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Feds tell NY Legislature to retain records in probe; governor’s office says it will cooperate

ALBANY_ U.S. Attorney Preet Bharara has told the State Legislature to preserve all its records related to the Moreland anti-corruption commission, which had been investigating legislators.

Gov. Andrew M. Cuomo's spokesman, Matt Wing, wouldn’t say if the governor’s office received a similar notice.

"We are not commenting on the U.S. Attorney's actions, but as the governor has previously said, any state agencies should be fully cooperative," Wing said.

The U.S. Attorney is requiring Assembly and Senate members and their staffs to preserve “all records and documents (whether in paper or electronic form, and including documents stored on personal e-mail accounts and electronic devices) related in any way to the Moreland Commission to Investigate Public Corruption,” according to memos obtained by Newsday.

The Assembly memo was first reported by the New York Daily News.

Members of the Moreland Commission have also been told by Bharara to retain all of their records. The commission has hired a defense attorney at the state’s expense to close operations and turn over cases to Bharara, Cuomo confirmed Tuesday before the U.S. Attorney’s Office order was made public.

“The commission is disbanded, but it still has work to do,” Cuomo said Tuesday in Manhattan. “It’s in the process of referring cases to other offices and follow up on those referrals. So that’s an important part of the job and closing it down in the right way.”

Cuomo has defended his shuttering of the commission because he emphasized it was his commission. He also worked with co-chairmen of the commission in probes that appeared to target the Legislature, not the governor’s office, according to the panel’s preliminary report.

The federal probe involving the Moreland Commission has become an early topic in the governor’s race. Cuomo promised in his 2010 campaign to clean up Albany and has enacted two packages of ethics measures.

“If your commission did nothing wrong, then why did it just hire criminal defense attorneys?” asked Rob Astorino, the Westchester County executive who is the Republican nominee for governor.

Cuomo abruptly ended the Moreland Act Commission in March after he struck a political deal with the Legislature for some of his ethics proposals. Cuomo created the commission a year ago and it had begun several investigations into the Legislature when Cuomo disbanded the panel of prosecutors.

The cases were turned over to Bharara and his Southern District office based in Manhattan.

In an April radio interview, Bharara didn’t rule out investigating the governor’s office.

“Thinking people wonder why that happened and want to get to the bottom of it,” Bharara said then.

Cuomo spokeswoman Melissa DeRosa had said:  “The Moreland Commission was designed and formed to be a short-term, temporary commission to recommend and spur legislative action, which it did successfully.”

Yesterday’s “litigation hold notice” to the Senate and Assembly called for retention of all records related to the Moreland Commission’s “funding, formation, operation, management and dissolution” and records related to all “actual or potential” investigations.

The order involves more than papers. It requires retention of all emails as well as “back-up tapes, digital media, servers, portable hard drives, thumb drives, and audio and visual records such as voicemail messages, videotapes, and CDs.”

That request is aimed at making sure original documents, before any edits, are secured.

“You should ensure that all relevant or potentially relevant e-mails are not deleted from your inbox, or your personal or public folder,” states the Assembly memo relaying the U.S. Attorney’s Office directive. “Everything should be preserved, even if you would otherwise alter, destroy or discard such materials in the ordinary course of business. If you must update a pre-existing document, you should do so only in a manner that preserves all the information in the document, as it existed originally.”

“Outside counsel has advised us that failure to comply may result in court-ordered sanctions,” the Assembly memo stated. “Please contact me immediately if you have any questions about its scope. When in doubt, you should err on the side of preservation.”

“We are happy to comply,” said Michael Whyland, spokesman for the Democratic majority and Speaker Sheldon Silver.

“We are complying and we’re moving forward with it,” said Scott Reif, a spokesman for Senate Republicans who dominate a bipartisan majority in that chamber.

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