David Boies, integrity, airplanes and why I must be the dumbest guy in the room

I just did a blog on Peter Moschetti, one of if not the best lawyers I've ever met and certainly one of the most ethical ethics commissioner's I've ever been exposed to.  The blog had to do with integrity and airplanes.

And it got me thinking about David Boies, airplanes, integrity and great lawyers.

Now I've never met David Boies but he did keep me waiting for 2 hours one Saturday for a conference call that never happened about airplane investigations and JJOKE.  I still have an unpaid invoice for $2000 outstanding for those 2 hours but after watching Mr. Boies performance surrounding his giving a free lift to David Ellenhorn, a state lawyer in litigation involving one of Mr. Boies clients, I know I'm not nearly smart enough to ever collect that invoice.

For almost 6 months I've been trying to figure out how David Boies could have stated that "I do not believe there was any misconduct on Mr. Ellenhorn's part in accepting the ride I offered". 

For almost 6 months I've been trying to figure out how neither David Boies nor David Ellenhorn have been charged with violating the Public Officers Law for offering and accepting an illegal gift.

For almost 6 months I've been trying to figure out how David Ellenhorn could have even been in Omaha deposing the head of Berkshire Hathaway, Warren Buffet, given that David Ellenhorn was a shareholder in Berkshire Hathaway. 

For almost 6 months I've been trying to figure out how David Ellenhorn could have failed to disclose this fact on his financial disclosure report at the time.

For almost 6 months I've been trying to figure out how David Boies's former law partner Harlan Levy could have made all those phone calls to David Boies current partner Nick Gravante the weekend the plane trip first appeared in the media,  when Harlan Levy was suppose to be "walled off" from cases involving his former partners.

And after 6 months I've realized if I can't figure it out it has to be because I am wrong on the law regarding offering and accepting gifts from a disqualified source or David Boies is the greatest ethics lawyer ever.

Lets review the law first.  It's pretty straight forward.

JJOKE's predecessor commission stated as follows in Opinion 8-01:

"The Commission reaffirms this general rule that State officers and employees should not, directly or indirectly, solicit a gift of nominal value from a disqualified source, nor should a disqualified source, directly or indirectly, offer or give a gift of nominal value to a State officer or employee. 

            A “disqualified source” is an individual who, on his or her own behalf or on behalf of a non-governmental entity, or a non-governmental entity on its own behalf which:

(4)        is involved in litigation, adverse to the State, with the State agency with which the State officer or employee is employed or affiliated, and no final order has been issued;"

 

It seems you don't have to be the greatest lawyer of your generation to understand if you are involved in litigation with the state (David Boies was) you don't offer a free chartered jet trip worth thousands of dollars to opposing counsel (David Ellenhorn).  And if you are a state employee (David Ellenhorn was) you don't accept the offer and take the free trip on the private jet.  Yet they did and neither has been punished for it.  David Boies is still representing the party litigating with the State and David Ellenhorn is still the lead counsel on that case.

 

So if the law is as clear as it is why hasn't JJOKE done something about it?

 

Because David Boies is that good.

 

As far as a JJOKE investigation goes David Boies may just be bulletproof, the Teflon barrister when it comes to providing private jet trips to state employees.  

 

I had heard disturbing rumors about JJOKE and Boies and I had wondered why Boies acted like he had nothing to worry about when he was discussing the jet trip in the media.

 

Now after seeing Boies in action I have to wonder why Al Gore wasn't president.

 

Peter Moschetti integrity airplanes and gubenatorial control of ethics

Peter was confirmed today as the Senate's pick on the Gaming Commission.

For once they got it right although I have to wonder who vetted Peter.

I've known Pete for a long time.

We were classmates at Albany Law.  Pete was a serious student, boring but serious.

Pete was one of my commissioners at the old Lobby Commission.  Pete was a serious commissioner and above reproach.  If you don't believe me you should read his dissent to the commissions amended opinion on David Paterson's use of a lobbyist's plane.  It's opinion 60 and I have reproduced Pete's dissent below:

DISSENT
Commissioner Peter J. Moschetti, Jr.

The Commission's recent action in amending Commission Advisory Opinion No. 60 which it had unanimously approved less than six months ago necessitates this dissent. The Commission's majority wholly fails to articulate a reason for its unprecedented action. Why would the Commission revisit this request for an opinion when the requesting party did not request a modification and factually, absolutely nothing has changed between the original opinion and the amended opinion. If one were to accept the proffered explanation that the Commission desires its opinions to be consistent with that of the New York State Ethics Commission, then we must be prepared to revisit all of the Commission's Advisory Opinions regarding gifts so as to complete the journey to consistency. Having done so, will this Commission now aggregate the value of all gifts given by a lobbyist during a calendar year so as to be consistent with the New York State Ethics Commission's view that a public official may not accept gifts exceeding the $75 threshold annually as opposed to this Commission's former opinion that each gift would be valued independently.

More upsetting is the fact that the Commission's amendment of its previous opinion has absolutely no effect on the conclusion that an illegal gift was made. In the matter before the Commission, the lobbyist provided chartered airfare and was reimbursed through the payment of the highest published Coach fare. New York State Ethics Commission Opinion 97-3, now adopted by this Commission, would require the reimbursement by the public official of First Class fare. The end result of this Commission's unprecedented action of amending its previous unanimously approved opinion?...nothing, the action in question is still an illegal gift, either under the Commission's original Advisory Opinion No. 60 or its more recently amended Commission Advisory Opinion No. 60.

 

When will we ever see an ethics commissioner so willing to call out his fellow commissioners for their own intellectual corruption?  Pete was replaced on the commission shortly after this dissent.  I guess the senate staffer who vetted Pete never read the dissent.

 

This is not a guy they can control!!!!!  How awesome is that?

 

By the way full disclosure Pete, myself and a couple of our classmates still have lunch every couple of months . . . he hasn't changed since the time he wrote that dissent.

Nostradamus ain't got nothing on me

Every now and then I check the data to see which previous blogs are getting the most interest from the readers.  When I did that this morning it's obvious that the musical series I did on Moreland and what would result from the appointment of the commission is getting the most looks.  And when I reread what I had written last fall I realized . . . I may be Nostradamus when it comes to ethics in NY.

Which got me thinking about some other predictions I have made on ethics.  Predictions I made to Gary Lavine, LT, Ravi, Pat Bulgaro and a bunch of other JJOKERS past and present.  A simple thank you would be nice.   As to all the predictions I have made to clients that have been spot on no thanks necessary that's what you pay me for.  For you reporters that call wanting to know what comes next . . . the ones I respect get my intel and your stories are thanks enough.  The ones I don't respect get nothing and the ones I don't even like a little get hung up on.

Realizing I have these prognosticator powers I have decided to start a new feature in the blog.  Every so often I'll list those ethics violations I think are occurring that JJOKE will never investigate.  We can see if my predictions come true.  I know when it comes to JJOKE NOT investigating it is a self fulfilling prophecy but will make for an interesting read.  And just maybe LT can be shamed or frightened into doing a good job.

So in addition to all the prior predictions (State Democratic Party lobby ads, Duffy's business relationship not being reported, Susan Lerners source of funding disclosure, Artists against Fracking non registration, etc etc, yada yada yada) Here's a couple more:

Larry Schwartz using state time and resources to respond to allegations about Sandra Lee's home improvements.

21st Century Consumers unregistered lobbying

TobaccofreeNYS.org unregistered lobbying

Now to be fair those last 2 are based on reviewing the JJOKE database which is so far behind and backlogged as to be virtually useless, but that's for another blog.

Now let me go wayyyyy out on a limb and predict that JJOKE becomes even more secretive and paranoid as a result of the subpoenas Preet served on them.

Hey Gary remember when I used to tell you what was coming in the way of problems?   Good luck in the future.

JJOKE not a target? Milgram's wishful thinking

It is with great interest and satisfaction that I have read the recent news articles related to the US Attorney for the Southern Districts interest in Albany corruption.

I chuckled when I read our Governor's comments in Crain that he could not be accused of controlling the Moreland Commission since it was his to control to begin with.

I chuckled not because I thought it was amusing that the most controlling force in New York government lost control (how did the Gov's staff let him make those comments?)  No I chuckled because I had predicted to several very smart and powerful people that you can't "trade" an investigatory body for legislation any more than you can use your official government position to threaten an investigation if you don't get the legislation you want.  And once I saw Preet Bharara had subpoenaed JJOKE records it became obvious to me that he is investigating who may be controlling decisions at JJOKE.  Decisions like who should be the next executive director to who should receive 15 day letters to when and if the commissioners should be made aware of complaints and have an opportunity to vote on if a substantial basis investigation should occur.

And the beauty here is JJOKE has already provided a road map of what they will do when properly motivated by the Governor.  Just look at the Lopez investigation.  It's all on line.

Now has JJOKE followed that model for Blair Horner's complaint about the State Democratic Party being an unregistered lobby?  Have they followed that model for Trump's complaint that the AG solicited his family for campaign donations WHILE investigating Mr. Trump? Have they followed that model for any of the complaints related to AG employee David Ellenhorn receiving free private jet rides on David Boies jet or Mr. Ellenhorns conflict of interest or his failure to timely file financial disclosure reports?   It's been over 45 days for all those complaints and if I was a JJOKE commissioner reading this blog I'd be asking staff why no vote has been taken and I'd ask that question before the US Attorney does.  OOOPS that train may have left the station already.

Now let me be clear I have no actual first hand knowledge of what JJOKE has done and I have no actual first hand knowledge of what the US Attorney is doing or why but I do have an opinion.

I think Mr. Bharara is investigating what influence the Governor's office has used to manipulate the various ethics agencies to follow his direction and why.

If I'm right I think a new day for ethics may be dawning and JJOKE is heading to the ethics cemetary to join the agency it replaced.

And in case you think I just came to this opinion you can read my public position here http://davidgrandeau.blogspot.com/2013/06/just-question-not-criticism.html and here http://davidgrandeau.blogspot.com/2013/07/legitimate-moreland-questions.html and here http://davidgrandeau.blogspot.com/2013/10/morejoke-is-disgrace.html and thruout the last 2+ years on my blog.

And I think we all owe former JJOKE commissioner Ravi Batra a debt of gratitude for his willingness to publicly identify this problem at JJOKE and for having the courage to resign over it.

JJOKE Commissioner resignations

I've decided that the fault at JJOKE rests squarely with it's commissioners and there appointing authorities.

Now don't misunderstand, the staff bears a huge portion of the blame but staffers who owe there jobs to the second floor or their Uncles who are commissioners or a friend who may be married to a commissioner etc etc can not be expected to be independent.  Lets be realistic they may want to punish state employees who have stock holdings in companies they are investigating (or not investigating because of the conflict), they may want to punish state employees for failing to disclose those stock holdings, they may want to punish state employees that accept free rides in fancy corporate jets from disqualified sources, they may want to punish state employees for getting off the fancy jet and jumping into limos provided gratis by disqualified sources, they may want to punish state employees for fundraising from family members of those they are investigating, they may want to investigate the state democratic party for being an unregistered lobbyist.

But they won't until there commissioners tell them to, or someone on the 2nd floor does.  That's just reality.  I've heard it over and over when I ask staff members why no action on these type of complaints "you are preaching to the choir".

If that's the case it's time to switch churches.

But I digress,  it is not staffs fault, they could do more, much more, but they are insecure and incompetent.

No it's the commissioners fault.

And the recent decision by the commission to state on the record that they are not subject to the open meetings law even when they hold a public meeting is just another example, a minor one but illustrative of how things work at JJOKE.  I wonder how many commissioners actually read the statute before they went along with Monica's Stamm's flawed legal analysis? (It was Monica's birthday and that lovely cake waiting for the commission in the break room would make a perfect place to plant a recording device, by the way how did the cake taste?)

But I digress yet again.  Since it is so difficult to tell the commissioners apart and I have no way of knowing who actually is attending meetings remotely I've made up a simple reference sheet to identify them.

I've decided they fall into 5 categories.

Category 1 - the insiders, these are the select few that receive orders from the 2nd floor and are in the know.  These are the commissioners that look the most embarrassed when they have to try to defend the indefensible with a straight face.  I put Horwitz, Lavine and Arroyo in this category.  Now Arroyo may only be a fringe player as he has been cagey enough to avoid going to meetings.  Why cagey? because it is this type of commissioner that will have to lawyer up quick if anyone ever investigates how things work at JJOKE and better to not be seen at the scene of the crime..

Category 2 - the sheep, these are the followers.  They do not care enough about their reputations to take an active role in what goes on.  They might show up at a meeting but all they do is raise their hands to vote yes.  Go along get along and when the subpoenas start flying they will have many a sleepless night trying to figure out what they did and why.  I put Hormozi, Knox, Romeo, Rath, Covullo and DeArcy in this category

Category 3 - the clowns, the entertaining ones. They are sheep unless directed otherwise by Shelly but they are immensely entertaining to watch.  I put Roth in this category, she is a headline act.  Anyone that has watched her stand up performance would have to agree she has that annoying kvetching Jewish grandmother at thanksgiving thing down perfect.  I've turned her "I can't hear you" line into my ringtone.  Marvin Jacobs falls into this category for his shear brilliance in finding ways to miss the point of what he should be arguing about and still managing to annoy and frustrate Horowitz.  And a very nice man by the way a real mensch.  Lastly is the new guy Casteleiro,  Anyone that looks that much like Gary Busey and is a New Jersey lawyer on a New York ethics commission is priceless.  If there is ever an investigation, these are the commissioners the 2nd floor will try to deflect guilt upon, "Shelly's puppets" I can hear it now and you know what? they won't be wrong.

Category 4 - the polite ones.  They are the ones with real substance and an ability to force change but they are too polite to speak out in public and attack the rest.  Weismann and Renzi could have done so much more if they just would have the courage to voice their opinions in public and force change.  But they are too cautious or polite or wimpy whatever the reason, they bear a goodly bit of the blame for JCOPE becoming JJOKE in my opinion.  Nothing is sadder than wasted opportunity.

Category 5 - the smart ones.  At this point any JJOKE commissioner that has resigned falls into this category.  In the long run they sleep better, their reputations are restored and they don't have to hire criminal defense lawyers.

Something tells me a Category 5 storm is on the way.

Insecurity and incompetence

It's been well over a month since I have blogged and anyone that follows the blog has realized even before then I had cut down on the amount of blogging I was doing dramatically.

I'm not sure I know the actual reason why I've limited my blogging, maybe I don't have the time . . . nah I could always find the time in the past to voice my opinion.  Maybe I don't want to embarrass certain clients that are not wild about my observations being tied to them . . . nah I've always told clients that I write for myself and my views are my own if you are embarrassed by my blog find someone else to do for you what I do.  Maybe I was giving the new ED at JJOKE a honeymoon period, after all LT has been exceedingly friendly to me, regular sessions discussing JJOKE it's personnel and the issues that it faces.  At least she was until last week. 

And then she reverted to a typical JJOKEr and fell back on the old JJOKE propensity for secrecy and "lets make up the rules as we go along" attitude that Ellen Biben was famous for.

And lo and behold my blogging juices start flowing again.

It's always the little things that show you the true measure of a person or an institution.

In this case it was a simple request.

Over a week ago I asked LT for the names and locations of any commissioner that was planning to attend the commission meeting on the 29th by video conference.

No big deal and it is provided for by the open meetings law.

LT's first reaction? why do you need that information.

Now I get the paranoia.  In fact it's healthy for someone in LT's position to be paranoid.  There are people out to get her they have been and they always will be, but we've become friends so if you ask I'll tell you and I did tell her.  I have a client that wants to have observers at these locations to make sure what we see and hear on camera is actually the opinion of the commissioner and not some political fixer off camera feeding the commissioner lines.  And the fact that the lazy commissioners will be uncomfortable with strangers in their posh law offices that are not open to the public is just a bonus.

And then the waiting begins.  Now I've been around long enough to know the waiting means LT is taking direction from someone.  Even though this is an easy request that requires a simple yes or no it takes a week and several more written requests to get a response.  And that response comes from Biben's hand picked fixer Monica Stamm.  Bright women whose main talent seems to be her willingness to do exactly as she is told to do.  And it's a shame because my guess is left to her own devices she is capable of giving sound legal advice.

Monica's written response is we will not tell you that information because we are not subject to the open meetings law. 

One small problem that is not what the statute says.   As I had previously pointed out to LT and reproduce here

"It is my understanding that the commission may take the position that it is not subject to the open meetings law or has not had sufficient time to research the issue. To the extent that is the case I have provided the relevant portion of your enabling legislation Executive Law section 94 it states as follows:
“(b) Notwithstanding the provisions of article seven of the public officers law, no meeting or proceeding, including any such proceeding contemplated under paragraph (h) or (i) of subdivision nine of this section, of the commission shall be open to the public, except if expressly provided otherwise by the commission or as is required by article one‐A of the legislative law.”

I believe a clear reading of the statute by even the most marginal attorney admitted to practice law would result in the interpretation that the Commission may hold secret meetings on any subject other than those “required by article one‐A of the legislative law.” However once the Commission provides that a meeting shall be open to the public, as is the April 29th meeting, the relevant provisions of “article seven of the public officers law” are applicable.

Your enabling legislation may allow you to control an on/off switch for transparency in your meetings but it does not provide a dimmer switch that would allow you to pick and choose what sections of the open meetings law you choose to be governed by once you decide to turn on the transparency light and have a public meeting."

So if it is so clear that even a reporter can understand it why does JJOKE take the route of maximum resistance and try to rationalize it unethical behaviour by perverting the clear statutory construction? 

Well that brings me to the title of the blog insecurity and incompetence.  They have an overabundance of both.  They are so insecure and afraid of making a mistake that will upset the Cuomo administration that they revert to there go to move of keep it confidential.  If it's kept a secret they think they are safe.

Bad decision in fact an incompetent decision.

And one that has proven to me that LT is no different than Ellen Biben or Regina Calcaterra for that matter.  What is it about these Cuomo ethics officials that makes them so insecure?

I still hope I can piss off LT enough to get her to react and show she has the independence to make the hard decisions no matter what they are because so far she appears to be a scared rabbit just trying to avoid Elmer Fudd.

And by the way if tomorrows meeting is not a public meeting under the open meetings law what is it and what rules will apply?  I love meetings without rules  anarchy is my bread and butter.

Hope for JJOKE? As soon as Susan Lerner and Common Cause fess up

I can't remember the last time I laughed this much at a bunch of know it all limousine liberal lawyers from New York City showing everyone what buffoons they are . . . wait a minute the last time was at the last JJOKE meeting when Shelly Silver's appointees tried to rationalize their vote for 3 of the 4 groups that sought exemptions from the source of funding disclosure requirements.

But this time it isn't JJOKE that has me laughing it's the NYCBA and Susan Lerner's Common Cause report on JCOPE's first 2 years.

You can read the report in the NYLJ but let me save you the time.

After saying that the panel is not casting dispersions on the fine outstanding lawyers that serve on JJOKE it goes on for 60+ pages saying how JJOKE flubbed the Lopez report but never once notes that it was one of the reports authors, Susan Lerner, who made the original complaint to JJOKE about Lopez and Silver.  Talk about disclosure hypocrisy otherwise known as the pot calling the kettle black.  Yes Susan we get it, you are still pissed that Shelly's appointees stopped the Cuomo appointees from a star chamber lynching of the Speaker at a time when the Gov was looking for leverage.  Get over it JJOKE is your creation live with your mistake.  And speaking of mistakes just be grateful that no one on JJOKE decides to investigate that bs source of funding disclosure you made in January of 2013. 

Now I will not bore the reader with my critique of the smart NYC lawyers work in this report, all you need to do is have read my blog for the past 5 years to get the real story about PIC, JJOKE, Teitelbaum, Ginsberg, Cherkasky, Feerick, Biben, Difiore and all that went with that illustrious group of smart New York City lawyers, no I just want you to ponder one thing in the report.

They thank JCOPE, it's executive director and it's chairperson for engaging in two off the record meetings with the reports authors. 

Yes by all means thank them and then make the transcript of those two meetings available to the public for review.

Transparency my ASS.