Attorney General Cuomo relied on a phantom ethics opinion to exonerate the Senate majority leader, Joseph Bruno, of charges that he misused state aircraft.

In absolving the Republican state Senate majority leader of any wrongdoing, a report issued last month by the attorney general’s office cited what it described as an “opinion” issued by the New York State Ethics Commission in 1995.

The opinion cited by the report does not exist in writing and never did. No formal opinion on the use of state aircraft has ever been issued by the ethics commission.

Mr. Cuomo’s report highlighted the ethics opinion as the clearest ground rules governing the use of state aircraft by state officials, claiming that it permitted the use of state airplanes or helicopters as long as the trip included a “bona fide public purpose.”

The standard set by the “opinion” was enough to clear Mr. Bruno, who conducted a small amount of official business — in one case less than an hour of documented time — during a number of his trips this year between New York City and Albany on which he used a state helicopter. Some of the trips also had political purposes, such as fund raising.

“I don’t recall a written opinion,” a Spitzer administration official who served as the executive director of the ethics commission in 1995, Richard Rifkin, said in an interview. “It was based upon oral discussion between the commission and the governor’s office.”

Mr. Cuomo’s critical findings regarding the Spitzer administration’s use of state police to dig up Mr. Bruno’s travel itineraries have largely overshadowed the attorney general’s findings concerning Mr. Bruno’s use of state aircraft. Messrs. Cuomo and Spitzer are Democrats, while Mr. Bruno is a Republican.

For the Spitzer administration, Mr. Cuomo’s report was a disaster, undermining the governor’s reputation as an ethical leader and fueling the public impression that Mr. Bruno was an innocent victim of a vengeful governor. While the report suggests that Mr. Bruno’s trips to New York City were not a good use of taxpayer money, it reserves its harshest criticism for the Spitzer administration. The report faulted at least two senior Spitzer administration officials for politicizing the state police force, while saying the actions fell short of criminal wrongdoing.

Mr. Cuomo’s reliance on the phantom “opinion” will likely only add to concerns aired privately by Spitzer officials that the attorney general, a possible gubernatorial candidate in 2010, did not sufficiently investigate Mr. Bruno’s use of state aircraft or properly examine the relevant state policies.

A spokesman for Mr. Cuomo, Jeffrey Lerner, declined to comment about the attorney general’s report because the district attorney of Albany County is investigating the Spitzer administration’s scheme against Mr. Bruno.

The spokesman for the ethics commission, Walter Ayres, said that he is not aware of any formal or informal written advisory opinion on the subject having been rendered by the agency. He said, however, the report accurately conveyed the commission’s informal position. That position was shaped by a consultation between the commission and the administration of the then-governor, George Pataki, in 1995.
Mr. Cuomo’s report claims that the commission “re-confirmed” the “opinion” in 2001 when Governor Pataki’s use of state aircraft came under scrutiny. The report quotes a 2001 statement by Mr. Ayres saying “that as long as the trip included a bona fide public purpose, the ethics laws did not require reimbursement for those portions of the trip that were political in nature.” The 2001 statement said the position has been the commission’s “long-standing policy.”

That 2001 statement played a crucial role in the conclusion of the Cuomo report, which states: “As a result of the investigation, under the permissive state aircraft policy in effect, the OAG has determined that Senator Bruno conducted at least one legislative business meeting on each of the ten trips using state aircraft.”

Because the only information about Mr. Rifkin’s conversations with Pataki officials comes from the Ayres statement, much of the context of his advice is unclear. It’s not known, for instance, exactly what Mr. Pataki was seeking permission for and whether Mr. Rifkin’s advice came with any particular restrictions.