Tuesday, August 25, 2009

Mid-level State Court

Says Gov Can't Name

Lieutenant Governor

By Henry J. Stern
August 21, 2009

Today’s newspapers carry the story that a four-judge panel of the Appellate Division has held that Governor Paterson had no authority to appoint Richard Ravitch, or anyone else, as Lieutenant Governor. Paterson made the designation on July 8, in an effort to resolve the month-long Senate deadlock caused by the defection of Pedro Espada from the Democrats to the Republicans, which created a 31-31 tie between the parties.

Espada (DRD Bx) ended the stalemate July 9 by returning to the Democrats. He has since been handsomely rewarded for his redefection, being designated majority leader, which required Malcolm Smith (D-Q) to be kicked upstairs to president pro tempore, next in line to Governor Paterson. John Sampson (D-Bk) was made chair of the Democratic conference because the majority leadership was reserved for Espada, most likely a condition of his rejoining the tribe.

The result of the stalemate, apart from the loss of millions of dollars in uncollected tax revenues, is that now we have a three-headed monster overseeing the other 29 Senate Democrats. Each of the three heads has a full staff, with an aggregate cost that exceeds a million dollars in tax funds. Paying all three men’s entourages is a further burden on New York State, whose deficit for the current fiscal year now exceeds two billion dollars.

The historical comparison we draw is to Cerberus, the three-headed dog who guarded the gates of Hades to prevent those who had crossed the River Styx from ever returning. It is not clear whether Cerberus ate with all three of his heads, but it is said that they only consumed live meat. The task of capturing Cerberus without weapons was the last and most difficult of the Twelve Labors of Hercules.

Cerberus Capital, a private investment firm unrelated to the legendary canine, bought 80 per cent of the Chrysler Corporation in May 2007 for $7.4 billion in one of the most unwise investments ever made. The name of the dog has no connection with the adjective cerebral, which means thoughtful, or the noun cerebellum, which is a small region of the brain.

The day that Richard Ravitch was appointed, we questioned the governor’s authority to do so. NYCivic’s headline on July 9: PATERSON APPOINTS RAVITCH, BUT HAS HE THE AUTHORITY? APPEALS COURT WILL DECIDE, HOPEFULLY, REASONABLY SOON. We quote parts of our article:

“Since it took a Constitutional amendment for the United States to provide a successor to the Vice President, it is natural to wonder whether Governor Paterson can make that choice unilaterally, in private, hours before a temporary restraining order is signed which would prevent him from doing so.

“We are pleased that Richard Ravitch has returned to public service. Whether his appointment will stand up in court is another matter entirely. It depends on how activist the seven judges of the Court of Appeals decide to be. Since four of them were appointed by Governor Pataki, they are likely to be inclined to follow existing law and precedent rather than adopt novel or ream legislative loopholes. …

“There is a principle that I recall from my distant days at law school, inclusio uno, exclusio alteris. It means that if a rule is spelled out in detail as applying to a particular situation, there can be a sort of presumption that it does not apply in other unnamed situations, even if the cases are similar. One might also conclude that since no previous governor ever appointed anyone to fill the LG vacancy, they must have believed that they lacked the power to do so.”

The absurdity underlying this despute is that Governor Paterson, if he wishes, could appoint Richard Ravitch to any non-elective position he cares to, although he would be wise to choose one that does not require confirmation by the State Senate, which could be an expensive and time-consuming process.

The Governor could try out the title Deputy Governor, which was the position held in the State of Illinois from 2003 to 2006 by Bradley Tusk, a talented public servant who began his career with NYC Parks & Recreation when he and his gifted classmate, one Edward Skyler, graduated from the University of Pennsylvania. BTW, Tennessee also has a Deputy Governor, who is appointed by the governor of the Volunteer State. NYK.

If the rank of Deputy Governor would frighten the mice, Governor Paterson can and should use another title. The point is he can bring Richard Ravitch into his administration and get the benefit of his wisdom and judgment, if both men are willing to look this way. It is in the public interest that he should. And if the threat of Ravitch breaking the tie helped move the Senate off the dime, so much the better. If it didn’t, so what?

We have not discussed what would happen if the Court of Appeals were to reverse the Appellate Division. We believe that is unlikely, but we don’t want any of you to think that the possibility never occurred to us. In politics, nearly everything is possible. Whether anything will succeed is another matter.


The Ravitch story recieved lengthy write-ups in two newspapers, The New York Times and Newsday. They were also briefly mentioned in the Daily News and New York Post.

Jeremy W. Peters, of The Times went into the most detail about the decision of Skelos v. Paterson under the headline GOVERNOR'S APPOINTMENT OF A LIEUTENANT IS RULED TO BE UNCONSTITUTIONAL. The complete story followed the case from its beginning up today when it moved to the state's highest court, the Court of Appeals. The lede on pA22, the front page of in the Metropolitan news section

"Gov. David A. Paterson acted beyond his authority last month when he named Richard A. Ravitch lieutenant governer, a state appeals court ruled Thursday in blocking Mr.Ravitch from serving in the post.

“The decision, which was unanimous and unambiguous in its rejection of the governor's arguments, dealt Mr. Paterson both a legal and political setback. A four-justice panel issued the decision, refuting all of Mr. Paterson's key legal claims and leaving the administration open to criticism that it had gone outside the bounds of the Sate Constitution.

“‘The Governor simply does not have the authority to appoint a lieutenant governor,' the decision said."

COURT CALLS RAVITCH OUT is the headline on pA7 of Newsday. The story, by Reid J. Epstein, described the reasoning behind the ruling of the four-judge Appellate Divison panel (the Ravitch appointment violates the state constitution) and detailed Paterson's defense (according to the state's public officers law, governors are allowed to fill vacant offices when there are no other means of doing so). For rest of this story, click on its title.

On p5 of the Daily News, Kenneth Lovett succinctly summarized the outcome of the court’s nine page rejection of Mr. Paterson’s claims. The article is entitled DAVE DEALT SETBACK AS COURT NIXES HIS LT. GOV. It carries Senator Skelos’ reaction to the court decision:

“Dean Skelos, who sued to block Ravitch’s appointment, said the decision ‘upheld the position I have taken all along, that the governor acted recklessly and unconstitutionally when he put his own political interests ahead of the public interests.’”

The NY Post featured two paragraphs under the headline LEGAL 'VITCH SLAP; the story, on p25, came from the Associated Press. This is probably the first time the name Ravitch has been shortened to ‘Vitch. You can figure out why by reading the res of the headline.

StarQuest #586 08.21.2009 1233 wds

$350K Added to Budget

To Hire Espada Aides,

Some From Soundview

By Henry J. Stern
August 20, 2009

The lengthy list of Pedro Espada’s patronage appointments has now been published in the New York dailies, which makes it official.

The latest story broke yesterday morning in the Albany Times Union, and we passed it along to you in the late afternoon. It is a compilation of a fresh bunch of Espada hires, some offloaded from anothegor of his subsidiaries, the Soundview Health Center.

There are three negative editorials on the legislature appearing in the News, the Post and Newsday.

The inevitable question then arises; what to do about these examples of people taking unfair advantage of their positions in government?

Who is responsible, if anyone, for policing the legislature to prevent abuse of power for personal gain?

The next question is what are the standards for legislative hires. There are no objective criteria for many of these positions, nor is there any law regulating the size and the cost of each member’s entourage. If a member wants to double the number of his employees, and gets approval from the leadership, that will be done.

As you may imagine, an organization that is submissive to the will of its senior, or more influential members, is often unjust and degrading to its junior members.

They learn the lesson that the way to rise in the hierarchy is by deferring to the wishes of the leadership, and that someday, if they behave well enough, their turn will come to hold a position of responsibility. Too often, though, they will find that there is a still higher authority whose views must be respected. There is always another ayatollah on the horizon. As I advanced, step by step over the years, in the hierarchy, I would learn that the successive bodies for which I had been chosen were, in fact, not the decision makers. On the other hand, the Liberal Party never told me how to vote on any issue.

When I was a member of the City Council (1974-83), among the most valuable plums available to the members were committee chairmanships. They were assigned by the Vice Chairman and Majority Leader (a title Peter Vallone had changed to Speaker in 1986). Thomas J. Cuite (1913-87), a Brooklyn Democrat, was leader from 1969 to 1985. The Council had over a dozen or committees, coming with lulus of various sizes, depending on who was holding the position. Since the majority leader fixed (that is set, not repaired) the lulus and prepared the package, he in effect fixed the salary (and pension) of the elected Councilmembers. Later, some chairs were bargained for by the Democratic county leaders as part of the negotiations choosing a Speaker.

There were three criteria by which chairs were chosen. Seniority, Geography and Loyalty. That was the way it was done. It was also the reason that Councilmembers almost always voted against legislation sponsored by Councilman Robert F. Wagner, Jr. or me, even though they told us they agreed with the proposals. Every vote taken, no matter how minor the issue, was a vote for or against the leader’s position. If your vote was not the same as his, you acted at your own peril, and dissent would crush your opportunity to advance in that milieu. Most people in politics want to advance themselves, and they knew the best way to do that was, as Rule 13-G-2 tells us, “Go With the Flow’’. BTW, that Rule is preceded by 13-G-1: “Go to the Source”.

That situation undermines the effects of Rules Reform, to which so many fine people are devoted so passionately. If, when push comes to shove, to coin a phrase, the members of a legislative body will defer to the wishes of their leader, usually because it is in their own interest to do so, then the leader will prevail because the majority rules, except in the United States Senate where 60 votes are required to adopt some measures. The reformers may make it easier for the prisoners, or inmates, to escape from their masters, but unless they can be protected when they return to the fold, few will stray from the party line.

There is an exception to that rule. When it is clear, as in the cases of Senators Espada and Monserrat, that the defection is motivated by self-interest and personal advantage rather than any misconceived notion of principle or desire to appeal to a larger constituency, the defectors will be welcomed back, heaped with honors and their pocketbooks fattened (with state funds for their expanded staff). That may be because Senators better understand actions motivated by greed and ambition, and respect the nerve of those who jumped across the aisle and then successfully jumped back – for a price.

The average politician spends his life pleasing others, in the hope that he will be rewarded with benefits for himself. How bold it is to simply please yourself and your cronies, and leave it to others to clean up the mess if it upsets them. The sixty enablers (62 minus 2) received far lesser rewards for themselves and their staffs. They can only admire the daring amigos who have so far successfully defied the Internal Revenue Service, the Queens County District Attorney, the Centers for Medicare and Medicaid Services, the Campaign Finance Board and any other agencies that may have attempted to interfere with their behavior.

As we did yesterday, we close with a reference to popular culture. In this case, it is the film High Noon (1952) directed by Frank Zinneman. Gary Cooper is the marshal of a small town in the New Mexico territory. A criminal who he sent to prison five years ago has been released and will arrive in town on the noon train. Grace Kelly, the marshal’s wife, wants him to leave town with her. Cooper walks down Main Street recruiting deputies for the anticipated gun fight with the released convict and three gang members. The deputy marshal, Lloyd Bridges, resigns, and all the others around town refuse to help the sheriff.

Cooper must fight the gang alone. This being a movie, he and his wife kill them all. Then he throws his badge to the ground, and he and his wife leave town. This is a great American movie. If any of you have not seen it, get the DVD. You will remember it long after you have forgotten this column.

Who will be New York State’s Gary Cooper? There is no legal matter of greater concern to the public than the integrity of its government. Will the marshal take on this responsibility?


The NY Post opened with the article BIG JOB$ A COUP FOR SENATE DEMS, on p2. In it, Brendan Scott nicely outlines the latest expensive hires in the Senate, three of which are linked to Sen. Pedro Espada Jr., and also compares the difference in salaries between the Republican and Democrat Senators.

The Post also included an editorial on p30 entitled PEDRO’S NEW PIGGYBANK. The piece provides more details about the recent additions to Espada’s staff and the whereabouts money designated to the Soundview Health Center by government sources. Below are a few choice excerpts:

"An Upstate newspaper reports that Senate leaders have already authorized $500,000 in pay raises and new staff controlled by Espada -- much of which has gone straight to veterans of his Soundview Health Center in the Bronx"

"Not surprisingly, Attorney General Cuomo has been investigating Espada for using Soundview as a personal and political piggybank. Now it appears, Espada seems to be doing the same thing with the Senate. Maybe the AG needs to take a look at that, as well."

Kenneth Lovett, of the Daily News, also reported on the new Espada hires. The three new posts were given to Jerry Love Jr, as a special assistant to Espada’s Senate Housing Committee, Marzetta Harris, as an outreach director, and Alexander Fear, as a Housing Committee special council. Their new salaries are $36,912, $60,164, and $35,096 respectively. The article, called ESPADA HIRES COSTING STATE MORE THAN $350G, is on p12.

On p26, the News offers an editorial capitalizing on the sense of shame and injustice New York State residents feel towards their local politicians. The editorial correctly points out that every New York State senator should be blamed for this mess, not just the ones who make headlines like Espada. THE BUMS’ RUSH is worth the read.

Sen. Pedro Espada also appeared in today’s issue of Newsday. ESPADA GOT $350G TO MAKE HIRES AS LEADER reads the headline on pA36. The Associated Press, who covered the story, offer an explanation from the senator himself:

"Espada said the new hiring is for his new district office and for his new role as majority leader. He said overall spending for the majority leader's office is less than in past years."

The Newsday editorial on p32 questions the interests of “big dippers” in the lawmaking world. Assemb. Harvey Weisenberg, (D –Long Beach) is just one example of lawmakers who retire from their jobs and collect their pension, only to return to said job the next day and pick up their fresh paycheck. Legislation has acknowledged this problem by passing a bill to legitimize double dipping only for those earning less than $30,000. You can read the whole editorial by clicking on its complete title, BEWARE THE BIG DIPPERS. Here are some of the most interesting tidbits:

"There's something galling about lawmakers 'retiring' one day, then returning the next to the same job, collecting two checks -- a pay check and a pension check. Whose interests do they have at heart? New York's or their own?"...

"And even if longtime lawmakers' continued service saves the state the cost of a new pension contribution, it also serves to further clog the system with entrenched incumbents."...

Newsday also looked into the whirlwind of lawyers being hired by Senate Democrats. Because word spread that the Attorney General, Andrew Cuomo, will investigate the legality of the June 8 coup and Patterson’s authority to withhold pay in order to convene the senators, many including the governer himself are seeking protection. The cost of all the legal help is estimated at around $60,000. James T. Madore’s story, IN NY SENATE COUP MESS, LAWYERS GET WINDFALL, begins on pA5.

StarQuest #587 08.20.2009 1706 wds

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