HARRIS BEACH ~

ATTORNEYS AT LAW

May 13,2011

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

KARLJ. SLEIGHT

DIRECT: (518)701-2716 FAX: (518) 701-2701 KSLEIG HT@HARRISBEACH.COM

FOR IMMEDIATE RELEASE

STATEMENT ON BEHALF OF JOHN O'CONNOR

The action taken today by the Commission on Public Integrity is the latest in the brief, but sad, history of an agency charged with improving ethics in government.

As this case clearly demonstrates, the Commission has lost sight of its mission, and for the second time in its brief history has eviscerated its reputation by leaking information to the press and failing to safeguard the rights of those under its jurisdiction.

Despite Mr. O'Connor's repeated desire to meet with the Commission and explain the newspaper reports forming the basis of the allegation, the Commission denied him his statutory opportunity to be heard, refused to grant him fundamental due process and wasted untold government resources in the pursuit of fictitious assertions.

Most egregious is the fact that the Commission itselfhas violated the state ethics law by its conduct. Despite repeated requests for the Commission to conduct an internal investigation of media leaks, the Commission ignored Mr. O'Connor's request (see attached letter). The Commission's response to charge Mr. O'Connor is unbecoming of a government body charged with the responsibility of ensuring ethics in government and an abuse of its power.

Today we have filed a complaint with the Office of the State Inspector General. The IG has recently found wrongdoing at the Commission by its former executive director Herb Teitlebaum, and has the statutory mandate to investigate the Commission. Mr. O'Connor has pledged full and complete cooperation with the IG and we will meet with the IG as soon as possible to address the conduct of the Commission.

HAND DELIVERED

HARRIS BEACH ~

ATTORNEYS AT LAW

May 13,2011

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

(518) 427-9700

Ellen N. Biben

State Inspector General Empire State Plaza

Agency Building 2, 16th Floor Albany, NY 12223

KARLJ. SLEIGHT

DIRECT: (518) 701-2716 FAX: (518) 701-2701 KSLEIGHT@HARRISBEACH.COM

Re: Complaint of Misconduct by the Commission on Public Integrity

Dear Inspector General Biben:

Please be advised that I am filing this complaint with your office on behalf of my client, Research Foundation President John J. O'Connor, who for nearly 2 1/2 years has been the subject of abuse and violations of the state ethics law by the staff at the Commission on Public Integrity.

As you are aware Executive Law §94(12)(a) and Public Officers Law §74 proscribe strict requirements of confidentiality for Commission investigations. The obvious reason for such requirements is to ensure that reputations of respected individuals and public servants like Mr. O'Connor are not wrongfully tarnished. Mr. O'Connor has been victimized on multiple occasions with breaches by the Commission of applicable confidentiality statutes. Since the Inspector General has previously examined this identical form of misconduct in the past (see, IG report concerning former Commission Executive Director Herbert Teitlebaum), we consider ourselves fortunate to have in place an independent agency able to review this abusive conduct.

Attached to this complaint, I am providing correspondence between the Commission and myself that has occurred over the last 2 ~ years. The action by the Commission in alleging a violation of Public Officers Law §74 is absurd on its face and obviously a vindictive reaction to our request for the Commission to conduct an internal investigation. In addition to the violation of the ethics laws by the Commission, this case is wholly without merit.

In closing, please note that my client, Mr. O'Connor has asked me to relate to you that he is pledging his full and complete cooperation with your investigation. Our hope is that your independent examination of the misconduct by the Commission in this case will ultimately lead to an improvement in the administration and regulation of ethics and integrity in the state of New York.

Mr. O'Connor and I look forward to personally meeting with you to discuss this matter in greater detail in the immediate future.

Very truly yours,

1<~1'~

Karl J. Sleight

HARRIS BEACH i!

ATTORNEYS AT LAW

April 20, 2011

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

(518) 427-9700

HAND DELIVERED AND SENT VIA E-MAIL

KARLJ. SLEIGHT

DIRECT: (S 18) 701 -2716 .

FAX: (518) 701-2701

KSLEIGHT@HARRISBEACH.COM

CONFIDENTIAL PURSUANT TO EXECUTIVE LAW §94(12)(a) AND PUBLIC OFFICERS LAW §74

Mitra Hormozi, Chair

New York State Commission on Public Integrity 540 Broadway

Albany, NY 12207

Re: In the Matter of an Investigation into the Work Status of Susan Bruno

Dear Chair Hormozi:

I represent John J. O'Connor, the President of the Research Foundation of the State University of New York ("RF") in the above-captioned investigation. This inquiry has a long history, significantly including issuance by the New York State Supreme Court of a sealing Order, at my request and over Commission staff objections, due to the highly confidential nature of the matter.

On Monday April 18, 2011, in the Albany Times-Union a story by reporter James M.

Odato appeared entitled, Probe could answer job's questions. The story concerned what was identified as a confidential investigation by the Commission concerning the employment of former RF employee Susan Bruno. My client was specifically referenced in the story·, which appeared on the front page of the newspaper. The web version of the story included two photographs, both of which were of my client. Second generation stories have now appeared in the broadcast media (see attached). A "person participating in the investigation" was described as

. the source of the detailed information in the story.

For nearly 2 Y2 years, my client has been the. target of a Commission inquiry that has absolutely no basis in law or fact, subjected to abuses of the Commission's investigatory powers, and now as a result of a breach of the confidentiality protections afforded my client pursuant to Executive Law §94(12)(a) and Public Officers Law ("POL") §74he has suffered reputational damage, . which has been a significant and ongoing concern over the course of this protracted inquiry. Premature conclusions and a "prove you are innocent" mentality have permeated this case.

Candidly, ·any faith my client had in the Commission's investigative process or any hope of being treated fairly was lost long ago. The above-referenced media leak simply confirms what we have known for some time. This investigation is not a dispassionate search for the truth, or

. even a legitimate review of conduct that might arguably violate the Public Officers Law, but instead is a terribly flawed inquiry which needs to end immediately. Despite our well-founded and documented concerns over this investigation, they do little to address Mr. O'Connor's practical concerns. We seek fair treatment and consideration under the law.

Mitra Hormozi April 20, 2011 Page 2

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ATTORNEYS AT LAW

At this juncture of the Commission's investigation, after Mr. O'Connor has submitted his response to the "15 day letter" and before exercising his opportunity to be heard), the law requires an affirmative determination by the Commission to continue an investigation. Executive Law §94(12)(a) states, in pertinent part, as follows:

... if the commission determines on its own initiative to investigate a possible . violation, the commission shall notify the individual in writing, describe the

. possible or alleged violation of such laws and provide the person with a fifteen

. day period in which to submit a written response setting forth information relating . to the activities cited as a possible or alleged violation of law. If the commission thereafter makes a determination that further inquiry is justified, it shall give the

individual an opportunity to be heard. . . .

I am respectfully requesting pursuant to Executive Law §94(12)(a) that the Commission call a formal meeting and make the statutorily required determination prior to close of business on May 2, 20 II to conduct a comprehensive assessment of the facts of this matter and the actions taken in the name of this Commission.

Specifically, I am requesting that as required by Executive Law §94(12)(a) all of the commissioners be completely and fully apprised of this matter, and ask that consideration .be given to the following issues: (1). Whether there is a rational basis to continue further investigation under the premise that Mr. O'Connor has violated Public Officers Law §74 as alleged based on the notion that Susan Bruno did "little work"; (2). Whether the conduct of Commission staff throughout this investigation was inappropriate, offended fundamental principles of fairness and/or violated the law; and (3). Whether in light of the extreme breach of my client's statutory right to confidentiality, the Commission intends to take any action. to determine the source of the media leak, and prevent media leaks in the future; and (4). Review

any other issues which it deems appropriate under the circumstances. .

Mr. O'Connor has a legal right to this request, which is not lightly made, and is a product of our complete and utter exasperation after participating in the Commission process.

. Recognizing that this case has lingered for nearly 2 Yz years, was initiated by former

Executive Director Herb Teitlebaunr', and that the membership of the Commission has changed

I· Mr. O'Connor's opportunity to be heard was scheduled to occur on May 5, 2011 at 1 :30 p.m. .

2 Ironically, Mr. Teitlebaum was forced to resign in light of an investigation bythe Office of the State Inspector General for leaking confidential information of a Commission investigation, the same situation that exists in the instant matter. See, "An Investigation of an Allegation That Herbert Teitelbaum, Executive Director of the Commission on Public Integrity, Inappropriately Disclosed Confidential Commission Information Related to Its Troopergate Investigation and An Investigation of the Appropriateness of the Commission on Public Integrity's Response Upon Receiving the Allegations Against Its Executive Director" dated May·13, 2009; on the web as of

Mitra Hormozi April 20, 2011 Page 3

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ATTORNEYS AT LAW

significantly during this timefrarne, I provide the following information for the consideration of the. commissioners. We are available to meet with you and the commissioners if you believe such a meeting would be mutually productive.

I

1. The "15 Day Letters" and Mr. O'Connor's Responses

President O'Connor received a letter from former Executive Director Herbert Teitelbaum dated January 29, 2009 ("the Teitelbaum letter") stating that the Commission had "received information indicating that you [Mr. O'Connor] may have violated Public Officers Law sections 74(3)(d),(t)and (h)." I expect that the "information" that the Commission received was, in fact, two newspaper stories that appeared shortly before the January 29, 2009 Teitelbaum letter published in the Albany Times-Union. See, Foundation under scrutiny (January 4, 2009); Susan Bruno resume eyed (January 6, 2009).3 Notably, both articles were also authored by reporter :

James M. Odato .

. The Teitelbaum letter continued stating "[t]he Commission has received information that in 2003 you secured employment for Susan Bruno for which she was not qualified and for which she did little or no work. The Commission has also received information that you permitted Ms. Bruno to work from home, a privilege you did not confer on your other employees" (emphasis added). The letter also stated that my client could be subject to a $10,000 civil penalty for a violation of POL §74(3)(d). While Mr: O'Connor was the recipient of a 15 day target letter from .

. the Commission, we believe that Ms. Bruno has never received a 15 day letter from the Commission.

The· media interest in Susan Bruno was based in large part because she is the daughter of former New York State Senate President Pro Tem and Majority Leader Joseph M. Bruno. Mr. Bruno was the subject of a federal prosecution which is currently on appeal in the Second Circuit Court of Appeals.

On April 10, 2009 we responded to the Teitelbaum letter, and advised the Commission that Ms. Bruno was hired by the RF and began work nearly five years before the passage of the Public Employee Ethics Reform Act of 2007 ("PEERA") which for the first time, applied POL §74 to the RF, effective April 25, 2007. Initially, Commission staff maintained that PEERA

. could be applied retroactively, prior to its effective date(s). Despite the obvious jurisdictional defect raised in my response, in the interests of general transparency, I also provided a robust factual account of Ms. Bruno's tenure at the RF in an effort to resolve this matter.

April 20, 20 i 1 at:

http://www.ig.state.ny.us/pdfs/Report%20ofUIo20an%20 Investigation%20Concerning%20the%20Commission%20o n%20Public%20Integrity.pdf

Mitra Honnozi April 20, 2011 Page 4

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ATTORNEYS AT LAW

On January 6, 20 I O-after eight (8) months of having no communication with

. commission staff-Executive Director Barry Ginsberg sent an amended IS-day letter, and modified the original allegation against President O'Connor asserting, this time, that "subsequent to April 25, 2007, your client [Mr. O'Connor] permitted Susan Bruno, an employee of the SUNY-RF, to work from home until March 2009, when she resigned from the SUNY-RF. The Commission also has received information that your client permitted Bruno to receive compensation from April2S, 2007 through March;2009 for little or no work" (emphasis added). In the January 6,2010 e-mail to me attaching the revised IS-day letter staff attorney Bridget Holohan of the Commission stated, "[p ]lease see the attached letter, which resolves any alleged jurisdictional issues ... "

The new date relied on by the Commission was obviously intendedto manipulate the allegation date to comport with the effective date of PEERA. Of equal or greater concern is the fact that the conduct alleged=- that Ms. Bruno was allowed to work from home or did little or no work-is not a Public Officers Law issue, particularly when the Commission is in possession of . exculpatory information proving that Ms. Bruno worked on many projects. and tasks while employed at' the RF (see, infra). Section 74, the Code of Conduct, covers conflicts of interest between public duties and private interest, not management decisions of the RF. (See, NY State Asphalt Assoc. v. White, 138 Misc. 2d 863 (Sup. Ct. Albany Co. 1988) (a prohibited conflict of interest was found when an official used his official position to compel payment to a not-forprofit corporation in which the official had an interest)). The Commission's application of POL §74 herein is well beyond the' historical intent, design and interpretation of that statute.

2. POL § 74 is Not Intended or Designed to Second Guess Managerial Decisions

As a preliminary matter of law there is no language in POL §74 to indicate it was intended ordesigned to provide a mechanism to second-guess the management of agencies or the deployment of its resources. Permitting the Commission to utilize a state ethics law to evaluate employee performance would be a fundamental departure from the last half century of POL §74 interpretation. It would be the first time the ethics laws have been used to oversee an organization's staffing, use of technology in the workplace or management decisions.

POL §74(2) the precursor to the "Standards" found in POL subsection (3) states as follows:

"Rule with respect to conflicts of interest. No officer or employee of a state agency ... should have any interest, financial or otherwise, direct or indirect, or

engage in any business or transaction or professional activity or incur any .

obligation of any nature which is in substantial conflict with the proper discharge . of his duties in the public interest" (emphasis added).

Mitra Hormozi April 20, 2011 Page 5

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ATTORNEYS AT LAW

When taken into consideration, this critical portion of the Code of Ethics would mandate a finding of a "substantial conflict" either prior to, or in conjunction with, the "Standards" articulated in subdivision (3). In this case, there is no "substantial conflict" with respect to. the employment of Ms. Bruno, therefore POL §74 does not apply to Mr. O'Connor in this instance.

Finally, there is no reasonable basis that would allow for an interpretation that Mr.

O'Connor's mainstream managerial decisions as President of the RF could result in a finding of

a violation o.fPOL §74 [d] or [h] by him. .

3. Mr. O'Connor's Struggle to Maintain Statutory Confidentiality in the Face of the

Commission's Efforts to Publicize the Existence of this Investigation .

. As referenced in the first paragraph of this letter, we have had tremendous concerns over the Commission's departure from the sacrosanct confidentiality provisions in the ethics laws. Hanging in the balance is the reputation of a highly regarded education professional, more than 30 years in the making. His professional reputation is now being publicly questioned by virtue of the Commission's inability to maintain the mostbasic tenets of a confidential inquiry.

Shortly after Mr. O'Connor received his first "15 day letter", the RF received inquires from Times-Union reporter Odato asking whether the Commission was investigating the situation reported in his news stories, which to our knowledge was the first leak of information by the Commission to. the media. At the time, a Commission staff attorney dismissed any linkage between the media interest and the Commission's actual inquiry as "a coincidence".

In an effort to seek closure to this wayward investigation, on May 11, 2010, Mr.

O'Connor sought judicial intervention. Highly probative for purposes of current concerns, Mr. O'Connor' proceeded in the name of "John Doe" and sought a sealing order of the litigation to protect his reputation, Remarkably, the Commission staff argued against the sealing order, effectively seeking to guarantee public attention to a Commission investigation that must, by . law, be confidential. This illogical position confirmed that the Commission was motivated by the prospect of media accolades and were not appreciative of the' importance of the legal requirements of confidentiality in its investigations·. Certainly, there was no concern for the reputation of those under investigation. Not surprisingly, the court granted the request and issued

the sealing order. .

In its substantive decision, while denying Mr. O'Connor's relief on ripeness grounds, the Court acknowledged the gravity of my client's confidentiality protections set forth in the statute, holding that, "Executive Law §94(12)(a) specifically requires Respondents to. keep their initial investigation, undertaken before reasonable cause is found, 'confidential. '" (see, Doe v. Ginsberg. unreported and sealed decision, Teresi; J., July 1, 2010). The court continued to.

Mitra Hormozi April 20, 2011 Pagee

HARRIS BEACH ~ ..

ATTORNEYS AT LAW

specifically recognize the danger of irreparable harm to Mr. O'Connor, however on the facts available to Mr. O'Connor at the time, the Court was not inclined to find prohibition.

Clearly, with the Commission's latest failure to take reasonable precautions to maintain confidentiality, resulting. in high profile media publicity of the .investigation and irreparable damage to Mr. O'Connor's reputation the facts have changed. While under the law of the case a viable legal action may now exist, my client finds such an option wholly unnecessary, so long as the Commission conducts the thorough review that is required at this juncture by Executive Law §94(12)(a).

4. The Commission is in Possession of Exculpatory Material Proving Ms. Bruno Was Assigned and Accomplished Tasks and Projects on Behalf of the RF

First, to be clear, the media and Commission allegation that Susan Bruno had a "no show job" is patently untrue. The Commission knows this is untrue and for a long period has been in possession of extensive exculpatory material disproving .its own allegation. Remarkably, this case has been allowed to proceed when a basic review of the evidence would confirm that no

. violation of POL §74 adhering to Mr. O'Connor exists.

Despite knowing that Ms. Bruno did work on behalf of the RF, a point repeatedly told to the Commission by Mr. O'Connor in his 15 day letter responses, certain elements at the Commission continue to cling to the dangerous, but apparent hope that their case can be salvaged, instead of recognizing that there is no basis for continuing to assert a factually barren and novel theory that POL §74 was somehow breached by Mr. O'Connor.

Upon information and belief, the Commission has interviewed several high ranking staff members at the RF and obtained thousands of pages of records. These records include evidence of the projects that Ms. Bruno worked on while at the RF, correspondence among her RF colleagues, all of which confirm the original facts explained 2 12 years ago to the Commission staff by Mr. O'Connor.

Pursuing the allegation that Ms. Bruno did "little or no work" and attempting to attach responsibility to Mr. O'Connor, while knowing that significant amounts of exculpatory material exists is highly questionable and may itselfrise to the level of unethical behavior.

5. Interference with Mr. O'Connor's Statutory "Opportunity to be Heard"

The most recent, of the many concerns that Mr. O'Connor has had during the Commission's process involve his effort to exercise his statutory right to his "opportunity to be

- Mitra Hormozi April 20, 2011 Page 7

HARRIS BEACH i2 -

ATTORNEYS AT LAW

heard" pursuant to. Executive Law §94(12)(a). The applicable statute governing Commission investigations clearly states, in pertinent part, as follows:

... if the commissiondetermines on its own initiative to. investigate a possible violation, the commission shall notify the individual in writing, describe the possible or alleged violation of such laws and provide the person with a fifteen day period in which to. submit a written response setting forth information relating to the activities cited as a possible Dr alleged violation of law. If the commission thereafter makes a determination that further inquiry is justified, it shall give the individual an o.ppo.rtunity to. be heard .... All of the foregoing proceedings shall be confidential.

Despite a complete -lo.SS of faith in the Commission's investigative process, Mr.

O'Connor expressed a willingness to. meet with Commission staff in the context of his statutory "opportunity to. be heard" and provide a robust account of the topic under consideration, Stunningly, Mr. O'Connor's legal right was transformed into. a compelled evidence gathering process when Mr. Ginsberg issued a subpoena ad testificandum for the exact date and time that Mr. O'Connor and Commission staff had planned to. discuss the facts ofthe matter, thus robbing him of his legal right. Mr. Ginsberg'S rationale for his decision was transmitted with the subpoena and was as follows:

I havepreviously told you that, since we already have received Mr. 0 'Connor response to the i5-day letter, we do not believe it would be productive to conduct an unsworn interview him. Moreover, the other interviews we have conducted in the course of this investigation have been sworn. We see no basis upon which to treat Mr. 0 'Connor differently than other witnesses. Thus, per your agreement to accept service by email, attached is a subpoena for John 0 'Connor for an interview on April IZ at } 0: 00 a. m.

Again, Mr. O'Connor was taken 'aback by the abuse of process, Certainly there is a difference as evidenced by Executive Law §94(12)(a) between "subject" and "witness". After we engaged in another procedural conversation with Commission staff, motivated by a desire to. make his case that he committed no. ethical violation, Mr. O'Connor capitulated to. the Commission's demands. He accepted an option of agreeing to. provide compelled testimony under oath, and - thereafter the Commission would let him exercise his right to. be heard. In our view, such tactics are abhorrent to. principles of basic fairness. By comparison the Department of Justice guidelines for United States Attorneys, considered the gold standard of prosecutorial protocols, specifically prohibitsubpoenaing a subject of an investigation who. is willing to. voluntarily appear, because "such a subpoena may carry the appearance of'unfairness.?"

4 See, United States Attorneys' Manual on the web-at: http://www.justice.gov/usao/eousalfoiareadingroomlusam/title9/1Imcnn.htm#9-11.150 (as of Apri120, 2011).

Mitra Hormozi April 20, 2011 PageS

HARRIS BEACH ~

ATTORNEYS AT LAW

Given the Commission's history of publicly referring cases to traditional prosecutors suggesting "perjury", Mr. O'Connor is understandably concerned that elements within the Commission might seek to salvage the case by such a referral. Presumably Commission staff will inquire about matters taking place four years ago, using documents with which Mr. O'Connor is unfamiliar. Any factual deviation in his testimony from the' information alre.ady in the Commission's possession- may, given the history of the Commission staffs action, be labeled ''perjury.'' We note that to date, both publicly known perjury referrals by the Commission were not pursued by the District Attorney, but nevertheless served to inflict reputational damage to the respective subjects.

Conclusion

While we are unaware of the complete extent to which the currently appointed members of the. Commission may be familiar with the history of this matter, in an effort to prevent a miscarriage of justice we respectfully bring these milepost events to your attention. Other material infractions and oddities have occurred during this process; but we believe the point has been made without the need to belabor.

At this juncture, Executive Law §94(12)(a) requires a full assessment of the matter by the Commission to determine whether the investigation should .continue. It is our hope that you will carry out your statutory mandate and evaluate the law and facts in a fair and dispassionate manner. If so, we are confident that you will come to the conclusion that this case should be terminated and used as an example of what not to do during sensitive and confidential

Commission investigations in the future. .

Thank you in advance for your time and attention to this very important matter. Welook forward to hearing from you by close of business on May 2,2011.

Very truly yours,

1<~1'~

Karl J. Sleight '.

Mitra Honnozi April 20, 2011 Page 9

HARRIS BEACH ~

ATTORNEYS AT LAw'

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. Richard D. Emery

Hon. Howard A. Levine John T. Mitchell

Mark G. Peters

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W AMC: Bruno Case Back In The Limelight (2011-04-18)

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Bruno Case Back In The LImelight Dave Lucas (2011-04-18)

ALBANY, NY (WAMC) - The New York State Public Integrity Commission has spent several months looking into former Senate Majority Leader Joe Bruno's eldest daughter's work as an employee of the Research Foundation of the

State University of New York. Capital District Bureau Chief Dave Lucas spoke

with a Times Union reporter who hilS been probing the case.

An individual described as "a participant" In the Public Integrity Commission investigation Involving Susan Bruno tells the Times Union investigators acquired "boxes" of records and letters after seeking written material referencing Bruno's name or position.

Times Union reporter James Odato became interested in trying to figure out Bruno's exact role as a foundation employee: The investigation revolves around the circumstances, specifically the "work status" of Susan Bruno's employment and comes in the wake of newspaper reports that the foundation allowed Bruno to work at home and that she rarely used her downtown Albany office. The Times Union said that In Bruno's resume submitted for her post, she cited educational achievements that she had not reached. After six years with the foundation, Bruno resigned in 2009 after the newspaper stories were published.

Bruno was paid just over 54-thousand dollars a year - Odato says the foundation challenged a court order that theTimes Union be given access to time sheets It requested under the Freedom of Information Law. Officials at his office said Susan Bruno's attorney Steve Coffey was busy with a case, unable to return a call for comment in time for broadcast. A spokesman for the ~tate Public Integrity Commission said state law prohibited him from commenting,as all Investigations are confidential. Jim Odato says if the Commission decides to go forward with charges, those charges will be made public, He says The Times Union Is determined to get the records It foiled, but several months may lapse before the case concludes.

Calls for comment to The Research Foundation returned a request for comment by email, stating 'The Research Foundation does not comment on the status of current or past employees and does not comment on investigations, including whether or not an investigation is being conducted."

e Copyright 2011, WAMC

http://www.publicbroadcasting.netlwamc/news.newsmainlarticle/0/0/1790698IWAMC.Ne... 4/20/2011

....

Westiaw., .

1/6/09 TIMESUN B 1

Page 1

I16/09 Times Union (Alb.) Bl 2009 WLNR 345148

Albany Times Union (NY)

Copyright 2009 Times Union. All Rights Reserved.

January 6, 2009

Section: Capital Region

SUSAN BRUNO RESUME EYED

BRENDAN J. LYONS SENIOR WRITER

Editor's Note: Click here to view a PDF

(http://www.timesunion.com/capitol/graphics/sbruno _resume.pdt).

Bruno's

of

Susan

resume

ALBANY -- The Research Foundation of the State University of New York will examine the credentials of Susan M. Bruno following a Times Union story on Sunday that raised questions about information contained in her resume.

Bruno, 47, the elder daughter of former Senate Majority Leader Joseph L. Bruno, apparently listed inaccurate information in her resume when she took a job with the Research Foundation five years ago. That information includes a line indicating she had "two full years of college courses" at SUNY Cobleskill, with no dates provided.

In fact, SUNY Cobleskill officials last week said they had no record of Bruno attending school there. On Monday, a spokeswoman contacted the Times Union saying they made a mistake and that Bruno had registered briefly as a student in the fall of1980.

"She was registered as a student from September 1980 to Nov. 13, 1980, in the flora-culture program," said Holly Cargill-Cramer, SUNY Cobleskill's director of communications and public affairs.

Cargill-Cramer said the regular semester that year ended on Dec. 18.

Still, Bruno's incomplete semester falls short of the two full years of courses listed on her resume, which the Research Foundation provided to the Times Union under a Freedom ofInformation Law request.

"We will be following up with Cobleskill to get details from them directly," said Cathy Kaszluga, vice president of corporation communications for the Research Foundation. "We have to examine it now."

Bruno has declined to respond to requests for comment.

The Times Union began examining Bruno's credentials after learning an FBI investigation of her father has ex-

© 2011 Thomson Reuters. NoClaim to Orig. US Gov. Works.

1I6/09"TlMESUN BI

Page 2

panded to the Research Foundation and, in particular, the work activities of Susan Bruno, according to a person with knowledge of the case.

The Research Foundation is a not-for-profit ann of SUNY that handles about $1 billion a year in grants and other funds for the SUNY campuses and employs more than 17,000 people, most of those through foundation programs in

the SUNY system. . .

About two months ago, federal authorities questioned top SUNY official John J. O'Connor, according to two people familiar with the matter. O'Cormor, president of the Research Foundation since 2000, last month was named interim chancellor of the 64-campus SUNY system and he has been SUNY's vice chancellor since 1997.

He declined to comment.

Joseph Bruno, 79, resigned his Senate seat in July after 32 years in the chamber, the last 14 as its leader. He is the subject of a three-year federal criminal investigation that has intensified over the past five months.

Susan Bruno was hired by the Research Foundation in May 2003, records show. She currently serves as a special assistant to O'Connor and is paid $84,120 a year.

People who have worked for the Research Foundation said Bruno was known for having long absences from foundation offices at the comer of State Street and Broadway. At one time, staffers used her private office for meetings because, they said.she was rarely there.

There are several discrepancies on the one-page resume of Bruno's on file at the Research Foundation, where she was hired as an assistant director of foundation relations for legislation.

The position requires a "bachelor's degree or equivalent," according to a job description provided by the Research Foundation. Bruno's resume also indicates that she held a "NYS Real Estate License." A spokeswoman for the New York Department of State, which licenses real estate professionals, said their records go back to 2002 and the agency has no record of a professional real estate license under the name Susan Bruno.

Brendan J. Lyons can be reached at 454-5547 or bye-mail atblyons@timesunion.com:

PULLOUT:

"We will be following up with Cobleskill to get details from them directly. We have to examine it now."

Cathy Kaszluga

SUNY Research Foundation

---- INDEX REFERENCES ---

COMPANY: SUNY RESEARCH FOUNDATION; TIMES UNION

NEWS SUBJECT: (Government (1 G080»

REGION: (North America (IN039); New York (lNE72); Americas (lAM92); USA (lUS73)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Page 3

Language: EN

OTHER INDEXING: (ALBANY; COBLESKILL; FBI; NEW YORK DEPARTMENT OF STATE; PULLOUT; RESEARCH FOUNDATION; SENATE; STATE STREET; STATE UNIVERSITY; SUNY; SUNY COBLESKILL; SUNY RESEARCH FOUNDATION; TIMES UNION) (Brendan J. Lyons; Bruno; Cathy Kaszluga; Editor; Estate License; Holly Cargill; John J. O'Connor; Joseph Bruno; Joseph L. Bnmo; O'Connor; Susan Bruno; SUSAN BRUNO RESUME; Susan M. Bruno)

. EDITION: Final Edition

Word Count: 794 116/09 TIMESUN B 1 END OF DOCUMENT

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" Westiaw ..

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114/09 Times Union (Alb.) Al 2009 WLNR 231188

Albany Times Union (NY)

Copyright 2009 Times Union. All Rights Reserved .

. January 4, 2009

Section: Main

FOUNDATION UNDER SCRUTINY

JAMES M. ODATO AND BRENDAN J. LYONS STAFF WRITERS

ALBANY -- The FBI's investigation of former Senate Majority Leader Joseph L. Bruno has expanded to the Research Foundation of the State University of New York, according to sources familiar with the probe.

In particular, a knowledgeable source said, the FBI is probing the work activities of Susan M. Bruno, the elder daughter of the former Senate leader.

The recent FBI inquiry at the Research Foundation -- a private arm of SUNY that handles about $1 billion a year in grants and other funds for the SUNY campuses and employs more than 17,000 people -- is tied to the ongoing federal grand jury investigation of Joseph Bruno's political activities and private business dealings.

In recent weeks, federal agents questioned top SUNY official John J. O'Connor, according to two people familiar with the matter: O'Connor, president of the Research Foundation since 2000, last month was named interim chancel-

lor of the 64-campus SUNY system. He has been SUNY's vice chancellor since 1997. .

A knowledgeable source said the FBI inquired about Susan Bruno's fundraising activities on behalf of SUNY's Maritime College in New York City, including donations to the college made by political acquaintances of the former senator.

Joseph Bruno, 79, resigned his Senate seat in July after 32 years in the chamber, the last 14 as its leader. He is the subject of a three-year federal criminal investigation.

In recent months, the federal probe has intensified. Numerous people who have had business dealings with Joseph Bruno -- including some who hired him as a private consultant during his public career, served with him in the Senate, represented labor unions or were linked to his thoroughbred horse-breeding interests -- have been summoned before a grand jury in Albany.

Susan Bruno, 47, was hired by the Research Foundation in 2003. She currently serves as a special assistant to O'Connor and is paid $84,120 a year. According to material supplied by SUNY, some of her duties involve trying to develop academic bridges to England, an area of special interest to O'Connor.

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"We are declining comment," SUNY spokesman David Henahan said on behalf of both SUNY and O'Connor in . response to the Times Union's questions about the federal probe.

Associates of Susan Bruno say privately that during the past five years, she seldom appeared at the office -- perhaps once a month, according to one person -- and that she was allowed the unusual arrangement of working from her home.

Her long absences from foundation offices at the comer of State Street and Broadway led staffers to use her private office for meetings, according to those who have worked with her.

Susan Bruno did not respond to requests for comment made through the foundation.

The Times Union found several discrepancies on the one-page resume Bruno provided the Research Foundation around the time she was hired in May 2003 as an assistant director of foundation relations for legislation.

The position requires a "bachelor's degree or equivalent," according to a job description provided by the Research Foundation. Bruno's resume, turned over to the Times Union under a Freedom of Information Law request, states she attended SUNY Cobleskill for "two full years of college courses" and also holds an "NYS Real Estate License." There are no dates listed for either entry in the document.

There are unanswered questions, however, about each of those entries.

"We do not have a Susan Bruno on record, and we've checked all of our records," said Kate Birchenough, a spokeswoman for SUNY Cobleskill. She added that the college's records system would show enrollment and attendance for any student by that name going back to 1916.

Mary Jo Moore, a spokeswoman for the New York Department of State, which licenses real estate professionals, said their records go back to 2002; the agency has no record of a professional real estate license under the name Susan Bruno. Moore, at the newspaper's request, checked the files for appraisers, brokers and salespersons, which all are licensed professions.

"She's not licensed as a real estate broker or salesperson," Moore said, later adding that there was nothing on file for an appraisal license.

Bruno's resume is spotted with typographical errors and misspellings. It indicates she took a "design course" at the "Ritner School of Design" in Boston. Steve Rittner, head of Rittners School of Floral Design, confirmed last week that Bruno attended and completed a floral design course there in the summer of 1981, when she was 20.

"She successfully completed the course and she left a very positive record here," Rittner said. "It was a summer program ... , She took an accelerated version."

The floral design course is a postsecondary course that does not yield a degree, Rittner said.

Her resume also includes work experience from 1985 to 1991. as a customer service representative at her father's former telecommunications company; Coradian.

Her resume states that while at Coradian, Bruno handled client relations with two large companies: Einhorn Yaffee Prescott, an architecture and engineering finn that has an office in Albany, and Finch Pruyn & Co. Inc., a paper

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company in Glens Falls. The names of both companies are misspelled on Bruno's resume. From 1991 to 2003, Bruno's resume indicates she was a legislative assistant in the state Assembly. Records on file with the state comptroller place Bruno's pay at $44,563 annually at the time she left the post with the Assembly Republicans.

A former GOP Assembly staff official said Bruno was "autonomous," meaning no one seemed to supervise her during her legislative career, and that she was highly paid for the post she held. Former Assemblywoman Maureen O'Connell recalled Bruno as providing "excellent" support.

When the Research Foundation hired Susan Bruno five years ago as an assistant director for foundation relations, she was paid a salary of $70,000. Cathy Kaszluga, a foundation spokeswoman, confirmed Bruno's salary but de-

clined to say whether she was officially allowed to work from home. .

Kaszluga also declined to answer questions about the apparent discrepancies in Bruno's resume -- including whether her qualifications met the requirements for the job.

"I do .not think I'll be able to give you anything beyond what we've already provided, given that she is a private citizen working for a private company," Kaszluga said in an e-mail last week.

The foundation had turned over some of Bruno's personnel information to the Times Union, but declined to provide copies of her time and attendance records.

The foundation maintains it is not subject to the Freedom of Information Law and is allowed to choose what it discloses. However, Robert J. Freeman, executive director of the State Committee on Open Government, an arm of the Secretary of State's office, said a recent decision by an Albany-based state Supreme Court justice ruled the foundation is subject to New York's FOI law.

General information provided by the Research Foundation indicates Bruno's duties involve four areas: an effort to accumulate grants for young SUNY faculty researchers; two annual dinners to recognize faculty researchers and those who have patented or licensed inventions; a U.S.lBritain community college information exchange; and encouraging SUNY participation in a scholarship program for study in Britain.

A person who spoke on condition of anonymity said the FBI's inquiry reached out to Matthew P. Behrmann, a former vice president for foundation relations, about Susan Bruno.

When contacted by a reporter, Behrmann said, "I don't think I can help you out," and declined further comment. Behrmann no longer works for the foundation.

The FBI's inquiry has been broad. Recently, investigators have displayed an interest in CMA Consulting in Latham, the company Joseph Bruno joined as CEO after quitting the Senate, according to a grand jury witness. CMA, with tens of millions of dollars in state contracts, has had a long-standing business relationship with the Research Foundation, which has paid the finn more than $1.5 million.

Brendan J. Lyons can be reached at 454-5547 or bye-mail atblyons@timesunion.com; James M. Odato can be reached at 454-5083 or bye-mail atjodato@timesunion.com.

BOX:

On the Web

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Read Susan Bruno's resume at http://timesunion.com.

PULLOUT:

The Times Union found several discrepancies on the one-page resume Bruno provided the Research Foundation around the time she was hired in May 2003.

---- INDEX REFERENCES ---

COMPANY: CREATIVE MARKETING ALLIANCE INC; MEXICANA DE AVIACION; CHEMICAL METHODS ASSOCIATES INC; ASSOCIATES; CMA

J

NEWS SUBJECT: (Education (IED85); Economics & Trade (lEC26); Government (lG080); Higher Education (lHI55»

INDUSTRY: (Real Estate Regulatory (lRES3); Real Estate (lRE57»

REGION: (North America (IN039); New Yprk (lNE72); Americas (IAM92); USA (1 US73»

Language: EN

OTHER INDEXING: (ALBANY; ASSEMBLY REPUBLICANS; ASSEMBLYWOMAN MAUREEN O'CONNELL; ASSOCIATES; BOX; CMA; FBI; FINCH PRUYN CO; FOI; FOUNDATION; GOP ASSEMBLY; MARITIME COLLEGE; NEW YORK DEPARTMENT OF STATE; NYS; PULLOUT; RESEARCH FOUNDATION; RITNER SCHOOL; RITTNERS SCHOOL OF FLORAL; SENATE; STATE COMMITTEE; STATE STREET; STATE UNIVERSITY; SUNY; SUNY COBLESKILL; SUPREME COURT; US !BRITAIN COMMUNITY) (Behrmann; Brendan J. Lyons; Bruno; Cathy Kaszluga; David Henahan; Estate License; James M. Odato; John J. O'Connor; Joseph Bruno; Joseph L. Bruno; Kaszluga; Kate Birchenough; Mary Jo Moore; Matthew P. Behrmann; Moore; Numerous; O'Connor; Read Susan Bruno; Rittner; Robert J. Freeman; Steve Rittner; Susan Bruno; Susan M.

Bruno; Yaffee Prescott) .

KEYWORDS: (State General)

EDITION: Final Edition

Word Count: 1687 1/4/09 TlMESUN Al END OF DOCUMENT

© 20]] Thomson Reuters. No Claim to Orig. US Gov. Works.

MITRA HORMOZI CHAIR

VIRGINIA M. APUZZO

HON. RICHARD J. BARTLETI JOHN M. BRICKMAN VERNON S. BRODERICK GEORGE F. CARPINELLO RICHARD D. EMERY

HON. HOWARD A. LEVINE JOHN T. MITCHELL

MARK G. PETERS

MEMBERS

NEW YORK STATE COMMISSION ON PUBLIC INTEGRITY

540 BROADWAY ALBANY,NEWYORK 12207 www.nyintegrity.org

April 28,2011

Via Electronic Mail And U.S. Mail

Karl J. Sleight, Esq. Harris Beach PLLC

677 Broadway, Suite 1101 Albany, NY 12207

RE: In the Matter of an Investigation into Susan Bruno's Work Status for the State University of New York Research Foundation

Dear Mr. Sleight:

BARRY GINSBERG !!XECUTIVE DIRECTOR

PHONE: (518) 408-3976 FAX: (518) 408-3975

On behalf of the Commission on Public Integrity ("Commission"), I am responding to your recent correspondence in the 'above-referenced matter. Maintaining the integrity and confidentiality of Commission investigations is of the utmost importance to the Commission. Accordingly, the Commission will take appropriate action regarding the matters raised in your letter.

Separately, Commission staff look forward to meeting Mr. O'Connor on May 5, 2011 as per your agreement with them.

Very truly yours,

~ -!-fttv.,7f/~

Mitra Honnozi Chair

cc:

Barry Ginsberg Executive Director and General Counsel

HARRIS BEACH ~

ATTORNEYS AT LAW

Apri129,2011

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

(518) 427-9700

HAND DELIVERED AND SENT VIA E-MAIL

KARLJ. SLEIGHT

DIRECT: (518) 701-2716 FAX: (518) 701-2701 KSLEIGHT@HARRISBEACH.COM

CONFIDENTIAL PURSUANT TO EXECUTIVE LAW §94(12)(a) AND PUBLIC OFFICERS LAW §74

Mitra Hormozi, Chair

New York State Commission orrPublic Integrity 540 Broadway

Albany, NY 12207

Re: In the Matter of an Investigation into the Work Status of Susan Bruno

Dear Chair Honnozi:

I am in receipt of your letter of April 28, 2011 regarding the above-captioned matter .

. We are pleased that you will be taking "appropriate action" regarding the serious breach. of integrity and confidentiality concerning this matter.

I asked in my previous letter that the Commission provide me with its findings concerning the identified issues by close of business on May 2,2011. My client has instructed me to relate to you that if the Commission requires additional time to conduct a comprehensive review of the apparent violations oflaw, he has no objection to an extension of the May 2,2011 deadline.

I look forward to your findings concerning the many issues I raised in my previous letter.

Thank you for your attention to this important matter.

Very truly yours, ~

1~1'S~

. Karl J. Sleight

MITRA HORMOZI

CHAIR

BARRY GINSBERG EXECUTIVE OIREC!OR

VIRGINIA M. APUiZO

HON. RICHARD J. BARTLEIT JOHN M. BRICKMAN VERNON S. BRODERICK GEORGEF;CARPUXBLLO RICHARD D.,EMERY

,HON. HOWARD A., LEVINE JOHN T. MITCHELL MARK G. PETERS

MEMBERS

NEW YORK STATE COMMISSION ON PUBLIC INTEGRITY

PHONE: (518) 408~3976 FAX: (518) 408-3975

540 BROADWAY ALBANY, NEW YORK 12207 www.nyintegrity.org

,May 2, 2011

Via Electronic Mall and U.S. Mail

Karl J, Sleight, Esq. Harris Beach PLLC

677 Broadway, Suite 1101 Albany, New York 12207

RE: In the Matter of an Investigation into Susan Bruno's Work Status , for the state University of New York Research Foundation

Dear Mr. Sleight:

The Commission's actions regarding your allegations of misconduct by Commission staff

have no bearing on your client's duty to appear on May 5th• '. . .

To the extent you have any.further questions or concerns, please direct them to our

Executive Director or Ms. Bridget Holohan who is handling this' case. .

Very truly yours,

niLtr e, ~.L.-

Mitra Hormozi Chair

cc: Barry Ginsberg Executive Director. and General Counsel

HARRIS BEACH ~

ATTORNEYS AT LAW

May 4, 2011

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

(518) 427-9700

KARLJ. SLEIGHT

HAND DELIVERED AND SENT VIA E-MAIL

DIRECT: (518)701-2716 FAX: (518)701-2701 KSLEIGHT@HARRISBEACH.COM

CONFIDENTIAL PURSUANT TO EXECUTIVE LAW §94(12)(a)

AND PUBLIC OFFICERS LAW §74

Mitra Hormozi, Chair

New York State Commission on Public Integrity 540 Broadway

Albany, New York 12207

Re: In the Matter of An Investigation into the Work Status of Susan Bruno

Dear Chair Hormozi:

This letter is in response to your May 2, 2011 letter. As you know, Mr. O'Connor agreed to appear on May 5, 2011 and testify under oath about Susan Bruno's employment with the Research Foundation. This agreement was entered into despite Mr. O'Connor's ongoing concern regarding conduct by the Commission. Nevertheless, Mr. O'Connor was willing to appear before Commission staff in the hope of resolving this matter. He has nothing to hide. Since such time it appears that Commission staff has leaked information to the media which is subject to confidentiality pursuant to Executive Law §94(12(a) and Judge Teresi's sealing order. In a letter dated Apri120, 2011, I brought this and other serious issues to your attention, which today remain unresolved.

Your statement that the Commission's actions regarding allegations of misconduct by Commission staff have "no bearing" on my client's "duty" to appear on May 5, 2011 gives us pause and leads to the reasonable conclusion that the Commission fails to appreciate the full gravity of the issues we have raised. No meaningful assurances have been given, nor measures taken, to prevent further public disclosure of the investigation, including Mr. O'Connor's appearance before the Commission and/or his testimony from being disseminated to the media or others. The statute confers confidentiality for critical reasons and Judge Teresi - over the Commission's objection - found "good cause" existed to keep the information concerning the investigation non-public.

Therefore, I cannot in good conscience recommend that my client appear before the Commission tomorrow as was previously agreed since our concerns have not been fully addressed and resolved. This in no way should be interpreted as a waiver of my client's right to his opportunity to be heard pursuant to Executive Law §94(12(a). Given the Commission's response, which summarily disregarded my client's concerns, further action including judicial intervention may be required.

Mitra Hormozi May 5, 2011 Page 2

I remain available to discuss this matter with you.

Very truly yours, r:

k~j~~

cc: Barry Ginsberg Bridget Holohan

HARRIS BEACH ~

. ATTORNEYS AT LAW

HARRIS BEACH ~

ATTORNEYS AT LAW

VIA ELECTRONIC MAIL AND FIRST CLASS MAIL

CONFIDENTIAL COMMUNICATION COVERED PURSUANT TO EXECUTIVE LAW §94(12) AND PUBLIC OFFICERS LAW §74

677 BROADWAY. SUITE 1101 ALBANY. NY 12207 (518)427-9700

KARL J. SLEIGHT

DIRECT: (518) 701-2716 FAX: (518) 587-0338 KSLEIGHT@HARRISBEACH.COM

April 10, 2009

Bridget Holohan Associate Counsel

Commission on Public Integrity 540 Broadway

Albany, New York 12207

Re: John J. O'Connor - President of the State University of New York Research Foundation

Dear Ms. Holohan:

As we have discussed my client, John J. O'Connor, the President of the State University of New York Research Foundation (the "RF") received a correspondence from Executive Director Herbert Teitelbaum dated January 29, 2009 ("the Teitelbaum letter") stating that the Commission on Public Integrity ("Commission") had "received information indicating that you [Mr. O'Connor] may have violated Public Officers Law sections 74(3)(d),(f)and (h)."

The Teitelbaum letter continues stating "[t]he Commission has received information that in 2003 you secured employment for Susan Bruno for which she was not qualified and for which she did little or no work. The Commission has also received information that you permitted Ms. Bruno to work from home, a privilege you did not confer on your other employees." The letter 'also states that my client could be subject to a $10,000 civil penalty for a violation of Public

Officers Law ("POL") §74(3)(d). .

I Similar suggestions appeared shortly before the January 29, 2009 Teitelbaum letter in newspaper articles published in the Albany Times-Union. See, Foundation under scrutiny (January 4, 2009); Susan Bruno resume eyed (January 6,2009).

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THRESHOLD LEGAL ANALYSIS

Although this response to the Teitelbaum letter will contain a robust factual description of the hiring - culminating in Ms. Bruno's employment at the RF commencingon or about May 19, 2003, as a preliminary matter please be advised that it is our position that the Commission does not have jurisdiction over Mr. O'Connor.

Ms. Bruno was hired by the RF and began work nearly five years before the passage of the Public Employee Ethics Reform Act of 2007 ("PEERA") which first applied POL §74 to the RF effective April 25, 2007. Please note for purposes of this record that Mr. O'Connor is not waiving any claims in this regard and does not, by this return correspondence, submit himself to

the jurisdiction of the Commission. . .

Application ofPEERA to John O'Connor

As you and the Commission staff and members are obviously aware, a major overhaul of the ethics and lobbying laws took place with the passage ofPEERA on March 27,2007. For purposes of this matter, PEERA for the first time arguably applied POL §74 to Mr. O'Connor as the President of the Rl" with the addition of the language to POL §74(1) which enhanced the definition of "state agency" to include "corporations closely affiliated with specific state agencies as defined by paragraph(d) of subdivision five of section fifty-three-a of the state finance law or their successors." The RF is one of the enumerated closely affiliated entities at State Finance Law §S3-a(5)(d)~

The Public Officers Law did not confer any authority or jurisdiction over Mr. O'COIUlor to the Commission prior to this amendment. In fact, the Commission has conceded its jurisdictional limitations as not extending to closely affiliated non-profit corporations in several of its opinions, as well as acknowledging the unique characteristics of these entities. (See, Advisory Opinion No. 95-2)

There is no question that PEERA cannot be applied retroactively prior to its effective date(s). It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes, and will not be given such construction unless the language expressly or by necessary implication requires it (see, Jacobus v. Colgate. 217 N.Y. 235, 240, 111 N.E. 837 [Cardozo, J.] ["It takes a clear expression of the legislative purpose to justify a retroactive application"]; Landgrafv. USI Film Prods., 511 U.S. 244,265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 ["the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic"] ). In the case of ·PEERA, the legislature certainly did not intend, expressly or otherwise, to apply POL §74 retroactively to someone in the position of Mr. O'Connor for events which occurred in 2003.

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In addition to the substantive charge, the Teitelbaum letter states that Mr. O'Connor could be "subject to a civil penalty in an amount not to exceed $10,000 for each violation and the value of any gift, compensation or benefit received as a result of such violation" of POL §74(3)(d). We respectfully submit that like the substantive charge, the Commission does not have penalty jurisdiction over Mr. O'Connor. The penalty provisions of POL §74 were added to PEERA and are effective prospectively and cannot have ex post facto application to Mr. O'Connor.

Moreover, prior to PEERA, POL §74 violations were required to be referred to THE subject's "appointing authority". In this situation, as President of the RF, Mr. O'Connor's appointing authority would be the board of the non-governmental RF a SOlc(3) non-profit corporation, further adding uncertainty to the application of the state ethics law to Mr. O'Connor.

POL Section 74 is Not Intended or Designed to Second Guess Managerial Decisions

In addition to the hiring of Susan Bruno in 2003, the Teitelbaum letter states that the Commission received information that Mr. O'Connor "secured employment" for Ms. Bruno "for which she was not qualified and for which she did little or no work." The Teitelbaum letter continues citing information received that Mr. O'Connor "permitted Ms. Bruno to work from home, a privilege you [Mr. O'Connor] did not confer on your other employees."

First, to be clear the factual information the Commission received in this regard is patently untrue, as will be explained later in this correspondence. However, as a preliminary , matter of law it is our position that POL §74 was not intended or designed to second guess the qualifications of personnel, hiring decisions by the management of organizations or agencies, or the deployment of organization or agency resources. Were the Commission to allow the information it received, even if true, to rise to the level of a POL §74 violation, such would be a fundamental departure from the last half century of POL §74 interpretation. It would be the first. time the ethics law has been used to second guess an organization's staffing or management decisions.

Moreover, POL §74(2) the precursor to the "Standards" found in POL subsection (3) states as follows:

"Rule with respect to conflicts of interest. No officer or employee of a state agency ... should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest" (emphasis ·added).

When taken into consideration, this critical portion of the Code of Ethics would seem to mandate a finding of a "substantial conflict" either prior to, or in conjunction with, the "Standards" articulated in subdivision (3). In this case, there is no "substantial conflict" with

April 10, 2009 Page 4

HARRIS BEACH ~

ATTORNEYS AT LAW

respect to the hiring and subsequent employment of Ms. Bruno, therefore POL §74 does not apply to Mr. O'Connor in this instance.'

Finally, there is no reasonable basis that would allow for an interpretation that Mr.

O'Connor's managerial decisions as President of the RF - without more - could ever result in a finding of a violation of POL §74.

FACTUAL PRESENTATION

Despite our steadfast position that the Commission does not have jurisdiction over Mr.

O'Connor, under the confidential framework set forth in Executive Law §94(12)(a), the ethical Standards concerning the treatment of confidential materials at POL §74, as well as the shield provided by the Personal Privacy Protection Act, we are afforded a safe harbor and the ability to provide you some background and perspective concerning the "information" you received.

The History of the RF and President John O'Connor

The RF was chartered in 1951 as an independent non-profit educational corporation, governed by its own board of directors for the purpose of assisting in the development of state university facilities by encouraging gifts, contributions and donations for the benefit of the university system; receiving, holding and administering gifts or grants; and to fmance the conduct of studies and research in all academic disciplines. There are no gubernatorial appointments to the board or other appointments to the board by any other public officials, either elected or appointed.

The RF created and adopted its original Bylaws in 1952, which have been amended periodically. The Bylaws state that "the board of directors shall manage the operations of the corporation" (see, Bylaws Art. I sec. 1 ). The President of the RF is appointed by the board of directors and servers] at its pleasure" (see, Bylaws Art. II, sec. ,1). The President serves as the "chief executive officer and shall be responsible for the supervision and operation of the corporation ... " (see, Bylaws Art. II, sec. 2). Moreover, the President "shall have such powers and perform such other duties as the board may direct or as are reasonably incidental to the

office." (see, Bylaws Id). .

By Agreement between the RF and the State University of New York (the "University") effective June 1, 1977, the RF agreed to "assist the University in the procurement offunds from the federal government and other authorized sources to support such sponsored programs at the University as the University shall request" (see, Agreement, Part A, paragraph 1). As part and parcel of this Agreement, the parties provided for the administration of sponsored programs,

April 10, 2009 Page 5

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ATTORNEYS AT LAW

prepared an annual plan of expenditures and agreed to certain other general provisions (i.e. audits, patent and copyright policies and public liability insurance). The RF was designated as a "contractor" in the Agreement approved by both the Office of the Attorney General and the Office of the State Comptroller (see, Agreement, Part C, paragraph 20; see also, Agreement, . Exhibit B).

The RF is a non-profit corporation and was intentionally not designed to be a state . agency or quasi-governmental entity.

John O'Connor was hired to be the President of the RF in or about March, 2000. In his role as President, Mr. O'Connor fulfills his responsibilities under the' corporation's Bylaws and is responsible for the administration of over $IB (est. 2008-09) in externally-funded support for over 9,000 contracts and grants with 17,000 employees. Mr. O'Connor is responsible for coordinating operations at 14 affiliated corporations established to facilitate university-industrygovernment partnerships and to accelerate the growth of research, Mr. O'Connoris tasked with providing high quality, cost-effective administrative support, financial management, computer systems and audit services for all research and related programs, including faculty practice plans at University campuses. Mr. O'Connor does not draw a salary for his work as President of the RF.

The Hiring and Qualifications of Susan Bruno

The RF had a desire to fill the position of Assistant Director for Federal Relations during the general time period of February - May, 2003. The credentials of Susan Bruno were presented as an individual who has the requisite experience to fill the position. Most importantly, Ms. Bruno's credentials included an extended period of work experience as an Executive Assistant in the New York State Assembly (1991-2003). Ms. Bruno participated in a selection process where she was interviewed. Ms. Bruno's work experience and her understanding of government operations were factors in her hiring at the RF. The decision was made to hire Ms. Bruno and the hiring transaction was completed on or about May 19,2003.

Nearly five years later, in January, 2008, the Albany Times-Union published articles calling into question Ms. Bruno's post-secondary educational background dating back approximately 25 years. Although the RF was not previously aware of the questions surrounding her academic credentials, we believe that it is important to keep in mind that at the time of her hiring, her legislative work experience 'would have carried more weigh when evaluating her qualifications for the position than her post-secondary educational background.

April 10, 2009 Page 6

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The Work Product of Susan Bruno

Ms. Bruno worked in two positions while at the RF. She was originally hired as the Assistant Director for Federal Relations. Later "in her career at the RF, Ms. Bruno became a Special Assistant to the President. In this capacity Ms. Bruno had a wide variety of responsibilities to the RF. These responsibilities included, but were not limited to, the promotion of public events acknowledging advances in research and scholarship, coordination of events for dignitaries.i participating in cooperative ventures between British and American community colleges, and representing the RF at numerous functions (i.e. SUNY Day in D.C.). Ms. Bruno seemed to adequately fulfill her responsibilities in these positions. Ms. Bruno was not an employee of the State University of New York system or any other state agency to the best of our knowledge. Ms. Bruno's employment with the RF ceased effective March 2,2009.

Mr. O'Connor's observations andanecdotal impressions of Ms. Bruno's interaction with her co-workers at the RF captured a certain awkwardness. The difficulty that Ms. Bruno faced was the burden that she bore by virtue of being the child of a well-known and powerful government official in a government town. Like many offspring in similar situations, the immediate reaction tended to be that any position that she had - particularly with a government bent - was solely a product of her father and not connected to any abilities that she might possess. This unshakeable attribute limited the degree to which Ms. Bruno was accepted by certain co-workers. For the reasons described below, this dynamic was exacerbated by the federal investigation.

The Development of Ms. Bruno's Telecommuting Arrangement

Initially, it is important to acknowledge that the RF has a policy with respect to off-site work or telecommuting. Contrary to media reports, Ms. Bruno was not the only employee or affiliate who participated in telecommuting.

The development of Ms. Bruno's telecommuting arrangement begins with the federal investigation into her father, former Senate Majority Leader Joseph Bruno. As you will appreciate, because the matter is an ongoing federal investigation, we are limited in providing only certain information to the Commission.

The federal investigation into Senator Bruno appears to have begun in earnest in February, 2006 with a grand jury investigation. As you may be aware, the grand jury for the Northern District of New York sits in the federal courthouse in Albany, which is located directly across Broadway from the RF.

As public reporting of the federal investigation grew, some of her co-workers were increasingly withdrawing from interacting with her which was creating a difficult work

2 For example, Ms. Bruno was involved in a formal event welcoming President John R. Ryan in May, 2004.

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environment. The RF was faced with media reporters, primarily certain reporters employed by the Albany Times-Union, who were calling RF employees at home, tailing Ms. Bruno when she was driving and camping out at a location on Broadway adjacent to the RF and in close proximity to the federal courthouse. Not surprisingly, RF employees who were not aware of the scope of the inquiry were unnerved to work closely with Ms. Bruno. For practical purposes, it seemed Ms. Bruno was in effect stigmatized by the events swirling around her father.

In addition to the federal investigation, Ms. Bruno was coping with the simultaneous and extraordinary difficulties of her mother's deteriorating health condition due to advanced Alzheimer's Disease from January, 2007 through her death on January 7, 2008.

Mr. O'Connor personally observed a dramatic change in Ms. Bruno's ability to cope with her mother and father's situations. As President of the RF, Mr. O'Connor was required to manage the immediate staff which would include dealing with Ms. Bruno's employment situation against the unique backdrop of her parents' respective ordeals. Mr. O'Connor sincerely believed that a combination of on-site work and off-site work (telecommuting) would maximize Ms. Bruno's effectiveness as an RF employee. Ms. Bruno was allowed to work off-site primarily to minimize distractions caused by the federal investigation and the attendant media attention. The transaction allowing Ms. Bruno to telecommute was made and completed in or slightly before May, 2006.

The implementation of this management solution was a decision made by Mr. O'Connor in his role as President of the RF. Even if Public Officers Law §74 applied to this situation, there. is no "substantial conflict of interest" or any conduct which could be interpreted as violating any of the Standards set forth in POL §74(3). On the contrary, the solution to the situation combined effective staff management with an appreciation for a matter with a genuine human element.

*

*

*

*

*

As set forth in the introduction to this correspondence, we do not believe that the Commission has jurisdiction over Mr. O'Connor concerning the hiring and employment of Susan Bruno. If the Commission disagrees with us, we ask that the Commission articulate what interpretation ofPEERA the Commission is relying on to assert jurisdiction over Mr. O'Connor.

Notwithstanding the Commission's lack jurisdiction over Mr. O'Connor, which we do not waive or submit to, we genuinely hope that this robust response to the Teitelbaum letter provides you with sufficient legal analysis and factual background to alleviate .any concerns you may have related to this situation.

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In closing, I respectfully request that the Commission affirmatively advise me if this response suffices to close this matter with the Commission. If you have any questions regarding this matter in the future, please do not hesitate to contact me.

Very truly yours,

~1~

HARRIS BEACH ~

ATTORNEYS AT LAW

January 29, 2010

677 BROADWAY, SUITE 1101 ALBANY, NY 12207

(518) 427-9700

KARL J. SLEIGHT

CONFIDENTIAL COMMUNICATION COVERED PURSUANT TO EXECUTIVE LAW §94(12) AND PUBLIC OFFICERS LAW §74

VIA ELECTRONIC MAIL

AND FIRST CLASS MAIL

DIRECT: (518)701-2716 FAX; (518) 587-0338 KSLEIGHT@HARRISBEACH.COM

Michael G. Cherkasky, Chair Commission on Public Integrity clo Altegrity

570 Lexington Ave. 7th Floor

New York, NY 10022

Re: John 1. O'Connor- President of the SUNY Research Foundation

Dear Chairman Cherkasky:

I represent John 1. O'Connor, the President of the State University of New York Research Foundation (the "RF"), and am greatly concerned that issues well beyond the statutory and historical parameters of the state ethics laws are being improperly applied to President

O'Connor. Moreover, such an application creates the risk of irreversible damage to his reputation and his extraordinary career which includes 29 years in the field of higher education.

By way of background,. President O'Connor received a letter from former Executive Director Herbert Teitelbaum dated January 29, 2009 ("the Teitelbaum letter" see attached) stating that the Commission had "received information indicating that you [President 0 ' Connor] may have violated Public Officers Law sections 74(3)(d),(t)and (h)." I expect that the "information" that the Commission received was, in fact, two newspaper stories that appeared shortly before the January 29,2009 Teitelbaum letter published in the Albany Times-Union. See, Foundation under scrutiny (January 4, 2009); Susan Bruno resume eyed (January 6, 2009).

The Teitelbaum letter continued stating "[tjhe Commission has received information that in 2003 you secured employment forSusan Bruno for which she was not qualified and for which she did little or no work. The Commission has also received information that you permitted Ms. Bruno to work from home, a privilege you did not confer on your other employees." The letter also stated that my client could be subject to a $10,000 civil penalty for a violation of Public Officers Law ("POL") §74(3)(d).

Michael G. Cherkasky January 29, 2010

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The media interest in Susan Bruno was based in large part because she is the daughter of former New York State Senate President Pro Tem and Majority Leader Joseph M. Bruno.

On April 10, 2009 I responded to the Teitelbaum letter, and advised the Commission that Ms. Bruno was hired by the RF and began work nearly five years before the passage of the Public Employee Ethics Reform Act 6f2007 ("PEERA") which for the first time, applied POL §74 to the RF, effective April 25, 2007.1 As you know, prior to PEERA, individuals employed at closely-affiliated corporations were not covered by the provisions of §74. Initially, Commission staff maintained that PEERA could be applied retroactively, prior to its effective date(s). Despite the obvious jurisdictional defect raised in my response, in the interests of general transparency, I also provided a robust factual account of Ms. Bruno's tenure at the RF .

. On January 6,2010-- after eight (8) months of having no communication with commission staff-- Executive DirectorBarry Ginsberg sent an amended 15-day letter, and has now modified the original allegation against President O'Connor asserting, this time, that "subsequent to April 25, 2007, your client [president O'Connor] permitted Susan Bruno, an employee of the SUNY-RF, to work from home until March 2009, when she resigned from the SUNY -RF. The Commission also has received informatibn that your client permitted Bruno to receive compensation from April 25, 2007 through March, 200'9 for little or no work" (see attached letter). In the January 6, 2010 e-mail attaching the revised I5-day letter the staff attorney at the Commission stated, "[p ]lease see the attached letter, which resolves any alleged jurisdictional issues ... "

The new date relied on by the Commission is obviously intended to conform the allegation date with the effective date of PEERA. Of equal or greater concern is the fact that the conduct allegated- that Ms. Bruno was allowed to work from home or did little or no workis not a Public Officers Law issue. Section 74, the Code of Conduct" covers conflicts of interest between public duties and private interest, not management decisions of the RF. (See, NY State Asphalt Assoc. v. White, 138 Misc. 2d 863 (Sup. Ct. Albany Co. 1988) (a prohibited conflict of interest was found when an official used his official position to compel payment to a not-forprofit' corporation in which the official had an interest». The Commission's current application of §74 is well beyond the historical intent, design and interpretation of that statute.

I Through PEERA the language contained in POL §74(1) defining of "state agency" was expanded to include "corporations closely affiliated with specific state agencies as defined by paragraph (d) of subdivision five of section fifty-three-a of the state finance law or their successors." The RF is one of the enumerated closely affiliated entities at State Finance Law §53-a(5)(d).

Michael G. Cherkasky January 29, 2010

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POL § 74 is Not Intende~ or Designed to Second Guess Managerial Decisions

First, to be clear, the information the Commission is relying on in this regard is patently untrue, as will be explained later in this correspondence. However, as a preliminary matter of law it is our position that POL §74 was not intended or designed to second-guess the management of organizations or agencies, or the deployment of organization or agency resources. Were the Commission to allow the information it received, even if true, to rise to the level of a POL § 74 violation, such would be a fundamental departure from the last half century of POL §74 interpretation.

It would be the first time the ethics law has been used to second-guess an organization's staffing or management decisions. For example, §74 has been appropriately applied to the misuse of state resources for private gain (see, e.g., In the Matter of Hevesi; Advisory Opinion No. 07-03 prohibiting the use of state resources for partisan politics) but it has never been applied to second-guessing the qualifications of an employee or the motivation for the hiring of such an individual. Imagine how such a fundamental departure would open the door to scrutiny of gubernatorial appointments on per diem boards and commissions, who are also covered by §74 and similar decision-making processes.

. The Commission and its predecessor entity have long appreciated the bright line between a state agency's operational decision-making prerogatives and the Commission's limited role as interpreter of the state ethics laws. An example of this is the Commission's process for evaluating the substance of outside activities. 2 Outside activity approval is vested in large part in the state agency. The Commission's regulations in this area explicitly state that, "[t]he approving authority shall make its determination based on the provisions of sections 73 and 74 of the Public Officers Law, as well as pertinent State agency policies, procedures or rules and regulations governing employee conduct, and such other factors as the approving authority may deem appropriate" See, 19 NYCRR Part 932.4(b). The Commission's regulations further state that "[n]othing contained in this Part shall prohibit any State agency from adopting or implementing its own rules, regulations or procedures with regard to outside employment which are more restrictive than the requirements of this Part" See, 19 NYCRR Part 932.4(e): The reason for this is a recognition by the Commission that the agency is in the best position to evaluate the parameters within which to regulate the activities of its employees.

Moreover, POL §74(2) the precursor to the "Standards" found in POL subsection (3) states as follows:

"Rule with respect to conflicts of interest. No officer or employee of a state agency ... should have any interest, financial or otherwise, direct or indirect, or engage in any business or

2 ~ 19 NYCRR 932 et. seq.

Michael G. Cherkasky January 29, 2010

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transaction or professional activity or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest" (emphasis added) .

. ,

When taken into consideration, this critical portion of the Code of Ethics would mandate a finding of a "substantial conflict" either prior to, or in conjunction with, the "Standards" articulated in subdivision (3). In this case, there is no "substantial conflict" with respect to the employment of Ms. Bruno, therefore POL §74 does not apply to President O'Connor in this

, instance.

Finally, there is no reasonable basis that would allow for an interpretation that President O'Connor's managerial decisions as President of the RF - without more - could ever result in a finding of a violation of POL §74 [d] or [h].

FACTUAL PRESENTATION

Despite our continuing belief that the Commission does not have jurisdiction over President O'Connor, under the confidential framework set forth in Executive Law §94(12)(a) and the ethical Standards concerning the treatment of confidential materials at POL §74, as well as the shield provided by the Personal Privacy Protection Act, we are afforded a safe harbor and the ability to provide you some background and perspective concerning the "information" the Commission received.

The History of the RF and President John O'Connor

The RF was chartered in 1951 as an independent non-profit educational corporation, governed by its own board of directors for the purpose of assisting in the development of state university facilities by encouraging gifts, contributions and donations for the benefit of the university system; receiving, holding and administering gifts or grants; and to finance the conduct of studies and research in all academic disciplines. There are no gubernatorial appointments to the board or other appointments to the board by any other public officials, either elected or appointed.

The RF created and adopted its original Bylaws in 1952, which have been amended periodically. The Bylaws state that "the board of directors shall manage the operations of the corporation" (see, Bylaws Art. I sec. 1). The President of the RF is appointed by the board of directors and serve[s]at its pleasure" (see, Bylaws Art. II, sec. 1). The President serves as the "chief executive officer and shall be responsible for the supervision and operation of the corporation ... " (see, Bylaws Art. II, sec. 2). Additionally, the President "shall have such powers

Michael G. Cherkasky January 29,2010 PageS

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and perform such other duties as the board may direct or as are reasonably incidental to the office." (see, Bylaws Id).

By Agreement between the RF and the State University of New York (the "University") effective June 1, 1977, the RF agreed to "assist the University in the procurement of funds from the federal government and other authorized sources to support such sponsored programs at the University as the University shall request" (see, Agreement, Part A, paragraph 1). As part and parcel of this Agreement, the parties provided for the administration of sponsored programs, prepared an annual plan of expenditures and agreed to certain other general provisions (i.e. audits, patent and copyright policies and public liability insurance). The RF was designated as a "contractor" in the Agreement approved by both the Office of the Attorney General and the Office of the State Comptroller (see, Agreement, Part C, paragraph 20; see also, Agreement, Exhibit B).

The RF is a non-profit corporation and was intentionally not designed to be a state agency or quasi-governmental entity.

John O'Connor was hired to be the President of the RF in or about March, 2000. In his role as President, Mr. O'Connor fulfills his responsibilities under the corporation's Bylaws and is responsible for the administration of over $IB (est. 2008-09) in externally-funded support for over 9,000 contracts and grants with 17,000 employees. President O'Connor is responsible for coordinating operations at 14 affiliated corporations established to facilitate university-industrygovernment partnerships and to accelerate the growth of research. President O'Connor is tasked with providing high quality, cost-effective administrative support, financial management, computer systems and audit services for all research and related programs, including faculty practice plans at University campuses. President O'Connor does not draw a salary for his work as President of the RF.

The Hiring and Qualifications of Susan Bruno

The RF had a desire to fill the position of Assistant Director for Federal Relations during the general time period of February - May, 2003. The credentials of Susan Bruno were presented as an individual who possessed the requisite experience to fill the position. Most importantly, Ms. Bruno's credentials included an extended period of work experience as an Executive Assistant in the New York State Assembly (1991-2003). Ms. Bruno participated in a selection process where she was interviewed. Ms. Bruno's work experience and her understanding of government operations were factors in her hiring at the RF. The decision was made to hire Ms. Bruno and the hiring transaction was completed on or about May 19,2003.

Nearly five years later, in January, 2009, the Albany Times-Union published articles (previously cited herein) calling into question Ms. Bruno's post-secondary educational

Michael G. Cherkasky January 29, 2010

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background dating back approximately 25 years. Although the RF was not previously aware of the questions surrounding her academic credentials, we believe that it is important to keep in _ mind that at the time of her hiring, her legislative work experience would have carried more weight when evaluating her qualifications for the position than her post-secondary educational background.

The Work Product of Susan Bruno

Ms. Bruno worked in two positions while at the RF. She was originally hired as the Assistant Director for Federal Relations. Later in her career at the RF, Ms. Bruno became a Special Assistant to the President. In this capacity Ms. Bruno had a wide variety of responsibilities to the RF. These responsibilities included, but were not limited to, the promotion of public events acknowledging advances in research and scholarship, coordination of events for dignitaries,' participating in cooperative ventures between British and American community colleges, and representing the RF at numerous functions (i.e. SUNY Day in D.C.). Ms. Bruno seemed to adequately fulfill her responsibilities in these positions. Ms. Bruno was not an employee of the State University of New York system or any other state agency to the best of our knowledge. Ms. Bruno's employment with the RF ceased effective March 2, 2009.

President O'Connor's observations and anecdotal impressions of Ms. Bruno's interaction with her co-workers at the RF captured a certain awkwardness. The difficulty that Ms. Bruno faced 'was the burden that she bore by virtue of being the child of a well-known and powerful government official in a government town. Like many offspring in similar situations, the immediate reaction tended to be that any position that she had - particularly with a government bent - was solely a product of her father and not connected to any abilities that she might possess. This unshakeable attribute limited the degree to which Ms. Bruno was accepted by certain co-workers. For the reasons described below, this dynamic was exacerbated by the federal investigation of her father.

The Development of Ms. Bruno's Telecommuting Arrangement

Initially, it is important to acknowledge that the RF has a policy With respect to off-site work or telecommuting. Contrary to media 'reports, Ms. Bruno was not the only employee or affiliate who participated in telecommuting.

The development of Ms. Bruno's telecommuting arrangement begins with the federal investigation into her father, former Senate Majority Leader Joseph M. Bruno. As you will appreciate, because Senator Bruno has yet to be sentenced in the matter and published reports

3 For example, Ms. Bruno was involved in a formal event welcoming Admiral John R. Ryan as the University at

Albany President in May, 2004. -

Michael G. Cherkasky January 29,2010

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suggest other federal inquiries are underway, we are limited to providing only certain information tothe Commission.

The federal investigation into Senator Bruno appears to have begun in earnest in February, 2006 with a grand jury investigation. As you may be aware, the grand jury for the Northern District of New York sits in the federal courthouse in Albany, which is located directly across Broadway from the RF, and coincidentally also in close proximity to the offices of the Commission.

As public reporting of the federal investigation grew, some of Ms. Bruno's co-workers were increasingly withdrawing from interacting with her which was creating a difficult work environment. The RF was faced with a barrage of media reporters, most notably certain reporters employed by the Albany Times-Union, who were calling RF employees at home, tailing Ms. Bruno when she was driving and camping out at a location on Broadway adjacent to the RF and near the federal courthouse. Not surprisingly, RF employees who were not aware of the scope of the inquiry were unnerved to work closely with Ms. Bruno. For practical purposes, . it seemed Ms. Bruno was in effect stigmatized by the events swirling around her father.

In addition to the federal investigation, Ms. Bruno was coping with the simultaneous and extraordinary difficulties of her mother's deteriorating health condition due to advanced Alzheimer's Disease from January, 2007 through her death on January 7, 2008. During this period, it is believed that Ms. Bruno w~s the primary caregiver to her mother.

President O'Connor personally observed a dramatic change in Ms. Bruno's ability to cope with the pressure that was brought to bear as a result of her mother and father's situations. As the leader of the RF, President O'Connor was required to manage the immediate staff which would include dealing with Ms. Bruno's employment situation against the unique backdrop of her parents' respective ordeals. President O'Connor sincerely believed that a combination of onsite work and off-site work (telecommuting) would maximize Ms. Bruno's effectiveness as an RF employee. Just as importantly, it would reduce the tension that existed at the RF work site and add significant productivity to the remainder of the RF staff. Key to President O'Connor's decisions in this regard, was an effort to minimize the significant distractions caused by the federal investigation and the attendant media attention.

Moreover, the transaction allowing Ms. Bruno to telecommute was made and completed in or slightly before May, 2006, which is of course nearly a year before the Commission arguably obtained jurisdiction over the RF by virtue of the PEERA legislation.

The implementation of this management solution was a decision made by President O'Connor in his role as leader of the RF. The decisions regarding Ms. Bruno were multi-faceted and complex. Public Officers Law §74 should not be applied to this situation, since there is no

Michael G. Cherkasky January 29, 2010

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"substantial conflict of interest" or any conduct which could be interpreted as violating any of the Standards set forth in POL §74(3). On the contrary, the·solution to the situation combined effective staff management with an appreciation for a matter with a genuine human element.

*

*

*

*

*

As set forth in the introduction to this correspondence, we question whether the Commission has jurisdiction over President O'Connor concerning the employment of Susan Bruno.

Notwithstanding remaining questions concerning whether the Commission has jurisdiction over this matter, which we do not waive or submit to, we genuinely hope that this robust response to Mr. Ginsberg's letter provides you with sufficient legal analysis and factual background to.alleviate any concerns you may have related to this situation.

In closing, I respectfully request that the Commission affirmatively advise me if this response suffices to close this matter with the Commission. In the absence of a confidential determination along these lines, my client finds himself in the untenable position of possibly waiting for the issuance of an unjustified (though public) Notice of Reasonable Cause that could be announced without warning and which, in my view, would not be supported by the facts or law. Such a formal allegation, alone, by the Commission would clearly cause irreparable damage to President O'Connor's prestige and well-deserved reputation

If you have any questions regarding this matter in the future, I would welcome the opportunity to discuss them with you. .

Very truly yours, ,-

Y~lS~

Karl J. Sleight

KJS:kmd

cc: Barry Ginsberg, Executive Director Bridget Holohan, Associate Counsel

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