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Bill Fitzpatrick on The Campbell Conversations


  The Moreland Commission to Investigate Public Corruption is already making waves in Albany, as the media and the public react to what's coming out at its public hearings.  In this edition of the Campbell Conversations, Grant Reeher talks with the Commission's Co-chair, Onondaga County District Attorney Bill Fitzpatrick, about the Commission's work and its possible impact on the state's politics.  He also addresses the charge that the Governor Andrew Cuomo is meddling in the Commission's affairs.

Grant Reeher (GR): Welcome to the Campbell Conversations.  My guest today is Onondaga County District Attorney Bill Fitzpatrick.  Mr. Fitzpatrick is also currently serving as a co-chair of the Moreland Commission to investigate public corruption. The commission was formed by governor Cuomo in light of the recent spate of public official scandals and in the wake of a failure to negotiate a public ethics package with the legislature.  District Attorney Fitzpatrick, welcome to the program.

Bill Fitzpatrick (BF): Thanks Grant, good to see you.

GR: You were recently quoted in the Syracuse paper that so far in your inquires in the Moreland Commission, you’ve often been surprised by some of the things that are actually legal when it comes to money and elections in the state.  So I wanted to start by saying, you’ve seen Casablanca right?

BF: Gambling at Ricks? I’m appalled!

GR: That’s the thing, right?  This is sounding a little bit like Claude Rains to me. So after all these years and all these elections, are you really that surprised?

BF: Here’s a couple of things that surprised me: For example, what’s referred to as the “LLC loophole.” Now there are campaign contribution limits in New York State, for example, you running for Assembly, you can only receive “x” amount of dollars from an individual donor and you can only receive “x” amount of dollars from a corporation.  But if you’re an LLC (Limited Liability Company) you can give as much as you want.  So there’s actually a guy in New York State who has given over $2 million dollars to various candidates and he’s done it by creating dozens and dozens and dozens of LLC’s. And you know I shake my head and I say “well if that is legal, and its suggested to me that that is legal, why is it legal? And why isn’t the Legislature putting a stop to it? And the answer is, as we are discovering, is because the legislature really has, it’s become way of life for them, these massive amounts of money.

And there’s other things that surprise me too.  For example--even me as I say--reimbursements.  If I go to a political function I pay for it out of my pocket, I’ll give a receipt to my campaign treasurer, he’ll write me a check from my campaign account, quote unquote "reimbursement me" for that if I go to a charity function, so forth and so on.  But it has to be very, very specific.  It has to be: where did you go to dinner, when did you go to dinner, what political function did you attend, what charitable function did you attend to promote yourself or your appearance and so forth and so on.  And some of the things that we’ve found is that there’s no specificity at all.  And we’re not talking about $50 dollars for dinner or $100 dollars for a round of golf, we’re talking about thousands in some cases hundreds of thousands of dollars, unspecified reimbursements.  So those are just two things that jump to mind that actually did not pass the “I can’t believe it’s legal” spinning wheel or whatever you want to call it.

GR: Well your Commission, as we're just talking here, it’s looking at campaign finances as well as other things and you’re going to make some recommendations about that as a commission and one of the things I wanted to ask you about though, is when we think about the campaign finance system and changes to it, that gets into some really tough political sledding when it comes to making changes there.  Because even though people don’t like what they see when they see it, the courts have put some pretty tight boundaries on what money can be limited and by how much and for what purposes. And in addition, citizens aren’t keen to spend tax dollars funding the system when that gets put forward as an alternative.  So, I’m wondering whether your commission is going to naturally go to a place where you’re going to be recommending some version of more enforcement of the laws of what we’ve got, or stricter enforcement, and maybe shave back some of the amounts--or is there an ethos on this commission that you’re just going to take this wherever it leads you and if it leads you to a politically unpopular position, you’re just going to make that recommendation?

BF:  Tough question because it’s multifaceted.  Let me see if I can answer you, Grant.  First of all, about public financing. I’m a fiscal conservative, if the money’s not there, I’m kind of inclined not to spend it. But, in reality, based on what I’ve learned over the past couple of months, I’m now a proponent of public financing.  I don’t know what the Moreland Commission is going to recommend--there’s 24 other people and very diverse opinions on there--but what we’ve learned is that although there would be a funding source from taxpayers to finance public elections in the state of New York for Assembly, Senate, Governor, Attorney General, etc, the savings ultimately would be astronomical in the long run.  When you eliminate that "pay to play" mentality. 

The problem lurking out there and the elephant in the room is the Citizens United decision, which by a slim majority the Supreme Court said you cannot limit corporate contributions, and then you have these PAC’s that legally must be divorced from the candidate, but are divorced from the candidate only on paper and not in reality.  So those are things that we’re trying to wrestle with right now.  In terms of enforcement, our last public hearing was in New York City.  And three gentlemen from the Board of Elections who are responsible for enforcement of the election law testified, and it was a very uncomfortable evening for the three gentleman.  I’m sure they did their very best to answer the questions but they were just skewered, and they were skewered with facts.

For example, they do not take anonymous complaints. They have in the last five years opened less than six investigations.  They do things just because a file has been lingering for a long period of time.  They’ll summarily close the file without any investigation work at all.  And they kept harping about “we don’t have the resources we don’t have the resources” and as my colleague Kate Hogan said, “What difference does it make about the resources when the investigator that you have on staff testified in front of us that he spent his days playing solitaire and reading passages from the Bible?” and I’m kind of conflicted there--the guy is gambling and being religious at the same time (laughs)--but the point is he’s not doing anything.  And I know it’s a daunting task because a lot of election law violations are ministerial, that prosecutors wouldn’t go after anyway--just say you should correct this or you forgot to file so make sure you file.  But some of them, some of them are outrageous, and not taking anonymous complaints? We’re prosecutors, I can tell you dozens of investigations that have started and been successfully completed that got their initiation from an anonymous source. So that was a very, not a very good evening for the Board of Elections.

So at, in some form, some manifestation, I’m convinced that the Moreland Commission, and I know I will, are going to recommend some type of independent enforcement agency to go after election law violations, apart from the Board of Elections itself.

GR: I’m Grant Reeher and I’m speaking with Moreland Commission Co-Chair Bill Fitzpatrick.  Well you’re also looking at, as part of this puzzle of elections and money, the different party committees' housekeeping accounts, correct? So tell me what the issue is with those.

BF:  Well the housekeeping accounts are, by law, by statute, designed for exactly what it sounds like: Increase facilities, or staffing, or inventory, or things that you know generally go to the functioning of a political party. Unfortunately, we are discovering evidence, that I’m not going to go into with any great deal of specificity, but we’ll say that the evidence that we’ve uncovered so far indicates that that again is a sham, and the housekeeping accounts are used for partisan political purposes, which is not legal. And the beauty of it is, that there’s no limitation on the donations. So that if you think, I guess they think we can’t follow the money but we are, so if supporter X wants to give to candidate Y but can’t do it because of campaign contribution limits that supporter X has already exceeded then he or she just gives it to the “fill in the blank” political party housekeeping account and then that housekeeping account is used to promote candidate Y.  I mean, it’s a blatant problem.

GR: And on that note of following the money, I was struck by something that Susan Lerner of Common Cause said about your Commission's investigation, that she was pointing out that it’s going to bring into the light the identities of the firms and consultants who get hired with that party money and what races the money gets directed to, why this one and not that one, and the communications back from the donors regarding all that.  And none of that I guess right now is currently available to citizens, and it leads me to wonder whether one of the most important things that you folks are going to do in the end, and maybe it’s the most achievable policy recommendation, is for more transparency in these matters and some means that have some real teeth to them to get that transparency.

BF: Yes, the former is simple:  Transparency, why not? And then the latter, putting teeth into it, that’s the difficult part because we can recommend things till we’re blue in the face, but we have to, when we recommend something, the only people that can put it into effect are members of the New York State Legislature. So the report, I think--what will attract people’s attention the most will be the investigative end of the report and that will be just preliminary, because we have another year of investigation to go after December of the first report.  But the building blocks, the foundation if you will, of the policy recommendations, will be the things that we’ve discovered as a result of our subpoena power and as a result of our carefully going through public records.

GR: I’m talking with Onondaga County District Attorney Bill Fitzpatrick, and we’ve been talking about his work as Co-Chair of the Moreland Commission to investigate public corruption.  Tell me more about the investigation phase of this, in terms of the kinds of powers that the Commission has and it doesn’t have. You’ve got subpoena power, so do you as a Commission have the authority to pursue things in a criminal fashion, that you find?

BF: We do not have the power to convene a grand jury or to indict anyone but Governor Cuomo made a very, I think, wise move in partnering with Attorney General Schneiderman in not only designating us as Moreland Commissioners but as Deputy Attorneys General--and the argument that will be made in court in the very near future by the Legislature is under the Moreland Act, you cannot investigate the Legislature, you can only investigate Government agencies, and therefore this is a usurpation or a tearing down of the wall that separates the branches of government.  And it has some superficial appeal. But what the Governor has done is that he’s charged us to investigate the government agencies such as the Board of Elections, such as JCOPE, which is this reform program that the Legislature put into effect a few years ago. But by making us a Deputies Attorney General we have subpoena power and law enforcement power and if we discover criminality, and I can tell you without being tantalizing, I can tell you that we have, we will refer that to the appropriate prosecutorial agency. It could be the Manhattan DA, it could be the Albany DA, it could be United States Attorney in the Northern District, or Southern or Eastern District. We’ll see how that plays out.

GR: And on that issue of the subpoena power, and you’ve been using it, you’re going to use it, and one of the places where I understand you have used it, is to ask, I’m thinking of the legislators in the Assembly now, to demand client lists from the work that gets done outside the Legislature by certain members of the Legislature.  I wanted to put a question to you about that because I know that that’s something where you have had--and I guess it’s going to go on for a while now--real serious pushback from the Legislature on that particular issue.  And I can see the public interest in seeing that for the kinds of things you’re talking about but at the same time, if that outside work that those Legislators are doing is legal--and you’re a lawyer so I think you’ll get where I’m coming from here, where I’m going with this--is that if some of those legislators are in law practices or in some kind of consulting practice, and now all of a sudden they’ve got to make public their client list, I would think that that could kind of kill that practice, particularly if is matrimonial law or some other kind of sensitive law, legal work.

BF: A couple of things on that. It’s almost impossible not to at some point appear on behalf of a client or have some public record.  If it’s a divorce case, as you just said, you have to file a notice of appearance in Supreme Court or Family Court--wherever the divorce is being heard--and you have to say “I’m so and so and I represent so and so.” The Legislature in attacking the subpoenas is very cleverly suggesting that we're invading the attorney client privilege, which is completely false.  We have no inclination whatsoever to talk about privileged communications, but what we’d like to know is “what are you doing for that retainer?” In some people’s cases, it’s going to be very, very easy.

I can give you a local example: John DeFrancisco is a very, very successful lawyer, but we didn’t want to make judgments based on personalities.  We made a judgment that is factual:  If you make more than this amount of money--and this has been made public by people other than me--we would like to know what you do to earn that money.  You know, I know John is going to resist the subpoena, but he frankly could answer that question very, very quickly, because he’s a very, very successful trial lawyer. The problem is that there are some individuals that we have discovered don’t appear anywhere.  Their names don’t appear as Attorney of Record on any case, we don’t know if they have an office, if they file motions, if they argue appeals--we don’t know what they do, and is that a problem? Well it certainly can be. 

I mean, New York State has some of the most bizarre tort legislation, or lack of tort legislation, in the country.  You can be high on cocaine, drunk, and with a pre-existing bad ankle,  but if you fall off a roof on a work-site and there is no proper scaffolding, it's absolute liability on the part of the employer.  And that costs tax payers in New York millions of dollars every year in increased insurance costs, in frivolous settlements that have to be paid out.  Why can’t the New York State Legislature very, very simply come in line with the other 49 states in the Union and pass either caps or some type of contributory negligence laws regarding scaffolding at work?  That’s an interesting question I think--is it because that we think that its good government policy for business to be sued by people who are drunk?  Ok – then that’s your decision, that’s fine.  Or is it because we’re getting huge retainers from tort firms and we don’t want to pass tort reform in New York State?

GR: In case you’ve just joined us, you’re listening to the Campbell Conversations, and my guest is Onondaga County District Attorney Bill Fitzpatrick.  He’s also serving as co-chair of the Moreland Commission to investigate public corruption.

I wanted to ask you a couple of questions about the politics of all this.  I don’t know how free you are to comment on this given that you’re on the Commission, but recently the Governor seemed to at least, to my ear, dodge a question about whether his office had been influencing some of the actions of the Commission including whom to subpoena and not to subpoena--he was repeating basically the same generic answer about how the Governor’s office played a role in staffing the Commission.  And in another interview you were asked about that and you drew a distinction between what you called "interference" and "input" from the Governor’s office, so what did you mean by input?

BF: This is his Commission, I mean he appointed us, and I frankly would have been shocked if he just walked way and said, you know, “See you guys in 18 months and let me know then how you’re doing.” I mean he’s very interested in this.  So you know when people say to me, well, “Is he dictating this? Is he dictating that?” I have never, in my many conversations with the Governor, ever felt the slightest bit of pressure on his part to subpoena somebody, not to subpoena another person.  I respect his advice, I love talking to the guy, and I like listening to his ideas and so forth and so on, and I think they’ve been very productive.

GR: Well, why though, to come back to that I guess, why wouldn’t you do this if you were the Governor, and just walk away from it as you said?  I mean it seems like you’ve established this Commission, it’s independent, you’ve got people on there that know what they’re doing.  I don’t think anyone’s going to think you’re not going to go and look into this stuff unless the Governor's looking over your shoulder, so why wouldn’t he just walk away and leave it alone?

BF: Well I guess it’s like, you know, anything, if I’m away from my office I’ve got very capable staff that I trust completely, but I want to know what’s going on.  I want to know are they doing things properly and so forth and so on.  To suggest that we’re not independent because he has input, I just don’t think is accurate.

GR: And another piece of the politics about this too:  Obviously this Commission came about because of a standoff, a stalemate between the Governor and the Legislature, and people involved in that are making calculations about where it might go from there and all of that.  It looks like if what you’re suggesting comes to bear--and there’s going to be a lot of stuff were going to learn and it’s going to keep getting more and more surprising and problematic--that perhaps this was a miscalculation by the  Legislature in not dealing with this guy in the first place, to get the reform package through?

BF: I would not disagree with that at all.  The Governor told me that he probably said two to three dozen times, "You know you have to do something, we’re the laughing stock of the nation. Here’s a very, very simple in some ways, but comprehensive reform, the Public Trust Act.  If you don’t pass it I’m going to appoint a Moreland Commission." And they didn’t pass it, and then they were shocked when he appointed a Moreland Commission.

I think this a very daunting task that we have but I would not disagree at all with the premise that the Legislature miscalculated his resolve.

GR: Let me move on to some local matters with the time we’ve got left.  Murders in the city of Syracuse-- they’re at a new high, I believe, at 21 and counting this year.  It feels like to me, too--you tell me whether this is a correct impression--but at least I think I’ve been reading about more killings in the suburbs as well.  So my question to you is, where is this heading do you think? Is this a long term trend in this area?  

BF: Yeah Grant, you and I have talked about this before.  And, you know some crime is preventable.  You can prevent crime by deterrence, by police presence, by being proactive--and then there is some crime that there’s nothing the police can do. 

If you look at, well there’s some argument about the Romeo Williams case, whether was this the, what is generally referred to, as the “knockout game” or the “knockout incident.”  How are police supposed to stop that?  Aside from having a cop on every street corner that escorts anyone over the age of sixty, it’s not very likely.  Those types of crimes are very worrisome to me because they really reflect a decline in civilization.  I don’t want to overdramatize it,  but when you have a young man who thinks it’s amusing that he can go up to an elderly individual and punch him, and in at least two instances in our community cause the person's death, that’s extremely troubling.

We can talk about root causes of that, is probably fodder for another show, I don’t know in the time allotted we can really do it justice.

GR: And we’ve talked about this before too, but it’s hard for me to see how at least to the degree it can be addressed, that it’s going to get addressed effectively without some kind of genuine cooperation between your office and the police department and even the Mayor’s office, so is it time now for someone to reach out to someone else to try to change that situation?

BF: You know I prefer working with adults, and it mystifies me--not your question--but when a reporter will say, “What about this feud you had with the Chief”  If you look at this Chief of Police, and you look at his relationships not just with me, but with the County IT department, with the County Laboratory, with the City Council, and you know I could go on and on and on.  And it’s the “my way or the highway” mentality.

Here are the things that the Chief and I disagree on: The first disagreement we had was videotaping confessions.  I’m in favor of it - he opposed it. He has since come around and now we’re doing it. We’ve had eight confessions thrown out since we’ve gone to videotaping confessions.  And that doesn’t pique the interesting of anybody in the community.  I haven’t been asked one question about that fact.

Eight--in homicide cases--thrown out, no, excuse me – seven homicide cases and one serious sexual assault. The other thing we disagree about is the role, the function of the police and the DA--charging decisions. Those should be things that should be done mutually as opposed to “We’re the cops we'll make the arrest and then we’ll put this on your desk and then, you know, we’re done.”  That’s not the way it works anywhere else in America, that’s not the way it’s worked in Onondaga County with the other 10 chiefs that I’ve dealt with, all of whom I’ve got along with great.  You know, he’s 0 for 1, I’m 1 for 11.

GR: That was Bill Fitzpatrick, DA Fitzpatrick, thanks so much for talking with me

BF: You’re welcome Grant, good to see you.

Grant Reeher is Director of the Campbell Public Affairs Institute and a professor of political science at Syracuse University’s Maxwell School of Citizenship and Public Affairs. He is also creator, host and program director of “The Campbell Conversations” on WRVO, a weekly regional public affairs program featuring extended in-depth interviews with regional and national writers, politicians, activists, public officials, and business professionals.