THE BENTLEY MAY HAVE TO WAIT

 

At today’s JJOKE meeting Ellen Biben announced that the proposed guidelines on reportable business relationships had been amended as a result of “public comment” received by JJOKE.

 

For those of you interested in “public comment” take a look at my previous blog entries on this subject.

 

At the risk of breaking my arm by patting myself on the back too vigorously I’ll just reprint one portion of my previous “public comment” and then move on:

 

“My goal is twofold, either the JOKE will recognize the folly of their new guidelines and “tweak” them so that the violations of Chase and American Express are no longer violations (no thanks necessary from the lobbying community this is what vigilante ethics is all about)”

 

Consider the guidelines tweaked, in fact JOKE commissioner Cavullo used that very term when describing concerns he had about the guidelines.

 

It’s rewarding to know the blog has made a difference.

 

And not to beat a dead horse, as that would be a waste of time, but I figured out why the original guidelines were so poorly constructed.  While waiting for the JOKE meeting to start I saw the original author of the guidelines (a smart New York lawyer) walk past me in the JOKE lobby looking very intent on getting somewhere, he opened the door to my right and walked directly into a closet.  It was obvious he had no clue where he was going but was absolutely certain that he knew the right way to get there.  And that perfectly describes how the JJOKE operates.

 

Thank god someone got to Biben and told her she needs to get this lawyer out of the closet.

 

Stay tuned as I may have to issue some more “public comment” if JJOKE gets its marching orders to investigate the latest legislative scandal involving a legislator and inappropriate sexual behavior. Once they leak that they are investigating I’ll comment.

 

But until then here is a piece of unsolicited advice (I know you don’t want my help Ellen but look at how well it worked on reportable business relationships) with all the things JJOKE should be working on responding to Dick Dadey’s challenge that JJOKE must be “ready for prime time and this is it” when it comes to investigating Vito Lopez would be yet another misstep. 

 

Am I the only person that thinks the good government groups have done more to harm ethics reform than any other entity in the last 6 years?  Talk about walking into closets.

PROMOTING TRANSPARENCY AND THE RACE TO THE BOTTOM

 

Interpol might be investigating Assemblywomen Naomi Rivera.

 

But we don’t know it because they haven’t leaked that fact to the New York Post.  Not so for New York’s vaunted JJOKE.

 

Yet again another “scandal” investigation by JJOKE is leaked to the media as part of what former Cuomo staffer Steve Cohen has termed the  Albany media’s race to the bottom.

 

It’s more than a little ironic that it was the NYPost, the same media outlet that employ’s Cohen’s interviewer, Fred Dicker, that got a head start in this particular race to the bottom, but irony makes for good blogging.

 

And don’t get me wrong I love the fact that some “source” told the NYPost that JJOKE was investigating Rivera.  I’m a big proponent of transparency.  In fact I did a lot of transparency promotion myself when I ran the old Lobby Commission.  Not only did I promote transparency, I packaged it, I sold it, I spun it and sometimes I even dressed it up and took it for a walk down to the LCA room.

 

The big difference between what I did and what the “source” associated with JJOKE investigations is doing now is that JJOKE has rules against leaking and has stated that it will prosecute leakers while when I promoted transparency I had the approval of my commissioners, at least I did until the Spitzer appointees showed up and noted lobbyist Jim Featherstonhaugh started his crusade to end my transparency promotion career.

 

But back to JJOKE and the leak of the investigation, if I could give Ellen Biben one piece of advice and I’m loath to do it because I really don’t like Ms. Biben anymore, but if I could it would be that she ought to let her commissioner’s know who she’s investigating before it gets leaked to the media.  It’s just plain rude not to.

 

A piece of advice to the commissioner’s think long and hard before you start down that slippery slope of investigating legislator’s for which girlfriends or boyfriends or both that they have on their payrolls you never know where that could lead.

 

But if you are going to investigate what goes on in Albany’s bedrooms keep leaking so those of us that pay attention to the “race to the bottom” can tell who is winning.

Back to the Swift Boat

It’s time for me to revisit a local political controversy. Some months ago, I wrote about an investigation of Lee Kindlon, a local attorney running for Albany DA.

The issue for Kindlon was whether he worked the required number of hours for full time employment as a county defender. At the same time he was doing this county gig, Kindlon was working full time at his own law firm. The question naturally arose: How could he do both?

Now the reason I took interest in this matter was because of a sensational claim that Kindlon made. He said the probe was a political hit job by his opponent in the race, incumbent DA David Soares.

I always pay close attention whenever such charges are made as they have the potential of undermining the integrity of the process of ethics review.

At the time that matter first arose, I suggested that this particular review was fairly simple, and presumably not subject to political influence. All the officials at the county jail had to do was check the time sheet claims against sign in records.

Well, the probe is complete and I don’t think the results are very good for Kindlon.

Remember, he made adamant claims that he was working full time for the county and that his timesheets proved it. But the officials conducting the review say that his timesheet claims cannot be verified from sign in sheets or other means.

At the same time, however, the county officials who conducted the review say that their own time recording policies have some deficiencies. Officials do not believe that Kindlon could have been working without signing in, but there is at least the possibility that he might have done so on some, but not all of the days in question.

But this strikes me as clear evidence that officials reviewing this matter were trying to be fair. Why? Because they are honestly reporting their own shortcomings. If it was a political hit job, they would have left out the part out their own record keeping problems and simply said: “There’s no record of him being here on the days he claims that he was working.”

So what should we make of all of this?

I think it’s pretty clear that Kindlon wasn’t adhering strictly to the county policy regarding the hours that are supposed to be working  as county defender. This isn’t to suggest he was doing a bad job for the county or that he was cheating the taxpayers. To the contrary, I’m sure he was working hard and doing his level best at juggling of his responsibilities, but just not in a 9-5 way for the county.

The real problem here is that Kindlon has mishandled the whole matter. Rather than just man up to the fact that he probably should have discontinued the county gig when it was changed to a full time assignment, he made it seem like he was abiding by the policy when he wasn’t strictly doing so because he couldn’t. Then he started attacking the people who raised questions about the matter and he spun up the “Swiftboat” and “Watergate” comparisions. This was even less becoming of him.

Despite the annoying quality to this whole episode, I think timesheet reviews are important. If fact, I’d like to see more of them. They help keep public employees scrupulously honest.

LOBBY LAW VIOLATIONS

VIGILANTE ETHICS

I’ve heard from some interested parties that it is difficult to understand what negative effect the new JJOKE guidelines on reportable business relationships may have.

I think using the JOKE’s own employees as an example might illustrate the danger from the new guidelines.

So with that thought in mind I decided to review the JJOKE financial disclosure reports again with an eye towards getting a return on my financial investment (copying fees) and lo and behold I saw the following two facts.

Fact one, JOKE executive director Ellen Biben reported that she has a mortgage with “Chase” which is JP Morgan Chase.

Fact two JOKE press flack John Milgram reported that he has a revolving line of credit in excess of $5,000 with “American Express.”

What do these two facts have in common?

Both Milgram and Biben are state employees under the JOKE guidelines for “reportable business relationships.”

And both “Chase” and “American Express” are clients of lobbyists and therefore, subject to the guidelines for “reportable business relationships.”

And both the mortgage and revolving line of credit are within the definition of compensation requiring reporting if provided by a client to a state employee.

And lastly,neither “Chase” nor “American Express” has reported Biben or Milgram and their respective “reportable business relationship” on their client semiannual reports, nor have they amended their reports to correct this filing deficiency.

Based on these facts I intend to use the JOKE’s new website feature, “Tips and Complaints” to report these violations. This will allow the Commission to begin the process to investigate and fine these two clients. Although Ms. Biben and Mr. Milgram should have done so themselves as they created the guidelines and are certainly aware of their reportable business relationship partner’s failure to report said relationships (which brings up a related issue of why didn’t Biben and Milgram recuse themselves from the discussion of these guidelines but that’s for another blog and a separate ethics complaint).

My goal is twofold, either the JOKE will recognize the folly of their new guidelines and “tweak” them so that the violations of Chase and American Express are no longer violations (no thanks necessary from the lobbying community this is what vigilante ethics is all about) or they will actually punish Chase and American Express sending a clear message to the lobbying community and their clients that the JOKE is completely out of control. That action could result in many of the big lobbying clients trying to avoid being the next example. I guess my investment in the financial disclosure reports has the potential to reap some benefits after all.

Depending on what the JOKE does, I might be in the market to trade in my minivan. Maybe Chairwoman DiFiore can help me shop for a new Bentley.

MORE INCREDULOUS

JJOKE is making life miserable for the lobbying community

Here are some more types of “business relationships” that will be required to be disclosed by JJOKE’s new guidelines.

Think about the amount of work that will be required to insure that lobbyists and their clients will not be at risk for $50000 JJOKE fines when they fail to disclose their “business relationships”:

CASINOS – every casino with a registered lobbyist will now have to disclose lines of credit and the action they receive from legislators and state employees.  I actually know a little bit about the type of detailed records casino’s keep.  During the Trump investigation I received data on New York legislators that had credit lines at NJ casinos from the NJ Casino Control Commission.  I still have it somewhere in my files I think.  Anyway it made for fascinating reading.

BANKS – every bank with a registered lobbyist will have to disclose mortgages made to state employees and legislators.  Come to think of it every deposit you make at a bank is a “business relationship” under JJOKE guidelines.  What a compliance nightmare.

INSURANCE – every insurance company with a registered lobbyist will have to disclose policies that state employees and legislators have with them.  That’s a lot of data their competitors and telemarketers would love to see disclosed.

COMMUNICATIONS – wireless telephone and cable companies with registered lobbyists will have to disclose customers that are state employees or legislators.  If I remember correctly Verizon wireless used to offer state employees a discount.

EDUCATION – any schools that have a registered lobbyist will now have to disclose which students are state employees or legislators.

UNIONS – Let’s see if they want to tell us which members are state employees and if their dues exceed $1000.

HEALTH CARE – this one may cause some problems.  Do you think state employees will want their identities disclosed if they go to a health care provider that employs a registered lobbyist?

And here are some specific companies that are clients of registered lobbyists that will now have to disclose which customers or clients are state employees or legislators and how much business they do:

BJ’s Wholesale house – I can’t wait to see how much business the governor's staff does with BJ’s.

EBAY – which state employees have the coolest stuff for sale on eBay?

Fasig-Tipton – any legislators buy horses?

And my personal favorite Golub Corporation – I always wanted to know what the shopping habits of certain local legislators were.

As I’ve said before I doubt that JJOKE intended to expand their disclosure reach this far.  It’s far more likely that the smart New York City lawyers that drafted these guidelines are just clueless when it comes to the real world of Albany lobbying but I would never let any of my clients run the risk of failing to disclose these types of “reportable business relationships” and face a subjective fine from Biben and whomever is telling her whom to go after.

The real question I have is how did some smart commonsense commissioners let this happen?  Wake up guys and gals or join the ranks of the former disgraced commissioners that came before you.  I’ve told many of you privately it’s not what the staff tells you that you have to worry about its what they DON’T tell you that will hurt.

INCREDULOUS

You get what you pay for.

Just when you think the brain trust at JJOKE (defined as smart NYC lawyers and/or friends and relatives of Biben or Uncle Vinny) have done all they can to insure their collective reputations as incompetent they exceed expectations.

What am I talking about? Well right on the heels of their proposed regulations for source of funding they have rolled out guidelines for reportable business relationships.

Now readers of the blog know that while the JOKE’s definitions for source of funding will result in customers of certain businesses and members of certain organizations being identified publicly the harm is minimized by the fact that so few people are going to be affected.

But when it comes to reportable business relationships the JOKE’s guidelines are so broad that the potential for mischief is truly monumental.

This requirement was the result of various scandals over the last several years involving public officials receiving money for “consulting” jobs from people with business with the state.  They might as well have called it the Joe Bruno Disclosure Act.  But as with many other changes to ethics that occur in New York as a reaction to scandal, by the time the lawyers are done drafting the legislation  and implementing the guidelines it has very little relation to the problem that was its genesis.  So too with reportable business relationships.  If the goal was to disclose the Bruno type arrangements that exist the law misses the mark and JJOKE’s guidelines aren’t even in the ballpark.

Remember Bruno did not have a reportable business relationship with a lobbyist or the client of a lobbyist therefore no one would have been required to disclose the relationship.

So who will have to disclose a business relationship under the JOKE guidelines?  Every lobbyist and/or their clients who do business with ANY state employee legislator or legislative employee.

Well what’s wrong with that?

Try this example: A lobbyist at a large lobbying firm has her hair styled by a state employee who does hairstyling as a part time job.  Over the course of a year she spends over $1000 on hair styling.  As a result the lobbyist’s employer must disclose the name of the hair stylist the nature of the relationship and the amount spent on hairstyling.  That should slow down the Bruno in all of us.

How about this one:  A client of a lobbyist is a bank, say JP Morgan Chase, and JP Morgan Chase loans over $1000 to a state employee, say JJOKE ED Ellen Biben, to finance the hairstyling that she pays a state employee, as in the example above.  Under the JOKE guidelines JP Morgan Chase would have to disclose that Ms. Biben borrowed money, the amount and the purpose.  Information that would be redacted from Ms. Biben’s financial disclosure report but will now be available in the JP Morgan semi annual report.

Or this one:  A client of a lobbyist, say Wal-Mart, sells a state employee, say John Milgram over $1000 worth of cigarettes during the year.  You guessed it, under the JOKE guidelines we get to find out how many cigarettes John buys from Wal-Mart in a year.

But you still will not know which high ranking public officials have nefarious consulting arrangements with shadowy people benefitting from the public officials largesse.

How much are we paying those lawyers at the JOKE to do this stellar work and why were they hired?

Good luck getting that disclosure.  

And don't get me wrong I don't think the JOKE intended these guidelines to be used to catch a state legislator who may purchase tickets to sporting events from the client of a registered lobbyist but does anyone trust Biben and her handlers not to use them in that fashion if they get the chance?

I'm Back

Missing the Point

I did not attend the last JJOKE meeting. I was busy catching some waves at the shore. When I got back, I watched a recording of the session and then I sat down to write.

Maybe it was the mesmerizing and therapeutic effect of the ocean or maybe I’ve realized that they’re not going to change and I’m making a very good living (good enough that every year the waves and the view keep improving) because they are acting they way they do so why waste energy and ink.

With that thought in mind I've decided to stay on the beach for the time being, my clients are unaffected by the latest JJOKE exercise in how many lawyers does it take to screw up ethics so instead of going off on the utter foolishness of the commission, I’ve decided to tone things down and try to be constructive.

So here’s my contribution to the so-called “source of funding” discussion:

The commission really needs to think through its implementation of these new regulations. What it has proposed is too broad. In this regard, consider the following hypothetical’s:

A New York State-based yogurt company that is privately held spends over $50,000 to hire lobbyists to get new yogurt laws passed. As a startup, this new yogurt company has total expenditures of under $1.5 million for 2012. As a result, it is subject to JJOKE’s new regulations. On January 15, 2013, it must disclose every customer that bought more than $5,000 worth of yogurt during the year, every investor that provided more than $5,000 in capital during the year and even every bank that loaned them more than $5,000 during the year.

No kidding here. This is what is required under the new regs.

Or try this one:

An association of yogurt manufacturers (or casinos, or gay marriage advocates or bar association) spends more than $50,000 lobbying for their issue. Their expenditures for lobbying exceed 3% of their total expenditures thereby subjecting them to the source of funding disclosure. As a result every member who paid dues in excess of $5,000 will be revealed.

Now I’m all for transparency but enough is enough already.  If I want to purchase over $5000 worth of yogurt does the state of New York really need to know who I am?

Maybe someone at the Business Council or non-profit community will wake up and tell JJOKE that its proposed regulations are way too broad when it comes to the definition of contribution. They need to be tweaked and it shouldn’t be a big deal to do it.

Having contributed to the discussion it’s now time to get back to my summer reading as I watch the waves roll in.