By Pete Kotz
By Michael Musto
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By Capt. James Van Thach told to Jonathan Wei
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In Sunday's Times, Attorney General Eliot Spitzer, who has resorted to every imaginable anti-education argument in a four-year effort to defend the state's discriminatory school-aid formula, tried to re-position himself as an advocate for remedial equity. It was a somersault so instant and artfulfollowing a five-to-one Court of Appeals finding in June against Spitzer and the formulathat it won Olympian scores for a brilliant maneuver in the 2006 gubernatorial sweepstakes the same week that the Post reported Rudy Giuliani might also run.
Under the ironic op-ed headline, "Testing Our Leadership," Spitzer wrote that he wants to "ensure that sufficient money and other necessary reforms" are in place by the end of the year, precisely the opposite of what his top aides argued at the Court of Appeals just six months ago. In that appearance, as well as a year-long losing trial in Manhattan Supreme Court, Spitzer contended that city schools were performing well; that additional funding, lower class size, and more certified teachers would have no impact; and that socio-economic status pre-determined pupil performance anyway.
Responding in the Times to recent criticism about his role in the case (Voice, July 2), Spitzer also insisted that "as chief counsel to the state," he "had a statutory obligation to defend" the formula. It's a claim that flies in the face of a half-century of declinations by every Spitzer predecessor but one, all of whom refused to represent the state in rare, but compelling, circumstances.
Louis Lefkowitz, the Republican AG from 1956 to 1978, broke with his patron Nelson Rockefeller; Democrat Bob Abrams, who served from 1979 through 1993, declined to represent two Democratic governors, Hugh Carey and Mario Cuomo; and Democrat Oliver Koppell also rebuffed Cuomo. The only AG prior to Spitzer to defend the state in every case was Dennis Vacco, who was defeated by Spitzer in 1998. During the campaign Spitzer contended that Vacco was insufficiently independent of Governor Pataki, but Spitzer did not differ with Pataki on any major issue throughout his first term. In fact, Spitzer has been on such friendly terms with Pataki that the governor tried to hire him as his criminal justice coordinator in 1997 and ran a nominal, underfinanced, opponent against him in 2002.
One recent paradoxical recruit for Spitzer is Abrams, who told the Voice that AG's are "dutybound," if "there's a colorable argument," to defend the state. Abrams acknowledged that he had declined at least three times to defend the stateon Westway, an upstate toxic dump, and the creation of a state sports-betting lotterybut he tried to distinguish each from the school-aid case. The betting case, for example, "was a policy issue, not litigation," Abrams contends, though news stories in 1984 indicate that he derided the plan as "unconstitutional" after Cuomo asked him to "prepare a legal defense" of it in anticipation of a court challenge.
Abrams, who does business with Spitzer's office and is a partner in a law firm that was one of the AG's largest donors, says he declined to represent the state on a controversial development plan for the West Side called Westway, as did Lefkowitz because he had publicly opposed the project. Instead of helping Spitzer, that precedent suggests that if he had simply spoken out against the aid formula, he would not have been required to defend it. Cuomo was so frustrated with Abrams approach he called it "weathervane representation" and began taking other cases, such as one involving the Shoreham nuclear power plant, away from the AG, assigning it to his own counsel.
Koppell told the Voice he'd declined more than once, including on the Staten Island secession vote litigation, and a Lefkowitz assistant, Brooklyn DA Joe Hynes, recalled that Lefkowitz "regarded his role as an independently elected official and that he had discretion on which cases he chose to defend the state." Spitzer's office accurately pointed out that Abrams and Koppell had also represented the state in the early phase of the school aid case, but that was only on the preliminary issue of whether a prior Court of Appeals ruling had already settled the issue.
Koppell recalled that Karen Burstein, who won the 1994 Democratic primary for AG, assailed him during the campaign for representing the state in the case. Incredibly, Spitzer has avoided any public criticism about the case until recently, even when he went along with Pataki's decision to add two more years to the near-decade of delay by appealing the 2001 Supreme Court decision.
If Spitzer's acquiescence in the school case was a measure of his first-term nonaggression pact with the governor, nothing indicates his continuing reluctance to take on Pataki better than an unnoticed interview he did with Sam Roberts on NY1 back in May. The veteran Timesman asked Spitzer, fresh from the triumph of his Wall Street settlement, whether Pataki, "if he were the chairman of a publicly traded corporation, would be guilty of deception in talking about his company," namely the state's finances, during the 2002 campaign. "The governor's my client," Spitzer said, "so I am not going to pass that sort of judgment."
While Spitzer was more critical of Pataki's budgetary performance during the Roberts' interview than he had ever been in last year's campaignciting "an air of deception"his comments were more of a gripe than a suggestion of any form of governmental action. Asked if the MTA had deceived riders in the recent fare hike dispute, Spitzer praised "stupendous" State Comptroller Alan Hevesi, whose audit blasted the authority for maintaining two sets of books, perpetrating "a sham," and "blatantly misleading the people it is supposed to serve." But Spitzer said his own assessment was that the MTA failed "to be as complete in its articulation to the public as it might have been," adding that there was "nothing to suggest an effort to really deceive."
Roberts asked the same question about the MTA as he did about the Pataki budget, wondering if it would be guilty of some security violation were it a public company. Spitzer took a pass, saying he hadn't "gone through the books" with "care," but that he was unaware of any MTA memos, like the Wall Street ones, that proved they "deliberately misled." In fact, the standard in state law is "repeated fraudulent or illegal acts," which is what two Manhattan Supreme Court judges found in the MTA cases. Spitzer's much more benign view of the facts was strikingly similar to last week's pro-MTA appellate decision, which his spokesman promptly cited Monday as the reason why he now felt there was "no legal basis" for a suit or even an investigation.
Koppell believes that Spitzer may be the only state official with the legal weapons to force the MTA to change its practices, citing several sections of potentially applicable state law. "I don't see any reason why the AG cannot go after the MTA. It's not a state agency. I looked at the law, I looked at the constitution, and I don't see any barrier to it." With the appellate loss and the failure of the senate to even consider a reform bill passed by the assembly at the close of the last session, a Spitzer suit expanding on the fare-case facts may be the only way to force meaningful change in MTA practices. Hevesi has indicated that he will soon announce new regulations he will try to impose on the authority, but it routinely defied Hevesi's predecessor, refusing to comply with existing regulations.
Spitzer's Wall Street daring, stretching statutes and challenging powerhouses, has made himself a national figure. But in New York, he's been cautious to a fault, taking Pataki positions at odds with his Democratic base. His support of a school aid formula that so disproportionately favors suburban districtsjust as his insistence that the reinstitution of a commuter tax "is not even worth discussing"takes city voters for granted. He has so far managed to make these pragmatic choices without paying any political price in his home base, but a decision to aggressively pursue the MTA, despised in both the city and the suburbs, might be just the right compensation.
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