The New York Law Journal by Joel Stashenko - May 14, 2009
ALBANY, NEW YORK - Governor David A. Paterson yesterday called for the resignation of Herbert Teitelbaum, the director of the Commission on Public Integrity, following the release of a report by the state's Inspector General that found Mr. Teitelbaum had improperly disclosed confidential information to a top aide of then-Governor Eliot Spitzer about a commission investigation of the Spitzer administration. Mr. Paterson said Mr. Teitelbaum had compromised the independence of an agency formed to police the conduct of government employees. Mr. Teitelbaum denied any wrongdoing.
In addition to calling for Mr. Teitelbaum to resign his $140,000-a-year post, Mr. Paterson asked commission counsel Barry Ginsberg and all six of his appointees to the 13-member commission to step down. One of the governor's slots on the commission is vacant. Mr. Paterson also said other government leaders should urge the six members they appointed to step down. There is one vacancy. Finally, Mr. Paterson appointed Michael G. Cherkasky, a former prosecutor who is president and chief executive officer of U.S. Investigations Services, as the new chairman of the commission. He will replace former Fordham University Law School Dean John D. Feerick, who resigned in January. "I have waited to replace [Mr. Feerick] until the Inspector General released his report," Mr. Paterson said in a statement. "I am confident that my appointment of Chairman Cherkasky combined with new commission members will give the commission the fresh start it needs and will help to restore public confidence in both the commission and state government." Attorney James DeVita said in a statement that Mr. Teitelbaum "categorically denies having violated his public trust."
"The suggestion that Mr. Teitelbaum improperly leaked confidential information is flatly contradicted by sworn testimony that is supported by contemporaneous documents," the statement said. Mr. DeVita said later in an interview that Mr. Teitelbaum "has no intention of resigning at this time." Mr. Teitelbaum serves at the pleasure of the commission and cannot be removed directly by the governor. The statement by Mr. DeVita of Bryan Cave also defended the members of the commission, who serve without pay. "It is extremely unfortunate that public servants with unblemished reputations and enormous talent, who have committed themselves and made tremendous personal sacrifices to help foster a more ethical environment in Albany, have been subjected to the unjustified and inaccurate aspersions that permeate the Inspector General's investigation and report," the statement said.
Inspector General Joseph Fisch also called for Mr. Teitelbaum's removal.
Mr. Fisch said Mr. Teitelbaum shared with Robert Hermann, a friend and former law partner, information about the 2007 probe into efforts by aides to Mr. Spitzer to misuse State Police resources to discredit Mr. Spitzer's political rival, former Senate Republican Majority Leader Joseph Bruno. Mr. Hermann was head of Mr. Spitzer's Office of Regulatory Reform at the time. While Mr. Teitelbaum told the inspector general's investigators he was using discussions with Mr. Hermann to facilitate the release of Spitzer administration records and move the commission's investigation forward, Mr. Fisch said the communications appear to have violated Executive Law §94(12)(a) and Public Officers Law §74(3)(c). Both statutes prohibit the disclosure of confidential integrity commission information. Mr. Hermann, a former partner of Mr. Teitelbaum's at Teitelbaum, Hiller, Rodman, Paden & Hibsher, may have also violated the Public Officers Law, according to Mr. Fisch's report. Mr. Hermann was solicitor general from 1984 to 1986.
"Herbert Teitelbaum and Robert Hermann betrayed the public trust," Mr. Fisch said in a statement. "It is disturbing that while investigating leaks by the governor's office of confidential information, the commission's executive director committed a similar offense by leaking confidential information." Mr. Fisch said he would have recommended Mr. Hermann's dismissal as well had he not stepped down in March. Mr. Hermann now works in the Legislature. He did not return calls seeking comment. Mr. Fisch also criticized the commission itself for failing to formally investigate Mr. Teitelbaum when Albany County District Attorney P. David Soares began to offer the commission evidence about Mr. Teitelbaum's possibly improper contacts with the Spitzer camp. "Despite receiving evidence of the executive director's misdeeds, the commission inexcusably failed on several occasions to investigate these serious allegations against Mr. Teitelbaum," Mr. Fisch said. Mr. Teitelbaum denied improperly releasing information when asked by members of the commission, and Mr. Feerick did not believe the executive director had breached confidentiality rules, according to the inspector general's report.
According to the report, Mr. Teitelbaum had what he termed "backdoor channel" discussions with Mr. Hermann in July 2007 and August 2007, just as the Ethics Commission was beginning to investigate whether Mr. Spitzer's aides had improperly used State Police personnel to gather travel records to discredit Mr. Bruno, who was Mr. Spitzer's bitterest political rival at the time. Mr. Teitelbaum was executive director of the Ethics Commission in July and August 2007. He became executive director of the integrity commission the following month when the new agency was formed by the merger of the ethics and lobbying commissions. Mr. Fisch reported that Mr. Teitelbaum used Mr. Hermann "as an unsanctioned conduit for imparting unsolicited opinions and advice to the Executive Chamber regarding the Spitzer administration's response to the commission's demands for documents" vital to its investigation. Mr. Teitelbaum told the Inspector General's Office that he had discussed the commission's investigation of Mr. Spitzer in a "general way" with Mr. Hermann, but he denied disclosing any confidential information. Phone records reviewed by Mr. Fisch's office showed 165 calls between Mr. Teitelbaum and Mr. Hermann from when Mr. Teitelbaum was appointed to the Ethics Commission on June 20, 2007, to Nov. 13, 2007, when Mr. Soares confronted Mr. Teitelbaum with accusations that he was improperly leaking information.
Mr. Fisch's report contended that Mr. Teitelbaum "equivocated" when asked directly by the inspector general about his contacts with Mr. Hermann. "The Inspector General and the public to whom it reports expect and deserve straightforward, unambiguous denials when posing such questions," the report concluded. Mr. Fisch said the communications between Mr. Teitelbaum and Mr. Hermann appeared to have continued despite warnings to Mr. Teitelbaum by Meave Tooher, investigative counsel at the commission, that he "shouldn't be talking to anybody about the investigation." Mr. Hermann was ordered by then-Spitzer counsel Lloyd Constantine to stop talking to Mr. Teitelbaum. The report also identified Mr. Teitelbaum as the source of the information Mr. Hermann told Mr. Constantine on Nov. 1, 2007, that Mr. Soares would pursue a criminal investigation against former Spitzer communications director Darren Dopp for perjury for discrepancies in statements Mr. Dopp made to the commission and to Attorney General Andrew M. Cuomo's investigators. Earlier that same day, Mr. Soares had confirmed to Mr. Teitelbaum that the district attorney would be pursuing criminal charges, and Mr. Hermann acknowledged to the inspector general's office that Mr. Teitelbaum was his source about the Dopp prosecution. The commission ultimately found that four top Spitzer administration figures had broken the Public Officers Law. Mr. Dopp and Preston Felton, the former superintendent of the State Police, are challenging that determination.
Mr. Cherkasky, 59, the commission's new unpaid chairman, is a former prosecutor who reportedly has close ties to Mr. Spitzer. His appointment does not require Senate confirmation. He is the chief executive officer of US Investigations Services, Inc., the largest supplier of security investigations for the U.S. government. Mr. Cherkasky was named chief executive of the insurance company Marsh & McLennan in October 2004, in the midst of a bid-rigging scandal in which the company faced charges from then-Attorney General Spitzer. He steered the company with a settlement of the case but was ousted in December 2007 following a year of disappointing financial results. He reportedly received a $7.15 million severance package from Marsh. Mr. Cherkasky also served as chief executive of Manhattan security firm Kroll, Inc., which he joined in 1994, following a stint in the Manhattan District Attorney's Office, where he worked with Mr. Spitzer. As an assistant district attorney, Mr. Cherkasky led the rackets bureau and investigations division, and worked on such high-profile cases as the 1993 World Trade Center bombing. A graduate of Case Western Reserve University School of Law in 1975, Mr. Cherkasky clerked in the U.S. District Court for the Northern District Court of Ohio before joining the prosecutor's office. He is the author of "Forewarned: Why the Government Is Failing to Protect Us - and What We Must Do to Protect Ourselves." Mr. Cherkasky was unavailable for comment last night.
Split on Resignation
Mr. Feerick, who did not return a call for comment yesterday and has declined comment on the commission since his departure in January, referred to Mr. Teitelbaum in a 2007 interview as a person of "unflinching integrity." Critics of the commission, however, said Messrs. Feerick, Teitelbaum and others were hampered with an appearance of a conflict of interest from the inception of the commission. Under a governing structure demanded by Mr. Spitzer, there are seven gubernatorial appointments to the 13-member commission. That gave Mr. Spitzer control of the commission, which included the power to appoint the chairman. When the politically charged investigation of the Spitzer administration became the commission's first high-profile case, critics contended that the commission could not complete an impartial investigation because it was controlled by the governor whose office it was investigating. Blair Horner, legislative director of the New York Public Interest Research Group, said yesterday the structure of the commission, not its members, is compromising the integrity of the agency. "It's a bad place to put somebody, and it's a bad structure," Mr. Horner said. Joel.Stashenko@incisivemedia.com. Vesselin Mitev and Noeleen G. Walder contributed to this report.