Herding Cats

Glory Be. Big Three Agree.

Foresee Albany Tranquility

The Post's front-page headline this morning, PIGS FLY, reflected the skepticism and cynicism that some New Yorkers feel at the report that the governor and legislative leaders had agreed on a state budget five days in advance of the April 1 deadline. The Times' headline was predictably more sedate: ALBANY STRIKES BUDGET ACCORD TO CUT SPENDING. The News' block head was HAMMER TIME, a catch phrase used by '80s rapper M.C. Hammer.

There was some wonderment at the timely bipartisan agreement, considering that the Senate is Republican and the Assembly Democratic. In fact, however, it would have been more difficult to reach agreement if both houses of the legislature had been controlled by the Democrats. In that eventuality, the party leaders would have no one to blame but themselves for their failure to submit entirely to the demands of the interest groups who contribute so handsomely to their campaigns. This way, they can blame the opposition party. Rule 18-X-6 applies here: "The Devil made me do it."

The state budget proceedings are generally fraught with misrepresentation by the participants. How can a ten billion dollar projected deficit disappear overnight without new taxes or new borrowing? The mayor and the governor are in direct conflict, as their predecessors have been for over fifty years or more. The worst battles were between two Republicans, Nelson Rockefeller and John Lindsay.

When one consults experts as to who is telling the truth with regard to financial claims, one is told that the two sets of numbers are both accurate, but are derived from different baselines, and therefore impossible to compare.

The possibility remains that the deal will fall apart over the next few days, as each party tries to derive maximum advantage under the frame of reference agreed upon. In that event, the high popularity of the governor in the polls, combined with the low regard shown for the legislature, should give Andrew Cuomo the upper hand over the refractory solons, a number of whom are ethically challenged.

Conventional wisdom has it that the outcome is ordained by the fact that the State Constitution gives the governor great power over the budget. Speaker Sheldon Silver and former Senate President Joseph Bruno tried to amend the State Constsitution in 2007 to give the legislature power over the governor on the state budget, but their plan was defeated at the polls.

Former Governor Paterson had the same authority that Governor Cuomo has now, but did not make the fullest use of it. There are critical theories as to why this was the case:

l. He was unaware that he had power over the budget.


2. He knew he had the power, but was indifferent to making the effort to use it.


3. He knew he had the power, and he wanted to use it, but did not know just how to do so.

4. He didn't want to upset any of the special interests in the Democratic Party, or be responsible for any budget reductions that would impact negatively any of his perceived communities and supporters.


5. He wanted to use it, but was so grateful to the legislature for not seeking to pursue him for various ethical misjudgments that he did not want to ruffle their feathers by a major disagreement over his authority.


6. Not being a friend and mentor of the Chief Judge, he feared the outcome of litigation over the issue.


7. No longer having available the services of Fr. Charles J. O'Byrne, his competent and trusted confidant, he feared that his case would not be adequately or professionally pursued.


8. He thought it might injure the Democratic Party to have a public quarrel of this nature with the Speaker.


9. Any combination of the first eight reasons.

In fact, Governor Paterson did affirmatively make use of his Constitutional authority in 2010. He acted after the April 1 budget deadline expired, by sending continuing resolutions to the legislature which included various budget reductions, some of which affected issues of public policy.

If the legislature failed to approve his resolutions, the government would have to shut down for lack of funds, causing some disruption to the public and in effect locking out state employees. Governor Paterson had success with this tactic, which Governor Cuomo is widely believed to be ready to use again to achieve the reductions and policy changes which he, and a majority of the public, generally believe to be desirable.

At this point, the close of his third month in office, Cuomo is off to a healthy start. "Day One: Everything Changes", the slogan of the Spitzer administration, is in the dustbin of history. By his third month, Spitzer was at war with the Senate and the Assembly. It was a war he was not destined to win.

With regard to Cuomo, so far the public likes what they have seen of him. He has handled himself well, speaking with both force and restraint. He was particularly good with regard to the strange intrusion by the Roman factotem into his private life, a 21st century reprise of a 16th century dispute between a pope and a king.

We don't have enormous confidence in the budget data that any politician offers, although by the laws of probability, some set of figures must be more accurate than others. It is said that the only true news in some papers is the obituaries, and the only true budget reductions come when people are separated from the payroll, or when prisons actually physically close. That has not yet come to pass, and we do not wish unemployment on anyone, especially in these difficult times. It is difficult, however, for ordinary people to figure out how it is that multi-billion dollar budget goals are proclaimed to have been achieved while personnel costs remain largely untouched and pension costs continue to rise.

Meanwhile, it is better to see both parties on good behavior than to watch them snipe. Governor Cuomo deserves credit for, at least temporarily, restoring good manners to the Capitol. We hope he stays calm. Remember, the governor proposes, the legislature appropriates, but the governor has the last crack at what the agencies spend. He cannot add to appropriations, but he can subtract, particularly in the event of financial emergency, which we have been told is the present exigency.

FYI, the California state budget deficit this year is estimated at $25.4 billion. We are not alone.

BTW: Former City and State Comptroller Alan Hevesi's sentencing on a felony conviction was postponed today after Judge Lewis Bart Stone sent the case back for assignment to another judge because of a potential conflict of interest between the judge and Hevesi's lawyer. Hevesi pleaded guilty on October 7, 2010. He had resigned as State Comptroller on December 22, 2006, after a prior conviction for an unrelated felony.

Lastly, for information about herding cats, click here.

Shameful, Not Criminal

Judge Kaye Flays Gov. Paterson

But Finds No Crime Committed



The domestic violence scandal that enveloped the Paterson administration last February, and led to his withdrawal from the race for a new term, has turned a corner with the release of a 57-page report from former Chief Judge Judith S. Kaye excoriating Governor Paterson for his intrusion into the case and his disingenuous testimony. Judge Kaye also found fault with the Governor and his lawyers' failure to co-operate with the probe as they had promised.

Nonetheless, the report concludes that the Governor's conduct does not warrant criminal prosecution, and with that conclusion we agree. The governor paid a political price for what he did: the destruction of his candidacy. Of course, to most of us, his candidacy was delusional anyway in the face of a challenge by State Attorney General Andrew Cuomo. The Governor may have saved himself a lot of money and effort by his early (February 26) departure from the race.

Of course, the Governor's actions could be considered as crimes; obstruction of justice, witness tampering, perjury, solicitation, coercion, misuse of state resources and police, breach of his obligation to provide "honest services" to the people of the state. One could go on listing errors of judgment which could be considered crossing the line into criminal behavior.

On the other hand, Paterson did not succeed in coercing anyone, except for the fact that the witness did not show up in court the next day and the charges were consequently dropped. She has recently renewed her complaint, taking the matter to the Bronx County District Attorney, who has jurisdiction. Perhaps the fresh activity is the result of failure to keep promises which may have been made, but a criminal indictment cannot result from such speculation. The Governor did try to persuade the witness not to say anything bad about him, but there is no accusation either of threatening the witness or offering a specific inducement for her not to testify.

The Kaye report also faulted the Executive Chamber for failure to co-operate fully although they had made a public commitment to do so. One example is the considerable delay in the production of documents, which was attributed to work on the state budget, which by now is 120 days late.

What the report basically consists of is a specific public exposition of the entire dreary affair. The decision not to press criminal charges is a matter of judgment. One of the wisest things a prosecutor can do is know when not to prosecute a case even though the defendant's conduct may be less than exemplary.

The matters not adjudicated - the World Series tickets and the Aqueduct racino - are potentially more serious. We can assume that Paterson was mistaken in his account of the tickets, and did not intend to pay for them unless he had to.

But the billion-dollar Yankees should have had the good grace to invite the Governor and his young son to be their guests at the opening game of the World Series, rather than to have him scramble for admission. If a team charges enough, cadging a ticket to the game could be called grand larceny. The following quatrain, whose author is anonymous, dates back three centuries. It may have some relevance to the issue of ticket pricing.

"The law doth punish man or woman
That steals the goose from off the common,
But lets the greater felon loose
That steals the common from the goose."

As to the Aqueduct racino, that too was not within Judge Kaye's scope of work.

It is the most serious of the three integrity issues, and the main reason that it may not be a crime is because the transaction was not consummated.

There are numerous reasons to object to the plan, among the most sensible is that it is an enormous waste of 192 acres of urban land. Donald Trump once put up a sign on West End Avenue at 61st Street, in front of property he owned at the time. It read: "Respect this land. They're not making any more of it."

The racino scheme deserves an article of its own, which it will receive. Suffice it to say at this time that this is one case in which the ends and the means are equally indefensible, and regardless of who ends up with the contract, the plan itself is for what we believe is an unworthy purpose, and is highly unlikely to bring any significant benefits to the surrounding community, as we should have learned from the example of Atlantic City.

Judge Kaye took over fifty pages to describe a pattern of lies and evasions in an attempt to cover up David Johnson's violent assault on Sherr-una Booker. Anyone who believes she made up the allegations should proceed directly to the Brooklyn Bridge, where a nice man is waiting to sell it to you.

The governor's motive in all this was to try to save his main man. He had previously suffered the loss of former Rev. Charles O'Byrne, who had neglected to file income tax returns for five years. Father O'Byrne, an intelligent and decent man, escaped a prison term but was required to leave the governor's service. He had a different variety of ill luck with regard to David W. (D.J.) Johnson, his body man who advanced in influence over the years.

It would not be in the interest of the state or its people to subject its outgoing governor to a sensational show trial. A similar wise decision was made in the case of Paterson's predecessor, Eliot Spitzer, who could have been tried but was not.

It is a wise district attorney or attorney general who knows when to prosecute and when to leave a case alone. Andrew Cuomo showed wisdom in recusing himself and appointing Chief Judge Kaye, and the judge played a constructive role by demonstrating the governor's misdeeds and then letting him off the hook.

The show is not over. It is now up to District Attorney Robert Johnson of the Bronx to decide whether to prosecute David Johnson for his alleged assault on Sherr-una Booker. If he does, we will follow the trial. We would expect a plea bargain, but sometimes things just don't work out, as in the relationship between Johnson and Booker. One cannot blame Ms. Booker for involving the Governor in this mess; it was his minions, and then himself, who called her with encouragement.

CORRECTIONS

As a number of our readers pointed out, there was a typographical error in our article, "Albany Mulls Sale of Wine…" The first sentence in the sixth paragraph shoud have read: "This issue is clearly presented in Governor Paterson's proposal to allow the sale of wine in supermarkets, on payment of a licensing fee to the state." We erroneously typed 'liquor stores' instead of 'supermarkets.' Of course, wine is already sold in liquor stores. We thank Allen Bortnick, Joe Jansen, Arthur Engoron, Ed Silberfarb, Jonathan Piel, Mary Ann Jones, Jeffrey Sussman, Bill Foote, Ernest Rubenstein, and Kenneth Adams, who called or emailed us to bring our attention to the slip of the pen (or the fingers).

Also in yesterday's article, we erroneously reported that Trader Joe's sells wine in its New York stores. That was based on eyeballing their 14th Street store, which appeared to sell wine. In fact, like any other supermarket or grocery store in New York State, Trader Joe's is not allowed to sell wine in its stores. In 2006, however, Trader Joe's was granted a liquor license for a separate wine store (138 East 14th Street) immediately adjacent to its then-newly opened Union Square location (142 East 14th Street). Since current state law only permits one liquor license per owner, corporate or individual, Trader Joe's has been unable to replicate this scheme at its 12 other stores in New York State. Thanks to Adam Greene, Mary Ann Jones, Roger Herz, Teresa Hommel, Jim Grossman, and Judy Bliss for pointing out our mistake.