Thursday, May 9, 2013

De Ja Vu all over again

Here we go again one ethics official resigns in disgrace after failing to right the sinking ship and we are looking for a new captain for the Titanic of ethics a ship that government has tried to convince us was going to be unsinkable. . . again.  And on the heals of more indictments today we learn that the legislature (both republican and democrat, Senate and Assembly) has charged that JCOPE exceeded its authority in Gropergate and wrote a report that went far afield of the questionable subject of JJOKE jurisdiction over sexual harassment in the legislature (for those that read between the lines it basically is saying Cuomo got JJOKE to take a shot at the legislature)

Rather than say the same old thing over and over I'm going to save myself the trouble and just reprint previous blogs on the subjects.  Those who do not learn from history are condemned to repeat it.  Someone smart said that and I'm too bored with the process to look up who . . . but it's never been more true than when it comes to New York and ethics.  Just ask Biben, Ginsberg, Tietelbaum, DiFiore, Chercasky, Feerick, Cuomo, Patterson and Spitzer.  Who will be next?  Horwitz?  I hope not I've been told some of his friends read the blog . . . the old Morganthau mafia is still intact.  Anyway here are some thoughts from prior transitions and previous investigations of the investigators (with new comments in bold).

Do it right the first time (from November 2011)
The new Joint Commission on Public Ethics (J-COPE) is supposed to be fully operational by December 12th.

But let’s be real: Two weeks isn’t much time to get organized.

The new commissioners, have to be named soon and they will need all the help they can get. And in that spirit, I offer the following tips:

1. You’ll be in a rush to get going, but first things first. One of the easiest ways you’ll trip up is by failing to disclose everyone’s potential conflicts of interest. Such conflicts are inevitable. In most cases they aren’t a big deal, but before someone (like me) points out the conflicts and they become a news story, do it first along with a plan to address the situation through recusals. The previous ethics agency was riddled with conflicts and it showed, they even had commissioners that were part of lobbying firms. This group expanded the conflict problem by having elected politicians (since resigned to pursue reelection) commissioners hiring relatives, those who got friends and friens of relatives hired, commissioners who failed to disclose their own clients and another executive director with a spouse employed by a registered lobbyist.

2. You are the ones who should name the executive director, not the administration. You won’t be doing yourselves or the Governor any favors if you rubber stamp his selection. Your predecessor commissioners made this mistake and they were all tarnished (Teitebaumed) as a result. And take your time it is the single most important decision you will make as commissioners. The executive director will make or break this new agency.

3. In this same vein, you need to make a clean break with the current E.D., Barry Ginsberg. Keeping him on as an acting or advisory staffer would compromise you. Remember his role in Troopergate – as exposed by the Inspector General, and remember his rogue activities over the last several months when the Public Integrity Commission was supposed to have been suspended. The reason the Public Integrity Commission was a complete failure and embarrassment was the people, Barry represents all that was bad before. No question where Biben came from or how and I hear the governor is trying to do it again.  The process should be done in public so that we can tell where the next executive director really came from.

4. There are some good people left at the agency who can form the nucleus of a new team. These individuals want nothing more than to restore the reputation of ethics enforcement in New York. But don’t take Ginsberg’s word on who should be hired or retained. Make your own determination based on an individual’s record. Anyone in a policy making position that did not stand up and try to make the old Public Integrity Commission do the right thing should be let go and quickly. You don't need institutional memory from the top staff, they are the ones that will tell you to do it the wrong way because thats the way they have always done it you need a fresh start and the top staff needs to be terminated before they have a chance to shape policy in a new agency.  They didn't listen and looked what happened

5. Most importantly, be open about your official deliberations, and do everything you can to adhere to the clearest and highest standards of law. Your predecessors were a complete joke because they did everything in secret and because they made up the rules as they went along. This isn’t just my opinion. Everyone in the ethics community was shocked by the commission’s actions. You can and must operate differently. I'll be sending you requests for opinions and complaints that heve been ignored by the old regime, that will be my test to see if its a new era of ethics enforcement in Albany or just more rhetoric.  They failed miserably

6. And finally listen to the non lawyers on the panel, they have a unique perspective that will serve the new commission well it’s called common sense something most lawyers in government have lost a long time ago.  Not a lot of common sense exhibited in the last year
What Cuomo could learn from Spitzer (also November 2011)
We are closing in on the end of the Commission on Public Integrity. (See our handy, dandy count-down clock at the top of the page.)

There’s never been a more ironically named entity. In fact, I think that history might record this experiment in ethics enforcement as the single worst idea of Eliot Spitzer.

Yeah, I think it is actually more egregious than using the state airplane to travel to Washington to bump uglies with a whore.

Think about it. Spitzer’s downfall was a lesson in what? Hubris? Probity? Morality?

Oh, come on. That’s a lot of after-the-fact, holier-than-thou BS.

Spitzer could have survived his sexual indiscretion if he had people willing to defend him. But in the end, he had nobody. He had alienated too many people with too many ill-conceived actions.

This includes me. I lost respect for Spitzer in early 2007. Why? There were functioning state ethics and lobbying panels in early 2007. The system wasn’t perfect, but it was more than passable. In fact, I like to believe that, while I was in charge, there was aggressive and independent enforcement of lobbying laws.

But then Spitzer ushered in the era of Feerick, Teitelbaum and Ginsburg. A short while later New York was a national joke regarding ethics and lobbying enforcement.

Only in New York could a state Commission on Public Integrity become the subject of a scathing report by the state Inspector General for repeated breaches of public integrity.

That was ’08. Fast forward to today, Feerick and Teitelbaum are gone in disgrace, but the third Musketeer is still at it. That’s right, Barry Ginsberg, cited in the Inspector General’s report for his Troopergate transgressions, is carrying on Spitzer’s ethics legacy.

Get this: Since the governor signed legislation abolishing the commission and placing a stop work order on all investigations, discipline and opinions, Barry and the remaining staff have been thumbing their noses at everyone.

Without any authority to do so, they’ve continued actions like auditing lobbyists. They are sending threatening letters and emails to people demanding that they comply with their directives. The only problem, again, is that Barry has no authority. The commission is supposed to be engaged in ministerial duties only -- not enforcement activities.

I know for a fact that Barry and his crew are engaged in such activities because they’ve been harassing some of my clients.

Sooooo, what should be done now? Well, this is Governor Cuomo’s watch, and he needs to do two things.

First, he ought to slam dunk Barry. Enough of his rogue activity. COPI has no authority to act, so Ginsburg’s activities must stop. And any thoughts of providing Barry a soft landing should be shelved, the appearance would be one of buying his silence, let him talk after all what could he say? That he failed to fulfill his responsibilities? Instead he got Barry a job at Tax. . . I wonder why

Second, Cuomo needs to understand the Spitzer lesson. (No, not that lesson.) He needs to fully comprehend that he is responsible for ethics and lobbying enforcement. It’s his legislation, his panel. As such, it is imperative that he picks the right people to staff it, and the right people to sit on the board. Talk about calling your shot . . it's clear that JJOKE is wholly the governors problem and I hate to say I told you so but it was easily predicted.  Don't let ethics derail your future governor its time to try something different before those indictments start hitting closer to the second floor it's almost too late

And I know the Governor and the Legislature want to coordinate the naming of their respective appointees to the new panel. But learn from the past, having a big press conference and ceremonial first meeting like Spitzer, Feerick and Teitelbaum did will not solve the problem. It only provides video footage that the media can run every time there is a story about the latest scandal involving the appointees. There is a lot of work to be done in a very short period of time (has anyone thought of what you need to do to build a new agency?) Pick some normal, non lawyer, non controllable ordinary citizens to be commissioners, find a fearless aggressive leader to appoint as the Executive Director and then take the moral high ground and hold them accountable to one commonsense standard of “do the right thing”.  Complete failure on this point

As much as I’ve been pressing for action to constitute a new panel, I know that it has to be done right. Hopefully, the governor will appoint qualified people who are truly independent.

Fail to do that governor and you will repeat the Spitzer experience.

And in light of todays revelations regarding Gropergate and JJOKE jurisdiction

Calling All Cars Calling All Cars (from September 2012)
Car 54 where are you?

Now I may be dating myself (does anyone else remember the classic cop show Car 54?) But we’ve reached the point in gropergate that the call to all those with a vested interest in ethics in New York needs to go out.

Recent columns in the Times Union by Fred Lebrun and Casey Seiler have for all intents and purpose put out the call that something very similar to the old troopergate phenomenon is occurring.
We need to investigate the investigators.
On the road to that investigation three things are going to happen.

One: At the end of the day the various investigations into gropergate will conclude that Vito Lopez is a pig, duh. EASY and true double duh

Two: the various investigations will conclude that the settlement was legal, proper and ethical if poorly handled by all involved, duh. Based on todays NYTimes I got this right also

And Three: the public will conclude that JJOKE is far from an independent watchdog, but rather an attack dog following its masters commands duh. God I'm good at this stuff

Now DA Donovan and JJOKE can handle issues one and two but who can do the thorough, complete and wide ranging investigation that is needed to get to the bottom of issue three?

Let’s start by discussing who can’t do it.

Unfortunately the statute gives jurisdiction to investigate the divulging of confidential JCOPE information to the Office of the Inspector General.

Now I know Dick Dadey and the goo goos have said that they (and Jeremy Creelan) couldn’t think of anyone better but with all due respect (if you say that you can follow it with whatever you want) that’s complete horseshit.

They set it up for the Inspector General because the IG works for the Governor, duh.

Everything wrong about gropergate so far can be traced back to the simple fact that the governor has far too much control over JJOKE both in statute, in reality and most importantly in perception.

In this case the problem is made crystal clear in Mr. Lebrun’s column and in Ravi Batra’s rambling prose.

The IG CANNOT investigate leaks at JJOKE that may involve former members of the IG (Biben et al) and the current governors staff that the IG reports to (even the Spitzer minions realized that in troopergate).

But someone needs to investigate. The statute should have been drafted for the AG to investigate leaks from JJOKE (didn’t the AG during troopergate do a good job?) but it wasn’t and because gropergate involves the AG he needs to stay out of this one.

And that brings me back to where I started, calling all cars.

I think we need to hear from the good government groups about what they think. Curiously after filing complaints in gropergate not a peep. I wonder if anyone suggested they file those complaints hmmm maybe that’s why they are so quiet.

I think we need to hear from the governor, he was pretty adamant about JJOKE investigating what happened in gropergate why stop now?
I think we need to hear from ex governor David Patterson. He said he has a lot of experience with ethics agencies leaking. Of course he has a lot of experience with fibbing too so after a second thought no need to hear from Patterson.

I think we need to hear from the JJOKE commissioners past and present. Marvin Jacobs started the ball rolling at the last meeting, don’t stop Marvin keep it rolling demand an internal investigation of the leaks. Even John Feerick did that in troopergate he made every PIC employee sign an affidavit that they did not divulge confidential information, everyone but his executive director who it turns out had a good reason for not signing his since he was the leaker.

I think we need to hear from Ellen Biben. An honest statement that she has not discussed this investigation with anyone outside JJOKE would go a long way to putting this matter to rest . . . if you believe her.

I think we need to hear from Albany County DA David Soares that he will not ignore his jurisdiction over JJOKE leaks. You did a good job in troopergate, , , eventually. Mr. Soares this is not a difficult investigation. Get Biben's emails, text messages and put her under oath let’s see what the facts are.

And I think we need to hear from the Inspector General or the acting Inspector General or someone in that office. Tell us why you can investigate JJOKE and that we can trust you to do it independently.


I guess all I can do is keep transmitting a distress signal “calling all cars”


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