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norc 3-3-10 _rev_dn

norc 3-3-10 _rev_dn

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Published by Elizabeth Benjamin
ethics charge, yankees tickets, gov
ethics charge, yankees tickets, gov

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Published by: Elizabeth Benjamin on Mar 03, 2010
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03/03/2010

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STATE OF NEW YORKCOMMISSION ON PUBLIC INTEGRITY540 BroadwayAlbany, New York 12207 IN THE MATTER OF AN INVESTIGATIONINTO GOVERNOR DAVID A. PATERSON’SACQUISITION OF WORLD SERIES TICKETS
NOTICE OFREASONABLE CAUSEINTRODUCTION
On October 28, 2009, Governor David A. Paterson attended the first game of the 2009World Series at Yankee Stadium, with his son, his son’s friend, David Johnson, a Senior Aide,and Mark Leinung, Deputy Director of State Operations. On October 30, 2009, in the lateafternoon, the New York State Commission on Public Integrity (“Commission”) hand delivereda “fifteen day” letter to Governor Paterson advising him that the Commission had receivedinformation indicating that he may have violated Public Officers Law §§73(5) and 74(3)(d), (f)and (h) when he solicited, accepted and received five complimentary tickets to the first game of the World Series and affording him an opportunity to submit a written response within fifteendays. Peter Kiernan, Counsel to the Governor, submitted a timely response to the fifteen dayletter, essentially maintaining that the Governor attended the game in his official capacity andthat obtaining the remaining four other tickets was lawful because the Yankees wereimmediately reimbursed for them.The Public Officers Law prohibits a State officer or employee, such as the Governor,from directly or indirectly soliciting, accepting or receiving anything of more than nominal valueif it is reasonable to infer that the gift was intended or could reasonably be expected to influenceor reward him or her in the performance of his or her official duties. Public Officers Law§73(5)(a). A companion provision prohibits a State officer or employee from directly orindirectly soliciting, accepting or receiving anything of more than nominal value from a lobbyistor lobbying client unless it is not reasonable to infer that the gift was intended to influence theState officer or employee. Public Officers Law §73(5)(b). As an indication of how seriously thelaw treats gift ban violations, a State officer or employee who violates it is subject to a civilpenalty of $40,000 and the value of any gift, the highest financial penalty authorized for a PublicOfficers Law violation. In lieu of a civil penalty, a violator may be prosecuted criminally.Similarly, the State Code of Ethics prohibits a State officer or employee, such as the Governor,from using or attempting to use his or her official position to secure unwarranted privileges forhimself or herself or others. Public Officers Law §74(3)(d). A State officer or employee whoknowingly and intentionally violates this provision is subject to a civil penalty of $10,000. TheCode of Ethics also makes it unlawful for a State officer or employee to act in a manner thatgives the appearance that he or she is engaged in conduct in violation of his or her trust. PublicOfficers Law §74(3)(f) and (h).
 
2There is reasonable cause to believe based on the record evidence the Commission hasadduced in its investigation that Governor Paterson solicited, received and accepted an unlawfulgift in violation of Public Officers Law §§73(5)(a) and (b), and misused his official position tosecure free tickets to Game One of the World Series for himself, two members of his staff, hisson and his son’s friend in violation of Public Officers Law §§74(3)(d), (f) and (h).
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JURISDICTION OF THE COMMISSION
The Commission is authorized by Executive Law §94(12)(a) to commence inquiries intopossible violations of Public Officers Law §§73, 73-a or 74. Pursuant to Executive Law§94(16)(d), the Commission is authorized to conduct any investigation necessary to carry out theprovisions of Executive Law §94. Pursuant to this power and duty, the Commission mayadminister oaths or affirmations, subpoena witnesses, compel their attendance and require theproduction of any books or records that it may deem relevant or material.When the Commission determines there has been a violation of Public Officers Law§73(5), Public Officers Law §73(18) authorizes the Commission to assess a civil penalty in anamount not to exceed $40,000 and the value of any gift, compensation or benefit received inconnection with the violation. In lieu of a civil penalty, the Commission may refer a violation of Public Officers Law §73(5) to an appropriate prosecutor which, upon conviction, shall bepunishable as class A misdemeanor. Where the Commission finds a violation of Public OfficersLaw §74(3)(d), Public Officers Law §74(4) provides that the Commission may assess a civilpenalty in an amount not to exceed $10,000 and the value of any gift, compensation or benefitreceived as a result of the violation. The Public Officers Law does not provide for a civil penaltyfor violations of Public Officers Law §§74(3)(f) and (h).Executive Law §94(12)(b) provides that if the Commission determines that there isreasonable cause to believe that a violation of Public Officers Law §§73 or 74 has occurred, theCommission shall send a notice of reasonable cause: (i) to the reporting individual; (ii) to thecomplainant, if any; (iii) in the case of a statewide elected official, to the Temporary President of the Senate and the Speaker of the Assembly; and (iv) in the case of a State officer or employee,to the appointing authority for such person.
POWERS AND DUTIES OFTHE OFFICE OF THE GOVERNOR
Article IV, Section 1 of the New York State Constitution provides that the “executivepower shall be vested in the governor, who shall hold office for four years .…” Article IV,Sections 3 and 4 set forth the Governor’s powers and duties, including the power to convene theLegislature, or the Senate only, on extraordinary occasions, and serving as commander-in-chief of the military and naval forces of the State. The Governor also has the power to grant reprieves,commutations and pardons after conviction for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as the Governor
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The Commission will pursue additional charges, including charges against any person who was notnamed in this Notice, if warranted.
 
3may think proper, subject to such regulations as may be provided by law relative to the mannerof applying for pardons.The office of the Governor is known as the Executive Chamber (Executive Law §2).Executive Law §30 provides that the Governor is the head of the Executive Department, which isone of the 20 civil departments provided by Article V, Section 2 of the Constitution.
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TheGovernor may appoint such subordinates and employees as may be necessary for the exercise of his powers and the performance of his duties as the head of the Executive Department. TheGovernor may also prescribe their duties and fix their compensation within the amounts that areappropriated.
PRINCIPAL FINDINGS OF FACT
There is reasonable cause to believe that the Governor solicited, received, and acceptedtickets for himself, his son, and his son’s friend, from the New York Yankees, a registeredlobbyist, to Game One of the World Series in violation of Sections 73(5)(a) and (b) and 74(3)(d),(f) and (h) of the Public Officers Law.There is reasonable cause to believe that the Governor falsely testified under oath that hehad always intended to pay for the tickets for his son and his son’s friend, and that beforeattending the game he had handwritten a check for $850 for ultimate delivery to the New York Yankees as payment for the tickets, when, in fact, the Governor’s intention was to receive andaccept the tickets for himself, his son and his son’s friend without paying for them, until a pressinquiry after the receipt of the tickets caused the Governor to submit a backdated check aspayment for the tickets.
STATEMENT OF FACTS
 On October 25, 2009, the New York Yankees (“Yankees”) won the American LeagueChampionship, securing their appearance in the World Series. Game One of the World Series(“Game One”) was scheduled for October 28, 2009 at Yankee Stadium.The next day, on October 26, 2009, Matthew Nelson, Director of Scheduling forGovernor David A. Paterson, emailed David Johnson, a senior aide to the Governor, to inquirewhether the Governor intended to go to Game One. Johnson responded to Nelson: “I think thathe should. I will reach out [sic] to Randy Levine. [sic] President of the Yankees.” EC-161.
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The 20 civil departments are Executive, Audit and Control, Law, State, Agriculture and Markets,Banking, Civil Service, Correctional Services, Economic Development, Education, Environmental Conservation,Health, Insurance, Labor, Mental Hygiene, Motor Vehicles, Public Service, Social Services, Taxation and Finance,and Transportation.
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Documents the Commission obtained by subpoena from the Executive Chamber are cited as “EC” andnumbered consecutively. The Commission conducted sworn interviews of six individuals. The transcripts, whereavailable, are cited by the name of the person interviewed. The Governor’s response to the fifteen day letter is citedas GDAP. Public documents filed with the Commission that we have used as handwriting exemplars are cited asCPI. All cited documents are incorporated by reference.

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