Gotham Gazette Wed, 05 Aug 2020 14:07:10 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) State Board of Elections Curtails Power of Enforcement Counsel gov and cuomo coughlin votes

(Photo: Kevin P. Coughlin/Office of the Governor)

The State Board of Elections voted on Wednesday to hobble the subpoena powers of Chief Enforcement Counsel Risa Sugarman, dealing a significant blow to one of the state’s only election law watchdogs.

The new rules, which were voted on by the board at a commissioners’ meeting in Albany, would require Sugarman to obtain permission from the board members (two Democrats, two Republicans) for each subpoena she plans to issue in a probe, and for the “circumstances of the investigation” to be divulged to the members. Previously, the board approved Sugarman’s ability to make subpoenas in probes, but she was given latitude to make individual subpoenas within a probe.

The new rule also requires that Sugarman provide regular reports to the board members detailing metrics related to her investigations, and for investigations to be limited to six-month timeframes. Sugarman is the first and only person to hold the relatively new position at the board.

She has, in the past, criticized the proposed rule changes as being designed to hobble the powers given to her in 2014, after Governor Andrew Cuomo and Legislature passed a law designed to depoliticize the BOE’s enforcement process.

"These amendments would allow the politically partisan commissioners of the SBOE to impose their own political will on the independent chief enforcement counsel's investigations," Sugarman said in a June letter to the board, obtained by the Albany Times-Union.

The final vote on the measure was 3-1 in favor, with Democratic appointee Andrew Spano dissenting. Before the vote, Sugarman provided sharply critical testimony wherein she accused the board members of attempting to hobble a crucial state watchdog.

“By your vote today, you will send a message,” she said, saying that a “yes” vote would stand for partisan intervention into independent oversight, while a “no” vote would stand for “fair and complete investigations.” Sugarman said that the rescission of unmitigated subpoena power, as well as reporting requirements and a six-month timeframe for investigations, would hobble the enforcement counsel’s ability to fairly investigate campaign finance violations.

Sugarman claimed that the regulations would slow the pace of investigations by requiring approval of subpoenas by the BOE, and would hinder the independence of the investigation by needing approval from partisan appointees. In effect, the commissioners, not the enforcement counsel, would “control the course and content of an investigation,” she said.

Sugarman brought up supporters of her fight against the new regulations: seven state residents who submitted public comment, gubernatorial candidate and former Syracuse Mayor Stephanie Miner, the Office of the New York Attorney General, good government groups Reinvent Albany and Rochester for All, five members of the former Moreland Commission to Investigate Public Corruption, three District Attorneys, and attorney Milton Williams.

“Gutting the Enforcement Counsel’s authority and independence will only serve to encourage more corruption in New York,” Attorney General Barbara Underwood said in a statement. “Our partnership with a strong, independent Enforcement Counsel has allowed us to hold public officials to account for breaking campaign finance laws and cheating New Yorkers. With today’s vote, that work is jeopardized by potential political interference in law enforcement investigations.”

Governor Cuomo, too, opposed the new regulations, expressing his opinion just before the board meeting, though it had been sought for weeks.

“‎We reviewed these draft regulations and believe they are unnecessary and ‎could harm the operations and the independence of the enforcement counsel's office,” Cuomo spokesperson Tyrone Stevens said in a statement on Wednesday morning. “We don't support their adoption and, believe that today's vote should be delayed and members should go back to the drawing board to address these concerns. The Democratic members of the Board of Elections have been informed of our stance."

Spokespeople for Democratic Assembly Speaker Carl Heastie and Republican Senate Majority Leader John Flanagan did not respond to requests for comment.

The enforcement counsel was created to independently deliberate election law violations, instead of leaving the job to the partisan board of elections. After Cuomo faced intense controversy for his shuttering of the Moreland Commission, interpreted by many as a reaction to investigations into his administration or people close to him, he and legislative leaders Sheldon Silver and Dean Skelos (both now convicted of public corruption) fostered the creation of the enforcement counsel as a compromise.

Regardless, the members of the board criticized Sugarman, saying that her office was inadequately enforcing campaign finance law. Douglas Kellner, the Democratic co-chair of the board, said that enforcement had “effectively stopped” since 2014, the year the enforcement counsel was created, in the areas of deficiencies and non-filings of campaign finance disclosures.

Kellner and other board members said that despite thousands of referrals to Sugarman, only a few dozen hearings had been commenced.

“It’s beyond me why there has not been public outrage at the fact that this has happened,” Kellner said, singling out good government groups for a lack of criticism. Kellner said that he had spoken to good government groups who were in support of the new rule, but did not say which ones.

"I think it's pretty clear that I'm fed up with the current process of the enforcement unit,” Kellner said. “I call upon people in the good government look at the numbers. Look at the numbers of non-filers, and to how enforcement counsel has handled those non-filers."

One of those government reform groups, Reinvent Albany, issued a statement Wednesday expressing opposition to “the sections of the proposed rules which create new procedures for the chief enforcement counsel to issue subpoenas to persons and committees being investigated for violations of Election or other laws.”

“We believe these procedures will slow or terminate important investigations of alleged violations of Election Law,” the statement continues. “The Board should not seek to undercut the independence of the chief enforcement counsel, who has investigated types of cases not previously taken on by the Election Law enforcement unit of the Board.”

Reinvent Albany supports, however, “the sections related to reporting enforcement activity but believe reporting should be made public and expanded to include all aspects of compliance and

enforcement by the State and county boards of election. The Board currently does not report much, if any, compliance and enforcement activity to the general public, and it should do so as is done by other state agencies while respecting the rights of the accused.”

Republican co-chair Peter Kosinski said that the six-month timetable was necessary in order for voters to know who they were voting for, and whether they had not committed election law violations; Sugarman had earlier said that the timeframe was “arbitrary.”

However, Rockland County District Attorney Thomas Zugibe, who submitted testimony against the new rule, said in an op-ed for loHud in July that board members had admitted in 2013 to only undertaking a single probe in the preceding four years. According to the 2015 Board of Elections annual report, Sugarman received board authorization to seek subpoenas in 19 probes in 2015, with nine cases being referred for possible prosecution. The 2017 report noted that Sugarman had received subpoena authorization in four cases and referred one for prosecution.

The 2013 annual report, before the enforcement counsel position was created, lists no subpoenas or prosecutions.

The board also voted on Wednesday to implement new regulations on political advertising on social media platforms, rules that follow the adoption of a new law passed in this year’s state budget. The new rules will ban foreign entities from purchasing digital ads on social media platforms, and will require ad buyers to register an independent expenditure committee; the board will require that IE’s name be displayed prominently on the ad, as having paid for it.

by Ben Brachfeld, Gotham Gazette

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State Board of Elections Curtails Power of Enforcement Counsel Wed, 08 Aug 2018 04:00:00 +0000
De Blasio Could Still Face Penalties in State Senate Fundraising Investigation de blasio crane shadow

Mayor de Blasio (photo: Edwin J. Torres/Mayor's Office)

Manhattan District Attorney Cy Vance recently concluded his investigation into the effort by Mayor Bill de Blasio and his aides to funnel campaign funds to Democratic state Senate candidates in 2014. Vance did not bring any charges in the case, writing in a ten-page letter to the state Board of Elections enforcement counsel Risa Sugarman, who had referred the case for prosecution, that “the parties involved cannot be appropriately prosecuted, given their reliance on the advice of counsel.”

But, Vance’s decision did not entirely vindicate the mayor. He criticized de Blasio and his team for their actions that “appear contrary to the intent and spirit of the laws,” and also wrote that his decision “does not foreclose the BOE or others from pursuing any civil or regulatory action that they determine might be warranted by these facts; such a remedy might well provide guidance to those involved in the electoral process.”

Vance’s investigation -- which ran parallel to a federal investigation of the mayor’s fundraising and City Hall behavior that also concluded with no charges filed -- delved into whether the mayor and his aides had solicited and directed campaign contributions far in excess of election law limits to individual candidate committees, using county committees as intermediaries.

At the behest of de Blasio and his associates, large donations were made to county committees, which can receive up to $102,300 from an individual, union or LLC, instead of directly to candidate committees, which can receive a maximum of $10,300. County committees can give unlimited funds to candidate committees. The money was funneled to a handful of Democratic candidate campaigns in swing districts, and largely used to pay hefty consulting fees to firms with close links to de Blasio, including BerlinRosen, AKPD, and Red Horse Strategies.

Vance’s office could not make a case for prosecution beyond a reasonable doubt, in part because of the legal advice de Blasio and his team had received that gave them the go-ahead for their maneuvers. But the BOE has a lower burden of proof for its own enforcement actions, which include civil penalties reaching thousands of dollars.

[Related: De Blasio and Aides Won't Face Charges in Dual Investigations]

Under state election law, the BOE chief enforcement counsel could potentially refer a case to a hearing officer who could then determine whether “based on a preponderance of the evidence” an individual, on behalf of a candidate or campaign committee, had committed violations of the law. Based on the hearing officer’s report, the case could be settled out of court or the enforcement counsel can initiate a special proceeding in state supreme court to obtain a civil penalty.

“The Board of Elections now does have the opportunity to determine whether or not there was a violation of the rules governing campaign activities,” said Dick Dadey, executive director of Citizens Union, a government reform group that has long called for closing holes in election law. “It is up to them now to determine whether there was a violation of the rules and whether or not to determine fault and to assign penalties based on this investigation.”

Vance’s investigation found that individual contributions and transfers complied with regulations. But viewed as a whole, they showed a pattern that implied a coordinated effort to circumvent the law. “The flow of money from donor to county committee to campaign committee to consultant often occurred within days,” the DA’s letter to the BOE reads. “In most cases, the time from donation to payment of a consultant invoice was so short that the only reasonable conclusion is that the Coordinated Campaign had pre-determined the ultimate recipient of the funds at the time the donation was solicited.” (The “Coordinated Campaign” referred to de Blasio’s team.)

The DA’s conclusions were similar to those that had spurred Sugarman’s referral.

Vance noted, for instance, that the Putnam County Democratic Committee received just over $671,000 in contributions in 2014, and within days transferred more than $640,000 to authorized candidate committees of Terry Gipson and Justin Wagner, two Democrats attempting to swing Senate seats. The most contributions that the PCDC had received in the previous five years was about $39,000 in 2012. The two committees associated with Gipson and Wagner “almost immediately expended virtually all of the funds on political consultants,” Vance wrote.

When the BOE’s letter referring the matter for prosecution leaked in April last year, the mayor alluded that it may have been politically motivated. Sugarman, the enforcement counsel, is an appointee of Governor Andrew Cuomo, who has a long-running feud with the mayor. At a news conference, the mayor said, “In this instance, there is an obvious question mark around that memo that was leaked to the press and real questions about motivation and obviously huge questions about accuracy in terms of the law.”

At a news conference on March 17 of this year, when Gotham Gazette asked if he was concerned about the matter being referred back to the BOE and his prior allusions about it being politically motivated, de Blasio refused to comment. “I’m not going to speak to that,” he said. “I think what I’ve said in the past speaks for itself.” De Blasio’s campaign spokesperson declined to comment for this article. The mayor has all along insisted that he and his associates acted ethically and legally, and de Blasio disputed Vance's characterization that his team violated the spirit of the law.

“I don’t think there’s any lack of will” for civil and regulatory action by the BOE, said Sarah Steiner, an election lawyer. Steiner did not address the de Blasio case in particular, but she said, “If there was a referral to a prosecutorial agency and then it was kicked back to the Board of Elections, we would have no way of knowing [its status] because it is confidential.”

She also said that routine criminal prosecutions by the BOE are “fairly new” and have not been “well executed.” She added, “I don’t think their discretion is well used.”

The enforcement counsel position at the BOE was created in 2014 as part of a deal on ethics reform between Governor Andrew Cuomo and state legislators, part of the governor’s controversial decision to shut down the Moreland Commission to Investigate Public Corruption. (This decision was itself investigated by U.S. Attorney Preet Bharara’s office, which determined it had not found sufficient evidence to charge Cuomo or his associates with a crime.)

It’s unclear whether the BOE will indeed move forward with any enforcement procedures in the de Blasio matter, or who the target of that enforcement would be. BOE’s Sugarman did not respond to requests for comment.

After an Inspector General for the BOE identified John Conklin, a Republican BOE spokesperson, as the source of the leak, Sugarman and Cuomo both called on the mayor to apologize for his remarks. “Allegations were made primarily by the New York City Mayor that I leaked the report due to political motivations,” Sugarman told the New York Post, in a statement. “Now that we know the facts, I hope the mayor will apologize for maligning my integrity and professionalism.”

De Blasio never apologized and stood by his remarks, which he again confirmed in recent weeks.

The election law states that a person who wilfully accepts illegal over-the-limit contributions would be required to repay the amount that exceeds contribution limits, and can face a civil penalty equal to that excess amount and an additional fine of $10,000. But, in de Blasio’s case, the candidate committees that benefited from the campaign contributions were not known to be the subject of investigation and appear to have acted within the law in receiving hundreds of thousands of dollars in campaign contributions from county committees.

“I’m not sure who would be penalized,” said Dadey from Citizens Union, “because often times it’s not the candidate but the committees that get penalized. So there could be some state Senate candidate committees that could be at fault as well because the mayor’s political team’s activities were there to support the candidate committees.” All of the candidates de Blasio’s team supported lost in 2014, and efforts by the mayor and his associates to flip the Senate to Democrats failed.

“I’m not sure what the Board could do,” Dadey said, “but it’s important that they at least review the analysis of the investigation conducted by the district attorney.”

by Samar Khurshid, senior reporter, Gotham Gazette

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
De Blasio Could Still Face Penalties in State Senate Fundraising Investigation Tue, 04 Apr 2017 04:00:00 +0000
State Senator Calls for Investigation of Opponent's Campaign Finances Rivera

Senator Gustavo Rivera (photo: Senate Democrats)

A state Senator from the Bronx is calling on the state Board of Elections to investigate a former opponent’s campaign finances for violations.

Senator Gustavo Rivera, a Democrat, alleges that the Senate campaign of Fernando Cabrera, a New York City Council Member, committed multiple violations in the Democratic primary for the District 33 Senate seat last year. In a Feb. 28 letter to the state Board of Elections, Rivera’s campaign attorney, Sarah Steiner, noted the alleged violations and asked for updates on the status of three previous requests the campaign has made to look into earlier alleged violations.

In the letter, which was addressed to state BOE chief enforcement counsel Risa Sugarman and was made available to Gotham Gazette by the campaign, Steiner identified the new alleged violations by Cabrera’s Senate campaign, including a failure to file a 10-day post primary disclosure and a January periodic report with the BOE.

The letter also alleges that Cabrera’s City Council campaign filed necessary disclosures with the New York City Campaign Finance Board but not with the state BOE; and that Cabrera’s Council campaign committee transferred $11,000 to his Senate campaign committee, which Steiner alleges exceeds the $7,000 limit for contributions to a state Senate primary campaign. However, that last allegation seems to be dubious since transfers by a candidate from one authorized political committee to another do not count as contributions, according to state election law.

Steiner also referred to earlier requests made to the BOE to investigate whether Cabrera’s campaign had illegally coordinated independent expenditures with New Yorkers for Independent Action (NYFIA), a political action committee that was involved in four Democratic primary races last year.

“This person has a history of violating campaign finance laws and skirting ethical boundaries left and right,” said Sen. Rivera, in a phone interview, of Council Member Cabrera. Cabrera has unsuccessfully challenged Rivera in two straight election cycles, in 2014 and 2016. Rivera’s move was prompted by the recent news, reported by the Daily News, that the BOE had recommended criminal prosecutions in five cases last year. Although it’s unknown which specific campaigns were involved, Sugarman told the Daily News that they covered “a more wide-ranging group of violations” than the nine prosecution referrals she made in 2015.

BOE’s Sugarman declined to comment for this article.

That Rivera has chosen to publicly call out his opponent is not surprising. The primary race for District 33 turned bitter at times, particularly with NYFIA criticizing Rivera’s record and seeking to link him with the culture of corruption in Albany. Rivera, for his part, criticized Cabrera as a political opportunist and blasted his conservative leanings on issues such as abortion and marriage equality.

In a statement to Gotham Gazette, Cabrera refuted the allegations in Steiner’s letter. “My campaign meticulously complied with all rules and requirements established by the New York State Board of Elections,” he said, adding that his campaign was notified that they were in full compliance of election law. “I am disappointed that Senator Rivera continues to invest time and energy in negative campaign tactics post-election, rather than devoting his resources to serving his constituents,” he added. “It’s time for Senator Rivera to get to work and start doing his job.”

by Samar Khurshid, senior reporter, Gotham Gazette

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State Senator Calls for Investigation of Opponent's Campaign Finances Mon, 06 Mar 2017 05:00:00 +0000
Vance Has Ties to Several in De Blasio Probe vance de blasio bratton presser

Cy Vance (front) and Bill de Blasio (photo via The Mayor's Office on flickr)

Manhattan District Attorney Cy Vance finds himself in a unique situation as he takes on the investigation of efforts led by Mayor Bill de Blasio to win control of the state Senate for Democrats in 2014.

Vance has a longstanding political relationship with de Blasio and both share a number of donors. Like de Blasio, Vance is an elected Democrat. They’ve stood together for several policy announcements over the past two-plus years since de Blasio took office as Mayor.

Perhaps the most notable and concerning connection to some is that Vance has also employed two of the political strategy groups subpoenaed in the investigation spurred by the state Board of Elections enforcement counsel, Risa Sugarman, who found problems with the unsuccessful 2014 efforts by de Blasio and his allies to win key swing Senate seats. Specifically, Sugarman pointed to ways in which de Blasio’s allies attempted to evade state campaign donation limits.

City officials confirmed on Wednesday that “City Hall” had been subpoenaed, but said that the mayor himself had not been named. The subpoenas, de Blasio’s counsel said, were from both Vance and U.S. Attorney Preet Bharara. De Blasio has repeatedly insisted that neither he nor his team broke any laws.

As New Yorkers await more information from Vance’s investigation, his political relationship with de Blasio is part of a complicated picture. The two have given support for each other or issued joint statements in at least eight announcements over the past three years. They’ve held at least three joint press conferences and Vance’s office works closely on a day-to-day basis with de Blasio’s police department. Topics Vance and de Blasio have worked on together include prosecutions of bankers, funding to examine rape kits, an overhaul of the city’s summons system, and efforts to get illegal guns off the street.

“The Manhattan District Attorney's Office is an independent agency from the Mayor’s Office, and has frequently conducted investigations and prosecuted cases involving city agencies or employees. We cannot comment on what private firm may or may not have received subpoenas,” Joan Vollero, Vance’s director of communications, told Gotham Gazette in a statement.

People who know the two well stress that Vance and de Blasio are not particularly close personally and note that the mayor has also made joint announcements with Bharara. The U.S. Attorney, who has made rooting out public corruption a mission, made waves earlier this month, telling a crowd, “We will keep looking hard at corruption in our legislative branch, as we have been. But not just there: in the executive branch too, both in city and in state government.”

Meanwhile, state Board of Elections records show Vance’s connection to two firms included in the BOE referral to law enforcement. Filings show Vance’s campaign paid Mark Guma Communications $1,327,351 from 2009 to 2013 for television and radio advertising, political mailers, and consulting.

Mark Guma Communications was subpoenaed by Sugarman in her investigation into what she described as de Blasio’s team’s efforts to intentionally evade campaign finance laws by funnelling donor cash into county committees, which have larger contribution limits, and out to candidate campaigns, which have much lower limits. A subpoena does not indicate charges or guilt.

Vance’s campaign also did business with Red Horse Strategies, which was also subpoenaed in Sugarman’s investigation, to the amount of $25,000 in 2009.

Both firms assisted Democratic Senate candidates in the 2014 election cycle.

To some, these connections simply show the close-knit nature of New York politics, but to others they present reason for Vance to recuse himself in the de Blasio-related investigation.

“Cy Vance seems to be a very straightforward guy,” said Jennifer Rodgers, former assistant U.S. Attorney and current executive director of the Center For The Advancement of Public Integrity (CAPI) at Columbia University. “In the case of any personal involvement I believe he’d be the first to recuse himself. In the absence any personal involvement the fact that New York City politics turns out to be this weird incestuous pool with everyone working with the same consultants says nothing of the independence of Cy Vance.”

John Kaehny, executive director of Reinvent Albany, said he believes the connections are a good reason for Vance to disassociate himself from the case. “Given the sweeping breadth of the investigation into areas touching DA Vance's own political activity - at least two of his own political consultants were subpoenaed - Vance should welcome a complete takeover of the investigation by Preet Bharara,” Kaehny told Gotham Gazette.

Dick Dadey, executive director of Citizens Union, said it was “unsurprising” that de Blasio and Vance used the same political strategists but said it is important Vance proceed “appropriately” and with “integrity.”

Sugarman’s report states:

“Documents were obtained via subpoena from five political consultants involved in these campaigns: Berlin Rosen, LTD., Mark Guma Communications, The Parkside Group LLC, AKPD Message and Media LLC, and Red Horse Strategies LLC. We sought information about work these consultants performed in connection with campaigns for the state senate races of Justin Wagner, Terry Gipson and Cecilia Tkaczyk. Thousands of documents were produced. Review of the documents revealed evidence of campaigns that were coordinated at every level and down to minute details.”

Long-time Board of Elections commissioner Douglas Kellner, a Democrat, said that it was Sugarman who suggested referring the de Blasio case to Vance and that he and other commissioners concurred. “I think he’s very capable and I think he will evaluate this independently,” Kellner said of Vance. Kellner said he thought Vance was appropriate because “his office had two prior cases where he was having to argue that you have to look at the whole transaction, not just the parts.”

Multiple sources tell Gotham Gazette the vote to refer the case was unanimous among the board’s four commissioners, two of whom are Democrats, two of whom are Republicans.

One of Vance’s previous campaign finance cases was against Manhattan Surrogate Case Judge Nora Anderson. Anderson was charged with campaign finance fraud for reporting donations had come from herself when they had actually come her boss at the law firm that employed her. A jury acquitted her.

The other Vance case was that of Queens political consultant John Haggerty who was accused of bilking Mayor Michael Bloomberg’s campaign fund for hundreds of thousands of dollars to buy his family a house. Haggerty was convicted.

“One or two cases can make or break the career of a Manhattan District Attorney,” said Dadey. “It is integral that Cy Vance move forward with this case with the independence and fair mindedness he is known for. These charges against the mayor are serious. It’s clear that his team skated close to the line of the law, if not over it. It will be up to the prosecutor and judicial system to decide whether a law was broken.”

Vance is treading in fairly new territory as thousands of past referrals from the BOE were ignored by other district attorneys from around the state due to what they have said was a dearth of detailed information or a lack of resources to pursue them.

“There is a big difference between the Manhattan DA and the Albany DA,” Rodgers, of CAPI, told Gotham Gazette. “There are a lot more resources going to the public corruption unit in Manhattan. The lack of cases is a shame, but it is partially due to resources and partially due to the quality of investigations. If Sugarman is doing more referrals that are wrapped in a bow and the DA just has to bring it, it may become easier for any DA to act.”

A New York Daily News report from August 2013 detailed how the Albany County District Attorney failed to act on around 1,300 referrals from the Board of Elections. At that time the board referred campaign finance violations to district attorneys with jurisdiction, but with little to no prior investigation.

“I can see a DA saying ‘Thanks for the complaint but we don't have two detectives to put on this,” said Rodgers. “In Albany, violent crime has to be a priority. Public corruption cases are usually hard cases that take a long time, a lot of expertise and are fairly complicated.”

However, since Sugarman was confirmed in 2014 to fill the newly created enforcement counsel position, it appears she has abandoned the previous process of fining candidates that don’t file and instead dug into violations of the law she thinks will make good cases. Sugarman did not return request for comment.

“Risa Sugarman dismantled the process by which committees who didn’t do filings were routinely fined,” said Kellner. “She doesn't agree it’s appropriate for her do that, but my concern is that campaigns will catch on and realize there is no consequence for failing to file.”

As for Vance, Dadey said he believes all of New York City will be looking to the DA to deliver a fair and strong investigation, and if necessary a case. “The spotlight will be on this DA like it hasn’t been since the Dominique Strauss-Kahn case, which was not handled well,” Dadey said. “Perhaps even more so because of the high profile of the Mayor of New York City...Hopefully the DA has learned from his early mistakes and will proceed with the independence and competence he is known for.”

by David King, Albany editor, Gotham Gazette

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Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Vance Has Ties to Several in De Blasio Probe Fri, 29 Apr 2016 04:00:00 +0000