Twisted Spitzer

Note to good-guy governor-elect: 10 reasons to stay Hevesi’s execution

"Suggests" is the right word. This is the critical finding against Hevesi, and even a commission that chose to read every tea leaf in the most negative light had to concede it was guessing. The commission's conclusion that Hevesi "knowingly and intentionally used his position to secure unwarranted privileges for himself and his wife" is not a condemnation of Hevesi's actual use of the driver, since the commission's 2003 letter permitted him to do so. It said that where no security needs or official business was involved, Hevesi should "refrain" from using a driver " or reimburse the state for any costs incurred." So Hevesi's misdeed was a protracted delay in reimbursing the state and, since no one would think that would be grounds for removal, the commission accused him of planning to never pay it back. This is not an absurd inference, but it is, nonetheless, an inference, and that is usually not enough to justify removal. If the district attorney gets beyond the commission's hunch, establishes intent, and indicts, that is grounds for Hevesi's resignation.

3. The commission ignored indications that Hevesi intended to reimburse the state. Walter Ayers, who has been the commission's spokesman since its inception, concedes that Hevesi is the only state official, elected or appointed, who has ever asked for an opinion about the personal use of a state driver. No one believes he's the only state official to ever use one, yet there is, remarkably, no written policy or controls about cars or drivers. A commission given to speculation could've drawn the conclusion that an official who took the unprecedented step of seeking an opinion evinced a de facto intent to comply with it, despite his negligence.

In addition, as the commission almost parenthetically noted, the driver "used the Hevesi family Buick to transport Mrs. Hevesi and she would reimburse him for any gas." Had the commission been otherwise disposed, it could've cited this pattern as a contrasting indication that the comptroller intended to repay, since he conscientiously avoided the incursion of reimbursable costs beyond the driver's time. The commission offers no explanation of how Hevesi could've possibly expected to stiff the state indefinitely, even into another four-year term. What is clear—now staunchly supported by the reassessment done by staff in the attorney general's office—is that Hevesi lowballed the costs he'd incurred. That justifies the high-end, approximately $200,000 price tag recently imposed, which is undoubtedly the most any New York official has ever paid for car or driver services.

4. Removal is inexcusably disproportionate to Hevesi's wrongdoing. As David Kelley ob- served, "not every breach" of rigorous standards justifies removal. "Only conduct that is accompanied by aggravating circumstances" and "rises to a certain level of egregiousness," he wrote, calls for such action. Kelley thought Hevesi's "may very well warrant" removal, but conceded that he could not definitively determine if it did. Kelley even noted that Hevesi was "likely to argue with some force and produce evidence" that, "given the genuine concerns for his wife, the low threat assessment by the New York State Police afforded him a good faith basis to assign a low-level security detail" and that "he acted in good faith by raising the issue."

What we can't know is what Kelley will say the second time around. After Hevesi's re-election, Governor Pataki, who's already stuffing 400 last-minute appointments ranging from the MTA to the Public Service Commission down Spitzer's throat, gave Kelley subpoena power and asked him to look at Hevesi again. This time, sources say, Kelley is on a fishing expedition, calling in the same chauffeur witnesses as the district attorney, but also going far afield, into other Hevesi actions. In addition, the Voice has learned that prosecutors in Kelley's old office in the Southern District have requested the commission's 2,000 pages of record on the driver. As impossible as it is to predict what new charges Kelley will deliver to Spitzer, it's clear that one of the reasons he and others are still searching is that the evidence of "egregiousness" found by the commission is very thin.

The aggravating circumstance that Kelley found "most troubling" in his November report was the supposed indications that Hevesi tried to conceal "the true nature" of the services provided to his wife from the commission. Even Kelley concedes that the evidence merely "suggests an attempt to conceal," and his list is hardly persuasive. He says Hevesi failed to tell the commission that he'd previously reimbursed the city—a tough secret to hide from anyone who can do database searches for news stories. He says Hevesi failed to tell the commission in 2003 that his wife was already receiving the aid of a driver, though the comptroller's and the commission's initial letters referred specifically to Hevesi's efforts to "continue" providing "transportation" for his wife. There would have been almost no way for the commission to find out Mrs. Hevesi had a driver had her husband wanted to keep it secret. He's the only state official to ever volunteer it.

In a city whose former mayor had a full police detail guarding his mistress before 9- 11 and 18 months after he left office, it is just not possible that Rudy Giuliani could be the most admired public figure in America while Alan Hevesi could be driven from office.

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