Hacks Hold On, Oppose Governor's Corruption Clean-Up

Counsel Defends Integrity Head; No Members Step Down
The New York Law Journal by By Joel Stashenko - May 15, 2009

ALBANY, NEW YORK - Herbert Teitelbaum, executive director of the state Commission on Public Integrity, and Robert Hermann, a figure in the Spitzer administration, were at one time as close as the "Odd Couple," and their familiarity led to Mr. Hermann inadvertently seeing sensitive information about a commission investigation of Mr. Spitzer's inner circle, an attorney for the commission contended yesterday. State Inspector General Joseph Fisch this week reported that Mr. Teitelbaum improperly leaked information to Mr. Hermann about the commission's investigation of whether aides to former Governor Eliot Spitzer misused State Police resources to discredit a political rival, state Senate Majority Leader Joseph Bruno. Zachary W. Carter of Dorsey & Whitney, pro bono attorney for the commission, argued that Mr. Hermann was a "dear friend" and former law partner of Mr. Teitelbaum and that the two chatted frequently and often had dinner together when both were working in Albany. "They were like Oscar and Felix, that's how often they talked on the phone," Mr. Carter said. "They were two older guys who were up in Albany with nothing else to do."

During one of Mr. Hermann's visits to Mr. Teitelbaum's apartment, Mr. Carter said Mr. Hermann saw notes made on a yellow pad by Mr. Teitelbaum about the commission referring former Spitzer communications director Darren Dopp to the Albany County district attorney's office for a possible perjury prosecution. "He saw this on a pad and goes off and reports this" to Lloyd Constantine, Mr. Spitzer's counsel, and other top advisers to the former governor, said Mr. Carter in an interview yesterday. As to the source of the information, Mr. Hermann testified to the inspector general that he told Mr. Constantine, "I had come upon it from Herb." According to Mr. Fisch's report, Mr. Hermann told the investigators the "yellow pad" story. Mr. Hermann said he had seen words including "inconsistencies" and the "district attorney" and put "two and two together," knowing from media reports that Mr. Dopp had just been in to give testimony before Mr. Teitelbaum.

Mr. Fisch's report concluded that Mr. Hermann told Mr. Constantine and other Spitzer aides more than he could glean from notes on a pad. The information included a legal analysis of the implications to the commission's investigation that was similar to one prepared a week earlier for Mr. Teitelbaum by Meave Tooher, commission counsel, according to the inspector general's report. Mr. Carter also defended the contacts Mr. Teitelbaum had with Mr. Hermann soon after the commission launched its investigation in 2007. Mr. Teitelbaum was trying to use Mr. Hermann to get documents released voluntarily that the Spitzer administration was reluctant to turn over and, in general, to move the in-vestigation along, Mr. Carter said. "He was saying [to Mr. Hermann], 'Listen, I know you are friendly with these guys. Enough already,'" Mr. Carter said. "Not only is that not improper, it is admirable." Mr. Hermann was head of the Governor's Office of Regulatory Reform at the time of the alleged leaks. He now works for state Senate Democrats and did not return calls for comment. Mr. Teitelbaum remained on the job yesterday, as did all members of the commission.

No Resignations

On Wednesday, Governor David A. Paterson called for the six gubernatorial appointees on the commission to step down, and he urged the other political leaders in Albany with selections to the commission to urge their designees to do the same. Mr. Paterson said it was necessary to give his newly named chairman of the commission, Michael G. Cherkasky, a "fresh start" at the embattled agency (NYLJ, May 14). "They are not resigning," Mr. Carter said yesterday. "There is no basis for them to resign."


Members of the Commission on Public Integrity

• Daniel R. Alonso, partner, Kaye Scholer, appointed by then-Governor Eliot Spitzer, term expires October 2012

• Virginia M. Apuzzo, former president of the Civil Service Commission, appointed by Assembly Speaker Sheldon Silver, term expires November 2009

• John M. Brickman, partner, Ackerman, Levine, Cullen, Brickman & Limmer, appoint-ed by Comptroller Thomas DiNapoli, term expires October 2011

• Andrew G. Celli Jr., partner, Emery Celli Brinckerhoff & Abady, appointed by Mr. Spitzer, term expires October 2010

• Chairman Michael G. Cherkasky, president and CEO of U.S. Investigations Services, appointed by Governor David A. Paterson, term expires October 2009.

• Richard D. Emery, partner, Emery Celli Brinckerhoff & Abady, appointed by then-Senate Minority Leader Malcolm Smith, term expires November 2012

• Daniel J. French, partner, French-Alcott, appointed by Attorney General Andrew M. Cuomo, term expires October 2009

• Robert J. Giuffra Jr., partner, Sullivan & Cromwell, appointed by Mr. Spitzer, term expired October 2008, serving as a holdover until Mr. Paterson makes a new appointment.

• David L. Gruenberg, solo practitioner, Troy, appointed by then-Senate Majority Leader Joseph Bruno, term expires November 2011

• James P. King, former Court of Claims judge, appointed by Mr. Spitzer, term expires October 2012

• Howard A. Levine, former state Court of Appeals judge, appointed by Mr. Spitzer, term expires October 2011

• Loretta E. Lynch, partner, Hogan & Hartson, appointed by Mr. Spitzer, term expires November 2012

• John T. Mitchell, of counsel, Tobin and Dempf, appointed by then-Assembly Minority Leader James Tedisco, term expires November 2012

Other Albany leaders did not comply with Mr. Paterson's request. State Senate Majority Leader Malcolm Smith, D-Queens, said he has "total confidence" in Richard Emery, Mr. Smith's appointee to the commission. State Assembly Minority Leader Brian Kolb, R-Canandaigua, said the Assembly Republican's appointee to the commission, John T. Mitchell, has "outstanding legal credentials and a commitment to ethics and integrity" and should remain on the panel. After an appearance yesterday in Manhattan, Mr. Paterson said he was "very surprised" that the commissioners were not stepping aside voluntarily. "I frankly was surprised and shocked that I am getting this reaction," Mr. Paterson told reporters. Mr. Paterson equated his call for the commissioners' resignations to the letters of resignation he required all commissioners and other agency heads to give him when he succeeded Mr. Spitzer in 2008. Mr. Paterson accepted only a handful of the letters then and said yesterday that some commission members could "quite validly be reappointed." Mr. Paterson said he will study the structure of the board and propose changes if he concludes it contributed to the misconduct that Mr. Fisch reported on Wednesday. Mr. Fisch's report was critical of conversations that Loretta E. Lynch, until Wednesday the acting chairwoman of the commission, had with the inspector general in the weeks leading up to the release of the report.

Ms. Lynch made "strained and specious" attacks on Mr. Constantine and repeatedly called into question his veracity as a witness, according to the report. She also attempted to "distance" Mr. Teitelbaum as the source of the leaked information despite the evidence gathered to the contrary, the report said. Ms. Lynch, a partner at Hogan & Hartson, has been recommended as U.S. Attorney for the Eastern District of New York by U.S. Sen. Charles Schumer (NYLJ, May 6). Ms. Lynch held the post from 1999 to 2001. Mr. Paterson said yesterday he did not believe Ms. Lynch's work on the public integrity commission should affect her candidacy for the Eastern District post, calling her an "outstanding prosecutor who I think would serve well." Neither Mr. Schumer's office nor Ms. Lynch returned calls seeking comment yesterday. Also yesterday, the former chairman of the commission, John D. Feerick, released a statement about Mr. Fisch's report. Mr. Feerick was said by the inspector general to have been aware of evidence of possibly improper conduct by Mr. Teitelbaum but did not question the executive director strenuously or push for a formal commission investigation before Mr. Feerick resigned from the commission in January. "I did my work with the commission and as its chair to the best of my ability and with honesty and integrity," Mr. Feerick said. "I am proud of the work done by the commission and was privileged to serve with a distinguished group of commissioners, consisting of prominent public servants, Republicans and Democrats, among them former United States' attorneys and judges, all of whom had volunteered their time at great personal sacrifice." Joel.Stashenko@incisivemedia.com