Saturday, March 31, 2012


Lloyd Constantine will tell you he’s a brilliant lawyer. He’ll tell you how he was responsible for Robert Abram’s success as Attorney General. He’ll tell you that as a plaintiff’s attorney he brought huge corporations to their knees in the court room. And he’ll tell you he was the legal brain behind Eliot Spitzer. He’s written books that make all these points.

But the brilliant lawyer is now at the center of a controversy in which he looks like a buffoon.

Constantine was on the jury in a case involving a cop who was accused of raping a woman. His presence on this jury became an issue when it became known that he was “a friend” of Cyrus Vance, the Manhattan DA who was prosecuting the case.

I put friend in quotes because, whenever you’re dealing with Constantine, you need to be skeptical of everything he says and does.

For example, Lloyd claims that Vance is a “wonderful friend,” but people close to the DA say this isn’t true. They say their boss distanced himself from Constantine a long time ago.

Lloyd also portrays himself as Spitzer’s best friend and mentor, but people close to Spitzer say this was Lloyd’s characterization. They say Spitzer won’t even talk to Constantine today because he feels betrayed by claims made in Constantine’s book. Abrams is said to have similar feelings about an earlier book written by Constantine.

Back to the case: Why would Constantine want to be on the jury in this case? Why would he conceal his supposed friendship with the DA during the jury selection process? Why would he risk a controversy, which any attorney could have predicted, involved with participating in a trial when you have a conflict?

Most commentators are viewing this as a simple case of hubris. And Constantine’s own comments certainly give credence to that view. In this regard, when Constantine was questioned by a judge about his failure to disclose his relationship with Vance, he said he didn’t perceive it to be a conflict at all. He said he applied his own “subjective test” and determined that it was ok to serve on the jury.

That’s arrogance, for sure. But I think something else might have been at work here.

The thing that nobody is focusing on is Constantine’s relationship with Richard Aborn, who lost a primary to Vance a few years back. Constantine and Aborn are partners and, presumably, have a friendship that is even more wonderful than Constantine and Vance.

To me this is a bigger conflict than having a personal relationship with the DA. Think about it: Would David Soares want the law partner of his past or present primary opponent sitting on the jury of a big case he was handling?

Of course not. At a minimum, Soares would be wondering whether the lawyer with ties to his opponent would be an especially critical juror.

And, apparently, that’s exactly what Constantine was in this trial. He was being extremely critical of the prosecution’s case. He was raising all kinds of questions about evidence and points of law -- so much so that other jurors began to complain that he was being disruptive.

Why was Constantine doing this? What was his gambit here?

Could it be that rather than helping Vance, Constantine meant to embarrass him and thereby help his partner Aborn, who is said to want to run again for DA?

Remember than Vance is perceived to have stumbled in some recent cases, including the Dominic Strauss-Kahn fiasco. With another mishandled case, he might be vulnerable?

Yeah, I know this is a creepy scenario. Maybe it’s far-fetched and maybe it is not. All I know for sure is that people who know Constantine well do not believe it was simple case of bad judgment on his part. They think he may well have been up to something.

So you have to ask yourself was Lloyd an evil genius or just a pompous ass?   From what I’ve seen and read about Lloyd I don’t think he’s smart enough to be a genius.  Like most of the limousine liberal, chardonnay sipping, tennis club dilettantes that surrounded Spitzer he’s just an ass.

Tuesday, March 27, 2012

Home is Where the Heart is.

JCOPE Must Keep its Eye on the Ball

I love the Times Union. I really do. It gets criticized at times by the NY Post and others, but I think it does a good job of covering state government. I also respect its editorial board and its columnists, especially Fred LeBrun.

That said, the paper is not immune to running the occasional op-ed that is ill-conceived.

One such offering appears today. It’s headlined: “Ethics Must Rule Across NY.”

This reminds me of when I was a teenager and we’d all shout about some heavy metal band: “They rule!”

Back then, we didn’t know what we were talking about, and neither does the author of this op-ed.

The author, a former president of the New York State Bar Association, makes the point that public corruption isn’t limited to Albany and, gosh, something needs to be done about it.

Full disclosure here: The author is Stephen Younger, who represented Russell Simmons in his federal lawsuit against the old Lobby Commission. For those who have forgotten, The Lobby Commission prevailed in that matter.

Back to the op-ed: Who would argue with the notion that corruption should be fought at every level?

I wouldn’t dispute this narrow point. Not at all. Where I get worked up is with the subsequent point of Mr. Younger, which is that JCOPE should “refocus its ethic enforcement system to embrace a statewide effort.” JCOPE should distribute “the commission’s enforcement capabilities across our state.”

To this I say: Are you kidding?

Doing what Mr. Younger proposes is a major mistake.

JCOPE has very limited resources and inexperienced staff that needs to focus on its core functions.

JCOPE is not a DA’s office nor a U.S. Attorney’s office.

JCOPE cannot catch the next Pedro Espada by staking out a sushi restaurant or developing a source at the local pony rental business. (These are the examples of intrepid investigative work cited by the author of the op-ed).

Instead, JCOPE must focus its limited resources in Albany where it is based. It must comb its own records and databases to develop cases and then focus its available investigators on matters at hand.  Just looking at donations and legislation could occupy an investigator full time IN ALBANY.

Now I’m sure the author of this op-ed is a well-intentioned person... No, check that. I’m actually very skeptical of this effort. I find it strange that it appeared on the day that JCOPE is having a meeting. And I wonder whether the author was put up to writing this piece. (Is there really a coincidence in this town?)  I’ll have to watch the meeting closely to see what Ms. Biben has to say about JCOPE offices.

In this regard, I’m hearing rumors that JCOPE’s leadership really wants to create regional offices and expand its mandate to cover all kinds of additional areas.

Bad idea.

JCOPE needs to keep its eye on the ball. It needs to staff up and do the job it was meant to do. It’s a job that hasn’t been performed adequately in years and state government is suffering for it.

If JCOPE leadership wants to have regional offices, either to make the point that ethics is statewide or for other personal reasons, perhaps it can get a suite in an existing state office building and use the facility when needed. But it shouldn’t post people in regional offices where they’ll just sit there, or worse run around spying on people with binoculars.

Keep your eye on the ball, JCOPE. Please.

Friday, March 23, 2012

Testing the watchdogs

News item:

State Education Commissioner John King recently announced that he was naming Assistant U.S. Attorney Tina Sciocchetti to the new position of executive director of test security and educator integrity. King and the Board of Regents previously announced a Test Security Unit in the Department of Education. It will be staffed with investigators and lawyers with law-enforcement experience. Their duties will include establishing an ethics code and policies for test-taking and grading, reviewing and tracking all allegations and investigations of impropriety in testing.

“We’re developing the investigative and deterrence capacity to protect our teachers, administrators and, most importantly, our students from the kinds of testing scandals that have occurred in other states. Tina Sciocchetti has the expertise, experience and skills to build the strongest test integrity safeguards in the nation,” King said.

Ok, now. When the normal person reads this, he or she probably thinks something to the effect of: “OK, I guess that’s a good idea. We don’t want cheating on tests. That wouldn’t be good.”

But when I read this I say: “WTF?”

Set aside concerns on education policy. Some people believe we’re becoming a nation obsessed with standardized tests. They say the obsession is “bottom lining” kids like we bottom line products in a corporation.

But never mind trivial stuff like the next generation. What burns my behind is this: How is it that Ms. Sciocchetti, who happens to be a first rate attorney, gets set up with a new office with maybe a dozen or more investigators and attorneys that she can offer positions to in the six figure range, while Ellen Biben and JCOPE scrape along with a fraction of the investigatory capability and the inability to pay top talent what they would need?  And don’t misunderstand I still think Ellen is making a mistake by structuring JCOPE as a prosecutorial body, but the only thing worse than that is to try to do it without the resources necessary to do it properly.  If you want to see what staffing JCOPE with a group of lawyers and investigators that are third string benchwarmers looks like, just review how COPI was staffed.

And what does that say about our priorities? I know what it says: It says that we think cheating on the SAT is a far bigger problem than ethics in Albany.

I’m in a unique position here in being a parent of students preparing for the SAT and, of course, being a former state ethics official. And in my shy and humble opinion, I don’t believe there is any comparison at all. One is about an individual young person’s sense of honor and the other is about corruption in government.

It blows my mind that we (our state) can make such a big deal out of school testing and care so little about government testing.

But wait a minute maybe I have moved too quickly here to the wrong conclusion.  If we (our state) want to focus our resources on student’s ethics we might just get a head start on improving government ethics.  After all the vast majority of people in state government went to school and had to take tests.  Maybe if we catch the cheaters early we can weed them out of government.

Remember those SAT questions:  If you were a highly trained competent employee would you work for Biben at 70% of the pay that you could make with Sciocchetti?

Now this might be considered cheating but let me help you with the answer:  I’m sending resumes of those I think are good to both, but at the end of the day I doubt, given a choice, they work for JCOPE.

While Ellen’s had a head start on this test, let’s check back in a couple of months and see who built the better organization.

I’ve always enjoyed grading things.

Thursday, March 22, 2012

Who has been late to work?

I was reviewing the blogs statistics today and noticed an unusually large number of views of an old posting from September 6 2010 titled TARDY POINTS.  I had forgotten all about this post and had to reread it to figure out why folks would be reading it some 18 months after I originally wrote it.  Then I got it.  The piece is about Walter "got Scotch" Ayers coming into work a few minutes late and how he told me it was ok because he had tardy points to use.  Now there is at least one commission employee that is renowned for being late and I happened to mention it to the persons supervisor the other day.  I also saw another commission employee crossing the street on the way into work a little after 9.  And there are several others who have developed a reputation for being awol every now and then.  I wonder if they are reading the blog during work to get some tips on how to use tardy points?  Hmmm memo to self check and see if you can find in the statistics where the views originate from.

For the record I couldn't care less when people work as long as they do work.  Time clocks are for hourly wage workers . . . and slackers.

Monday, March 19, 2012

What makes someone an insider in Albany?

I just received a startling, breathtaking, explosive insider tip that JCOPE’s Chairwomen was parking illegally in front of the building. Again!

The insider included a picture and posed the following question: Why is the Chairwomen at JCOPE on a Monday when most of the top staff is in NYC?

Now remember the rules here: I provide a forum for an insider to make a statement. I can’t vouch for the veracity of the statement. My only editorial comment is to say: “Hmm. If this is true, it raises some interesting questions.”

But this time, the most interesting question is: Who is the insider?

My definition of an insider is anyone with knowledge not yet reported in the media. Admittedly, this is a pretty broad definition.

The insider could be anyone of the following:

1. The Chairwomen’s driver.

2. Another JCOPE commissioner.

3. JCOPE top staffers that knew the chairwomen was expected at the commission today. (At most four people fit this description.)

4. JCOPE rank and file staffers who saw the chairwomen at the office today. (More than a dozen people fit this description.)

5. A tenant of 540 Broadway. (Approximately 200 people are in this category.)

6. Any lobbyist who drove by at the right moment and recognized the chairwomen. (Hundreds of possible people.)

7. A pedestrian who recognized the chairwomen and then told me. (There are nearly half a million people in the Capital District.)

8. The meter maid who remembered the chairwomen’s car. (The most honest person in Albany).

9. And, of course, I could be my own insider. (I do get around, and you would be surprised how much I see and hear on my own.)

10. Anyone told by anyone on the list who then tells me or someone else who then tells me. (Six degrees of separation.)

Alas, the point of this blog is that JCOPE personnel ought not to lose sleep worrying about the identity of insiders. It could be anyone.  In this case I confess it was me, I saw her car park outside JCOPE this am.

And if I had to guess the answer to the question posited by the insider (that’s me) I bet she was in town for the governor’s press conference on the signing of the DNA database bill.

Proving the old adage that if you give yourself an insider tip, the pleasure given equals the pleasure received.

Wednesday, March 14, 2012

Insider Account: JCOPE cautioned to watch where they take that first step

I got a tip from an insider: Jacob Gershman is preparing to write a story that JCOPE has begun the initial follow up on a complaint filed about the matter involving Sen. Libous and his son.

Now remember the rules here: I provide a forum for an insider to make a statement. I don’t vouch for the veracity of the statement, nor do I comment on underlying facts about which I know only what I read in newspapers. My only editorial comment is to say: “Hmm. If this is true, it raises some interesting questions.”

Back to the insider: Supposedly, Gershman is asking around town to confirm that someone has filed a complaint about Libous’s activity with JCOPE.   The complaint urges JCOPE to investigate an alleged ethical breach. The insider says JCOPE, eager to establish itself, might actually be following through.

Here’s the “Hmm” part:

First, what is there to go on here? Apparently, it’s the word of fellow who has pleaded guilty to conspiracy, bribery, tax evasion and perjury. This fellow is currently a witness in a corruption case in Westchester. The allegations against Libous come from his testimony in the ongoing case. This is an interesting source, for sure. At first, blush -- totally unreliable. At the same time, the Feds have put him on the stand. JCOPE might want to see how that trial turns out before going too far. If the jury doesn’t find this fellow credible, they probably shouldn’t either.

Second, what’s the overarching issue? Well, it involves helping someone get a job. In this case, Libous allegedly helped his son, an attorney; get a job with a Westchester law firm. On the one hand, I’m like everyone else in resenting favoritism, nepotism and any other –ism that might apply. But on the other hand, as one who has tried to help young people get jobs and has been helped himself, I’m a little leery of having JCOPE weigh in with a set of dos and don’ts on being a mensch.

Lastly, what’s the jurisdictional hook? Maybe this conduct speaks to Section 74 of the Public Officers Law, which says no “unwarranted privileges” for yourself or others. There’s a problem, though: The newly formed JCOPE doesn’t have the jurisdiction to investigate conduct by lawmakers before it was formed. This incident apparently occurred five years ago.

The insider insists that this is being considered seriously by JCOPE, but I have mixed thoughts. If there was a quid pro quo, Libous is in the wrong. But if it didn’t go down as claimed by this questionable witness, Libous has been maligned.

My biggest concern is for JCOPE itself. I’d hate to see the new agency invest time and energy on the issue only to come up with a sketchy fact pattern and an overreaching decision that turns them into the nepotism police. (How many people in this town got their job because someone made a call on their behalf?).

But more importantly I wonder why the staff at JCOPE hasn’t immediately seen the jurisdictional issue.  JCOPE is going to have enough problems trying to investigate legislators why would you want to start with a case you have no jurisdiction over?

I know I’ve pledged to give JCOPE and its leadership the benefit of the doubt for a while. It’s just that they really, really need to be careful in picking their first big case.

Now that the snow has melted those of us with dogs know you have to be careful where you tred.  Until you clean the yard of a winter of canine abuse you need to watch that first step.

An All-American Plan for Redistricting

Think parity in the NFL. It’s a function of the schedule. If you have a good year, the league will ensure that your schedule in the following year will be tougher. You’ll end up playing more #1 and #2 teams and fewer weak teams.

Think salary cap in MLB. No team can spend above a certain level to acquire players without incurring a luxury tax. There are still rich teams, but their advantage isn’t so great.

Now think New York State Legislature. What encourages competition?

Answer: Not much. In fact, we allow the winning teams, in effect, to set their schedule. We allow them all sorts of other advantages.

I say this is all UN-AMERICAN! And I say we should do something about it.

So how about this: Let’s let the minority leader of each house draw the lines. That’s right. Have Brian Kolb and John Sampson draw the lines. Or course they would draw them to give challengers a better shot, but that’s the point.

Why would we want it done any other way? We want to promote competition, not ensure the same result year after year, right?

Why is politics the one area in society where we actually protect the status quo?

Think about it: Is the status quo working? Has it served us well?

“Oh, Dave, you’re just being Dave, again.”

Who else am I suppose to be? and really, Kolb and Sampson should draw the lines. It would make politics more competitive and government more responsive. More interesting, too.

Friday, March 9, 2012

Doing it DiFiore style

OK its time to come clean


I was at JCOPE the other day to hand deliver some filings, (JCOPE is no better than COPI when it comes to losing filings) and I saw the spot in front of the door with a hood over the parking meter, and I parked there.

Saved a quarter and I have to admit I now see the kick that Janet gets from being a bad girl.

Sometimes its just more fun to get over on folks.

On Timely Filing and Setting Examples

I’m not sure of the exact metaphor to put this phenomenon in perspective. But it involves something which expands a little each day until it becomes so unwieldy that it defies comprehension and control.

Through the years, quasi-governmental entities in New York have proliferated in this way. There are now so many that it is impossible to keep track of them all.

A good reporter from the Syracuse newspaper has written about one attempt at oversight. Michele Breidenbach writes about the state Authorities Budget Office, which sends out notices when agencies and authorities fail to file financial records as required by law.

The office recently identified almost 200 authorities statewide that are delinquent in making required disclosures. See:

The list includes everything from the Central New York Regional Market Authority to the Troy Parking Authority to the Westchester Tobacco Asset Securitization Corporation.

Failure to file required financial documents isn’t necessarily at sign of malfeasance, but I believe there is a correlation between not having your act together to meet disclosure deadlines and not having your act together on finances themselves. I say that as former city manager and long time ethics official.

This correlation exists with individuals as well. As a manager, I always tried to set an example by getting into the office on time and keeping my appointments. It is a sign of coming problems when managers start cancelling meetings or continually rescheduling them at the last minute. What you are saying when you cancel appointments or are chronically late is that the other party is irrelevant. If an issue is important enough to schedule a meeting, then it ought to be kept.

Back to late filers: When I was running the state Lobby Commission, I always gave greater scrutiny to those who were delinquent. The reasoning was that a failure to file on time could be part of a larger problem involving lax financial controls and lax ethics.

But the reality for me then and the ABO now is that there is neither the time nor the resources to check everyone. So, you end up focusing on those entities that give you a reason to investigate them.

Note to authority managers: You really need to get those required filings in on time.

Note to policymakers in Albany: Why don’t we sunset all authorities after five years. If they are really serving a purpose they can be renewed.

Note to JCOPE execs: Set an example.

Friday, March 2, 2012

We Should All Be Wired

“As the federal probe into city Controller John Liu’s mayoral campaign widens, the embattled Democrat is so politically toxic that bigwig union supporters are afraid to speak with him, source said Thursday.”

“…One union president said he was very nervous to be chatting with Liu – for fear the controller might be wearing a wire.”

This was in Friday’s Daily News. It’s obviously not good for Mr. Liu, but it got me to thinking: What’s the big deal? Why is the concept of being overheard so problematic?

Take me, for instance. What would the Feds find out about me if someone I was talking to was wired?

Well, they’d find out that I’m intemperate at times. I’m judgmental. I use salty language. I’m obsessed with the hypocracy of ethics officials who fail to follow the laws they are supposed to enforce. And they’d find out I’m a wise ass.

No surprise here – as regular readers know well.

This leads me to ask this question: What have the union “bigwigs” been up to that makes them so nervous?

Such excessive concern about being overheard makes me think that there are some real shenanigans going on. What is it? Payoffs? Quid pro quo arrangements?

Now I’m thinking that being wired is a really good thing. Maybe we should all be wired. Let’s wire the lawmakers. Let’s wire the people who raise funds for lawmakers. Let’s wire the lobbyists.

Think of what the world of Albany would be like if everyone was wired.