Four top figures in former New York Gov. Eliot Spitzer's administration broke the law by enlisting or allowing the State Police to gather records designed to tarnish Spitzer's chief political foe, a state commission ruled Thursday. Spitzer himself was not charged.
The Commission on Public Integrity concluded that the four "misused their official positions to cause the State Police to engage in conduct that was wholly unrelated to the State Police's statutory mandate" to detect and prevent crime.
While the commission said its members recognize that politicians and their staffs routinely seek to provide to the press "negative or embarrassing information about their opponents," the use of the police to do so here, and the misuse of the state Freedom of Information Law (FOIL) to justify it, elevated the former officials' actions into violations of the code of ethics in the Public Officers Law.
Charged were:
• Preston Felton, the former acting State Police superintendent, for violations of Public Officers Law §74(c) and (d) for allowing police personnel to gather negative information about former Senate Republican Leader Joseph Bruno's travels and for ignoring procedures governing the release of police information under FOIL. Felton, who has retired, faces civil fines of up to $20,000.
• Darren Dopp, Spitzer's former communications director, for violating POL §74(3)(d) by using his official position to secure unwarranted privileges from the State Police for himself and Spitzer. He faces a fine of up to $10,000.
• Richard Baum, Spitzer's ex-secretary, and William Howard, once the liaison between Spitzer's office and the State Police, for violating POL §74(3)(h). It is invoked when officials engage in conduct that raises suspicions that they violated the public trust in state employees. Both men admitted to the violations and settled their cases. The charges against them carry no fine.
Both Felton and Dopp, who also were charged with violations of POL §74(3)(h), are contesting all the accusations, according to the commission. They are entitled to hearings to challenge the findings before the agency's administrative law judge.
The commission concluded that Felton, at the behest of Dopp and Howard, created or recreated travel information on Bruno. The commission faulted Baum for not putting a halt to the operation when he discovered what was going on.
As to Spitzer, the disgraced former governor who resigned from office in March amid a federal investigation for patronizing a prostitute, the commission concluded there is no evidence he knew Bruno's travel records were being assembled inappropriately by State Police or were released in violation of FOIL.
"The failure to supervise subordinates, without more, does not violate the Public Officers Law," the commission concluded. "Similarly, the release of information or documents to the media about a political opponent, without knowledge that such information was confidential or improperly compiled or created (here, through the State Police), does not violate the Public Officers Law."
The report said if the commission receives other information about culpability in the case, it would reopen its investigation.
Still, the commission placed the blame for the length of its investigation squarely on Spitzer's office.
The commission said its inquiry was unnecessarily delayed "many months" by the failure of Spitzer's executive chamber to produce documents, or by its habit of handing over the information in a piecemeal or incomplete fashion.
The commission said it needed a court order to force Spitzer's office to turn over a diary maintained by Dopp last year and had to use the threat of court intervention to secure 109 other documents that the governor's office had shielded with "spurious claims of privilege."
"By any measure, the Executive Chamber improperly withheld from the Commission important documents," the report stated.
That reluctance was all the more striking, the commission concluded, because Spitzer had repeatedly maintained in public that he and his office were cooperating fully with the investigation, the commission noted.
The commission began the probe last fall just as it came into existence under a merger of the former Ethics and Lobbying commissions.
Critics had questioned how aggressive the investigation would be at identifying Spitzer's role in the collection of Bruno's travel records. Seven of the 13 members were appointed by Spitzer and its chairman, John D. Feerick, the former Fordham University Law School dean, was hand-picked by Spitzer to head the new commission.
The commission voted the charges against the four former officials by a 12-0 margin. Andrew Celli of Emery Celli Brinckerhoff and Abady, who is a friend of Spitzer's, recused himself.
SPITZER TRANSCRIPTS
Dopp contends that Spitzer was deeply involved in the preparation of the Bruno travel record materials that were the basis of a July 1, 2007, report in the Albany Times Union. The article suggested that Bruno, embroiled at that time with Spitzer in a number of public policy disputes, was using state aircraft to make purely political trips.
Materials released Thursday by the commission along with the charges included a 276-page transcript of testimony Spitzer gave under oath on May 9 to the commission's executive director, Herbert Teitelbaum, and investigative counsel Meave Tooher.
For materials related to the commission's investigation, visit www.nyintegrity.org.
The ex-governor, who identified himself as being employed in "family businesses," testified that he dismissed the idea floated by staff members of making an issue of Bruno's use of state aircraft in May 2007. He recalled telling aides that the state's rules on the use of state aircraft and other resources by top officials were so notoriously loose that it made it almost impossible to demonstrate abuses.
When he was told by Dopp the following month that a newspaper was seeking release of the Bruno travel records under FOIL, Spitzer said his reaction was, "What choice do you have? It's public information, who cares, screw it."
But Spitzer denied having given Dopp the go-ahead to release the information in late June in an obscenity-laced rant against Bruno, as Dopp contended in testimony to the Albany County District Attorney's Office earlier this year.
"Just so it's clear, I, in my private conversations, do not always use the Queen's English," Spitzer told the commission. "And I make no bones about that. ... In my private conversations, occasionally I was, to use your word, passionate. And that is my nature, and the nature of politics. I do not in this conversation recall that, because this was not an issue about which I was passionate then, or now, or at any point in time. There were other issues about which I was, but this was not one of them."
Spitzer repeatedly told Teitelbaum or Tooher that he could not recall several other conversations in which the travel records of Bruno were discussed. They include the incessant calls Dopp's wife, Sandy, testified that Dopp received at home from the anxious governor in the hours leading up to the appearance of the Bruno travel story in 2007.
Spitzer told Teitelbaum he had "absolutely no recollection" of making such calls.
Brandy Bergman, a spokeswoman for Spitzer, said the commission's decision not to charge the ex-governor is vindication of his role in the affair.
"As the report makes clear, there is no evidence that he violated the Public Officers Law," Bergman said in a statement. "Indeed, the report confirms what Governor Spitzer has said throughout: that he understood the information to be public and accordingly its release was proper and obligatory."
Bergman added that the former governor is "saddened by the toll this investigation has taken on public servants who were simply trying to do their jobs."
TARGETS RESPOND
Dopp's attorney, Michael L. Koenig of Greenberg Traurig in Albany, Thursday reiterated Dopp's statements in recent days that he would fight any charges brought against him by the commission.
Dopp has maintained that he told Teitelbaum of Spitzer's direct role in the release of the records but that Teitelbaum was not interested in hearing about the governor's alleged involvement.
"We are disappointed that the commission took this action," Koenig said. "The facts do not support the legal basis for the charges, and the charges are profoundly unfair to Darren. Darren will challenge all aspects of these charges, the facts, the law, the theory and the process."
Baum's attorney, Steven F. Reich of Manatt, said his client was charged for failing to "respond to emails or ask enough questions of subordinates."
"Today's settlement is made exclusively under a section of the Public Officers Law that says public servants should 'endeavor' to avoiding raising even a 'suspicion' among members of the public that he is 'likely to be engaged in acts that are in violation of his trust,'" Reich said in a statement. "This is a broadly worded provision that reaches conduct that creates even an appearance of impropriety, including, as here, where that appearance is knowingly and unintentionally created."
Howard said Thursday that he is interested in "moving on with my life."
"I continue to be very proud of the work that I did on behalf of the state of New York, often during very difficult chapters in that history," he said in an interview.
Felton's phone number was not listed in the Albany area.
Felton and Dopp are entitled to hearings before the integrity commission's administrative law judge if they challenge the charges against them. The ALJ's recommendations will go to the full commission for a final determination.
In addition to imposing civil fines, the commission can seek to have violators of Public Officers Law punished or dismissed by their employer agencies. But all four men implicated in Thursday's report are no longer on the state payroll.
The commission also can refer matters to local or state prosecutors. In this case, however, both Albany County District Attorney P. David Soares and Attorney General Andrew Cuomo have examined the activities surrounding the travel records and have determined no laws were broken.
Walter Ayres, spokesman for the integrity commission, said Thursday there will be no referral of the report to any prosecutor.
