Letter: Leave counsel alone

Five years ago, an investigative panel set up by Gov. Andrew Cuomo issued a scathing report detailing many failures in the enforcement of election law by the New York state Board of Elections.

Now, five former officials from the now-defunct panel, the Moreland Commission to Investigate Public Corruption, say resulting reforms are at risk because of rule changes proposed by the board's commissioners.

In a letter to the board's counsel, the five former Moreland commissioners wrote that the rules to be issued by the Board of Elections' politically appointed commissioners "would take the board back to its pre-Moreland emasculated state."

The rules, which first were proposed at a board meeting in April, would give the body's four commissioners _ two appointed Democrats and two Republicans _ greater control over the investigations of Risa Sugarman, the board's chief enforcement counsel. The rules await final approval in a vote of the commissioners.

Before potentially adopting the rule changes, the board is required to seek public comment _ and there has been pushback. Sugarman has stated that the proposed changes would hurt her independent election enforcement ability, and the state attorney general's office also opposes the changes.

In their letter, the ex-Moreland Commission officials wrote that the regulations should be rejected and Sugarman should "be allowed to continue her work in a fair, even-handed and independent manner."

The letter's message has extra resonance because the Moreland Commission was disbanded by Cuomo in 2014 amid reports that his administration's top staff had interfered with the commission's issuance of subpoenas that were intended for Cuomo allies. That interference led to a probe by the former Manhattan U.S. Attorney Preet Bharara, though he ultimately found "insufficient evidence to prove a federal crime."

Now, the former Moreland commissioners are calling for Sugarman to retain her independence in issuing subpoenas in her own election law enforcement investigations.

The letter was signed by three former Moreland co-chairs: Milton Williams, Kathleen Rice, who is now a Democratic member of Congress, and William Fitzpatrick, the Onondaga County district attorney. Former Moreland commissioner Kristy Sprague, the Essex County district attorney, and Thomas Zugibe, the Rockland County district attorney, also signed the letter.

The former Moreland commissioners noted an October 2013 hearing the commission held on the Board of Elections, which "did not go well for the board" and induced "oftentimes cringe-worthy admissions" by personnel, including that the board had only conducted one investigation over the previous four years.

Following that hearing, the Moreland Commission staff issued a preliminary report blistering the Board of Elections' setup and recommending the creation of a new, politically independent enforcement office.

In a controversial 2014 budget deal with legislative leaders, Cuomo agreed to end the Moreland Commission's work halfway through its planned eighteen-month lifespan. In exchange, legislative leaders agreed to pass certain reforms, including the creation of the independent enforcement office that was separate from the board's regular staff.

"Incredibly, against this background, there are now proposed regulations that would curtail the independence of the Chief Enforcement Counsel," the five former Moreland commissioners wrote.

Sugarman, a former staffer for Cuomo in the attorney general's office, was appointed by the governor as the board's first enforcement counsel. While there are no indications Sugarman has gone after Cuomo, some of her inquiries have been high profile and politically sensitive, and have earned enemies with both parties.

In particular, Sugarman has pursued a long-running probe into potentially illegal election spending by the majority state Senate Republicans, who have fought her office's subpoenas in court.

The proposed regulations would require Sugarman's office to provide to the board's commissioners a memorandum explaining the circumstances of an investigation, the people and entities that would be served subpoenas, and copies of proposed subpoenas, for approval.

Once Sugarman issued a subpoena and collected information, the new rules could require her to go back to the board to then issue further subpoenas in an investigation. And the proposed rules would also allow people or entities that receive subpoenas from Sugarman's office to appeal to the Board of Elections to "quash or modify" them.

The board commissioners already have power over whether Sugarman can issue subpoenas in a specific probe, but it has in the past allowed her latitude to conduct that work after authorizing an election law inquiry.

The Democratic Assembly majority and Republican Senate majority each have power over one Board of Elections appointment, and the chairs of the state Republican and Democratic parties pick the other two.

The government-reform group Reinvent Albany also submitted a public comment opposing the rule changes, arguing they would "undercut the independence of the chief enforcement counsel, who has investigated types of cases not previously taken on."

cbragg(at)timesunion.com - 518-454-5619