By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
An administration poised to challenge the culture of the capital will begin, on Day 1, by negating the judgment of 2 million fully informed voters and handpicking a fellow insider to audit its own performance.
A leader who told us he would take on a dysfunctional legislature has decided to instead empower it to impeach, and potentially replace, the state's second-most-powerful executive.
A revolutionary dispatched to Albany with an extraordinary electoral mandate is ostensibly ready to inaugurate his term by putting on trial a man who shared most of itor driving him to resign.
We can be certain of one thing, as unwilling as the new governor will be to admit it: It's not simply because Hevesi failed to reimburse the state for a driver who carted his dying wife on medical and other missions.
Eliot Spitzer is protecting his brand. He's invested millions in his advertising definition. He's spent years in the attorney general's office inventing it. His consultant-created profile underwrote record wins and could conceivably carry him to even higher office. In this universe of commercial calculus, dumping the comptroller is like recalling a Firestone that blew up. It is a cost-of-doing-business price that must be paid to maintain the message.
But Spitzer still has plausible exit strategies that could spare the bloodshed and leave both his image and ethic intact. He could say now that he will await the result of the ongoing grand jury probe by Albany District Attorney David Soares and be bound by it; if no criminal charges are brought, he could conclude that no further action would be necessary. He could point to Hevesi's 17-point re-election, with polls indicating that 92 percent of voters knew all about the banner-headlined charges, and acknowledge that the people decided that the comptroller's positives greatly outweighed his mistakes. He could cite the initial report by David Kelley, the former United States Attorney appointed by Governor Pataki, who found that "the statutory provisions that the Comptroller is alleged to have violated are not criminal." He could ask the legislature to pass a motion censuring Hevesi and, if it were limited to the factual findings against him, Hevesi would probably not oppose it.
If facts and fairness matter, there are at least 10 reasons why neither of the planned Spitzer showsa senate trial or a dragooned resignationshould go on:
1. Hevesi is not a recidivist abuser. His critics, including Senate Majority Leader Joe Bruno, have attempted to portray Hevesi as a repeat self-serving offender by claiming that he'd previously violated city regulations about the use of drivers. In fact, in September 1998, Hevesi, who was then city comptroller, obtained a letter from Michael Hess, the Giuliani-appointed corporation counsel, that unequivocally authorized his wife to use a driver "for health-related appointments." Certainly no ally of Hevesi's, Hess, who is currently a top manager at Giuliani Partners, approved an occasional driver "recognizing [his] wife's serious health problems," contributing to the notion that her grave spinal illness partially justified public transport. Hevesi concedes he turned the "occasional" authorization he got from Hess into frequent use, stretching it, but not violating it.
When Hevesi was running for mayor in 2001, the New York Post filed an information request seeking data on the cost of driving Mrs. Hevesi, and he decided to reimburse the city for it simply to ward off campaign criticism. The Post ran a 450-word story and tough editorial about it that May. None of Hevesi's three opponents ever mentioned it, and no other news media reported it or editorialized about it. Even the Post dropped it after the one-day critique.
Since she was driven by precisely the same driver for precisely the same reasons, the difference between Hevesi's alleged abuse in 2001, which evoked yawns, and his conduct in 2006, which has led to "off with his head" howls, is merely one of degree. He reimbursed the city $6,439 five years ago and the state $82,688 a couple of months ago. Both payments probably fell short of what he owed. Bizarrely, several of the news outlets condemning him now endorsed him either for mayor in 2001 or state comptroller in 2002 after his use of a city driver was revealed. In fact, so did Eliot Spitzer, in 2002 and again, for a while, in 2006.
2. Hevesi cannot be removed based on speculation about his intent. There's no doubt that Hevesi's three-year refusal to segregate approved security-related uses of a state driver from unapproved non-security uses was his w orst error. The State Ethics Commission's original letter about the appropriateness of a driver, written in 2003, required Hevesi to reimburse the state "in those circumstances when legitimate security concerns are not found to be present." Its pre-election report this year, which provoked a media storm and remains the legal basis for any action Spitzer might take, concluded that Hevesi's "failure to keep any record that would allow for proper reimbursement suggests that Mr. Hevesi did not intend to reimburse the State."
"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 clearnow staunchly supported by the reassessment done by staff in the attorney general's officeis 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 citya 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.
5. The commission's findings are politically selective. Its toughest report on a high-ranking Pataki officialan administration that even the Times said was "for sale"resulted in a $2,000 payment in lieu of a fine, made the same month the official was given a $5,000 raise. Paul Shechtman, the commission's chairman, one of its three Pataki appointees, and the prime mover on the Hevesi report, has long provided a handy judicious veneer for the cynicism of the Pataki era, lending his prosecutorial credentials to an administration requiring constant ethical cover. When Shechtman left his staff position as Pataki's criminal-justice coordinator in 1997, the governor simultaneously named him to chair the commission and the panel that screens Court of Claims judges, an almost schizophrenic combination. The nine-year "country club" $136,700-a-year judgeships are an irresistible patronage plum, and Pataki obviously knew he could count on the elastic Shechtman to find a way to stretch the credentials of any hack he wanted approved by the 10-member committee.
Shechtman has not disappointed. His panel has anointed the wife of Monroe County and state GOP chair Steve Minarik, the daughter of the Pataki-endorsing Brooklyn Democratic powerhouse Vito Lopez, and the leader of the Schenectady County Republican Committee. Queens GOP boss and state senator Serph Maltese openly boasted in the Times that he and the county's Pataki-friendly Democratic chair "cooperated" on the 2005 selection of two Court of Claims judges. Amid the controversial slew of recent last-minute Pataki appointments were three lawyers who worked in the governor's office and won Shechtman vacancies, as well as a top deputy who handled patronage hires in the wantonly political office of secretary of state. A former GOP state senator dubbed "Senator Road Rage" by Newsdaywhich said his legendary outbursts had made him "unelectable"was praised by Shechtman's committee for his "temperament" and found "highly qualified" for the bench.
The Post just reported that Shechtman, who also chairs the New York State Lobbying Commission for Pataki, is trying to force out the executive director, who has been a thorn in the side of the legislative leaders and the lobbyists around them. The Voice reported that Shechtman was summoned himself before a federal grand jury investigating Pataki and that another witness, grilled for two days about Shechtman's role in the fixing of state parole board decisions, testified that Shechtman had apparently violated the same ethics provisions he's now applying to Hevesi.
With this sort of résumé, is it any wonder that Shechtman was the driving force behind the most rushed, detailed, and damning report in commission history, issued on the eve of Hevesi's re-election? Unleashed by the unprotected status of the target, Shechtman's snail-like and toothless commission produced its most far-reaching report virtually overnight.
6. The two other Pataki-appointed commissioners are as ethically challenged as Shechtman. That compounds the paradoxical rigidity with which they viewed every misstep the comptroller made.
Robert Giuffra represented Armand D'Amato, who used his brother Alfonse's U.S. Senate letterhead to help a lobbying client get millions in defense contracts. The Senate Ethics Committee found that Armand's lobbying was a "systematic misuse" of the senator's office for "personal gain"perhaps even worse than the assignment of a state driver to a wife with an embedded pain pump who'd repeatedly tried to kill herself.
Of course, the misdeeds of a client are hardly a fair measure of the character of an attorney. But Giuffra's ties to the D'Amatos go way beyond a lawyer-client relationship. Giuffra became chief counsel to the Senate Banking Committee when D'Amato chaired it, and led the discredited Whitewater investigation that attempted to convert Vince Foster's suicide into murder and tie Hillary and Bill Clinton to the death of their dearest friend. He recently negotiated a deferred prosecution agreement with federal prosecutors on behalf of Computer Associates, a company that includes D'Amato as a director. Giuffra also represented longtime D'Amato sidekick Al Pirro in his tax fraud case and Shechtman, who was endorsed by D'Amato for a federal judgeship but never appointed, represents Jeanine Pirro in the ongoing case.
A third commissioner, also appointed by Pataki, Lynn Millane, was the supervisor of Amherst, the largest suburban town outside Buffalo. While she ran the town in 1996, it decided to launch a farmland preservation program, which would use local and state funds to pay property owners not to develop their land. Jason Engel, the Amherst planner in charge of the preservation project, says that the "agricultural district" included a 47-acre parcel owned by Millane when the town designated it under Millane's leadership. "I don't remember a recusal," said Engel.
Susan Grelick, who succeeded Millane as supervisor, agreed that the deal for Millane's property "was in the works" before she stepped down. Since Millane's land hadn't been used for farming in over a decade and was overgrown, it took years for her to collect her $163,000 awardone of several that went to leading Republicans like her. "It has the appearance of impropriety unless there is a policy in place that treats everybody equally," Grelick said, arguing that using the funds to buy greenspace made better sense.
Ironically, Millane, who held top town positions for 15 years, had a bit of a car problem herself. When she was deputy supervisor and did not have a town car, she told a reporter that "as a taxpayer, I'd be unhappy if we did." Soon enough, she became supervisor, got a town car and town gas, and by her own account, never reimbursed the town for any personal use of it. "I only drove it for town business," she told the Voice, conceding she maintained no records of its use. Grelick filed forms for her car, with regular deductions made from her pay. The current supervisor has refused to take the town car altogether, and Millane concedes that when car abuses came to her attention as supervisor, she took no action herself. Amherst comptroller Frank Belliotti says now: "The problem is there's no town policy on it. So there were times where there were two vehicles in the same family, and you had to ask, is that the son or daughter, or husband or wife?"
7. Spitzer isn't transcending personal and political ties in the war on Hevesi; he's bowing to them. He's actually closer to the commission majority that ruled against Hevesi than he is to the comptroller. That's one reason he's so enthusiastically embraced its findings.
Carl Loewenson, who was Spitzer's sole appointee on the commission, was the fourth vote for the report and the only one not handpicked by Pataki (Hevesi's appointee didn't vote). Shechtman, who worked with Spitzer for years in the Manhattan district attorney's office, and Loewenson recused themselves in August when the commission voted on the propriety of Spitzer's service on the board of a family trust overseen by the attorney general's office. Shechtman, who didn't vote because of his close ties to Spitzer, has told people that he declined Pataki's offer to reappoint him to another term at the commission in deference to Spitzer. Sources say that Loewenson, who used to be a prosecutor under Rudy Giuliani, and Shechtman were the leading voices within the commission pushing for Hevesi's head.
Tom Suozzi, the Democrat running against Spitzer who filed the unsuccessful complaint against him, criticized Robert Giuffra for voting to clear Spitzer. Suozzi said Giuffra went to Princeton with Spitzer, lived two floors below him in a building owned by Spitzer's father, and gave $1,500 to his campaign. A commission spokesman responded that Giuffra had disclosed these ties to the commission and that the five "agreed unanimously" that he didn't have to abstain. That meant Shechtman and Loewenson participated in the decision to allow Giuffra to cast the decisive third vote needed for a commission majority, a cozy contradiction suggesting just how Spitzer-friendly the commission is. Indeed, the Spitzer assistant who submitted the trust issue to the commission for quick resolution was Richard Rifkin, the commission's former executive director who left to become a top Spitzer deputy.
Hevesi is the only elected official and, by far, the most prominent state official of any type ever nailed by the commission. It took no action when Pataki's parole board chair was named an unindicted co-conspirator by a federal judge, or when a top state police official took the Fifth Amendment in the parole-selling probe, or when prosecutors announced that their probe of Pataki's scandal-scarred economic czar fell short of criminal charges.
As disturbed as the commission was by Hevesi's self-serving use of state resources, it also did nothing about the $800,000 in architectural contracts awarded to Pataki's in-law and next-door neighbor, which investigators said were a result of "favoritism." Neither did it act on Pataki's failure to disclose in commission filings the costly maid and schlepping services the state GOP was providing his family, or the hiring of the maid's son in a state job, or even the various, sometimes state-connected, consulting sine-cures secured for the governor's wife.
8. Singling out Hevesi on the basis of commonplace car abuse would be a hypocritical high. Senate Majority Leader Bruno, for example, has been ducking and weaving every time his own family's usage of state drivers or cars has come up. Of course, much of the family might belong in state cars because, at one point, four of them were on the state payroll.
His brother Robert quit his $127,500-a-year state drug job when it was revealed that he paid $54,400 to rent office space near his home from the local Republican chairman, and tried to spend $245,000 to fix up a treatment center owned by his next-door neighbor and aide. Bruno's son Ken was, until recently, making $50,000 a month to lobby the senator's aides and colleagues, claiming he never directly lobbied his own dad. Miraculously, the senator wound up again and again agreeing with his son's clients, opposing the West Side stadium, for example, precisely what Ken's Madison Square Garden craved.
When Bruno's 20-year-old granddaughter ran off this August with a man she met through the Internet, he thanked "the quick action of the state police" for finding her in Times Square, attributing her disappearance to anorexia. The state police don't ordinarily lead missing-person searches in midtown, but the illnesses of the family members of some state officials are apparently more equal than those of others. Bruno, who may soon be rounding up the Hevesi votes from other senators whose families have taken a spin or two with state drivers, has done extended interviews denouncing the comptroller's conduct, unrestrained by the fact that he has yet to hear the trial evidence against him.
As justified as Bruno understandably believes the police assistance provided his sick granddaughter was, he's apparently unmoved by Mrs. Hevesi's spinal crack, three back surgeries, open-heart surgery, hiatal hernia, gallbladder surgery, and months in a psychiatric hospital, or by what her husband has described as "the constant fear" he and his children have experienced rushing to the hospital "dozens and dozens of times" because of emergencies involving her.
But the double standard set by any Hevesi removal attempt extends far beyond Bruno and the senate. Spitzer's replacement as attorney general, Andrew Cuomo, who pointedly never endorsed Hevesi, doesn't like to talk about the 29 flights his mother took in a single year on the state helicopters and the plane dubbed "Air Cuomo." Even after it was exposed in his father's final campaign in July 1994, it took Mario Cuomo another year to repay the state $29,000, and the flights went back as far as Hevesi's delayed driver reimbursements. As often as Pataki railed against the flights when he beat Cuomo, he wound up with a more expensive and widely exploited fleet. In Andrew Cuomo's final year as housing secretary in Washington, 25 of his 46 official trips were to New York, where he was already plotting a gubernatorial campaign.
In addition to Air Pataki and Air Cuomo, stories about an Air Bruno have recently emerged. The senator directed a half-million-dollar state grant to a company controlled by a businessman who has supplied a half-dozen free flights to Bruno, his staff, and on one occasion, a member of his family. Incredibly, Paul Shechtman is trying to drive out of office the state lobbying commission director, who uncovered this apparent abuse.
Pataki's wife and state health commissioner Antonia Novello have recently been the subjects of exposés about their use of state drivers, with Novello sighted on shopping sprees. "This is an inappropriate question to ask a guy like me," Bruno protested when first confronted about possible family use of his own car or driver. Novello and Pataki spewed similar non sequiturs. Times columnist Clyde Haberman reported that Arthur Levitt, perhaps Hevesi's most revered predecessor, had a state car and driver pick up his healthy wife at the Brooklyn school where she worked in the '50s and '60s. Maybe the new sheriff of Albany is also considering a posthumous Levitt impeach ment.
9. Spitzer is allowing campaign damage control to frame critical government policy. While he has reportedly told people that he sees Hevesi's removal or forced resignation as an "opportunity" to demonstrate his evenhandedness, it instead has all the earmarks of political pandering, set in stone by a campaign comment designed originally to limit his own collateral damage from the Hevesi fallout. Asked which advisers Spitzer turned to before saying on October 26 that the commission's report "compromises" Hevesi's ability to serve as comptroller, Christine Anderson, who handles press for Spitzer, said it was "the same people involved in other campaign decisions." Pressed by the Voice at a recent New School conference, Anderson said the "compromise" statement went "hand in hand" with Spitzer's disendorsement of Hevesi and conceded it was a strategic campaign decision.
Spitzer, who was being derided by his GOP opponent John Faso for calling Hevesi a "stupendous" comptroller, overcompensated by going beyond dis-endorsing him and implying he was unfit. Anderson's comments make it clear that this judgment wasn't a legal or moral one, but a campaign decision, calculated to protect his 50-point lead. When asked last week if Hevesi could be "an effective comptroller during his next term," Spitzer's response that he had "spoken to that in the past" was an unmistakable reference to the "compromise" quote. He is now turning a damage control face-saver into the rationale for a state trial and ouster of an official reinstalled by the plenary power of a knowing electorate.
Already the governor-elect who genuinely wants to set high new standards of state conduct is sending a confused message. He recused himself from the probe the AG's office conducted of Hevesi's underpayment, presumably because he was too close to Hevesi, but hasn't recused himself from the gubernatorial judgment of bringing the case against Hevesi. His recusal on the AG probe was ridiculous, since all his staff had to do was read a newspaper to find out what he wanted them to do. Their probe of Hevesi aide Jack Chartier's shockingly inappropriate chauffeur services for a starlet is clearly being used to add to the resignation pressures on Hevesi.
Spitzer has had his own gingerly dance with state law, financing his first two AG campaigns with millions from his father. He took six years to fulfill his promise to repay his campaign, and only did so when he got a media call, just like Hevesi. He admitted he was wrong, just like Hevesi. When the new governor takes a moral stand in Albany, as he rightfully did with his self-imposed reform package, he must choose his ground carefully, or sink in its mire.
10. Going forward with a senate trial and replacement will be a colossal mess. A plethora of due process issues could stall proceedings for months or years, as David Kelley warned. While conviction will require a two-thirds vote, including eight Democrats, the GOP majority may, by itself, determine the rules and standard of proof, downgrading reasonable doubt to preponderance of evidence. It may try to adopt the record of the commission, limiting new testimony and cross-examina tion.
The day the Times printed its blind-sourced story predicting that Spitzer would bring the case to the senate, the Associated Press quoted equally blind senate sources saying they already had the votes to convict, before a shred of evidence has been introduced. Won't Hevesi's lawyers want a judge to force the disclosure of the identities of those sources? Won't Bruno's open bias be put before a judge before trial?
Sitting in judgment on Hevesi, if this gets to trial, will be one senator under indictment and another who was fined for using special senate funding to support a charity that employs his wife and ex-wife. Senate cars and drivers will be idling outside while they consider the evidence. Won't Hevesi's lawyers consider every state driver a potential witness? Will the senate, which only meets three days a week and actually has other real business, be forced to drag the trial out for months? Won't all of this diminish and disrupt Spitzer's grander state vision?
And if it ever gets to replacement, that, too, may be a legal mess. Should Hevesi resign under all the Spitzer pressure, the state legislature as a whole will select the next comptroller. The senate went to court to challenge the assembly-dominated process in the early '90s when the comptroller and attorney general resigned, and most senators boycotted both votes. The capital was wrenched by partisan wrangling that undercut budget and legislative negotiations. If Hevesi goes to trial and loses, Spitzer picks a replacement. But what may look now, from Spitzer's vantage point, like a strong stand for probity could turn into a grimy hunt in the senate, trading grants for votes, and a messy succession, with Bruno only agreeing to convict if he gets veto power over the choice of the next comptroller.
Research assistance: Adam Fleming, Keach Hagey, Luke Jerod Kummer, Damien Weaver