Thursday, February 11, 2010

Sequel to Ash Wednesday

Monserrate Sues Over Ouster

Federal Court Will Decide

By Henry J. Stern
February 11, 2010

The expulsion of Hiram Monserrate from the New York State Senate made many people feel better. He is certainly not a gentleman with regard to his lady friend; no one believes his contrived story (that they stumbled on the glass). His arrogant linking of himself to civil rights martyrs of the 1960's is revolting. If the courts are respectful of the legislature's decision on its own membership, they will sustain his expulsion. If they want to flex the muscles under their robes, they will over-rule the Senate. If they want legislative approval of a long-overdue pay increase for themselves, they may defer to the Senate's decision. If they think that they have the authority to give themselves a raise, they may not be so considerate of the wishes of the legislature. Whatever they do will be couched in language to make the decision appear inevitable, based on law and justice.

One aspect of the case that has not received wide attention is the fact that, in the 53-8 decision, all eight votes against expulsion were cast by men. There are ten women Senators, and they all voted to expel Monserrate. Seven of his eight defenders were minorities, the eighth was Carl Kruger of Brooklyn, ringleader of the "four amigos". The four senators who are both women and minority all voted to expel. They are Ruth Hassell-Thompson, Shirley Huntley, Velmanette Montgomery and Andrea Stewart-Cousins. All 29 Republicans favored expulsion (the thirtieth was excused due to illness); the Democrats divided with 24 in favor and 8 opposed. The press reported that, prior to the Senate meeting, the Democratic caucus, in a private meeting, had defeated a motion to seek a lighter penalty by a 16-16 tie vote. Monserrate was not allowed to attend the meeting, but was permitted to cast his vote for what was essentially a wrist-slap of censure with a brief period of probation. If he did it again, he would have a problem.

Governor Paterson has called an election to fill the newly-created vacancy for Tuesday, March 16, which is 33 days from today. Even if the courts sustain the conviction, Monserrate would be allowed to run in that special election, and will surely be the most widely-known candidate in the race. If he is re-elected, the Senate will have to decide whether to seat him. Logically, if his conduct before his first election merited expulsion, why should his re-election make a difference? What if he were a rapist, or a child molester? Is the Senate obliged to seat anyone who is elected, regardless of how obnoxious his previous conduct has been? If they are so obliged, how did they have the authority to expel Monserrate in the first place, based on his actions unrelated to his official duties? A felony conviction disqualifies a sitting senator, but what about a prior felony conviction for misconduct before his election?

The courts will have a serious problem when this case comes before them, starting today. Monserrate's lawyer went to court yesterday, but he discovered that court was closed because of the mini-blizzard. Rule 23-T: "Time and tide wait for no man". Perhaps the practical way to resolve the case would be: There will be an election in four weeks, let the voters decide.

But that is not necessarily the logical solution. If the Senate had the power to remove him for a prior offense, they presumably can do it again if they care to.

On the other hand, if the voters in his district, fully informed of Monserrate's conduct, choose to re-elect him, what right does the senate have to erect its own standards of probity, particularly considering how ethically challenged, violent, brutal, hypocritical or sanctimonious some (but not most) of its members may be?

Seabrook Is Not Unique

City Should Investigate

The Seabrook case involves a serious violation of the public trust. The last paragraph in the text of the US Attorneys ten-page press release on the indictment reads:

"The charges contained in the Indictment are merely accusations and the defendant is presumed innocent unless and until proven guilty."

That is true in a court of law, but not in the press or in the court of public opinion. We remember a recent reference in the New York Post to O. J. Simpson as "the acquitted murderer." We assume he could sue for defamation, but in this country he would probably lose, because he is a public figure under NY Times v. Sullivan, and the Post has a right to express its own opinion as to his guilt or innocence.

The issue remaining in the Seabrook case is: "How many other Councilmembers, aside from Miguel Martinez, who is already in jail, behaved in a similar manner?" Although none may have reached Seabrook's level of appropriation of public funds for personal purposes, it is hard to believe that the other 49 (not counting Martinez) are squeaky clean. Their misdeeds may not warrant formal prosecution by the United States Attorney, but reasonable people surmise that there is a lot more to be cleaned out in the stables of 'discretionary funding'. It is highly probable that there are abuses of power, conflicts of interests, and cases of nepotism in these programs which may not rise to the level of Federal crimes.

We would encourage the competent Commissioner of Investigation, Rose Gill Hearn, to launch a detailed inquiry into all the Councilmembers discretionary funding. The investigation could start by requiring the line by line disclosure of each of these appropriations, listed by Councilmember, to be published on the Internet, so the public would know who gave out the public funds, and what agencies received them. The next step would be to list the employees of those agencies. This will help identify the spouses, children and other relatives, their girlfriends, boyfriends and exes, their financial or life partners, and others whose relationship with the Councilmember goes beyond the norm of constituent and legislator.

We do not necessarily support abolishing these items. That is another issue, and there are two sides to it. We believe that Councilmembers can take valuable initiatives and fund useful programs to meet the particular needs of their districts. The process, however, should be honest and transparent. Member items should not be dependent on the good will of the Speaker, a blessing which is bestowed for political subservience and withdrawn in its absence.

Just as an abused child often grows up to abuse others, it is predictable that Councilmembers who must meet special demands to get member items will in turn require special favors from those whom they reward with the city's tax dollars. A value system based on Rule 21-O: "One hand washes the other." It is not likely to lead to the wisest decisions on public expenditures, even if actual graft, embezzlement or kickbacks are not directly involved.

There is a legitimate problem in drawing the line in these cases, but some of the transactions revealed are so far over the line that they demand the attention of those with the responsibility to oversee the process and its participants.

StarQuest #645 and 646 02.11.2010 1172wds

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