (AP/Mike Groll)
(AP/Mike Groll)

It hasn’t been a great few weeks for New York governor Andrew Cuomo. He got in a public spat with U.S. Attorney Preet Bharara for closing down an anti-corruption commission, his budget was roundly criticized by many in his own party, and a new poll shows him losing serious ground to his Republican opponent if he gets a challenge on the left.

But another unwelcome development for the governor flew mostly under the radar, and has national implications. While the George Washington bridge scandal focused exclusively on the role of New Jersey governor Chris Christie, the bridge is controlled by a joint New York-New Jersey bi-state authority – and last week Cuomo's hand-picked Executive Director of the Port Authority, Patrick Foye, was issued a subpoena by the New Jersey legislative committee investigating the flap.

Investigators believe there are omissions in the carefully crafted timeline put forth by the Cuomo Administration about what they knew about the lane closures, and how they responded. "Lots of questions need to be asked to fill in the blanks," the committee's Co-Chair John Wisniewski told Salon.

In a worst-case scenario, Cuomo’s version of events could come under great scrutiny and cause a number of new political and legal headaches. In a best-case scenario, he can no longer simply wave off questions about the issue as merely a New Jersey problem – and his office’s communications may now be exposed to investigators.

In the initial, four-month slow burn of the scandal, from September through January, Cuomo appeared to successfully keep his distance. The timeline of public statements over that period shows he really didn’t have to answer much about the issue until December, when it became evident that a storm was brewing in New Jersey.

A closer exploration of overlooked developments during that period, including strategic leaks to the press and backdoor communications, tells a very different story. The New York governor’s office was very involved in managing the crisis, and forging a public narrative favorable to it.

Last fall, it was not widely understood on the New York side of the bridge just how big a problem September lane closures had been in Fort Lee, New Jersey. The media didn’t really ask about it, and Cuomo didn’t volunteer any information about what he knew. The problem had occurred across the Hudson River, and Christie was deflecting media inquiries about it with jokes and condescension. According to Christie (and there are serious questions about whether he actually believed it), the lanes were closed as part of some innocuous traffic study.

It was not until December 9, when Foye, Cuomo’s appointed Executive Director of the bi-state Port Authority revealed in testimony before a New Jersey legislative committee in Trenton that there had been no traffic study. It was a bombshell. Two of Christie’s top appointees at the Port Authority, David Wildstein and Bill Baroni were forced to step down. (Wildstein actually resigned three days before Foye’s blistering testimony, and Baroni left four days after it.)

In the middle of the two resignations, On December 12, Cuomo was asked about the growing scandal during a radio interview. It was now becoming increasingly clear that the lanes were shut down as part of a misguided political payback scheme and not some misunderstood traffic study. Cuomo very calmly stated that he believed “this is basically a New Jersey issue.” This, despite the fact that he had joint control over the bridge’s doings, and is hardly known for ceding power.

Four days later, Cuomo held his final cabinet meeting of 2013 in Albany’s Red Room, where he most often takes questions from the State House press corps. The first question came from me, and it was whether Cuomo was troubled by testimony from career Port Authority employees in Trenton a week earlier. In addition to Foye’s testimony, operators of the bridge had told the New Jersey legislative committee they had feared for the loss of their jobs if they refused to carry out Wildstein’s orders to shut down the lanes. Specifically, I wanted to know if Cuomo was concerned that career employees of the bi-state agency, which is charged with the safe transfer of people and goods throughout the metropolitan region, felt intimidated by political appointees of Governor Christie.

Cuomo said, "To the extent there was misbehavior by officials at the Port Authority, I think that has been addressed by the recent resignations.”

Three weeks later, it was revealed that the lane closures were ordered by Bridget Kelly a top aide to Governor Christie who wrote to Wildstein in an ill-conceived paper-trail producing email, “Time for some traffic problems in Fort Lee.” Kelly was not working for Christie’s re-election campaign at the time, but in the governor’s office for the people of the state of New Jersey.

While the Cuomo Administration was virtually silent throughout the fall, it is clear they were well aware of what was going on, consistent with Cuomo’s management style. Although not always someone to get into the weeds on policy, Cuomo is known for his sharp political acumen. He understands politics, media and public perception much better than the average politician. Perhaps because he is eager to avoid the mistakes of his father, former Governor Mario Cuomo, who fretted over his policies and words but often failed to see all the political angles or the ramifications of his decisions, particularly among moderate voters.

On September 12, just days after the traffic problems were initiated, Cuomo chief of staff Josh Vlasto received an email describing the lane closures (ed. note: This post initially said that Vlasto flagged the email, but Cuomo's office disputes this). The very next morning, Foye wrote a scathing internal email, which said of the lane closures: “I believe this hasty and ill-advised decision violates Federal Law and the laws of both States.”

That’s a pretty serious charge, and would seem to fly in the face of any statements Governor Cuomo made afterwards that it was a simply a New Jersey problem. If laws of both states were violated, that would include New York State. According to Cuomo’s office, that email was forwarded to Director of State Operations Howard Glaser who says he chose not to inform the Governor.

Glaser directed Foye to get to the bottom of whatever was going on and report back. On October 1, someone leaked that September 13 email to the Wall Street Journal. Foye and the New York side suddenly looked like whistleblowers identifying an abuse of power, and immediately calling the New Jersey perpetrators out on it.

Assuming Cuomo was not informed, the question becomes: Was Foye obligated to report something he’d identified as a crime? As for what crimes were potentially committed, one could start with illegal use of government employees, disruption of interstate commerce, interfering with the safety of citizens, conspiracy to commit fraud and misuse of government property, to name just a few.

Foye conducted an internal inquiry and determined that the traffic study had been fabricated. However, the public was not informed of this until December 9 when he was compelled to testify in Trenton. It was only then that he disclosed to the public what he knew. Since Foye is an officer of the Port Authority, he has several ethical obligations in that capacity to uphold the rule of law. According to the Port Authority’s own ethics policy:

“No employee shall commit any act or neglect any duty which in any way is prejudicial to good order, discipline, or efficiency, or reflects unfavorably upon the good name and reputation of the Port Authority, or adversely affects the interests of the Port Authority or those of the general public.”

In addition, as a lawyer, Foye is obligated to uphold rules of professional conduct outlined by the Unified New York State Court System, which includes this passage:

“A lawyer should maintain high standards of professional conduct and should encourage other lawyers to do likewise…Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.”

And finally, the Public Officer’s Law which states:

“An officer or employee of a state agency, member of the legislature or legislative employee 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.”

Ellen Yaroshefsky, an adjunct professor of law at Columbia University, and the Director of the Jacob Burns Ethics Center at the Benjamin Cardozo School of Law, says that while the public code of ethics “does not require” someone in Foye’s position to report a crime, “good common sense does.”

However, she also points out that, “A lawyer in any organization has an obligation to go up the chain of command if they have a reasonable belief that fellow officers are acting in a manner that is unlawful or contrary to other substantial interests of the organization.”

A lawmaker in New Jersey who is a member of the investigative committee said, “There is no question Foye could have done more.”

While it wouldn’t have affected Foye, it’s also worth noting that an ethics bill proposed by Cuomo included a provision making it a crime if legislators fail to report incidents of corruption.

Asked to comment on Foye's actions regarding the matter, Matt Wing, a spokesman for Cuomo, told Salon, "Clearly Pat Foye acquitted himself exactly as a public servant should."

But some believe Foye had additional responsibilities to not only report what he knew to the governor, but also to immediately inform the public that their trust had been violated by an agency expected to safeguard the public interest. Instead, what we got was virtual silence from Cuomo. That secrecy may have aided and abetted Team Christie as they struggled to keep a lid on the depths of their malfeasance.

"Everyone knows Christie's toast because of this Bridgegate fiasco," says one political insider close to the scandal, a Democrat like Cuomo. "The real question is when the media - and potentially law enforcement agencies - will train their sights on Cuomo's complicity in it. His vague answers about what he knew and when are almost identical to Christie's, but he hasn't faced an ounce of scrutiny over them. This gives his critics, who are rightly questioning why he silenced the Moreland Commission, ample ammo to ask why he and his administration were silent as their colleagues on the other side of the river were running amok and engaging in law-breaking behavior."

On February 6, Cuomo held an event to announce toll discounts on the Verazzano Bridge for Staten Island residents. It was there that I first asked him whether or not Foye had informed authorities after stating on September 13 that laws had been violated. The governor responded, “I don’t know, You’d have to ask him.”

So, I did.

Two weeks later, on February 19, the Port Authority held its first monthly meeting since the scandal had really exploded into the headlines with the smoking gun email from Bridget Kelly. It was at this February public meeting that Port Authority Chairman David Samson (who recently agreed to step down after allegations of potential conflicts of interest regarding his law practice and his position at the agency) apologized to the public.

Samson opened the meeting by reading from a statement that said in part: "On behalf of the Board of Commissioners, we are deeply sorry for inconvenience caused to our travelers."

He refused to answer questions, but Foye made himself available to reporters. Right out of the gate I asked whether or not he had reported the violation of law to proper authorities, and if not, whether he thought he should have under the circumstances. Looking perplexed, perhaps because the hero narrative he and the governor’s office had carefully crafted was now being called into question, Foye answered, “Look, my email, I stated my belief, which was my belief then. I testified under oath in Trenton to that effect. I believe I took the right action when I learned about the lane closures, promptly opened them. I stand by my email and that decision.”

Since Foye had doubled down on his previous assertion that laws had been violated, I asked to speak with him on the phone the next day.

He called me the night of February 20 in an agitated state. In between yelling and cursing at me, Foye claimed that he had informed the Port Authority Inspector General of possible wrongdoing sometime last fall. The Inspector General is the law enforcement arm of the bi-state agency, so it would stand to reason that if Foye opted not to go to outside prosecutors with what he knew about the lane closures, at the very least he should have gone to the office vested with police powers within the agency.

However, the Inspector General’s Office contradicted Foye’s claim. On November 27, former New Jersey Senator and one time Governor Dick Codey wrote a letter to the Inspector General’s Office formally requesting an investigation. The Inspector General’s lead investigator, Michael Nestor told that until that letter, “We haven’t been asked to look into it.”

The Port Authority later walked that back, saying the Inspector General’s office had been informed, but had decided not to open a formal investigation. There is no paper trail but public Information Officer Chris Valens told me, “The Port Authority Inspector General’s office has confirmed that Executive Director Pat Foye called the Inspector General in October to discuss the GWB lane closure incident and inform the IG that Foye was opening a review of the matter. The IG noted during that conversation that it was aware of the incident and had opened its own review into the matter as well. Subsequently, the IG opened a formal investigation.”

Either way, some believe Foye was obligated to do more. "Foye should have immediately gone to the authorities if he had reason to believe New York State law was violated," says a long-time New Jersey operative. "You can't look the other way on something like that and be lauded as a hero."

For the last three years Cuomo has made a point of being visible in Albany during the months of January and February. He tends to hold cabinet meetings and make Red Room announcements on a fairly regular basis. This is likely done to help set the tone at the beginning of the Albany legislative session, which starts in January and ends in June. The Governor likes to reinforce his message and priorities for the session, and frequently uses the question-and-answer exchanges with reporters to communicate with the legislative leaders he must negotiate with on the budget and other matters. It is during press conferences where Cuomo lets people know which issues he feels firmly about, and those where he may be more pliable.

In 2012 and 2013, Red Room appearances were fairly common, if not weekly. In 2014, that has not been the case. Since the January revelation about the Kelly email (which happened to break the same day as Cuomo’s State of the State address), he held exactly two Red Room press availabilities in the months of January and February. The first was on January 27 with New York City Mayor Bill de Blasio. The second was held on February 12 after the legislative session had ended for the week and most transient lawmakers, staffers and reporters had already left the Capitol building (He didn’t hold another one until March 17, and recently held a press conference timed to coincide with one held by de Blasio).  

At that February appearance, Cuomo was pressed about the bridge scandal – specifically, what he knew, and when he knew it. As to when he found out, Cuomo said, “When it hit the papers or the radio or became public.”

Cuomo’s top appointee at the Port Authority claimed New York law was violated back in September, and Cuomo was now saying he didn’t even learn about the incident until it hit the media. Did he inadvertently hear it on 1010 WINS one night and demand that everyone in the car be quiet so he could listen?

Assuming he is telling the truth, why wasn’t this matter brought to his attention much earlier?

During that same February 20 phone conversation with Pat Foye, I also asked if he had ever discussed the lane closures with the governor. Foye refused to answer a variation of that question three separate times, and instead referred me to the governor’s office. The governor’s staff then pointed me back to his public statement about first hearing about the issue on the radio.

Those close to Cuomo were reluctant to speak on the record, but people who know him say it’s highly unlikely he wasn’t in the loop fairly early. Asked if it makes sense that Cuomo first learned of the scandal from press reports one Democratic operative who used to work with him said, “It’s totally not plausible. To his credit, he likes to know everything that is going on. If he didn’t call people in and ask questions, that amounts to dereliction of duty.”

Sources tell me Cuomo and Christie have a solid relationship. They frequently speak on the phone, and they’ve met for dinner in the past. Christie took over in New Jersey a year before Cuomo came into office. Both governors took the reins at a time of deep fiscal uncertainly when backlash against public employees was at an all-time high. It appeared as though Cuomo took a few pages from Christie on policy, particularly on how to appeal to moderate suburban voters.

In March, the Bergen Record reported that Christie and Cuomo clandestinely conspired in 2011 to raise tolls at Port Authority bridge and tunnel crossings. Under a cynical political scheme, the two governors had appointees propose exceedingly large fare hikes, so the governors could look like heroes by demanding that rate increases be lowered from what the agency originally proposed.

Assuming they colluded on tolls, it’s not a huge leap to ask whether or not they had any communication about the bridge flap. One theory that's been raised in New York political circles is that Cuomo didn't want to interfere with Christie's election because the latter was in line to head the Republican Governors Association, and could spend millions interfering with Cuomo's election this year -- had Cuomo allowed Foye to run rampant prior to Christie's election in November.

Asked to comment on this notion, Wing, the Cuomo spokesman, responded, "The writer of this story knows that this claim is an impossibility because he knows the governor had no knowledge of the issue at the time."

Fast forward to the present. The New Jersey legislative committee investigating Bridgegate has issued a subpoena to Foye to appear before the committee and answer questions under oath. While a New Jersey judge recently ruled that two former members of the Christie Administration do not have to comply with the committee's requests, due to the superseding federal probe, Foye initially agreed to give testimony on May 13. He has subsequently canceled due to a “scheduling conflict” and is now expected to come before the committee in June, although no date has been set.

While there is a historic tension between New York and New Jersey within the Port Authority, the bottom line is that both governors are responsible for everything that happens there. The moment a Port Authority cop put down a cone to block access lanes in Fort Lee was the moment both Cuomo and Christie bore responsibility for what happened. As of now, Cuomo has stuck with his team at the bi-state agency, including Foye.

But when something unsavory happens, the two governors have an obligation to find out the truth and be honest about what they know and when they found out. Did that happen here?

In the wake of the unfolding scandal, both governors have hopped on the reform bandwagon. Christie has suggested breaking the agency into two, and Cuomo’s Deputy Larry Schwartz said reforming the bi-state agency will be a top priority. Although the governors may not see eye-to-eye on the best way to make changes, the drama appears to have proven that business as usual at the Port Authority is no longer acceptable.

Meanwhile, as one governor fights for his political life over his office’s involvement in the bridge incident, the other has largely evaded major scrutiny. But that may change next month.

By Zack Fink

Zack Fink covers Albany for NY1 News, the 24-hour cable station in New York City. Prior to that he covered politics in New Jersey for 13 years, his final three as State House Correspondent for New Jersey Network, the former PBS station.