Monday, January 30, 2012


JCOPE: Joint Commission on Preposterous Edicts

JCOPE stumbled out of the gate over open meetings and FOIL issues, and now, in my opinion, falls flat with its first official decisions.
Those decisions were issued this week in the form of enforcement actions that are now available for review on its website. If you are interested in making an assessment of the new panel’s commitment to sound legal reasoning and fairness, read the decisions involving Ben Masaitis and Robin Korherr.
Masaitis was the former budget director of the New York Theater Institute who was accused of “knowingly and intentionally accepting and processing cash reimbursements with back-dated memoranda” for himself and his supervisor at a time when his agency was under investigation by the State Inspector General.
The commission found no violation in this case – not even a section 74 (h.) That’s the famous “you created an appearance problem if nothing else” violation. “H” carries no sanction except an implied “shame on you.”
Good for the JCOPE commissioners. I’m not surprised at the outcome. Here is what I said on the blog in March 2011 after watching the hearing “A complete waste of state resources that failed to prove a trivial violation of the public officers’ law that the PIC staff was unable to competently present to a wholly owned hearing officer. One has to wonder if they could devote resources to this case why not go after Teitelbaum, Ginsberg and Feerick for what they did in leaking information in the troopergate investigation and in failing to cooperate with the IG?” Credit goes to JCOPE for at least recognizing the failure of PIC to prove its case.
What grabbed my attention in this decision was a bizarre reference to Troopergate: “It is well established that the Commission need not show that a State officer or employee provided an unwarranted privilege to another to prove a violation (of state law.) It is enough for the Commission to show that a State officer used or attempted to use his official position in such a way that he or she or any other person received an unwarranted privilege.” They then cite the Dopp/Troopergate case as an example.
So according to the staff member at the Commission that drafted the decision, the release of public records on use of state aircraft by elected officials was problematic, but not the backdating of reimbursement checks during a malfeasance probe. Hmmm. I thought in the Patterson Yankee ticket case that backdating a check was a big no no. More likely it’s just one last cheap shot by the former PIC staff at Darren Dopp, that’s a vindictive bunch of PIC staffers now writing JCOPE decisions and policy. I told JCOPE to get rid of those PIC lawyers and top staff before they hurt somebody (more on that in the déjà vu piece below) but I guess actions speak louder than words.
The second decision involved a former Office of Homeland Security employee who, while still employed in her state position, looked for similar job with the federal government. In making its decision to fine Ms. Korherr, the Commission cited a previous opinion that states that state employees “may not solicit a post-government opportunity” until 30 days after separating from government service.
Full disclosure here: I represented Ms. Korherr pro bono after her hearing on procedural matters because she was and is a person truly dedicated to trying to do the right thing in a difficult situation. I made a number of procedural arguments in this matter that the decision failed to address, but the argument I really wanted to make was one of sheer hypocrisy.
At a time when she was being investigated, the commission’s executive director was actively looking for other employment opportunities within the current administration. His new gig was actually announced before he left his old one. And it’s my understanding that the current acting executive director might be doing the same thing now.
These two decisions do not bode well for JCOPE. Again, what we’re all looking for is sound reasoning, good judgment, and a logical approach that inspires confidence. But so far, it’s just not there, although if you take out the Dopp reference in the Theater case it would have been a solid piece of work, so maybe there is hope yet if the commissioners can get a grip on what staff is doing when they are left alone to make decisions.
On that point:

Its déjà vu all over again

Insider X has tipped me that JCOPE will be rehiring one of the lawyers that former chairwomen now just a commissioner Mitra Hormozi fired in September.
At the last JCOPE meeting the commissioners decided to give acting executive director Terri Schillaci (why doesn’t she use her title on letters she sends and why does her voice mail still announce her as a special counsel?) the authority to hire lawyers and investigators to reduce the backlog caused by the previous gang that couldn’t shoot straight. So who does Terri turn to? According to Insider X its one of those lawyers that caused the backlog. And if Insider X is correct in the identity of this rehire I know this person well and the ability to clear a backlog is not one of this person’s strength.
So let’s review:
1. The COPI left a backlog
2. Mitra fired the lawyers responsible in large part for that backlog
3. Terri is going to hire back at least one of those lawyers to clear the backlog s/he caused
What’s wrong with this picture?
I can only think of two possible reasons for this hire both of which are problematic.
Either the returning lawyer is a friend of Terri’s and she is willing to risk upsetting Commissioner Mitra
The returning employee must have used some political connection to get rehired. Perhaps a large donation to someone’s campaign.
Either way it spells potential trouble for a career bureaucrat who has made a career of hiding in the organizational chart shadows. I’ve said it before, Ms. Schillaci, your instincts are sound it’s time to find other employment. But remember to follow the rules under the Public Officers Law for seeking new employment while employed by the State. I’ve heard JCOPE is a stickler for those rules unless your name is Barry or Herb.
By the way when you leave your post during an emergency to take a stroll with Herb Teitelbaum you are certainly in the running to work for Costa Cruise lines as a cruise captain. It’s every person for themselves once Terri runs the ship onto the rocks.

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