Friday, November 26, 2010


Got a Special Counsel Ralphie letter today. All I can think about this time of year when I saw the letter is the movie classic “A Christmas Story”. I feel like Ralphie’s mom warning him that “you’ll shoot your eye out”. Now granted the special counsel sending me a letter is not the same as a red rider BB gun with a compass in the stock (Ralphie is less likely to hurt himself with the BB gun than the special counsel is with a keyboard) but you get the point. And I strongly suggest that the special counsel and the executive director watch the movie and see what happens to Scut Farkas and his toady sidekick Grover Dill (for those of you at the PIC tell me that if you put a coon skin cap on someone we all know s/he wouldn’t be a dead ringer for Farkus). Anyway I digress back to the special counsel’s letter.

For the background on this dustup read the blog from last week “spoke too soon” The special counsel must be feeling strong around the holidays he actually threatened my clients with a subpoena if we don’t turn over payroll records.

He claims we need to provide a detailed statement with backup records verifying the information on our reports. ONE BIG PROBLEM THOUGH - we gave the auditor that information already in a format that she has accepted from many other lobbyists in the past. Why treat me differently than you treat others Mr. Special Counsel? Are you picking on me Farkus? LOLOLOL

I pointed out to the special counsel that I would like to see all the audits where he accepted statements similar to that which my clients have provided and also those that he subpoenaed to obtain the backup material, as he has threatened to do in this case. Don’t want to provide it under FOIL issue the subpoena I’ll get it in discovery along with a lot of other info.

REMEMBER RALPH “You’ll shoot your eye out”

Tuesday, November 23, 2010


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
540 Broadway
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

Wednesday, November 17, 2010


This one wasn’t from Barry but it had special counsel Ralph’s fingerprints all over it. And while I must admit pointing out the special counsel’s errors is more fun than commenting on Barry’s if for no other reason than I know Ralph far better than I ever would want to know Barry. There is value to the lobbying community in my informing them of yet another instance where the PIC has overstepped its jurisdiction.

This time it’s non-lobbying expenses and do you need to maintain and show the PIC your non-lobbying employee’s salary and payroll records.

PIC auditor’s routinely request that lobbyists verify their non-lobbying support staffs compensation. Putting aside for the moment that you are under no legal compulsion to cooperate with an audit (discussed previously at length in this blog) if you voluntarily decide to cooperate with an audit you do NOT have to show the auditor your payroll records.

The lobby Act section 1(h) requires bimonthly reports to include “(5)(i) the compensation paid or owed to the lobbyist, and any expenses expended, received or incurred by the lobbyist for the purpose of lobbying.”

Salaries or expenses for employees or consultants that are not part of the lobbying effort are not reportable as they are not for the purpose of lobbying. Put simply your secretary or administrative assistant or driver or chef (when business is good) or lawyer or accountant is not an expense for the purpose of lobbying.

To make matters worse the PIC bimonthly forms require you to list in the aggregate the salaries of non-lobbying employees. This comes from section 1(h) as well where it states “(iv) expenses paid or incurred for salaries other than that of the lobbyist shall be listed in the aggregate.” BUT THIS IS ONLY IF THOSE SALARIES WHERE INCURRED FOR THE PURPOSE OF LOBBYING BY EMPLOYEES WHO ARE NOT LISTED AS LOBBYISTS.

And I can hear the special counsel already “if you are a lobbying firm all your employees are for the purpose of lobbying” Really Ralph? How many times do you need to be told your job is to be special counsel not to tell lobbyists how to run their business? If a lobbyist wants to employ someone who has nothing to do with the lobbying that may take place they have a right to do so and no obligation to report it under section 1(h).

Don’t believe me Ralph go read some old opinions you will find this language “we conclude that the inclusion of general office overhead of non-lobbying employees is superfluous, and provides no meaningful information to the public or to our Commission concerning lobbying activities. Such figures are practically impossible to state with complete accuracy. To require such reporting creates a burdensome and complex problem. The alternative, which the Commission permitted, of providing a "reasonable estimate" where such figures could not be ascertained with certainty, supplies information that clearly serves no public purpose and is of no value to the Commission in evaluating lobbying activities.” I couldn’t have said it better myself.

If they don’t have to report it you have no right to ask for the records substantiating it in an audit. Don’t believe me try to get a judge to uphold a subpoena for those records.

Hope you found that helpful at the end of the day it will not matter because PIC’s days are numbered. What will I do without PIC to kick around anymore? Its Albany I’m sure something else will tickle my outrage.

Tuesday, November 16, 2010

If a question never gets asked can anyone answer it

I haven’t gotten any more letters from Barry so I have to move on to other issues (do you think someone finally told him to stop sending me presents?).

I have tried very hard not to comment on the Joe Bruno investigation, trial etc for a lot of reasons. Including some very personal connections to both Joe and the case. Joe gave me my start in government and helped the Spitzer minions put an end to that same government career.In addition the lobby commission investigation of Jared Abbrussezze, while I was the executive director, formed the basis for some of the charges brought against Joe. (a case those clowns at PIC can’t figure out how to conclude – I know I’m obsessed with how incompetent they are but that doesn’t change the fact that they are). But just this once I think I can bring up an issue that relates to the case and integrity in Albany without my personal feelings or connections having any effect on the comment.

I was watching the drama unfold over the last couple of days in the Times Union stories by Brendan Lyons regarding Joe Bruno’s federal conviction, his appeal, the offer made or not made by the feds to help the DA or the AG prosecute under state law, the AG’s response and Fred Dicker’s coverage in the New York Post of the feds letter to Bruno’s lawyer regarding reversal of the felony convictions and Bruno’s lawyers response to that letter and one question kept popping up in my head.

If the feds think there are sufficient facts to bring a different case against Bruno and/or the feds are planning to recharge Bruno using something other than the honest services statute WHY DIDN”T THEY DO IT IN THE FIRST PLACE?

It’s a question that should have been asked by someone in the media a long time ago.

And while the answer is of professional interest to me I can’t help but think this being Albany that when a question is never asked it’s because the people with the answers don’t want it to be asked.

This latest episode in what has been a pretty sordid affair is starting to feel a lot like a John Grisham novel, but without a hero.

Tuesday, November 9, 2010


That’s right I got another letter from Barry today. I can’t wait to read it . . . . too easy Barry c’mon you have to make me work harder. I unwrapped the present and I must tell you I’m disappointed. I know it’s rude to tell someone their present is less than perfect but for such a brightly wrapped box I thought you would give me more than a fruitcake.

To let the readers in on what Barry’s letter says it basically is as follows:

1. I’ve got a resolution from the commission that says I’m authorized to issue “informal opinions”
2. I’m not going to show you this resolution because I don’t have to.
3. “informal opinions” are not advisory opinions that can be published, and
4. You have until November 12 to turn your request for an advisory opinion into a request for an “informal opinion”

Let’s take the easy one first. What happens on November 13 you dope? That’s right Barry your arbitrary deadline is meaningless. If I could ask for your mythical “informal opinion on the 12th I could ask for it on the 13th the 15th (when Mike the ex-chair’s resignation is effective under the public officers law) or any other day I choose. Unless of course, you plan on treating me differently than you treat others. Of course I wouldn’t be a bit surprised if Mike the ex-chair gave you a resolution that did exactly that. Remember Barry when in doubt think wwidfmw (what would I do for my wife). If your wife could ask for an “informal opinion” anytime so can I.

Because you will not provide the written delegation you force me to believe you when you say it exists. I DON’T. As I have written before your word is worth s**t as far as I am concerned.

But even if you have a written delegation the commission can only delegate to you powers that it possesses. And when it comes to lobby opinions the only power it has is the power to issue an opinion that it must publish.

Barry you might want to ask yourself who invented the “informal opinion” and why. The answer will help you understand why you are so far behind in this game.

Make the next letter the regulatory equivalent of a 50” plasma TV cause the current letters are like fruitcakes from a fruitcake, I appreciate the thought but they just end up in the garbage.

Thursday, November 4, 2010


Over 150 days ago I requested an advisory opinion from the Public Integrity Commission on a widely attended event. I thought I was playing nice, I gave them almost one half a year to issue the opinion and the facts are pretty simple and straight forward. Quite frankly I had little doubt my clients event met the requirements most recently published by the commission but an advisory opinion would be a twofer. First my client could hold their event with no concerns regarding commission retaliation and second the lobbying community would finally have an opinion in writing that the commission would have trouble twisting in the future to fit its retaliatory modus operandi.

Well the clown show that is PIC never ceases to disappoint me. At the last commission meeting they were discussing changes to the widely attended event exception again, and again the discussion had no basis in reality. One is left to wonder what color the clouds are in the commissions executive sessions.

With that backdrop I received a letter from the PIC today. By the way getting letters from PIC is like Christmas for me all I can think is what have these clowns done now?

Well this time it was the head clown Barry telling me that they don’t know when the commission will get its act together and issue this simple opinion. (what do these commissioners do other than stuff their faces at 2 hour commission meeting executive sessions and turn New York’s once proud tradition of integrity into a model that only Elliot Spitzer and his minions could follow. (Mr. Cuomo please put this sick dog agency out of our misery quickly). Barry’s suggestion – that I let him issue an informal opinion since it will be quicker.

Are you kidding me? Barry I’m not sure you have ever read the lobby act or have the legal chops to write an opinion on this subject even if you have but beyond that WHAT IS AN INFORMAL OPINION?

I have reproduced my letter back to Barry below

Dear Mr. Ginsberg:

I am in receipt of your letter dated November 1, 2010 requesting permission to treat my request of June 6, 2010 for a formal opinion (that’s 151 days ago) as a request for an “informal opinion”.

Putting 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, before I can authorize you to treat my request as one for an “informal opinion” I will require answers to some simple questions as follows:

1. I find no authority in the Lobby Act or Executive Law section 94 for the issuance of an “informal opinion”. If no such authority exists how can you state that if the “informal opinion” advises that the event fits within the exception “your client would not be subject to a potential enforcement proceeding”? Are you suggesting that your promise may be relied upon? As we both know history and the apology letter you have previously provided me would necessitate my skepticism regarding your trustworthiness.

2. You state that “The Commission has authorized the Executive Director to issue informal opinions”. Executive Law section 94(9) requires any such delegation to be in writing and to enumerate such specific powers that have been delegated. Can you provide a copy of the written delegation providing you the power to issue an “informal opinion”?

3. If indeed you have been delegated such power, am I correct that the effect would be to turn the “informal opinion” into an advisory opinion that would be required to be published pursuant to Lobby Law section 1-d(f) ? If the answer is yes please consider this correspondence to be a FOIL request for all “informal opinions” issued pursuant to written delegation under Executive Law section 94(9).

After I have received your response to the previous questions I will confer with my client and provide you an answer to your question regarding providing an “informal opinion”

The moral of this story is if you have an “informal opinion” from Barry it may not be worth the paper it’s printed on and second when these clowns are gone the next commission should make new rules going forward and never look at the train wreck in their rear view mirror.

Triage has been defined by the Public Integrity Commission as “the inability to answer simple questions while looking pompous and self important”