The Office of Court Administration and the Staten Island district attorney are asking an appellate panel to allow an investigation into the operations of the Working Families Party to continue under the direction of a special prosecutor.

In briefs recently submitted to the Appellate Division, Second Department, District Attorney Daniel Donovan Jr. and Deputy Chief Administrative Judge Fern Fisher (See Profile) defend their actions in having attorney Roger Bennett Adler take over the investigation. Adler was appointed special district attorney by Fisher after Donovan requested to be removed from the case.

Donovan and Fisher, who appointed herself a Richmond County Supreme Court justice so she could divert the case from Donovan to Adler, claim the judge had the authority to appoint Adler even though she was not elected in Staten Island. Additionally, Donovan and Adler, who submitted an affidavit that is attached to Fisher’s papers, accuse the Working Families Party of attempting to delay an ongoing probe.

Matter of Working Families Party, 2013-02052, deals with a 2009 City Council election on Staten Island and questions over the party’s use of a for-profit arm, Data and Field Services, and Citizen Action, a liberal advocacy group, to promote Democratic candidates and possibly to improperly obtain matching campaign funds from the New York City Campaign Finance Board, records suggest.

After conducting a preliminary investigation, Donovan filed an under-seal application for the appointment of a special district attorney. Two years later, Fisher granted the application and assigned Adler to the case. Since the records are sealed, it has never been clear why Donovan asked to be replaced.

Earlier this year, Adler issued subpoenas seeking a broad range of documents related to Data and Field Services and other groups and individuals.

The Working Families Party is seeking to quash the subpoenas, claiming that Fisher, who is not a Richmond County judge, had no authority to replace Donovan, that Donovan had no valid reason to step aside and that the judge and D.A., by submitting sealed and redacted documents, have made it difficult or impossible for the party to dispute the appointment of Adler or effectively challenge the subpoenas. The matter is pending before the Second Department (NYLJ, Feb. 28).

OCA, in its response brief, argues that Fisher had authority to appoint Adler because as deputy chief administrative judge she has the power to name herself a Richmond County Supreme Court justice, and did so. It also argues in papers submitted by OCA Counsel John McConnell and Lee Alan Alderstein that the party’s challenge to Adler’s January 2012 appointment is time-barred.

Donovan, in a heavily-redacted brief, accuses the Working Families Party of seeking "pre-indictment discovery" in its effort to unseal records on why the district attorney asked to be relieved and why Fisher granted the request. He also suggests that the party is seeking to stymie Adler’s investigation as a delaying tactic.

"Should this Court vacate Justice Fisher’s order, of course, that would not put an end to the investigation; it would merely require that it be conducted by respondent Donovan," Assistant District Attorney Morrie Kleinbart said in a memorandum of law opposing the party’s petition for a writ of prohibition. "That being the case, it is readily apparent that petitioners are trying to delay answering charges of improper conduct surrounding the 2009 City Council election. That is something petitioners cannot be permitted to do."

D.A. Defends Recusal

Though it is unclear why Donovan stepped away from the case, his office contends recusal was necessary to avoid any appearance of impropriety.

"The office of district attorney has a political dimension, and, as a result, the individual elected to that position must act in a way that satisfies the public that his conduct is truly independent and not guided by political considerations," Kleinbart said in his papers. "Hence, since public confidence in the prosecutorial system is undermined precisely when a prosecutor forges ahead with a prosecution despite an appearance that the prosecution is politically motivated, recusal of the district attorney in such a circumstance is particularly appropriate."

In an affidavit attached to Fisher’s papers, Adler revealed that the investigation focuses on whether the Working Families Party, working through Data and Financial Services and Citizen Action, skirted campaign finance laws by providing discounted and in-kind services to a City Council candidate or candidates in violation of campaign finance laws. The special prosecutor said he is looking into possible violations of Election Law, Penal Law and local law, potentially involving the misuse of matching funds through the New York City Campaign Finance Board, and a "cover-up."

Adler’s affidavit does not identify any individual candidates, but he did attach an April 26, 2012, Crain’s article noting that the party had settled a lawsuit accusing it of unfairly assisting the campaign of Staten Island Democrat Debi Rose and other candidates. The party shut down Data and Field Services as part of the 2011 settlement.

He also referenced a May 2010 report in which former chief judge Judith Kaye, now of Skadden, Arps, Slate, Meagher & Flom, and Skadden partner Daniel Kurtz address the Working Families Party/Data and Field Services relationship. Adler said in the affidavit that the party’s attempt to get him removed from the case is "little more than a ‘thinly veiled and clearly premature attempt to throw a ‘legal monkey wrench’ into an ongoing investigation."

"At a time when political scandals are revealed and indictments voted, and when political chicanery abounds, the need to move forward to ascertain if crimes were committed, and to resist the clearly obstructive tactics engaged in by the Working Families Party, has clearly arrived," Adler said in an affidavit dated May 1.

City records show Adler has been paid about $94,000 since his appointment.

Avi Schick of Dentons, counsel for the party, said the city’s Campaign Finance Board audited seven of the 10 candidates the party supported in the 2009 election and did not find a single violation.

"Everything about this process, unfortunately, smells of politics," Schick said. "If Mr. Donovan wants to convince people otherwise, he should immediately release the application [to be removed] that he filed in secret in 2010 and has fought to keep secret ever since."

Schick denied that the Working Families Party has attempted to delay or prolong the matter, observing that it took two years for Fisher to act on Donovan’s request to be removed. He also noted that it took Adler more than a year after he got the case to issue subpoenas.