US District Attorney Preet Bhara (photo: Bryan Smith, NY Daily News)
When U.S. Attorney Preet Bharara was asked about his investigation into Governor Andrew Cuomo's now-defunct Moreland Commission on Public Corruption last month on The Charlie Rose Show, he gave what can be seen as a stern assessment of good governance efforts in New York.
"Our interest above all other interests is to make sure that the job is getting done - because we are the people who do our jobs," said Bharara of rooting out corruption.
Bharara's comments could be taken as a critique of ethics enforcement and reform in Albany as a whole as all of the state's agencies and other entities that can police political corruption appear restrained or restricted from actually doing the job. Thus, Bharara's federal office enters yet again to pick up the slack.
It was not supposed to be this way. When Governor Cuomo empaneled the Moreland Commission and had Attorney General Eric Schneiderman deputize its members, promises were made of finally purging systemic corruption in Albany and reforming the broken systems that have helped make it so rampant. But, this was not to be, much to the disappointment of many, including, it seems, the hard-charging Bharara.
It is a sentiment that a number of good government advocates echo full-throatily. They say despite years of incremental progress on ethics reform and corruption fighting, Albany's power brokers still refuse to give up control of the bodies that are supposed to be policing them.
"We've wanted something that was extraordinarily independent," said Barbara Bartoletti of The League of Women Voters about the Moreland Commission, to which she served as an advisor. "That is what we wanted from JCOPE and the Board of Elections [as well], but it's not what we got."
Bharara himself has said he cannot do it all, noting that he thinks the situation will only really change when the public is frustrated enough. For now, though, it appears that Bharara's office is the only agent of change seriously taking on public corruption.
With the focus on how much control Gov. Cuomo and his top aides may have exerted on the Moreland Commission, good government experts say it is time for New York to take the restraints off of its ethics enforcement by giving independence and teeth to existing checks on corruption.
Both Blair Horner of The New York Public Interest Research Group (NYPIRG) and Dick Dadey of Citizens Union say they hope the recent focus on Moreland leads to reforms at the Joint Commission on Public Ethics (JCOPE) and renews efforts to give the Attorney General (AG) real power to investigate corruption in the legislative and executive branches.
"The silence from state-based watchdogs is unsettling," said Horner, who noted that neither the AG nor JCOPE has commented on whether they are investigating allegations of the governor's interference with the Moreland Commission. "Is JCOPE engaged? We don't know. While the silence is unsettling it also adds to the conversation about oversight in Albany."
Dadey said that "JCOPE must be unshackled and unleashed," while the Attorney General should be "given the power to investigate corruption that Schneiderman's office has asked for and that Governor Cuomo called for when he was Attorney General."
Why is it that a U.S. District Attorney is the leading scourge of corruption in New York's state government? New York's ethics bodies don't exactly have a history of headline-grabbing corruption busting. Bharara is responsible for indicting state Senator Malcolm Smith in his alleged scheme to bribe his way onto the Republican ticket for New York City mayor, as well as the indictments of Assembly Member Eric Stevenson, Council Member Larry Seabrook, and the successful prosecution of Sen. Carl Kruger for his involvement in a massive bribery ring.
According to many state government experts, the fact is that Albany's checks and balances were simply built to fail because state electeds are so loathe to give away any real power to ethics enforcement agencies no matter what form they take. When Moreland was alive and active, it seemed to be getting somewhere real in terms of identifying areas in need of reform and ongoing abuses of power. But, it was quashed as it was gaining momentum.
Experts point to the failure of Cuomo's Moreland Commission on Public Corruption as a microcosm for what prevents every other ethics-related entity or elected officials themselves from actually effectively policing the integrity quagmire that is Albany. "No one in Albany truly wants to let go of the strings," said Horner. "The [New York] Times' reporting shows the governor was very hands-on in dealing with Moreland and raises suspicions about how much influence he has on other bodies, including JCOPE."
A quick accounting of the state's major bodies tasked with enforcing ethics, controlling corruption, and generally policing elected officials reveals numerous agencies or offices that either lack the power to investigate and enforce state law or that are neutered by their political nature - hamstrung by commissioners and appointees given their jobs by the very people they are supposed to be monitoring.
Horner points out that JCOPE is the only state ethics watchdog he knows of that allows a legislative veto of investigations. It is also populated with appointees who owe their political lives and employment to the Governor and Legislature.
"We really need a cooling off period between employment in the Legislature or Executive before becoming the executive director," said Horner of JCOPE leadership. Cuomo's first choice to head JCOPE was his inspector general Ellen Biben, who had previously worked for him in the attorney general's office. Biben then left JCOPE in 2013 and was replaced by former Cuomo aide Letizia Tagliafierro.
JCOPE has faced major scrutiny over its votes to investigate the handling of the Vito Lopez sexual harassment scandal and Assembly Speaker Sheldon Silver's decision to use state funds to settle a lawsuit against Lopez.
"Like with anything in politics the question is: 'How do you select anything and make it truly independent?'" said Bartoletti. "You want strong, independent appointees, but they are ultimately appointed by the Governor. You have to look at the degrees of distance between the leadership on something like JCOPE and the Governor's office. Transparency is key, but that is nothing the Legislature or Governor wants."
Bartoletti said that commissions like JCOPE need independent leaders and members with the kinds of reputations that would shield them from influence and pressure. Bartoletti suggests that former Appeal Courts Judge Judith Kaye would be an ideal person to head a truly independent ethics watchdog.
Empowering the AG
Cuomo promised during his 2010 campaign that he would issue the AG a blanket referral to investigate corruption in state government. The AG is limited in his ability to investigate the Legislature and the Executive because of the separation of powers in the state constitution and the fact that the AG is the state's legal defender. But, a blanket referral would unleash the office to seek out corruption broadly - none has been issued, though.
The comptroller, Thomas DiNapoli, and AG Schneiderman have partnered to follow abuses of state funds and have secured cases against legislators, but even with combined powers they do not have the authority to undergo a systemic review. Advocates and some legislators continue to point out that the goal is not necessarily to continue to nab the occasional crook, but to reform the system to prevent dirty behavior as much as possible.
Both bodies of the state Legislature have ethics committees which according to numerous sources are controlled with an iron fist by legislative leadership and usually only utilized for political reasons - see the Assembly's handling of the Vito Lopez scandal.
JCOPE is the latest iteration of a state ethics commission, but it is controlled by legislative and gubernatorial appointees who can easily quash investigations. At least two of the eight or more members of the panel who must vote for an investigation have to be legislative appointees.
To boot, JCOPE gets to carry out its votes and investigations in complete secrecy because it is not subject to freedom of information or open meetings laws. Since the start of its mission in 2012, most of JCOPE's public activity has centered around voting to allow certain groups to hide the list of their contributors. The agency collects information on outside income from elected officials, but it is unclear how much of what is submitted JCOPE actually verifies.
The Inspector General (IG) is a little-heard-from office that is appointed by the Governor. The IG's office is tasked with ensuring state employees and those who do business with the state don't abuse their positions. The office turns out a stream of investigations into what insiders call "little fish" employees or small contractors who have abused state resources, but the IG has not made major cases against legislators or members of the Executive.
The comptroller's office oversees state spending and has partnered with the AG's office to further investigate abuses of state funds, but according to a number of sources the comptroller's office has faced major resistance from the Cuomo administration on the kind of spending it is supposed to oversee.
The State Board of Elections is supposed to enforce election law, but it has all but refused to engage on the simplest of enforcement actions against candidates and donors that fragrantly break the law. The Moreland Commission held a hearing dedicated to embarrassing the political appointees who run the agency for not allowing any real investigations to take place. The board is headed by a Republican and Democratic chair.
The Albany County District Attorney's Office has jurisdiction over crimes committed in Albany and early in the tenure of current DA David Soares it looked like the office would combat political corruption. Soares successfully prosecuted Comptroller Andrew Hevesi for using state employees to chauffeur his wife and do other personal tasks for him. In 2007 Soares and then-AG Cuomo announced a partnership to fight corruption in Albany whereby Cuomo would give Soares the resources he needed and Soares would basically lend the AG his jurisdiction. However, the partnership evaporated after the two offices issued competing reports on Eliot Spitzer's involvement in the Troopergate scandal. Sources who were in Soares' office at the time worried that Cuomo was looking to use their jurisdiction as a political tool. Since then Soares has claimed his office simply doesn't have the resources to police Albany and prosecute crime in Albany County.
Soares served as a member of Cuomo's Moreland Commission and according to reports and sources the panel was set to refer a number of cases to his office before the Cuomo administration put a kibosh on that plan. Soares' office declined to comment on this or the failed 2007 partnership with Cuomo. However in previous interviews with this reporter from 2008 Soares cited concerns about the "independence" of his office as a reason for his partnership with Cuomo not materializing.
The U.S. Attorney and Beyond
Dadey and Horner say they expect that no matter how much better Albany gets at policing itself the U.S. Attorney will always be making cases against Albany electeds. "It may make the fruit he goes after less low-hanging, but I don't think the U.S. Attorney is going to stop until his term is over or Albany is cleaned up," said Horner.
Dadey said that any U.S. Attorney, be it Bharara or another, will have an advantage over state regulators as federal statutes are stronger and give Bharara the tools he needs to go after larger cases. But Bharara made it clear during an interview on Thursday that the public needs to get involved and hold its elected officials accountable on ethics and corruption because even he can't keep up with the current rate of corruption in Albany.
"The public should be frustrated that it keeps sending to Albany, and to other elected places, people who disproportionately are breaking the law and are violating their oath to uphold the public trust," Bharara told NY1 anchor Errol Louis on Thursday. "And only when the public gets frustrated enough - because this is not a problem that prosecutors can alone solve, and I've been saying that for a long time - and only when the public gets frustrated enough, I think, will you get some kind of reform in Albany and in other places where reform is needed."
by David King, Albany Editor, Gotham Gazette
Note: Gotham Gazette is an independent publication of Citizens Union Foundation, the sister organization of Citizens Union.