Friday, May 15, 2009

Troopergate Resurrected
As Investigators Quarrel.
Who Spilled the Beans?

By Henry J. Stern
May 15, 2009

Just when we thought that ex-governor Spitzer’s pursuit of ex-leader Bruno was a dead letter, we see the storm renewed by a new investigation…of the previous investigation. The State Inspector General has collected clean dirt on the State Commission on Public Integrity, and the detailed report does not show Herbert Teitelbaum, executive director of the Public Integrity Commission, in a favorable light. Mr. T denies everything.

It appears that Teitelbaum was too close to one Robert Herrman, who was Governor Spitzer’s aide for regulatory matters, but not one of his inner circle. He and the governor are lashing out in an effort to improve Paterson’s abysmal poll ratings. By dumping on less powerful people, the governor is trying to show how strong he is.

First, last week Paterson dismissed Elliot Sander as executive director of the MTA, giving him two weeks notice - while any successor he appoints would require more time than that to meet the State's Senatorial confirmation, and State Senate Democrats have expressed a profound distaste for the person mentioned as the governor's prospective nominee. Sander may have his limits, but no one has suggested that he is responsible for the MTA's financial problems, nor has his management of the agency been criticized by any transportation experts or riders' groups or labor unions. Who else besides Paterson considered Sander a failure, and is that person a potential successor who has the governor's ear? Spitzer himself came to Sander’s defense in today’s News, in a p34 story by Pete Donohue and Glenn Blain.

The money quote: “Lee was a superb professional who was knowledgeable, cared deeply and managed effectively, and was an easy target for those who want to excuse decades of underfunding and poor management that preceded Lee.”

Now, who could the unnamed ‘those’ be? The man who fired Sander and gave him two weeks to clear out, with no successor in place, is Governor Paterson. But who put Paterson in that position? Governor Spitzer unilaterally chose him as his Lieutenant Governor. The rest is a series of unfortunate events.

This week, Paterson demanded the resignation of the thirteen citizen-members of the Commission on Public Integrity, who had been appointed by Governor Spitzer to five-year terms. The law provides for the commissioners to serve fixed five year terms, for the very purpose of protecting them from dismissal in the event of the governor's displeasure, or as the result of his dissatisfaction with a particular result in a case before the Commission. They can be fired for corruption or neglect of duty, but try proving that in court.

(FYI, the members of the Public Integrity Commission are: Daniel R. Alonso; Virginia M. Apuzzo; Richard D. Emery; Daniel J. French; Hon. James P. King; Hon. Howard A. Levine, Andrew G. Celli, Jr.; David L. Gruenberg; John T. Mitchell; Loretta E. Lynch; Robert J. Giuffra, Jr.; and John M. Brickman.) Seven, including the chair, are straight gubernatorial appointees, and one each is recommended by the attorney general, the comptroller, and the four legislative leaders (two parties – two houses).

The demand for the resignation of previously well-regarded commission members may be intended to give the governor the appearance of resolve in the pursuit of corruption. The individual members are generally highly regarded professional people serving with nominal compensation. For them to be cast in the role of wrongdoers has not been justified by any evidence made public so far.

However, the plan to get rid of judges reminds one of President Roosevelt's proposal in 1937 to pack the Supreme Court because he did not like its decisions invalidating New Deal legislation. Roosevelt proposed allowing him to appoint one new Supreme Court Justice for every sitting justice over the age of 70, up to a maximum of six. FDR's plan was rejected, and the court changed as the older justices died off, and he appointed new ones to take their paces. We may have a similar situation in the near future as Obama decrees on creditors' rights and the handing over of control over failing corporations to their unions is likely to be subject to judicial scrutiny.

The dispute between Governor Paterson and the Commission largely arises from a scathing report by State Inspector General Joseph Fisch, detailing allegations of misconduct by Herbert Teitelbaum, an appointee of Governor Spitzer who was executive director of the PIC. (You can read the entire Fisch report here, but we suggest you focus on the executive summary, on pages one through twelve.) That charge of misconduct grows from Teitelbaum’s role in the investigation of the Troopergate fiasco, in which Spitzer attempted to embarrass Senate Majority Leader Joseph Bruno by revealing that he had used state aircraft for political purposes. Instead, Spitzer embarrassed himself by using the state police for a political purpose: trying to make Bruno look bad.

In fact, the entire controversy over Troopergate was to some extent contrived, because Governor Spitzer could at any time have forbidden Bruno the use of the state plane, which is under the governor's command.

The former Republican governor, George Pataki, had previously grounded Bruno, preventing him from using the state plane, after the two men had a major falling out, in part over which of them would call the shots at the State Racing and Wagering Board, which each wanted to dominate. (Bruno owns horses and has long been involved with the sport of kings.)

When Spitzer took office in January 2007, Bruno asked for permission to use the plane again, and Spitzer consented. Shortly thereafter, the two had differences over practically everything, resulting in harsh words between them. Rather than doing what Pataki did and simply grounding Bruno, who had no legal entitlement to fly at the taxpayers' expense, Spitzer embarked on a plot to have state troopers keep tabs on Bruno's flights, and through Press Secretary Darren Dopp leaking tidbits to the Albany Times-Union (through a solicited freedom of information law request) the details of Bruno's peregrinations.

On his part, Bruno played fast and loose with his flying machine. He tried to achieve technical compliance with the law that the state plane be used for state purposes by including a smidgen of public business on the itinerary for each plane trip, when the principal purpose of the trip was clearly political. Furthermore, the state police had kept logs on Bruno's helicopter travel as far back as 2004, and perhaps earlier.

When the use of state troopers was exposed in the press, Spitzer lied about it, saying he knew nothing about the matter. His aides formed a cordon to protect him, in order to do which they had to stray from the truth. It is clear to anyone who knows anything about state government or Spitzer that such a scheme would never be undertaken without the governor's knowledge, if not his specific direction. We said so in 2007.

We rarely quote ourselves, but the next lines are particularly relevant today. NYCivic commented on July 24, 2007 (Article #396):

"In general, top aides do not commit unethical or illegal acts without the knowledge and approval of their bosses, unless the crime is embezzlement. People who are professionals in business or politics know that full well. So do prosecutors."

When the boss prevaricates, his first defense is to direct his staff to cover up for him by telling stories which are not inconsistent with his tale. If the boss is not personally incriminated, he is less likely to be called before a body with subpoena power and required to testify under oath, or plead executive privilege and see if the courts will sustain the excuse. This is not a matter of national security; the issue is personal integrity.

Initially, cases like this are judged in the court of public opinion. The principal is more likely to avoid having to be sworn before an official body if he is able to obfuscate the matter sufficiently. It is also helpful if he has appointed the majority of the investigating body, as is the case with the Commission on Public Integrity.

The staff sometimes takes the fall (Cf. Haldeman, Ehrlichman and Mitchell) because they made statements under oath which were false. If they turn against their master, however, they may be absolved or treated lightly.

The days of unswerving lap-dog loyalty, when an aide would fall on his sword for his master, have just about come to an end, both in politics and in organized crime. There are exceptions, such as when there exists a possibility of lifetime employment, but these are rare. Today underlings are generally not prepared to go to jail for doing things they have been directed to do by their employer. Of course, if the crimes are malum in se, Rule 23-X (for eXcuse): "I was only following orders," does not apply.

Hoping that this might be the next Watergate, many ambitious politicians wanted to get into the act, whether to indict Spitzer, or to exonerate him, but to get a full measure of attention along the way. The District Attorney of Albany County appears to have switched sides when Spitzer's story started coming apart.

What was scandalous in this matter was not the original sin; the governor has a right to find out whether state resources are being properly used. As far as the state police are concerned, should Spitzer have had to hire private detectives to look into the use of the state plane?

The problem arose, as it so often does, because Governor Spitzer repeatedly lied in denying his knowledge or involvement in what came to be known as Troopergate. He was diligent, however, in avoiding going under oath, because lying under oath could result in his conviction for perjury and disbarment.

The matter has been investigated by various self-interested agencies: the Albany County District Attorney, who pursued Hevesi vigorously but found Spitzer just too powerful at that time to go after; the Governor's Inspector General, a lawyer who lost much of her reputation because she was more loyal to Spitzer than to the facts; and the Commission on Public Integrity, which Spitzer and the Legislature adopted through the, get this, "Public Employee Ethics Reform Act of 2007." PEERA was passed in part to get rid of an honest watchdog, David Grandeau, who had been executive director of the New York State Lobbying Commission since 1995 and earned a good reputation there, except with some he may have chastised.

One problem with professional investigators is that, in the thrill of the chase, they may see petty offenses as much larger and darker than they really are. They are valuable assets, but sometimes they take themselves too seriously.

The latest round in this comic opera involves Herbert Teitelbaum, executive director of the Commission on Public Integrity - a body of dubious provenance because the governor appoints most of its members - improperly leaked information about the Troopergate investigation to an old buddy of his, Robert Hermann, who was then director of Governor Spitzer's Office of Regulatory Reform, and now works for Senate Majority Leader Malcolm Smith.

It seems clear that there was substantial contact between Teitelbaum and Hermann. Some of that was probably unwise, considering that Hermann was employed by the target of the investigation. But both men have decent reputations. They may have been playing off each other, each trying to get information. There is no reason to assume their motives were evil, or that they were co-conspirators. Teitelbaum made a mistake in using Hermann, and his denials and equivocations are disingenuous. He probably has little, if any, experience being the target of an investigation.

If the twain misjudged or deceived each other, that is unfortunate for the victim. It does necessarily not mean that either forfeited the public trust. This does not rise to the level of criminal behavior, unless one relies on the old perjury trap, in which A has one recollection and B's memory or account varies, then at least one of them must be a perjurer. If A tells one story and B tells another, or if they exchanged confidences they should not have, or offered information in the hope of receiving other information to help the investigation, that is not necessarily criminal behavior. What happens in so many cases is that people who have done nothing wrong, when brought in for questioning, either misremember or forget what they have said or done. Sometimes they are so eager to show their innocence that they incriminate themselves.

One should not always assume intentional deception; people simply misremember what happened in conversations they may not have thought were particularly important at the time. Such conflicts should not be sufficient to demolish a person's reputation for integrity, unless it can be shown that the deceptions had an inappropriate purpose, such as frustrating an investigation into the truth.

This is all sequella to Troopergate, which was overblown in the first place. What is particularly sad is that while the State of New York may be cheated out of billions of dollars in unnecessary health care expenditures by providers and their employees, and while the State pension funds have been trifled with by greedy intermediaries and gatekeepers who have contributed to the campaigns of various Comptrollers, the Inspector General spends considerable staff time and resources to figure out which law enforcement officer said what to whom. From the viewpoint of the bad guys, it must be amusing to watch the good guys fight each other.

The ongoing frauds against the State of New York, which consume our tax dollars, are ignored while one set of investigators tries to discredit another. In these matters, Rule 30-T usually applies: "The truth lies somewhere in between." But even if this is a case of Rule 29-T: "The trouble is the charges are true," that does not earth-shaking in a matter such as this. It is interesting to watch how people whose basic motivation is honest public service, can find themselves facing difficulties, usually of their own making.


#557 05.15.2009 2328 wds

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