I’ve got to admit I had the headline written but then I had to change the story. One of my clients was being audited by the person I normally would nominate for the biggest dope at the commission and I was all set to share my experience with the readers of this blog (and I still may as the auditors’ dopiness is legendary). But then lo and behold I received a letter from Barry and I had to rewrite the entire piece and add the second headline because Barry claims the crown, its not even close. Not because Barry is less intelligent than the auditor, I don’t think that’s possible, but because Barry’s dopey actions have far more severe consequences.
As readers of this blog know I requested an advisory opinion of the commission back in June regarding the widely attended event exception to the gift ban. I thought it important that the commission articulate a legal position on the issue because its comments at commission meetings and notices to the lobbying community along with its prosecutions of those it believed had violated the gift ban seemed haphazard, arbitrary and capricious.
After waiting several months I reminded the commission that it had not issued the opinion. Barry responded that the commission could not issue the opinion because they were so busy and they needed a majority of commissioners to approve it at a commission meeting. I reminded him they had a legal obligation to issue the opinion, lord knows it’s the least they could do given how they have failed to accomplish anything of a meaningful nature in the last couple of years. Barry responded that I could have staff’s informal opinion if I was in a rush. Yea after waiting 5 months I’m rushing you clowns. I told Barry I could not find in statute where he got the authority to issue “informal opinions” and why would I want one if they were not binding since his word is worth s*it. Barry responded that he had the authority to issue an “informal opinion” that he would not provide a copy of where that authority came from and he imposed an arbitrary deadline of November 12 for me to request the “informal opinion”. I told him to go piss up a rope and imposed my own deadline of November 12 for him to do so.
Well today he mailed me the rope and I’m going to use it to hoist him on his own petard. I’ll attach my entire response below so you can see what a dope he is but the key point of his letter is contained in a footnote explaining why he is sending an “informal opinion” when one was never requested (by the way what kind of law review poseur puts footnotes in letters?). It is as follows:
“You requested a so-called “formal” opinion from the Commission. As you may know, however, the Commission’s proposed regulations concerning gifts are being reviewed pursuant to the process set forth in the State Administrative Procedure Act (“SAPA”). It is unlikely that the regulations will be adopted in accordance with SAPA before your clients planned event. Under these circumstances, the Commission will not issue a formal opinion before your client’s planned event”
Yup you read it right the King Dope just said no opinions on gifts until the SAPA process concludes. IF YOU WILL NOT ISSUE OPINIONS ON GIFTS YOU CANNOT ISSUE NORCS OR CIVIL PENALTIES ON THEM EITHER. LOLOLOLOLOLOL.
Don’t you realize Barry you just voluntarily imposed a moratorium on gift ban prosecutions until SAPA is concluded? If you want an example of an arbitrary and capricious act of a state agency this is as clear as it gets. We will not advise you on the gift ban although we have a legal obligation to do so but we will prosecute you under it. That makes Barry and whoever advised him at the commission to come up with this excuse for not issuing the advisory opinion my candidate for biggest DOPE at PIC quite an accomplishment given the competition.
The sooner the incoming Governor requests the resignation of this entire commission, its executive director and all but about 8 of its staff (that’s for another blog as well) the better.
If you are being investigated or prosecuted for a gift ban violation as a lobbyist, client or public official get in touch I’d be more than happy to provide you with a copy of Barry’s letter.
Here’s my letter to Barry in its entirety:
November 23, 2010
Mr. Barry Ginsberg
NYS Commission on Public Integrity
Albany, NY 12207
Dear Mr. Ginsberg:
I am in receipt of your letter dated November 22, 2010 which purports to be an “informal opinion”.
As I have never requested such a document I am at a loss to understand why you have sent it. I think my previous correspondence clearly established my position regarding the validity of “informal opinions” and whether my client had requested one.
In my November 4, 2010 letter to you I stated that I would be “(p)utting aside for the moment my belief that commission staff and the executive director lack the ability or knowledge to provide such an opinion. And further putting aside the clear animus the commission staff, the executive director and the chairman have shown towards me and my clients” after reviewing the “informal opinion” and the footnote that sets forth your reasons for issuing an informal opinion that was never requested I can no longer put those beliefs aside.
You state in the footnote for the first time, although we have exchanged correspondence on this issue for over 5 months, that the commission will not issue a formal opinion on the widely attended gift exception until such time as the proposed gift regulations are approved under SAPA. Does this mean that the commission will not issue notices of reasonable cause, hold hearings or issue civil penalties on gifts while the proposed regulations are under SAPA review as well? Clearly if the commission continues to utilize the powers it possesses to impose civil penalties regarding gifts it has a concomitant responsibility to fulfill its obligation under the statute to issue advisory opinions regarding those same gifts. Your refusal to do so and your hastily concocted explanation “after concurring with the Chair and with his concurrence” regarding a mythical reliance on waiting for the SAPA process to conclude, evidences your clear bias towards me and my clients (by the way is the chair still the chair under POL section 31?) and is arbitrary and capricious in its application.
Confirming my belief that “commission staff and the executive director lack the ability or knowledge to provide such an opinion” you state in your “informal opinion” that my request for an opinion does not “indicate how many individuals your client expects will attend the event” and although the request for the opinion stated that the event would be open to the general public and “will not take place without at least 25 non members of the organization and/or public official present” you still state that “it is not clear from the information . . . provided whether it will be open to a “large number of persons from a given industry or profession.” After listening to commission staff and commissioners speak about the arbitrary number of 25 persons and how it was arrived at I did not believe that the commission could become more obtuse in its reasoning, you have exceeded my expectations regarding your lack of abilities. It’s the general public and the event will not take place without meeting your arbitrary benchmark of 25 people how much clearer could you want it to be?
Lastly you state that my client must insure that the public officials that attend are invited because my client believes that an invitation was sent to a public official whose duties and responsibilities relate to the event. As I stated in the request for an opinion any invitation to a public official would contain the following language “we are extending our invitation to you as a public official and believe your attendance is directly related to your official duties”. The fact that you believed you need to warn my client that a potential violation of section 1-m will depend, in part, on whether your client believes that an invitation was sent to a public official whose duties and responsibilities relate to the event” either evidences your complete lack of understanding regarding this issue or more likely evidences the continuing pattern of animus and harassment that this commission has imposed upon me and my clients.
After reading your letter I now fully understand why you have to keep your “informal opinions” secret. It is obvious that you and the commission do not want the public to know that there is no rationale nor legal authority for how you are interpreting and enforcing the statute regarding “widely attended events”. It is for that reason that I will continue to await the advisory opinion of the commission on the issues as set forth in my June 6, 2010 request.
Very truly yours,
David Grandeau, Esq.
Cc: Commissioner Members