Thursday, April 26, 2012

Page 2

You all know Page 6 in the Post, and some of you might remember Paul Harvey’s broadcasts from yesteryear. After reading the news with the utmost seriousness, Harvey would often make hilariously droll observations on the most off-beat topics. (One of his great cogitations was: “Gonads have their purpose, but they are no substitute for brains.”)

Page 2 is new feature on this blog that is a mix of those two approaches. I’ll call it Page 2 simply because it’s composed of my second page of notes, things overheard and things speculated upon.

Hey, it’s my humble blog and I can do what I want, right?

I’ll jump right into this inaugural edition with a follow up to the last JCOPE meeting.

The quote of the week goes to Ravi Batra. BTW, some people raised an eyebrow when Batra was named to the panel, but he is turning out to be the most open and honest one of the bunch. Yesterday is a perfect example: The board was debating the need for confidentiality and Batra opined: “At first I thought this was a Scooter Libby clause, but it’s more of a Herb Teitelbaum” clause.”

Yup. “You’ve been Herbed. You’ve been Teitelbaum-ed.” Stands for being dialed up courtesy of a politically connected investigator.

An honorable mention for quote of the week goes to John Milgrim for his numerous non-confirming confirmations of JCOPE investigations.

BTW, John, I invented this phraseology and take it from me -- It only works when you want to confirm an investigation.

Ellen Biben gets a mention as well for her comment that the “downstate office that is progressing”. Let’s hope so because whoever is signing current time and attendance records could forfeit their pension. Food for thought.

Now for some inside gossip.

Inquiring minds want to know which commission employees are averaging less than 25 hours a week in the Albany office? At that rate, John Sampson’s aide looks like a bargain.

Is a hate/hate relationship developing between the women on the commission and a certain Republican commissioner? No trust here and I think the Republican has more time and political talent than the women. Stay tuned.

Who is fighting to keep open the possibility that JCOPE has jurisdiction over acts of the legislature prior to the formation of JCOPE? Could it be that this former Manhattan DA office occupant is smart enough and mean enough to push the jurisdiction issue to the side and just leave one Tom Libous swinging from John Milgrim’s tree? The question is why?

Has Terri Schillaci lost the cat fight with “the Khaleesi?” (thankyou to the eagle eyed reader for the spelling correction)  I’d wager that Jeanine is staying and Terri is going.

Does the commission need to make better use of the state car? The last time the state car was  in the news, Herb Teitelbaum was using it to hunt deer on the Taconic Parkway on a Sunday. This time it wasn’t being used to ferry a commissioner from NYC to the JCOPE meeting. End result a missed train and one vote less than they needed.

Lastly, why has Marvin Jacobs become so pompous? Is he not having fun? Is he not stimulated by JCOPE challenges? Does he not appreciate the great privilege of public service?  Has he run out of bran cereal? Is the catered lunch not up to his expectations? Is he jealous of Ravi? Has Shelly taken him off speed dial?  Was he never on speed dial?  Lighten up Marvin, try being a mensch you will live longer.  There is supposed to be a great Marvin story floating around once I get it nailed down I'll post it here.

For the record I won’t bother printing the gossip that I get from JCOPE employees, they are frightened enough without having to worry that something I say will be blamed on them.  My gossip comes from the media, nonemployee members of JCOPE (and I haven’t spoken to Ravi since the meeting Tuesday. Oops), lobbyists and everyone else that they speak to.  And before you get in a tizzy and start a witch hunt reread my blog on who an insider could be.
Lastly a small piece of advice to whomever Page 2 has offended, People overhear what you say on your cell phones and there are no secrets in this town.  The better question is if I know about it why hasn’t it been in the media yet?

Wednesday, April 25, 2012

Enviro Justice

There’s a scene in Lonesome Dove (one of my favorite books and a great TV series) in which a really villainous villain comes upon a couple of farmers plowing a field. His blood boils and he says: “I hate sodbusters!”

I had a somewhat similar sentiment the other day when I read a story about Ward Stone. The target of my ill-will was a group of enviros who insist that Stone’s extraordinary misuse of state resources over an extended period ought to be ignored because of his many contributions to “the cause.”

The enviros said this and more in a letter to Attorney General Schneiderman. They said that allegations against Stone were “slanderous.”

The problem is that we’re not talking about “allegations,” we’re talking about facts. The Inspector General at the time, one Ellen Biben, investigated the matter thoroughly and determined that Stone, in effect, stole tens of thousands of dollars from the state. No, he didn’t take actual cash. He used state resources for personal purposes, which, under the law, is exactly the same thing as stealing.

Never mind that IG report, the enviros say. We don’t care if he misappropriated state resources, they say. He did great work, they say. He is our hero, they say.

Well, that’s terrific. If the enviros feel so strongly about Mr. Stone, they can take up a collection to help him pay back the money he owes the state.

But the money must be paid back!

Unfortunately, the Attorney General has bowed to the enviros, instead of fulfilling his obligation. Shame on him.

But there still is one hope for taxpayers – JCOPE and Ellen Biben.

Mr. Stone was a state employee and his misconduct is clearly within the jurisdiction of JCOPE to address – unwarranted privileges; personal use of state resources, etc. These are clear violations of public officers’ law.  Unlike the recent allegations against Senator Libous and The Committee to Save NY where John Milgrim has done a disservice to all involved with his “we don’t comment on investigations” bs, in the Stone case JCOPE actually does have jurisdiction.

And this raises an interesting question. Ellen Biben was the inspector general who compiled the report against Mr. Stone. She thought Stone’s conduct was egregious just a few months ago. Could she have changed her mind now?

JCOPE must act. Not doing so sends a message that Biben is tough enough to tattle but not tough enough to spank.

And if Biben is tough enough to complete the Stone matter she ought to be honest enough to investigate who leaked the IG report to the Times Union a day before it was released publicly and a day before Biben started at JCOPE.  She might not like the case but you can’t do one without the other and maintain a reputation for being a fair ethics enforcer.

Ellen is going to be a busy young lady.

Tuesday, April 24, 2012

Here we go again

JCOPE held a meeting today, in public with a meaningful agenda.

That’s the good news.

And while they won’t admit it (but I know they read it) they took my advice from the blog of April 4 and discussed in public what they had already decided in secrecy, that they could decide to follow the Open Meetings Law.  Now all they need to do is complete the journey and authorize the commission staff to follow the Freedom of Information Law.

Of course the commissioners could all agree how complicated and nuanced the issue is (it really isn’t its just common sense) before they hold another meeting in public to announce what they have decided in secrecy.  But at the end of the day let’s congratulate them on doing the right thing no matter how much it galls commissioner’s Jacobs and Horowitz to have to admit to themselves that I provided them the solution.  (Don’t worry guys I’m Jewish so it’s almost like you thought of it).

Now while they did some things right they made some horrendous errors that reminded me how many former Ginsberg flunkies are still around.

What am I talking about?  The Lobbying guidelines that they approved.

Now I’m all for new guidelines, the last ones were done in 2006 and two commissions, three executive directors, four chairpersons, and over 30 commissioners have come and gone since the old lobby commission drafted the last ones.  And when we did it they were drafted by staff with the input of some very bright commissioners (Shechtman, Celli, and Bulgaro among them) and after public input and comment, especially from the lobbying community that was effected by them.  I can  guarantee that didn’t happen this time.

These new guidelines were drafted by a commission temporary employee who is a lawyer, Shari Calnero.  Why is she a temporary? Because she was fired when Mitra cleaned out the last bunch of lawyers.  Why was she hired back?  Insiders tell me she has politically powerful family friends.  I know, because Shari used to work for me, that she doesn’t have a clue what effect her changes will have on the commission and the lobbying community.  I’d be shocked if she consulted with the few employees left from the old lobbying commission that understand the effect her changes will have on the commission and the lobbying community (she should have consulted Jeanine Clemente, she knows where all the old lobby commission bodies are buried).  I know the commissioners were not involved in any meaningful way other than rubberstamping at the meeting.  And I doubt anyone in the lobbying community had any input (but I bet certain commissioners will be getting phone calls pretty soon).

The result is so predictable I’ve got this feeling of déjà vu all over again.  A disaster.

There is not enough space to go over all the mistakes in the guidelines and the unintended consequences of doing such a half-assed job.  Plus I’ll provide that to my paying clients.

For right now let me just point out a few of the most boneheaded and what they mean to all involved parties.

On page 28 of the guidelines Shari states that registration amendments are due

within 10 days of the date that an event occurs which necessitates a change in any of the required information set forth in Lobbying Act 1‐e(c) above.”

Now I’m sure Shari was trying to force lobbyists to file registration amendments when they extend their lobbying contracts or add a new lobbyist, but a new registration amendment will now be required every time a lobbyist lobbies on a new bill, or meets with a legislator not listed on the original registration (information listed in Lobbying Act 1‐e(c) that staff never bothered to review before).  Can you imagine how much work Shari just made for the lobbying community and the JCOPE staff?  A new bill is introduced and you have to amend your registration within 10 days, a B print comes out, go back and amend it again. WHAT A WASTE OF TIME and it would be funny except JCOPE now says that they can impose late fees if you don’t amend within 10 days.  Those of you that read the blog know that I do not believe the statute provides for the imposition of late fees for registration amendments in fact the statute specifically says they can impose late fees for the late filing of registration statement NOT the amendments thereof.  The statute further says that amending a registration does not require the amendment of the entire form.  If your registration statement was timely an amendment of the information contained therein does not change that fact.  The same late fee language exists for bimonthly and client semi-annual reports and there has never been a late fee imposed for the amendment of either of those reports.

The really foolish, incompetent part of this is most of the things the guidelines now say you need to file an amendment for are NOT in the LOBBY ACT.  Start dates and end dates – not required in the statute.  Compensation amount – not required in the statute.  In-house lobbyist salary – not required in the statute.  This one is particularly foolish, Shari how does an organization know what percentage of time an employee will be lobbying before they actually lobby? Dope, that’s why the old lobby commission allowed the “will exceed threshold” language in authorizations even Ginsberg was smart enough to leave that alone.

Here is another guideline that should get the lobbying industry up in arms.

On pages 33 and 41, JCOPE is  requiring that employees of lobbying firms and clients disclose their salaries on bi monthly and client semi-annual reports.  Here’s what they want: 

“Such report must include all salaries and other compensation paid to staff such as those of lobbying employees or clerical assistance.”

I can’t wait to see how much Ken Shapiro and Jim Featherstonehaugh make.  In fact I bet the media will be chomping at the bit to see who the highest paid individual lobbying employee is.

And if you are an executive of a lobbying client that actually lobbies get ready to make your salary known to all.  And it’s not just the high paid lobbyist that will have to disclose salaries it’s the secretaries and support staff too.  With a little work we will be able to tell which firms are profitable and which are really profitable.  And I gotta believe some folks in town will be pissed when they see what the competition is paying.

And before anyone says it I know that the former Lobbying Commission had an opinion on this subject but I guess Shari doesn’t.  And it doesn’t matter because JCOPE is not bound by those old opinions.

And before I forget these guidelines are as bad as they are for what they don't explain as well.  The term "intended introduction" still undefined and unexplained but you have to register within 15 days of being retained to advocate for it.  The term "business relationship" still unexplained but you have to disclose it.  And the sources of funding disclosure due June 1st, not a peep.  The biggest change in lobbying disclosure in a decade and no one has a clue what it means or how it will be enforced.
At the end of the day I think the public can rest assured that Governor Cuomo is NOT influencing or controlling JCOPE.  There is simply no way anyone as competent and smart as Governor Cuomo and his staff are could have had anything to do with these guidelines.

Pay two dollars for a haircut and it looks like you got a two dollar haircut.

It’s my opinion that JCOPE went to the Helen Keller School of cosmetology and got a free haircut.

Monday, April 23, 2012

Lessons on Independence

Until now, Herb Teitelbaum was, hands down, the person who had done the most to undermine public integrity in New York.

Teitelbaum is the arrogant former head of the state Public Integrity Commission who was bounced unceremoniously after it was revealed that he leaked confidential information in the Troopergate case to his friends in the Spitzer administration. According to the state IG, Teitelbaum violated the law, but he was allowed to slink away and avoid charges.

He comes out from under his rock occasionally for society events in New York City and recently was seen at JCOPE offices. (Doing what nobody seems to know.)

Teitelbaum still holds the title of ultimate anti-ethicist, but now he has real competition from former Suffolk County Executive Steve Levy, who is the subject of a grand jury report in Newsday.

According to the report, Levy used his county ethics commission “as a political sword, to attack enemies … and as a political shield to authorize questionable conduct...”

That conduct apparently included driving business to companies owned by his wife.

Yours truly is quoted in this article making the overarching point that anytime you have an ethics panel dominated by political forces it is a recipe for disaster.

You might say: Duh! But again and again, we in New York make the same mistake. We set up compliance structures that are staffed by the friends and associates of people in power. Despite glaring examples of the taint on such arrangements, we keep doing it.

Dial back to 07. Spitzer was absolutely convinced that he was going to do ethics better than the former state Ethics Commission and former Lobbying Commission that I headed. So, he set up the Public Integrity Commission and stocked it with people he knew, including social friends and former top aides. Yeah, they all had stellar resumes. But they were an embarrassment. The commission acted in secrecy and arbitrarily. Its members were revealed to have multiple conflicts of interest. And you always wondered whether the fix was in on everything they did.

In 2010, a new governor with the best of intentions created a new structure. JCOPE is supposed to be different. And I want to believe it will be different. I certainly hope it will be. But a similar dynamic is in place – the people on the commission and those running it are linked to the administration and also linked to the legislature.

Yes, they are first-rate professionals. Yes, they have stellar prosecutorial credentials. Yes, they have glaring examples of what not to do from their predecessors, but…

The “but” is the great difficulty that people have in being appropriately skeptical of individuals who were former colleagues and who continue to be friends. Even the most honorable, diligent and conscientious person is going to have a problem with that.

I will keep warning about this. It’s all about independence. The members of an ethics panel must stand apart from the political world.

Teitelbaum and Levy are egregious examples of what happens when there isn’t sufficient independence. Let’s hope JCOPE gets that point.
There are a couple of potential hot potato investigations just waiting to blow up.  Lets see how JCOPE handles them it should tell us if we need to add names to the Teitelbaum/Levy wall of shame.

Thursday, April 19, 2012

A Can of Worms

I just can’t let go of this matter regarding JCOPE’s jurisdiction. To me it’s crystal clear: The commission has authority to investigate lawmakers moving forward, but not retrospectively.

That is, it cannot revisit possible legislative ethics violations that occurred before the commission was actually formed. This is apparent from the authorizing statute, but clearer still in terms of pure logic.

How so? Well, look at it this way: If JCOPE can go back and review the Tom Libous matter, which involves conduct from five years ago, it can review any conduct from the past.

It could review Joe Bruno, Mel Miller or Manfred Ohrenstein.

It could review Pedro Espada, Carl Kruger, Hiram Monserrate and Vinnie Liebell.

It could review Brian McLaughlin, Gloria Davis, Tony Seminerio, Efrain Gonzalez, Diane Gordon, Ada Smith and Clarence Norman.

It could review Michael Cole, Ryan Karben, Jerry Johnson, Guy Velella and Roger Green

It could go way back and review the Black Horse Cavalry (if you don’t know what that was look it up the more things change the more they stay the same) or Joseph Allds or “Big Tim” Sullivan aka “Dry Dollar” Sullivan  (we need more legislative nicknames does anyone remember “Cadillac” Smith?)

And think about it: The conduct involved in these cases was far more egregious that the worst rendition of the Libous matter. Libous, if you believe the convicted perjurer who made an accusation against him or Libous’ hyperventilating political rivals, is supposed to have helped his son get a job. We’re not talking a no show job here. The son, a lawyer, actually worked at the law firm that hired him.

Contrast the unproven Libous allegation with the scenarios that brought down the others. Almost invariably there was extensive scheming that netted the perps millions of dollars. In fact, each case has a fact pattern that was acknowledged by the defense attorneys. A simple review of the agreed upon record would no doubt yield clear state ethics violations. It would be an open and shut case for JCOPE.

Could JCOPE really say “Never mind” to those serious ethical transgressions and choose instead to continue to hang Libous out to dry with a press flack’s overly cute we don’t comment on pending investigations?

To me that would be absolutely absurd. And yet, the more I watch JCOPE, the less surprised I am by the prospect of it doing things that are quite absurd.

Now if JCOPE wants to investigate matters that are timely and that it does have jurisdiction over give me a call I’ve been compiling a file for quite some time.

Tuesday, April 17, 2012

All Ethics is Local

There are times when you watch the news and really scratch your head. For example, last night, I watched Binghamton Mayor Matt Ryan go off on Binghamton Sen. Tom Libous. Ryan claims that Libous acted unethically in helping his son get a job.

This is strange to me on many levels:

First, why are Ryan’s comments regarded by the media as “newsworthy?” Second, what actually qualifies him to comment? And, third, what is the core public policy concern here?

Liz B tried to answer the first question at the beginning of her YNN show. She said, in effect, that Libous has been around a long time and has never really been touched by any hint of scandal – “until now.” I guess the hint, the mere suggestion of impropriety is news.

Ryan tried to answer the second question by noting that before he was a mayor, he was a trial attorney. And this is supposedly relevant because the allegations against Libous surfaced in a criminal trial of another individual in a Westchester County court. I don’t see the connection.

In fact, there’s no connection to Ryan or the City of Binghamton, except that it involves Libous, who is Ryan’s local political rival. Democrat Ryan insists that no one in Binghamton believes Republican Libous when he says nothing wrong happened and that this is much ado about nothing.

Ryan feels compelled to address the matter because “the people need to know that their elected officials have integrity.” He says it is imperative that JCOPE intervene to reassure the people of Binghamton that their senator is on the up and up.

It’s on this point that I’m ready to pull out my hair. I’ve said it before and I’ll say it again: JCOPE has no authority in the matter!

In this regard, the JCOPE statute is clear. The commission’s authority to investigate lawmakers is prospective, not retrospective. The conduct in question happened several years ago, long before JCOPE was formed. So, JCOPE has no jurisdiction. Period.

The Ryan complaint does indeed highlight a real policy concern. It’s just that it has nothing to do with Libous. The concern is the continuing awkward and indecisive performance of JCOPE.

The official comment from the JCOPE spokesman was: “We don’t comment on current or pending investigations” This is an absolutely meaningless comment. It’s nonsense.

What JCOPE should have said is: “We, of course, consider all matters brought to our attention, but our resources and jurisdiction are limited.” It could have then gone on to explain what I did above.

That would have been the honest and accurate thing to say. It would also have better served the public interest than letting a matter fester. That happens to be unfair to both accuser and accused.

Instead, we are going to continue to get JCOPE watching the media and putting its finger in the political air to figure out what it should do. JCOPE personnel just don’t get it. I continue to want to be supportive, but it’s getting harder and harder to do so.

Now see below for another take on the matter.

My Stream of Consciousness on Basketball and Ethics

Hey, look at this article. It says that the head basketball coach at the University of Albany (a state employee) forgot to file a required financial disclosure form.

Hmm. I could make something out of this. I’m a University of Vermont grad. It’s a great school and I’m great for having attended it.

U/Albany is U/Vermont’s rival on the basketball court. (I hate Great Danes. Who would name a team after a dog?)

I could really mess with the U/Albany if I just wrote to JCOPE and demanded a full investigation of the coach.

Hey, the people of Albany need to know whether their coach is on the up and up. This is a serious matter indeed!

Now I just need the JCOPE spokesman to issue a statement that holds open the prospect of an ongoing ethics probe. And then I’ll go to the media and get them to focus on my complaint.

This is great. Go UVM!

Tuesday, April 10, 2012

Where to Draw the Line

There’s a headline in today’s Buffalo News about “Brothels on the Border.” See:

The article cites ongoing discussions by Canadian officials about legalizing prostitution, which supposedly would lead to an even greater tourist boom in Ontario border towns.

Millions of Americans cross the border each year to take advantage of casino gaming, a lower drinking age, lower gas prices and cigarettes, and notorious strip clubs (aka the Canadian Ballet) in the border towns. Would you like to guess how many more would come to patronize new brothels?

So what are we in New York to make of this?

My first response is prudish: “This is getting ridiculous. How many vices can our friendly neighbors to the north capitalize on?”

But then I think to myself: “But they sure are entrepreneurial. And their side of the Niagara River is really booming.”

I’m reminded here of something Governor Cuomo said recently. It was in the context of legalizing casino gaming in New York. He said something to the effect of: “Who are we kidding? Casino gaming is here already. All the neighboring states and Canada have it. Indians reservations have it. The racinos have it in virtual (electronic) form. This isn’t a debate about doing it, it’s a debate about properly regulating it.”

At the time he said that, I opined that if New York was to take that route it should create a strict regulatory body modeled after the Nevada Gaming Commission. The Cuomo administration subsequently proposed such a body, which is being formed now. (Shouldn’t I get a royalty or something for that idea?)

Legalizing gambling, and properly regulating it – is logical. New York is losing billions of dollars in revenue as residents travel to other jurisdictions to gamble. It makes no sense to allow that to continue year after year.

Using the same logic, you could make the case for legalizing drugs and prostitution. Think about it: Marijuana is widely available. And prostitution certainly exists – just ask the former governor of our state.

Shouldn’t we legalize them, too?

Again, I’m torn. On the one hand, I say to myself: “What’s happening to our values? Our morals? What example are we setting for our kids?”

But on the other hand, I think: “Get real. Just watch TV on any given night and you’ll see what society has become.”

I go back and forth on these points, but ultimately, I think you have to consider the point of view of one Bob Reilly.

Reilly is an odd duck Assemblyman who has devoted himself to fighting mixed martial arts contests. He says these contests brutalize athletes and teach kids skills they don’t need to know – like how to “choke out” their friends. He says he doesn’t care that other states have legalized it – New York should stand apart – against violence and its coarsening effect on society.

You can watch MMA contests on TV almost every night, and nothing New York does will change that. Still, a lot of people think Reilly may be right -- not only about MMA, but other activities that similarly coarsen society.

Yes, I know Reilly is something of a do-gooder and prude, but his advocacy raises a broader question: Exactly where do we draw the line when it comes to vices condoned by, regulated by and taxed by government?

The line that gets drawn is the bottom line. How much revenue will the activity generate? And what will be the voter backlash against it? One is weighed against the other.

When it comes to such calculations, nobody is better than the current governor. He is making the calculation now with regard to gambling. Next year it might be medical marijuana, and, after that, what? Prostitution?

Speaking of drawing lines I had a much funnier piece to post about JCOPE’s new secret sub committee to study secrecy but my editorial staff, friends, family even my dog thought it was a little too funny and that certain JCOPE players would not see the humor in it so I’m holding it for the time being at least until they get a sense of humor or I get fed up with giving them the benefit of the doubt.  Stay tuned.

Wednesday, April 4, 2012

How to Fix JCOPE

The Joint Commission on Public Ethics is overly secret, certainly by design and possibly by disposition. At the very least, the Governor and the Legislature need to fix the law.”  Albany Times Union.

The fix is simple, and it doesn’t involve changing the law. The Governor and the Legislature don’t need to do a thing. JCOPE does.

JCOPE, its Chair and Executive Director, especially, need to understand that this isn’t a District Attorney or U.S. Attorney’s Office. It’s a state agency that needs to set the standard for openness – not ignore the concept.

Again, the fix is simple. It only requires a change in the mindset of the people running the agency. Here’s how it can be done:

JCOPE leadership needs to review Section 94 of the Executive Law. This section of the law is often cited as the reason for secrecy, but it also contains the antidote to it. Subsection 9-a(B) states: “…disclosure of confidential communications may occur only as authorized by the commission.”

“As authorized” is the operative phrase. That means the commission may set a different policy – one that is more transparent.  

In this regard, JCOPE should convene a public meeting and vote on a measure that requires the commission to comply with the spirit and letter of FOIL laws -- except on matters related to sensitive investigations.

This would reverse the current presumption that everything should be secret. It would say that everything should be open except confidential investigations.

If this policy was in effect we’d know how JCOPE commissioners voted on the recent decision to hire an executive director and there wouldn’t be the absurd controversy about the commission refusing to divulge its vote.

Come on. We know that the vote wasn’t unanimous. We’d know that at least two commissioners (nominated by the legislature) voted against the selection.

Oops. OMG, I just disclosed a state secret. I just revealed what the commission is trying to hide.

Did the world just end? Did the universe collapse?

No, but Ms. DiFiore is probably fuming. “Damn that Grandeau.”

Fine. Curse me all you want. But do yourself a favor and consider my fix. If you don’t, and if you continue the secretive, arrogant prosecutor routine, you are going to fail.