Democrat Hevesi must pay back taxpayers 90 thousand dollars by bluepastry Blog entry

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Democrat Hevesi must pay back taxpayers 90 thousand dollars

Driving Mrs Hevesi: Scandel Scarred NY Democrats could not hide this one

Date: 11/4/2006 3:59:44 PM ( 18 y ) ... viewed 2320 times

Democrats at first tried to cover it up. Hevesi said it was an obligation of the state, since he is a state employee.

Elliot Spitzer's office said it concluded, based on documents supplied by Hevesi's office Wednesday evening, that far from owing the nearly $83,000 he has already paid the state, he likely owes a total of at least $173,000.

Anti Bush Democrat and Pro Kerry Supporter Hevesi, who has been plunging in the polls in the wake of the "chauffeur-gate" revelations, quickly released a statement that he had placed the $90,000 in an escrow account with the attorney general, as Spitzer's office had directed.

Hevesi's GOP rival, Christopher Callaghan, said that by his count, Hevesi owed another $211,000, based on the driver's salary and benefits for the past three years

Alan's quote of the week:

“We take a zero-tolerance approach to local officials who exploit their positions and steal from the public. I urge the District Attorney and the Sheriff’s Office to fully pursue any wrongdoing. I recommend that the town board take immediate action to recover taxpayer dollars and take the necessary steps to guard against the misuse of public money.”

— Alan G. Hevesi
Chris's quote of the week:

“Obviously, the watchdog bears watching. The ethical lapse is unsettling and the arrogance is appalling but it's typical of an elected official that feels free to boast 'I don't report to anybody.”

STATE OF NEW YORK
STATE ETHICS COMMISSION

IN THE MATTER OF
ALAN G. HEVESI,
COMPTROLLER OF
THE STATE OF NEW YORK

Hevesi's Hypocrisy (Comptroller, Heal Thyself)

Hevesi castigated others for violating the public's trust, but wants voters to excuse his own actions.
( Hevesi's foibles: Driving Mrs. Hevesi, Hevesi State Driver for Wife, Hevesi Foe Eyes 'Crime' )

Hevesi Audit Finds Two Former Voorheesville School District Administrators Improperly Paid Themselves $216,000, District Aggressively Taking Steps to Recover Money; Findings Referred to Albany County District Attorney’s Office, January 24, 2006
Auditors Find Questionable Spending by Former Mayor John Gosek, Council Approved Unsupported Expense Claims, No Policies Governing Spending, December 27, 2005
Schroeppel Strengthens Oversight of Taxpayer Funds After Criminal Actions of Former Employee, Town Follows Comptroller’s Office Recommendations to Improve Operations, December 19, 2005
$14,500 Missing in Town of Alexander Clerk’s Office, April 21, 2005
District Attorney Michael Arcuri Announces the Arrest of Former Town of Vienna Bookkeeper Joann Tracy, March 17, 2005
Hevesi Audit Finds School Employees Used At Least $11.2 Million of Roslyn School Funds for Personal Benefit, Audit of Roslyn Schools Details Breakdown of Oversight and How Dozens Benefited with Cash, Cars, Travel, Personal Goods at Taxpayers’ Expense , March 2, 2005
Westbury Schools Strengthen Policies for Administrative Spending Following State Audit, Audit Finds Superintendent Inappropriately Paid $15,000, February 17, 2005
Hevesi Audit: Weak Internal Controls, Poor Board Oversight Led To Bridge Authority Abuses By Gaffney, Internal Controls Strengthened Since Former Director’s Departure; Still Some Gaps in Procurement and Contracting Practices, February 16, 2005
Audit Finds Money Shortage, Attempted Cover Up of Wrongdoing in Town of Verona Justice Court, $3,100 Unaccounted for, Wrongdoing Referred to District Attorney’s Office, February 7, 2005
Former Mcgraw Treasurer Admits Theft Of Thousands From Village; Embezzlement Uncovered By State Audit, November 4, 2004
Comptroller’s Audit of Farmingdale Identifies Excessive Spending and Lack of Accountability, Thousands Spent Inappropriately on Meals, Travel and Other Perks, June 3, 2004
Audit of Lewis County Finds Half Million Dollars in Public Funds Inappropriately Paid to Private Businesses, March 22, 2004
Town of Tompkins Audit Leads to Forgery, Larceny Charges, February 9, 2004
Comptroller's Audit Uncovers Theft at Orleans County YMCA; Audit Leads to Recovery of State, Federal Funds, April 21, 2003

NOTICE OF
REASONABLE CAUSE

JURISDICTION OF THE COMMISSION

The Commission is authorized by Executive Law §94(12)(a) to commence inquiries into possible violations of Public Officers Law §§73, 73 a, or 74. Pursuant to Executive Law §94(16)(d), the Commission is authorized to conduct any investigation necessary to carry out the provisions of §94. Pursuant to this power and duty, the Commission may administer oaths or affirmations, subpoena witnesses, compel their attendance and require the production of any books or records which it may deem relevant or material.

In cases where the Commission finds a violation of §73 or §73-a, the Commission is empowered to conduct a hearing and make a final determination of wrongdoing. In cases involving violations of Public Officers Law §74, the Commission’s role is limited to determining whether there is reasonable cause to believe that a violation of the Code of Ethics has occurred.

Executive Law §94(12)(b) provides that if the Commission determines that there is reasonable cause to believe that a violation has occurred, it shall send a notice of reasonable cause: (i) to the reporting person; (ii) to the complainant if any; and (iii) in the case of a statewide elected official, to the Temporary President of the Senate and the Speaker of the Assembly.

Public Officers Law §74 contains the Code of Ethics for State officers and employees. Subdivision 2 sets forth the rule with respect to conflicts of interest; it provides, in pertinent part:

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.

Public Officers Law §74(3) sets forth standards which include the following:

d. No officer or employee of a state agency . . . should use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others.

. . . .

h. An officer or employee of a state agency . . . should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.

Public Officers Law §74(4) states, with regard to violations of §74, that:

In addition to any penalty contained in any other provision of law any such officer, member or employee who shall knowingly and intentionally violate any of the provisions of this section may be fined, suspended or removed from office or employment in the manner provided by law.

POWERS AND DUTIES OF THE OFFICE OF
THE STATE COMPTROLLER

The New York State Constitution establishes certain “department heads,” including the head of the Department of Audit and Control who shall be the Comptroller (NY Const, art V, §4). The State Constitution provides that the Comptroller shall be required: (1) to audit all vouchers before payment and all official accounts; (2) to audit the accrual and collection of all revenues and receipts; and (3) to prescribe such methods of accounting as are necessary for the performance of the foregoing duties (NY Const, art V, §1). It further provides that the Legislature shall define the powers and duties of the Comptroller and may also assign to him or her certain other enumerated duties, but may not assign any administrative duties except as may be incidental to the performance of constitutional functions (NY Const, art V, §1; see, State Finance Law §§8, 111; see also, Executive Law § 40).

The State Comptroller is New York State's chief fiscal officer, and is charged with auditing government operations and operating the Statewide Retirement Systems. Responsibilities of the Comptroller include:

• Managing the State's assets and issuing General Obligation debt;
• Conducting management and financial audits of State agencies and public benefit corporations;
• Issuing reports on State finances;

• Overseeing the fiscal affairs of local governments, including New York City;
• Reviewing State contracts, payrolls and payments before issuance;
• Maintaining the State's accounting system and issuing monthly cash financial statements;
• Overseeing the Justice Court and Abandoned Property Programs; and
• Operating the retirement systems for State and local retirees.

FACTS

I. THE COMMISSION’S INFORMAL ADVISORY OPINION TO THE NEW YORK STATE COMPTROLLER

On May 14, 2003, Alan G. Hevesi, the State Comptroller, submitted a request to the Commission for an informal advisory opinion seeking guidance concerning the application of the Public Officers Law to his proposal to provide security and transportation to his wife in certain circumstances. The Comptroller advised the Commission that while he was City Comptroller “he requested and received clearance” from then City Corporation Counsel Michael D. Hess to provide his wife, Carol Hevesi, with “occasional security and transportation” (E: 12). Citing his “apprehension” concerning “numerous threats over the years,” the Comptroller stated that he had “an appreciable concern” for his wife’s security.

The Comptroller wrote:

I would like to arrange to have a member of my security detail and appropriate transportation made available for Carol’s well being and protection when she is meeting me for official events, and on those occasions when she must travel without a companion and the need for security is apparent in the judgment of those on my staff assigned to make these determinations.

In those instances where the advisability of security is not apparent, I will of course be prepared to reimburse this Agency for any personnel and transportation costs incurred (E: 12).

On May 30, 2003, the Commission responded by issuing an informal advisory opinion to the Comptroller, which cited Public Officers Law §§74(2) and (3)(d), (f) and (h), the provisions of the ethics law applicable to his inquiry (E: 13). The opinion noted that, while “[g]enerally, questions concerning specific issues involving the security and transportation needs of statewide elected officials are best addressed by the agency,” the Commission had previously addressed matters involving the inappropriate use of State resources in situations involving political campaigns and outside activities. Turning to his specific question, the Commission advised that “when independent law enforcement personnel determine through a risk assessment process that security and transportation for Mrs. Hevesi is warranted, Public Officers Law §74 is not violated because the independent assessment vitiates any concern that you are using your State position for some unwarranted benefit.” The Commission cautioned:

However, in those situations when legitimate security concerns are not found to be present, or when the function is unrelated to your official business, you should refrain or reimburse the State for any costs incurred for the use of State resources to avoid the appearance that you are using your position as Comptroller for some unwarranted benefit for your wife [Public Officers Law §74(3)(d)], or that you are otherwise engaged in acts in violation of the public trust [Public Officers Law §74(3)(h)] (E: 13).

The Commission advised the Comptroller that its informal opinion was advisory, based upon the facts provided in his request letter, and that if he wished to clarify or supply further facts to the Commission concerning the issue, it would be prepared to respond. Until September 2006, the Comptroller had no further communications, written or oral, with the Commission related to Mrs. Hevesi’s transportation and security.

II. THE COMMISSION’S INVESTIGATION

A. Background

On September 21, 2006, the Office of the State Comptroller’s (“OSC”) toll-free hotline, which is used to report allegations of fraud, corruption or abuse of taxpayer money, received a telephone call from J. Christopher Callaghan, Hevesi’s opponent in the 2006 election for the office of State Comptroller. In that call, Callaghan reported that a State employee’s “sole assignment” was to drive Mrs. Hevesi (E: 18, at Tab G). The media reported on this the allegation over the next several days.

On September 23, 2006, the Commission decided to begin a preliminary review of the matter, and two days later, on September 25, 2006, the Comptroller requested that the Commission review his actions regarding the use of a “single employee” to provide security and transportation to his wife (E: 7). The Comptroller stated that in addition to the past threats cited in his 2003 request, he had received threats in July 2006 stemming from his refusal to approve a $47 million contract with a vendor with ties to organized crime. Based on the advice of his own security staff, the Comptroller stated that he believed that the use of Nicholas Acquafredda to assist his wife with the “rigors of her daily life and providing her with the sense of security she has required” was “appropriate” and “comported both with the informal opinion . . . as well as the applicable sections of New York State’s Public Officers Law” (E: 7).

The Comptroller expressed his regret that he had not, on a continuing basis, made periodic reimbursements to the State for those periods of times where security was not apparent, and stated that he was sending a check in the sum of $82,688.82 to the New York State Commissioner of Taxation and Finance (E: 7; E: 20). The Comptroller explained that this amount was based upon the percentage of time Acquafredda spent with Mrs. Hevesi from 2003 through 2006 compared with his annual salary, plus benefits and interest, and included those times when the need for security was apparent (E: 7). According to the OSC, Acquafredda spent the following percentage of his work time with Mrs. Hevesi: 5% in 2003; 20% in 2004; and 40% in both 2005 and 2006 (E: 7).

On September 29, 2006, pursuant to Executive Law §94(12)(a), the Commission sent the Comptroller a letter advising him that it would conduct a thorough review to determine whether assigning an OSC employee to perform duties involving the security and transportation for his wife constituted a violation of Public Officers Law §§73, 73-a and/or 74 (E: 14). The Comptroller was given fifteen days to submit a response setting forth any information relating to these activities, and was given an opportunity to be heard at the Commission’s Albany office in accordance with §94(12)(a).

The Commission’s letter to the Comptroller also advised him that these circumstances might require him to amend his annual statements of financial disclosure for the years 2001 through and including 2005 because question 13 of the annual statement requires reporting of “any income in EXCESS of $1,000 from EACH SOURCE for the reporting individual and such individual’s spouse for the taxable year last occurring prior to the date of the filing” (see Public Officers Law §73-a[3] [emphasis in original]). On October 17, 2006, the Comptroller amended question 13 of his annual statements of financial disclosure for the years 2003 through 2005 to include income to himself, which he described as “‘in kind’ services of Nicholas Acquafredda.” Executive Law §94(11) permits a filer to cure any deficiency, without penalty, within fifteen days of receiving notification.

In connection with this investigation, Staff has taken sworn testimony of 12 witnesses and has reviewed almost 2000 pages of documents obtained from those involved.

B. Mr. Hevesi’s use of a City employee to provide transportation to Mrs. Hevesi

Mr. Hevesi served as the New York City Comptroller from 1994 through 2001. During this time, Diana Hoffman, Myrna Santiago, Douglas Gladstone, Nicholas Acquafredda, Robert Brackman, Roberta Rubin and Jack Chartier served in the New York City Comptroller’s Office (“NYCCO”) in various capacities (Acquafredda: 9; Rubin: 104-105; Gladstone: 188-189; Santiago: 235-236; Hoffman: 379; Brackman: 741-742; Hevesi: 501-502; Chartier: 655-656).

1. The Comptroller’s request to the City Corporation Counsel for approval to provide transportation to Mrs. Hevesi

In 1998, Mr. Hevesi asked New York City’s then Corporation Counsel Michael Hess whether it was permissible to provide a driver and security for his wife (Hevesi: 514; Brackman: 744-745). The Comptroller received a letter from Hess dated September 28, 1998, stating:

I have reviewed the question of the periodic utilization of a New York City car and driver for your wife. It is my understanding that she has been officially certified by the federal government as a disabled person.

It has come to my attention that you and your family have been the subject of picketing and demonstrations relating to various subjects. In light of those demonstrations and the security concerns related to them, and recognizing your wife’s serious health problems, I think it is appropriate for her to be picked up by the Comptroller’s staff and a City car to join you in public activities and, on an occasional basis, for health related appointments (Hevesi: 517; E: 15).

In his testimony before the Commission, the Comptroller acknowledged that the letter could mean that he was not authorized to use a City driver to transport Mrs. Hevesi to all health-related appointments, but said that he “never understood what ‘occasional’ was.” The Comptroller stated, “[i]f my wife had appointments on Monday and Thursday, which one does she not get coverage for because of ‘occasional’?” (Hevesi: 519-520). He never sought clarification of the letter; he “just assigned staff and had her covered” because he “was concerned about her being covered” (Hevesi: 520), and because he received “no objection” from the City (Hevesi: 524; Rubin: 107).

2. Acquafredda provides transportation to Mrs. Hevesi

Acquafredda was hired by the NYCCO in 1995 as a driver and was responsible for transporting supplies and taking fleet vehicles for maintenance repairs (Acquafredda: 12-14; E: 2). In early 2000, Acquafredda joined the Citizen Action Center (“CAC”), a part of the NYCCO, handling constituent issues, where he reported to Douglas Gladstone, who reported to Myrna Santiago, the Executive Director of the CAC (Hoffman: 383-384; Gladstone: 191; Santiago: 237).

Sometime after his employment commenced, Acquafredda’s job duties changed to include driving Mrs. Hevesi to medical and other appointments because “there came an interest on [the Comptroller’s] part . . . that [Mrs. Hevesi] be provided with assistance, driving, and security” (Hevesi: 505). In 1997 or 1998, Acquafredda remembers Diana Hoffman, who handled the Comptroller’s schedule, telling him that “[w]e’re going to need you to pick up Mrs. Hevesi at the house and bring her to an appointment and then bring her back” (Acquafredda: 16; Hoffman: 384-386). He felt “honored” to do this, and subsequently, Hoffman periodically asked him to transport Mrs. Hevesi (Acquafredda: 16-17, 20; Hoffman: 387). Acquafredda provided transportation for Mrs. Hevesi between once or twice per week or once every other month (Acquafredda: 17; Hoffman: 388). He drove from Manhattan to Queens in a City-owned car and then used Mrs. Hevesi’s car to transport her (Acquafredda: 25; Hoffman: 388-389).

Acquafredda did not record the time spent driving Mrs. Hevesi, nor was he asked to keep such records (Acquafredda: 20-21, 29; Hevesi: 532).

3. The Comptroller’s 2001 reimbursement to the City of New York

On February 14, 2001, shortly after the issue of Acquafredda’s provision of services for Mrs. Hevesi became the subject of a Freedom of Information Law request to the NYCCO by the New York Post, the Comptroller reimbursed the City the sum of $6,439 (Hevesi: 526-527; 535-536; E:15). The Comptroller asked Roberta Rubin to “work out a calculation” for reimbursement to the City (Hevesi: 528-529; Rubin: 107-109). Rubin did not rely on any documents reflecting the time Acquafredda actually spent with Mrs. Hevesi; rather, she estimated the number of hours he spent driving and multiplied that figure by Acquafredda’s hourly wage (Rubin: 107-109, 138). Acquafredda was not asked to supply any information to assist in calculating the amount of the reimbursement, and Hoffman told him that his service to Mrs. Hevesi was “discontinued now” (Acquafredda: 26-29).

On the subject of reimbursement, the Comptroller testified before the Commission that:
Maybe that was a mistake long-term because it’s sort of an admission that I shouldn’t have done it and admitted it. There was no compulsion on the part of the City for me to do that. It was voluntary. But it was in the middle of a campaign (Hevesi: 526-527).

On May 4, 2001, the New York Post reported that the Comptroller had used Acquafredda, a City employee, to drive Mrs. Hevesi (E: 1).

C. Mr. Hevesi’s use of a State employee to provide transportation to Mrs. Hevesi

In 2003, after Hevesi became the State Comptroller, several of the same individuals who worked for him in the NYCCO, and who were aware of what happened in 2001, joined him at the OSC: namely, Acquafredda, Hoffman, Santiago, Gladstone, Brackman, Rubin and Chartier (Acquafredda: 32; Gladstone: 196; Hoffman: 406-408; Hevesi: 544, 550-553; Chartier: 688-691; Brackman: 742-743, 749-750; E: 16).

1. The Comptroller’s request for an advisory opinion from the Commission

In May 2003, the Comptroller, with the assistance of Brackman, the Deputy Comptroller, drafted a letter to the Commission seeking an advisory opinion as to whether the State’s ethics laws permitted him to use a State employee to provide occasional transportation and security for his wife (Hevesi: 590-594; Chartier: 720; Brackman: 751-752; E: 12).

The Comptroller’s request letter did not inform the Commission that Acquafredda had driven Mrs. Hevesi while Mr. Hevesi was the Comptroller at the NYCCO, or that Mr. Hevesi had reimbursed the City $6,439 for Acquafredda’s services on behalf of Mrs. Hevesi. The Comptroller “didn’t feel that it was relevant” to supply that information to the Commission (Hevesi: 597, 607-608; Brackman: 758).

At the time when the Comptroller asked the Commission for permission “to arrange to have a member of [his] security detail” provided to his wife, another driver, David Burke, was already assigned to drive Mrs. Hevesi (Hevesi: 594; Chartier: 720-721, 727-728; E: 12). In his May 2003 request to the Commission the Comptroller did not disclose that Burke already was driving Mrs. Hevesi.

Moreover, in his request to the Commission, the Comptroller represented that there was a “single” (E: 7). However, on October 11, 2006, the afternoon before the Comptroller was scheduled to testify, the Commission received a response from the Office of Counsel for the OSC, and learned, for the first time, that another State employee had been used to provide transportation to Mrs. Hevesi at various points in time (E: 18). When he testified the next day, the Comptroller admitted that Burke “played that role” at the time of his original request (Hevesi: 594), but that he did not recall “until notified a day or so ago” that Burke provided transportation for a “couple of months . . . two days a week,” in which a State car had been used (Hevesi: 574; E: 52, pg. 3).

2. The New York State Police find a “Low Threat Risk” to Mrs. Hevesi

In the May 30, 2003 informal Advisory Opinion, the Commission advised the Comptroller to seek a risk assessment for Mrs. Hevesi from independent law enforcement personnel (E: 13). In July 2003, the Comptroller asked the New York City Police Department (“NYPD”) to conduct a “threat assessment” for Carol Hevesi. NYPD referred the request to the New York State Police (“NYSP”) (Brackman: 763-765). The assessment was assigned to Investigator Ihor Stadnyk in the Executive Services Unit Security Detail in Albany. Stadnyk specializes in evaluating threats against public officials (Stadnyk: 798).

Thereafter, Stadnyk and Brackman met to discuss the assessment. Brackman did not want a site survey of the Comptroller’s residence performed, as one had already been done and “they didn’t feel there was a threat based on the residence” (Stadnyk: 802). Stadnyk requested documentation of threats received, and although Brackman indicated documents would be forthcoming, none were ever supplied (Stadnyk: 803, 818-19; Brackman: 766-767). Stadnyk then contacted the NYPD to ascertain the existence of any documented threats against the Comptroller or his wife. None was ever provided (Stadnyk: 803). Stadnyk identified one individual alleged to have made a threat against the Comptroller, and upon contacting the Secret Service, was advised that the individual presented a low threat level, which did not require monitoring (Stadnyk: 805-806).

Stadnyk also came across the media reports of Mrs. Hevesi’s having used a City driver while Mr. Hevesi was the City Comptroller, and recognized the similarity to the current request (Stadnyk: 807). Stadnyk understood that Mrs. Hevesi’s medical and physical condition affected her daily activities. He concluded, however, that her condition did not alter his assessment that there was no appreciable threat to her from others (Stadnyk: 812-814).

On July 23, 2003, after meeting with Stadnyk, but before the assessment was completed, Brackman penned the following note to Stadnyk:

Officer Stadnyk - Per our discussion, enclosed please find the correspondence I referenced that sets out our concerns with Mrs. Hevesi - A letter from the State Police at the end of your review to the effect that there exists a legitimate & articulated need for the kind of “soft” protection Mrs. Hevesi warrants - Thanks for your assistance (E: 23).

Before the Commission, Brackman testified, “I suppose it would suggest to some that I was asking Officer Stadnyk for a letter to that effect, but I don’t know that that is what I meant when I wrote it . . .” (Brackman: 769). For his part, Stadnyk believed that “they were looking for a letter that validated their security concerns for Mrs. Hevesi, which is at odds with normal procedure to do a threat assessment” (Stadnyk: 811).

On August 19, 2003, Superintendent James W. McMahon wrote to the Comptroller that, after a careful review of the information provided by Brackman, the NYSP had determined that Mrs. Hevesi faced a “Low Threat Risk,” based on the absence of any threats to her and her relatively low public profile (E: 11). The NYSP concluded that “there does not appear to be a nexus between your high public office and Mrs. Hevesi’s safety.” Superintendent McMahon added that the assessment was based on the information provided to date, and that if circumstances should change in the future, the assessment should be re-evaluated to reflect any additional information (Brackman: 770; E: 11).

On September 11, 2003, Brackman wrote to then-Acting Superintendent Wayne Bennett, thanking the NYSP for conducting the threat assessment. The letter stated that “internal arrangements” would be made to “ensure that [Mrs. Hevesi] receives a commensurate degree of protection, relying on our current in-house security staff and their expertise in making these determinations,” and quoting the Commission’s informal opinion that said, “‘[g]enerally, questions concerning specific issues involving the security and transportation needs of statewide elected officials are best addressed by the agency’” (Brackman: 772; E: 24). At no point did the Comptroller return to the NYSP or the Commission with additional or new information or seek further guidance from the Commission (Hevesi: 611; Brackman: 774-775).

3. The Comptroller’s security team

The Comptroller’s security team included Tony Johnson, the senior member, and five other retired members of either the NYPD or Albany Police Department (Johnson: 310-311; Fiore: 261-262). Acquafredda was not part of the Comptroller’s security team and never communicated with them on security issues (Acquafredda: 59; Rubin: 141).

The Comptroller and his security detail now claim that some threat to Mrs. Hevesi existed during the relevant time period. Johnson stated that he believed that this threat arose from the Comptroller’s policies with respect to the Sudan, South Africa, Israel and Northern Ireland (Johnson: 320-322). Johnson testified that the Comptroller’s security team conducted their own threat assessment of Mrs. Hevesi, but no records of OSC support Johnson’s testimony (Johnson: 327-328). In addition, Johnson did not learn until October 10, 2006, when he testified before the Commission, of the letter from Superintendent McMahon to the Comptroller concluding that Mrs. Hevesi faced a “Low Threat Risk” (Johnson: 317-318). According to Johnson, Acquafredda and Burke were part of the Comptroller’s security team from February 2003 until June 2006, despite their lack of law enforcement credentials (Johnson: 311, 354-355).

Notably, during the period February 2003 until June 2006, the security team received no threats to Mrs. Hevesi (Fiore: 280; Johnson: 322-323). There were incidents directed at the Comptroller: a license plate was stolen from the Comptroller’s car, and the windshield on his car was smashed while it was parked outside his Queen’s residence. There were other incidents involving the Comptroller which invoked angry responses, such as his June 1, 2006 commencement address at Queens College in which he made a critical statement about President Bush, and his role beginning in July 2006 in a back pay dispute concerning the State’s corrections officers. Those incidents, however, did not produce any threats to Mrs. Hevesi. By July 2006, Mrs. Hevesi had entered a nursing home because of her health issues (Fiore: 268-271, 279-282; Johnson: 343-347; Hevesi: 521, 625-628).

Despite this record, the Comptroller himself believed that there was a security risk to Mrs. Hevesi and disagreed with the NYSP assessment (Hevesi: 612-613). The Comptroller testified that he viewed Mrs. Hevesi’s health needs as related to her security needs and relied on his own personnel in assessing the risk to her (Hevesi: 607, 611-612). Although Mrs. Hevesi was never threatened, the Comptroller believed that a “threat to me . . . is a threat to the family as well,” especially due to his wife’s “vulnerable state” (Hevesi: 599-600). For the Comptroller, security meant preventing her from falling down a flight of stairs, preventing “someone trying to try to get to me through her” (Hevesi: 521), and giving her “peace of mind; that there’s someone there in an emergency if she needs help, if the car breaks down, if she gets jostled, the whole range” (Hevesi: 522).

The Comptroller never told Acquafredda about any threats to Mrs. Hevesi (Acquafredda: 55-56).

4. Acquafredda, as a State employee, provides transportation to Mrs. Hevesi

Acquafredda, Santiago and Gladstone worked in OSC’s Division of Intergovernmental Affairs, a new unit, which was modeled after the NYCCO’s CAC, and located at Maiden Lane in Manhattan (Acquafredda: 41; Gladstone: 197; Hoffman: 406-408; Santiago: 465-466, 470; Hevesi: 554-555). Acquafredda started on March 6, 2003, as an Assistant Director in this unit at a salary of approximately $45,000, which increased incrementally to $61,000 in 2006 (Acquafredda: 41; Hevesi: 552-554; E: 3, 6 and 18, at Tab K). Acquafredda’s job description included following up with constituents to ensure that problems were properly handled (E: 18, at Tab E). Altogether about eight people worked in the division, which was headed by Santiago (Acquafredda: 41; Santiago: 474).

When he was “called upon to drive Mrs. Hevesi,” Acquafredda’s duties changed (Hoffman: 409; Acquafredda: 42; Hevesi: 558). Executive Assistant Comptroller Hoffman remembers the Comptroller telling her that Acquafredda was needed to pick up the Comptroller’s wife. Recalling the events at the NYCCO in 2001, Hoffman asked the Comptroller, “Do we want to do this again?” (Hoffman: 412). She testified that the Comptroller heard her concern but did not answer; there was no further discussion, and she carried out his request (Hoffman: 412-413). In his testimony, the Comptroller did not remember this exchange, but had no reason to doubt Hoffman’s recollection or honesty (Hevesi: 559, 561-564).

Acquafredda then received “sporadic” calls from Hoffman to drive Mrs. Hevesi, about once or twice per month (Acquafredda: 43-44). In the beginning, Hoffman received the request directly from the Comptroller and relayed the information to Acquafredda. Later, Acquafredda received the request directly from Mrs. Hevesi “because they had built up a little bit of a relationship” (Hoffman: 416-417; Hevesi: 567-568). Acquafredda used the Hevesi family Buick to transport Mrs. Hevesi, and she would reimburse him for any gas (Acquafredda: 89-90). The trips were to personal appointments, and because of her health Acquafredda “very, very rarely” provided transportation to Mrs. Hevesi to official events (Acquafredda: 64, 88).

In November 2003, Gladstone became Acquafredda’s supervisor, and traveled from his Albany office to visit the Maiden Lane office in Manhattan once a week; he spoke with Acquafredda daily (Acquafredda: 68-69; Gladstone: 198, 200, 218-220; Santiago: 480). Santiago had told Gladstone that Acquafredda would, once again, be driving Mrs. Hevesi (Gladstone: 203-204, 208). Gladstone testified that he was “sort of taken aback” and “surprised” by this arrangement, but did not raise a concern because the decision came from above him (Gladstone: 204-206, 221). Acquafredda would telephone Gladstone to say that he would be out of the office because he had a “special assignment,” meaning he had
transportation duties for Mrs. Hevesi, and sometimes for Chartier (Acquafredda: 71; Gladstone: 207, 217, 221; Santiago: 476-477).

5. The time Acquafredda spends with Mrs. Hevesi increases

Over time, Gladstone noticed that Acquafredda was not handling his Intergovernmental Affairs cases in a timely manner, contributing to a “backlog,” so Gladstone reassigned the cases (Gladstone: 200-201; 216-217). The Comptroller and Santiago also knew that Acquafredda “was spending more and more time on special assignment” (Santiago: 482; Hevesi: 569).

Santiago was “not sure at what point [Acquafredda] actually ceased” doing constituent work (Santiago: 482). Gladstone estimated that from December 2003 to October of 2004, Acquafredda spent one day per week, or 20% of his time driving Mrs. Hevesi, but admitted that he could not be certain and that Acquafredda’s time sheets did not reflect the time spent with Mrs. Hevesi (Gladstone: 209-210, 220; E: 3 at pgs. 56-77).

In November of 2004, Samuel Nicolas became Acquafredda’s supervisor. Gladstone told Nicolas that Acquafredda had “special assignments” with Mrs. Hevesi (Acquafredda: 71-72; Gladstone: 222-223). Nicolas acknowledged that Acquafredda spent time at the OSC Executive Offices at 633 Third Avenue in Manhattan and that he would see Acquafredda “come and go” (Nicolas: 156). Nicolas thought that Acquafredda spent 60 to 70% of his time in the Maiden Lane office in 2004 (Nicolas: 162). Acquafredda thought the time he spent with Mrs. Hevesi increased in 2004, but could not specify to what extent (Acquafredda: 51). He “guess[ed]” that he spent about 10 to 15% of his time with Mrs. Hevesi (Acquafredda: 52). None of Acquafredda’s supervisors challenged the appropriateness of his driving assignments for Mrs. Hevesi (Acquafredda: 88-89).

6. Acquafredda is transferred to OSC’s Executive Offices

In February 2005, the Comptroller became personally involved in changing Acquafredda’s job title from Administrative Assistant to Confidential Aide (Hevesi: 580-581; E: 18, at Tab C). Another OSC employee in a Confidential Aide title was switched with Acquafredda. An OSC e-mail indicates that the switch occurred because the Comptroller “wants this done right away” (E: 18, at Tab C). In his testimony the Comptroller did not recall why he had made the transfer (Hevesi: 580-581). Acquafredda’s work station was subsequently transferred from the Maiden Lane office to 633 Third Avenue, the Executive Office, where the Comptroller’s security team had space (Acquafredda: 73; Hoffman: 422-423; Nicolas: 179; Santiago: 493-494).

After February 2005, Acquafredda “didn’t really work for Citizen Action. He really dealt with Mrs. Hevesi more often” (Hoffman: 422). That was especially true beginning in July 2005, when Mrs. Hevesi underwent knee surgery, and her medical appointments “increased incredibly” (Hoffman: 419). Acquafredda then began attending to Mrs. Hevesi at the Comptroller’s cottage in the Town of Somers, in northern Westchester County (Rubin: 142; Hevesi: 589). At times, Acquafredda spent five days per week with Mrs. Hevesi and for weeks at a time, would not be present at the Executive Office (Hoffman: 420-421, 425). In December 2005, Acquafredda received a Management Confidential Merit Award for the sum of $1,000 for the “excellent” work he was doing at the OSC (E: 18, at Tab B). For the period January 12, 2006 through September 6, 2006, Hoffman signed Acquafredda’s time sheets for him because “he wasn’t there in the office to sign it” (Hoffman: 448-457; Acquafredda: 80-81; E: 3, pgs. 5-22).

During the time he was assigned to Mrs. Hevesi, Acquafredda never sat in on meetings with the security team. He would “run into them” and occasionally visit them, but he never communicated with them on security-related issues involving Mrs. Hevesi and was never provided information regarding potential threats to her or the Comptroller (Acquafredda: 44, 45-48, 55, 58, 94). Acquafredda testified that if he needed help, he assumed that he would dial 911 (Acquafredda: 50). He saw his role as one of taking care of Mrs. Hevesi and giving her a sense of security (Acquafredda: 96-97; Hoffman: 428; Chartier: 708). He stopped driving Mrs. Hevesi in July 2006 when she entered a nursing home (Hevesi: 627-628).

7. The Comptroller’s 2006 reimbursement to the State of New York

From 2003 through 2006, no records were kept that would reflect the time that Acquafredda spent with Mrs. Hevesi (Acquafredda: 52, 64; Hoffman: 442; Hevesi: 632). Nor was Acquafredda asked to keep such records (Acquafredda: 20-21, 29). According to OSC guidelines for all State agencies, all employees are required to maintain daily time records and “[w]hen an employee’s duty assignments require him to work at locations away from his official office, he is still required to maintain complete and accurate time - attendance and accrual records.” (E: 17). In his testimony, the Comptroller expressed his disappointment that he failed to meet those requirements and that the work of the OSC was thereby “tainted” (Hevesi: 639).

After the allegation that Acquafredda was driving Mrs. Hevesi was reported in the media, the Comptroller asked Rubin, his Deputy Chief of Staff, to calculate the reimbursement to the State, as she had done for the City in 2001 (Rubin: 110; Hevesi: 637; Brackman: 780). Rubin was not aware of the Comptroller making any reimbursements to the State prior to September 26, 2006, when the use of a State employee to drive Mrs. Hevesi became an issue in the media (Rubin: 144-145). Rubin asked Santiago to estimate or “come up with some numbers of how much time [Acquafredda] actually spends doing this, driving Mrs. Hevesi” (Santiago: 487; Rubin: 110, 112-113). Santiago could not do that, and offered to check the database and print out a report of cases, which would indicate who, including Acquafredda, had logged them in. Santiago testified that Rubin responded, “No, no. Don’t do anything. I don’t want you to do that” (Santiago: 487-488).

Rubin spoke with Acquafredda, who estimated that he spent 5% of his time with Mrs. Hevesi in 2003, 15-20% in 2004, 30-40% in 2005 and 40% in 2006 (Acquafredda: 98-99). Rubin then obtained Acquafredda’s earnings statements for those years (Rubin: 111, 121;

E: 5). None of Acquafredda’s direct supervisors was asked for their input in calculating Acquafredda’s time (Gladstone: 211; Nicolas: 181). Using Acquafredda’s percentages, Rubin estimated Acquafredda’s earnings attributable to the time that he spent with Mrs. Hevesi and then added benefits at the Internal Revenue Service interest rate of 5% (Rubin: 113-114).

In his testimony the Comptroller acknowledged that he was not familiar with the methodology Rubin had used to calculate the reimbursement figure. He said that “if the number is too low or too high,” the Commission should advise him so that he could adjust it (Hevesi: 637).

D. The Comptroller’s testimony relating to the Commission’s Advisory Opinion

The Comptroller’s understanding of the Commission’s May 30, 2003 Advisory Opinion is reflected in the following testimony:

Mr. Sleight: . . . When you received the Commission’s May 30th opinion on the subject, Mr. Hevesi, you didn’t take that opinion to mean that you could have a state employee be purely a chauffeur for your wife when she was traveling to her personal appointments and medical appointments?

Mr. Hevesi: That’s right.

Mr. Sleight: You didn’t conclude that from reading the opinion; is that right?

Mr. Hevesi: That is correct; I did not (Hevesi: 605).

On the subject of reimbursement, the Comptroller stated that he:

. . . had not addressed that portion of [the Commission’s] advisory dealing with a reimbursement of non-security services provided by security. And for that, I have no excuse. I should have done that and I have not done that (Hevesi: 629-630).

CONCLUSION

The Commission must examine the conduct of Mr. Hevesi in light of Public Officers Law §74(3)(d) and (h).

The relevant facts are not in dispute. The record demonstrates that Mr. Hevesi, as both City Comptroller and State Comptroller, used a government employee under his supervision to provide transportation for his wife. In each instance, he did not make reimbursement until the issue became a matter of public concern. As he acknowledges, no records exist at OSC upon which an accurate accounting for those services can be made. Because Mr. Hevesi’s recent $82,688.82 reimbursement is based in its entirety on the recollection and rough estimates of Acquafredda, the Commission cannot endorse this estimate. In fact, the Commission believes that this estimate understates the cost of all State services provided to Mrs. Hevesi. Moreover, the OSC’s failure to keep any record that would allow for proper reimbursement suggests that Mr. Hevesi did not intend to reimburse the State.

The record in this case does not support Mr. Hevesi’s assertion that there was a nexus between his role as Comptroller and any threats to Mrs. Hevesi’s safety. There were no threats of any kind to Mrs. Hevesi, and any threats to Mr. Hevesi, to the extent they existed, did not warrant special protection for Mrs. Hevesi.

In its Advisory Opinion, the Commission directed Mr. Hevesi to obtain an independent assessment of the threat to Mrs. Hevesi, which he did from the State Police, who determined that the existence of such a threat was “low.” Given the clear directive in the Advisory Opinion, Mr. Hevesi was not entitled to substitute his judgment, or that of his staff, for the judgment of independent security personnel.

Moreover, Mr. Hevesi’s security claim appears pretextual. Mrs. Hevesi had very real health issues; she did not face any appreciable security risks. Acquafredda had no security background or training and had no significant communication with those assigned to provide security at the OSC. He was simply a driver and companion for Mrs. Hevesi.

From May through August 2003, when the Commission and the State Police were reviewing his request for security for his wife, Mr. Hevesi had already assigned to her a driver. That fact was not disclosed to the Commission. The $6,439 reimbursement that he had made to the City of New York under similar circumstances was also not disclosed. Although Mr. Hevesi takes the position that such information was “not relevant” to the advisory opinion process, the Commission disagrees. In order to render proper service to State employees, the Commission must be informed of all relevant facts bearing on the ethics issue under review.

There is no question that Mrs. Hevesi suffers from debilitating illnesses, and that those closest to her have genuine concerns for her welfare. But State employees may not use public resources to care for their loved ones. Surely, the State’s Comptroller may not do so. As the New York State Court of Appeals has noted, the provisions of §74 of the Public Officers Law “are not merely innocuous platitudes or beneficent bromides” (Nicholas v Kahn, 47 NY2d 24, 32 [1979] (citing Public Officers Law §74[4]). The Code of Ethics in Section 74 mandates standards of conduct that all those charged with the public trust must follow.

The Commission concludes that there is reasonable cause to believe that Mr. Hevesi knowingly and intentionally used his position as New York State Comptroller to secure unwarranted privileges for himself and his wife, and in doing so, pursued a course of conduct that raises suspicion among the public that he likely engaged in acts that violated the public trust.

Pursuant to Executive Law §94(12)(b), the Commission hereby sends to the Temporary President of the Senate and the Speaker of the Assembly this Notice of Reasonable Cause alleging that Comptroller Alan G. Hevesi violated Public Officers Law §74(3)(d) and (h).

Dated: October 23, 2006

All Concur: Paul Shechtman, Chair
Robert J. Giuffra, Jr.
Carl H. Loewenson, Jr.
Lynn Millane

Commissioner Susan Shepard took no part in the consideration of this matter.