Copi On Ig

The Inspector General’s (“IG”) report inappropriately second-guesses the judgments of the Commission. Regrettably, in reaching his unfounded conclusions about the Commission’s response to allegations about Mr. Teitelbaum, the IG ignores the Commission’s reasonable and measured response when the allegations were made, particularly since the entity complaining of the alleged leaks and communications was the intended beneficiary of the leaks and information.1 In his report, the IG does not sufficiently take into account that these allegations were raised by Lloyd Constantine, senior advisor to then-Governor Spitzer in the middle of an investigation where, as this Commission has said, the Commission was “forced to overcome numerous obstacles placed by the [Spitzer Administration].” Notice of Reasonable Cause issued by the Commission on July 24, 2008 in the Matter of an Investigation into the Alleged Misuse of Resources of the Division of State Police at 6. In addition, the IG does not establish that the “confidential information” that Mr. Teitelbaum purportedly disclosed to Robert. Hermann, then a member of Governor Spitzer’s cabinet as Director of the Office of Regulatory Reform, was in fact confidential, and rejects relevant evidence that the information at issue was not released to Mr. Hermann. The Commission cooperated fully with the IG’s investigation, but was not afforded the opportunity to respond to the IG’s preliminary findings of fact before those findings were released to the public, a practice that the Inspector General has routinely followed in other matters. Consequently, the Commission’s counsel has prepared this response on behalf of the Commission and with its approval. 1 We also note at the outset how far beyond the mandate of the IG it is for him to second-guess a statutory Commission in the exercise of its discretion, much less to claim a roving mantle allowing him to determine whether actions or decisions are “inappropriate” or “appropriate.” As the Inspector General knows, in order for allegations to fall within his purview they must concern “corruption, fraud, criminal activity, conflicts of interest or abuse” within a covered agency. Executive Law Article 4-A, Section 53(1). But his report comes nowhere near establishing how an agency’s response to “leak” allegations fall within these definitions.

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In February 2008, while the Commission was in the middle of the so-called Troopergate investigation and encountering significant resistance in seeking to obtain relevant documents from the Executive Chamber, the Albany County District Attorney (“DA”) notified the Commission’s then Chair of the allegations that are the subject of the IG’s report. He told the Chair that months earlier, an individual from the Executive Chamber had alleged that Mr. Teitelbaum might have shared information about the Commission’s investigation with Mr. Hermann, who relayed this information to Lloyd Constantine. This information purportedly concerned the Executive Chamber’s lack of cooperation with the Commission’s investigation, the existence and makeup of the Commission’s Working Group of commissioners reviewing the Troopergate matter, and the fact that the Commission had apprised the DA of inconsistencies between Darren Dopp’s sworn statement to the Attorney General’s office and his testimony to the Commission. The DA granted access to the results of his investigation and allowed members of the Commission to listen to tapes of the DA’s interviews with Messrs. Constantine and Hermann. The Commission then asked Mr. Teitelbaum to provide his recollection of these events. After reviewing the available evidence, the full Commission carefully considered the matter, and the Chair communicated to the DA, in writing, the Commission’s unanimous continued confidence in Mr. Teitelbaum. Indeed, to this day, the central allegation that some information was passed between Mr. Teitelbaum and Mr. Hermann, made by someone who did not observe any such event, has two and only two possible witnesses. Both have consistently stated that no such transfer of information took place. In interviews with the DA and the IG, Mr. Hermann stated unequivocally that Mr. Teitelbaum never conveyed to him any confidential information regarding

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the Commission’s alerting the DA to Mr. Dopp’s October 11, 2007 testimony, nor asked him to convey any such information.

Likewise, Mr. Teitelbaum has consistently said that he did not

convey any confidential information about the Commission’s investigation to Mr. Hermann. Initially, when asked whether Hermann specifically told him how he came by this information, Constantine responded, “[y]eah. He told me he came by this information because Herb Teitelbaum told it to him.” Later when pressed on the point and asked specifically, “[d]id he tell you that he had a conversation Herb and learned this information, or he learned it from Herb Teitelbaum . . .” Constantine responded, “I don’t know. I went away from the conversation knowing that he got it from Herb Teitelbaum and, you know, whether that was by email, conversation, by semaphore, by sign language, I don’t know, I just don’t know.” The Commission was also aware in February 2008 that, even if Mr. Teitelbaum had provided information to Mr. Hermann – who was, after all, a high-ranking member of the Governor’s staff – in an effort to persuade the Executive Chamber that the matter was serious and it should cooperate, that would not have been a violation of any ethical standard of which the Commission was aware. To be clear: even crediting the allegation in full, any information conveyed was of a type that an investigator is entitled to use to further his investigation. Thus, the Commission carefully reviewed the evidence gathered during the DA’s investigation of the matter, carefully questioned Mr. Teitelbaum about his recollection of events, and addressed that evidence in a reasoned way.

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To summarize, the Commission continued to have confidence in Mr. Teitelbaum because of: ·The Commission’s personal, first-hand experience with the tenacity and zeal with which Mr. Teitelbaum was conducting the investigation. Far from improperly assisting the Executive Chamber, Mr. Teitelbaum often was actively at odds with the Executive Chamber. ·The Commission’s knowledge that the Executive Chamber had not readily produced all relevant documents, but instead did so piecemeal, initially asserted unwarranted privileges, delayed the course of our work substantially but unnecessarily, and had to be threatened with litigation before it ultimately appeared to comply. ·The fact that the only two “witnesses” to the supposed event both denied that it ever occurred and, importantly, the entity complaining of the alleged leaks and communications would have been the intended beneficiary of any leaks and information. ·The long experience of many Commissioners with the tactic of attacking the investigator to deflect attention from the actions under investigation, which is a reasonable inference to draw about the Executive Chamber’s referral of this allegation to a prosecutor. Finally, the timing of the DA’s referral of these allegations to the IG raises disturbing questions about the motives behind the referral of such flimsy claims. The referral happened on August 6, 2008, five months after the DA had first conducted interviews of the recipient of Mr. Teitelbaum’s alleged leak. But the referral came less than two weeks after the Commission issued its July 24, 2008 Notice of Reasonable Cause (“NORC”), charging four former Spitzer Administration officials with ethics violations. In addition to publicly rebuking the administration officials in the NORC, the Commission made publicly available on the same day on the Commission’s website virtually its entire Troopergate file. Among other documents, the file showed that, during the DA’s first Troopergate investigation, the public report of which concluded that no one in the Executive Chamber had violated any law, the DA had afforded a senior advisor to the Governor an opportunity to review and comment upon the DA’s proposed press release regarding his report, a potentially embarrassing fact for the DA. After that referral,

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the IG readily agreed to investigate, notwithstanding his office’s prior recusal in the Troopergate matter. Examination of the Commission’s Troopergate investigation, the entire file of which has been available on the Commission’s website since the Commission issued the NORC, demonstrates that the Commission and its staff conducted an uncompromised and comprehensive investigation that used traditional and appropriate investigative tools, such as subpoenas and sworn testimony, that no other agency employed in their investigations of the matter. The Commission remains the only agency to have charged any individual with any violation of law in connection with the Troopergate matter. Finally, because the Inspector General departed from his usual practice, the Commission has not been able to respond to all aspects of this Report. The Commission of course does not necessarily agree with statements that it has not addressed, and reserves the right to do so in the future.

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