Attorney General Report Of Investigation Into The Alleged Misuse Of New York State Aircraft

 

ALLEGED MISUSE OF NEW YORK STATE AIRCRAFT AND
THE RESOURCES OF THE NEW YORK STATE POLICE
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL

July 23, 2007
DRAFT*DRAFT**
This Report of Investigation into the Alleged Misuse of New York State Aircraft and the Resources of the New York State Police was prepared by:
Ellen Nachtigall Biben
Special Deputy Attorney General for Public Integrity
Linda A. Lacewell
Special Counsel
Jerry H. Goldfeder
Special Counsel

TABLE OF CONTENTS
Page
INTRODUCTION..................................................................................................1
FINDINGS............................................................................................................2
PART ONE -- USE OF THE STATE POLICE TO COLLECT, CREATE,
AND PRODUCE TO THE GOVERNOR’S LIAISON DOCUMENTS
AND INFORMATION REGARDING SENATOR BRUNO’S TRAVEL ................4
I. BACKGROUND AND OVERVIEW....................................................................4
II. THE REPRESENTATION BY THE GOVERNOR’S
OFFICE THAT IT WAS ACTING PURSUANT TO A
FOIL REQUEST IS NOT SUPPORTED BY THE FACTS......................................8

A. The Governor’s Office Had a Plan to Generate Press
Coverage of Senator Bruno’s Use of State Aircraft......................................8
B. The FOIL Requests.................................................................................9
III. EVEN ASSUMING THAT THE SUPERINTENDENT AND
HOWARD WERE ACTING IN RESPONSE TO A FOIL
REQUEST, THEIR CONDUCT WAS NOT REQUIRED UNDER FOIL
AND DEVIATED FROM STATE POLICE OPERATING PROCEDURES..............11
A. The State Police Created Ground Transportation Records Concerning
Senator Bruno, Which Was Not Legally Required Under FOIL.....................11
B. The Superintendent Reported Information about Senator Bruno’s
Upcoming Schedule and Changes to the Schedule as They Occurred...............14
C. Creating Documents in Response to a FOIL Request Is Problematic...............19
D. The Superintendent and Howard Produced Itineraries of Public Officials
Without a Security Review.......................................................................21
E. The State Police Produced Selective Information on Senator Bruno................24
F. The Superintendent Personally Handled the Production
of Documents Contrary to State Police Practice and Procedure......................25
G. Differing Accounts of Responsibility for
Production of State Police Documents.......................................................29
IV. FACTORS BEARING ON THE CONDUCT OF THE
GOVERNOR’S LIAISON AND THE SUPERINTENDENT..................................30
A. Howard Knew He Was Dealing with a Politically Sensitive Matter................30
B. The Superintendent Was Vulnerable to Pressure ................................................31
V. OTHER REPORTED JUSTIFICATIONS FOR THE STATE
POLICE’S CONDUCT ARE INCONSISTENT WITH THE EVIDENCE.................32
A. There Was No April 2007 Change in Record
Retention or Creation Policies of the State Police........................................32
B. Any Complaints by Michael Long or Eileen
Long-Chelales Are Immaterial to this Investigation......................................34
VI. CONTINUED CONFUSION ABOUT SENATOR BRUNO’S
USE OF STATE POLICE GROUND TRANSPORTATION .................................35
PART TWO -- SENATOR BRUNO’S USE OF STATE AIRCRAFT.......................41
I. STATE AIRCRAFT POLICY .............................................................................41
II. FACTUAL INVESTIGATION CONCERNING
USE OF STATE AIRCRAFT..............................................................................44
A. Collection of Documents .........................................................................44
B. Compliance with Procedural Requirements.................................................45
C. Official State Business During the Trips.....................................................46
D. Conclusion.............................................................................................50
III. THE STATE SHOULD ENACT A MORE RIGOROUS
POLICY CONCERNING USE OF STATE AIRCRAFT........................................50
A. Bright Line Rule.....................................................................................51
B. Commercially Reasonable Policy..............................................................52
C. Mixed-Use with Reimbursement...............................................................52
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INTRODUCTION DRAFT
During the week of July 2, 2007, the Office of the Attorney General for the State of New York Andrew M. Cuomo (the "OAG") commenced an investigation into Senate Majority Leader Joseph L. Bruno’s use of New York State Police aircraft ("state aircraft"). On July 5, 2007, Senator Bruno asked the OAG to investigate "the Governor’s alleged misuse of State resources in connection with State Police surveillance of Senator Bruno’s activities."1 This entailed a review of the Division of New York State Police’s ("State Police") collection, creation, and production of documents regarding Senator Bruno’s travel during 2007. The State Inspector General Kristine Hamman commenced a separate investigation into the surveillance allegations, while the Albany District Attorney P. David Soares also commenced a separate investigation into Senator Bruno’s use of state aircraft. The OAG investigated both matters independently.
Part I of this Report describes the results of the OAG’s investigation concerning the use of the State Police in relation to Senator Bruno’s travel records. As set forth in Part I, the OAG found no evidence that the State Police conducted actual surveillance of Senator Bruno. As explained below, however, the investigation has raised serious issues about the State Police’s handling of documents and information concerning Senator Bruno’s travel, at the direction of the Governor’s liaison to the State Police ("Governor’s liaison").
Part II of this Report describes the results of the OAG’s investigation concerning Senator Bruno’s use of state aircraft. With respect to that issue, the investigation has shown that Senator Bruno’s use of state aircraft was in accordance with existing
1 Letter from Michael A. Avella, Esq., Counsel to the Majority, to Attorney General Andrew Cuomo, dated July 5, 2007.
regulations and procedures. Nevertheless, the OAG recommends that these policies and procedures be changed to ensure more specificity.
2 FOIL is a critically important law providing access to the press and the public. Its hallmarks are accountability and disclosure. Informal disclosures that go beyond the strict requirements of FOIL (such as accepting oral requests for information) help remove barriers between the press and public information, and are to be encouraged where appropriate. Impediments to access under FOIL should be removed where possible because they frustrate the democratic process.
During the investigation, the OAG interviewed dozens of witnesses and collected numerous travel records, e-mails, and other documents from multiple sources, including the State Police and the Governor’s Office. Key interviews were conducted under oath. This Report sets forth the findings of the investigation and the factual basis for those findings.

FINDINGS

• The Governor’s Office planned to obtain information concerning Senator Bruno’s use of state aircraft for the purpose of giving this information to the media. Under the pretext of responding to a Freedom of Information Law ("FOIL") request, the Governor’s liaison caused the Acting Superintendent of the State Police to (1) create documents detailing where the State Police had driven Senator Bruno, and (2) report details of Senator Bruno’s requests for ground transportation, upcoming schedules, and changes to those schedules. This conduct deviated from State Police standard operating procedures and past practices, and was not required by FOIL.
• FOIL is a hallmark of good government, promoting accountability and transparency.2 The integrity of the FOIL process must be protected. Relevant FOIL policies should be evaluated to consider whether FOIL requests directed to the Governor’s Office should be referred to the relevant entity within the
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Executive Department. If such a change were made, the other entities within the Executive Department and elsewhere would handle their own FOIL requests in accordance with their own established rules and policies.
• The Governor’s Office should set the standard for diligence in avoiding political interference with State Police business. The Superintendent of the State Police must conduct the business of the State Police in a wholly apolitical manner and must avoid even the appearance of partisan activities within the State Police. A new ethics policy should be promulgated establishing protocols between the Governor’s Office and the State Police to this effect.
• The Acting Superintendent of the State Police, the Governor’s liaison, and the Governor’s Communications Director should be evaluated in light of the findings contained in this Report and appropriate disciplinary action should be considered.
• Senator Bruno’s use of state aircraft was in accordance with state regulations and practices. The OAG investigated every use of state aircraft by Senator Bruno for calendar year 2007 and found that some "legislative business" occurred during each trip. On some trips, Senator Bruno’s legislative business occupied only a small part of the business day.
• The current state aircraft policy is overly permissive and porous and allows for an abuse of taxpayer funds. The policy should be changed to provide stricter, clearer guidance concerning when state aircraft may be used in connection with official state business, and under what circumstances, if any, official use of state aircraft may be combined with political or personal use.
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PART ONE

USE OF THE STATE POLICE TO COLLECT, CREATE, AND

PRODUCE TO THE GOVERNOR’S LIAISON DOCUMENTS

AND INFORMATION REGARDING SENATOR BRUNO’S TRAVEL
This Part sets forth the results of the investigation concerning allegations that the Governor’s Office used the State Police to conduct surveillance of Senator Bruno during 2007. We find that no surveillance occurred, but that serious issues have been raised about the use of the State Police to collect, create, and produce to the Governor’s Office documents and information regarding Senator Bruno’s travel.
I. BACKGROUND AND OVERVIEW
The Governor’s Office controls the use of state aircraft. The primary, but not sole, users of state aircraft in recent years have been the Governor, Lieutenant Governor, and Senator Bruno. After Eliot Spitzer became Governor in January 2007, the Governor’s Office changed the procedure for the use of state aircraft to require that the applicant "certify" the truth and accuracy of the information contained in the request to use state aircraft, including the stated purpose of the trip. A knowingly false certification may be a criminal offense. See, e.g., Penal Law §§175.30.
Beginning in approximately May 2007, persons in the Governor’s Office planned to provide information to the media demonstrating that Senator Bruno had been using state aircraft for political purposes, contrary to his certification that he was on official state business. In furtherance of that plan, in mid-May 2007, Preston Felton, Acting Superintendent of the State Police (the "Superintendent") and William F. Howard, Assistant Deputy Secretary for Homeland Security under Michael Balboni, New York State Deputy Secretary for Public Safety, had a series of conversations about Senator
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Bruno’s travel and his use of state resources. At some point, Howard, who was the Governor’s liaison to the State Police, apparently told Felton that the Governor’s Office had received a FOIL request for records concerning Senator Bruno’s travel. At the request of Howard, the Superintendent began informing Howard about Senator Bruno’s planned and actual movements in New York City for trips certified to be for "legislative business." This included the Superintendent notifying Howard of Senator Bruno’s upcoming schedule "on the ground" in New York City and each change to the upcoming schedule as it was made.
On May 31, 2007, the Superintendent collected flight records from the Aviation Unit of the State Police concerning both Senator Bruno and the Governor, and forwarded these records to Howard. Also, during the first week of June 2007, the Superintendent directed others in the State Police to debrief the State Police investigators who had been assigned to drive Senator Bruno in New York City regarding the locations to which they had driven him. The Superintendent further directed that documents be created to reflect this information in a form that purported to be official State Police records. The Superintendent forwarded these purported records to Howard. Although Senator Bruno took ten trips on state aircraft during 2007, Howard asked the Superintendent to provide ground transportation information for only three of those trips, each of which occurred on days when well-publicized political fundraisers were held.
The various documents and information collected by the Superintendent at the request of Howard were all highly pertinent to whether Senator Bruno’s use of state aircraft was in fact in connection with legislative business in New York City, as Senator Bruno had certified.
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3 Specifically, the Governor’s Office produced the following records, all for January through May 2007, unless otherwise indicated: (1) monthly State Police aviation reports for the Governor, Lieutenant Governor, and Senator Bruno; (2) six flight request forms for helicopter use by the Governor (four unsigned and two signed by the Chief of Staff); (3) preflight confirmation and aircraft manifests showing travel by the Governor, Lieutenant Governor, and Senator Bruno; (4) a typed list of dates on which the Lieutenant Governor had used state aircraft; (5) schedules for the Governor and Lieutenant Governor for a variety of days; (6) nine flight request forms all signed by Senator Bruno; (7) two documents entitled "Transportation Assignment for Senator Joseph Bruno" for May 3-4, 2007, and May 24, 2007; and (8) Senator Bruno’s itinerary for May 17-18, 2007.
On June 28 and 29, 2007, the Governor’s Office produced to the Albany Times Union (the "Times Union") a range of aviation and ground transportation records concerning the Governor, Lieutenant Governor, and Senator Bruno for the period of January through May 2007.3 These records included documents detailing where Senator Bruno was scheduled to be driven or was actually driven for only three of the ten trips, coinciding with the dates of the fundraisers.
On July 1, 2007, a story appeared in the Times Union reporting that "three times this year, Senate Majority Leader Joseph L. Bruno used taxpayer-funded state aircraft to fly to political fundraisers in Manhattan while certifying he was on official state business, according to documents obtained by the Times Union." Odato, "State Flies Bruno to Fundraiser," Albany Times Union (July 1, 2007) (the "July 1 article"). The newspaper reported that it had obtained the documents under FOIL. FOIL requires government agencies to provide access to their records on request, with certain exceptions. After the article ran, the Governor’s Office represented to the media that it had done nothing more than produce documents under a FOIL request from the Times Union. As detailed below, however, this account is not consistent with the facts found during the investigation.
Part One of the Report is organized as follows. First, we address the position of the Governor’s Office that it produced the relevant documents to the Times Union in response to a FOIL request. We conclude that the Governor’s Office was acting pursuant
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to a plan, which preceded any FOIL request, to show that Senator Bruno had misused state aircraft. We further conclude that Howard told the Superintendent there was a FOIL request before any such request existed, in order to obtain and produce documents and information about Senator Bruno.
Second, even assuming that the Superintendent and Howard were acting in response to a FOIL request, their conduct deviated substantially from the requirements of FOIL and from standard State Police operating procedures in the following ways:

• The Superintendent directed the creation of records to show where State Police investigators had driven Senator Bruno while he was in New York City, even for a trip for which Senator Bruno had already provided a schedule. These records were not ordinarily created or maintained by the State Police. The Superintendent provided these records to Howard with the understanding that they would be produced under a FOIL request.
• The Superintendent began reporting to Howard information about Senator Bruno’s upcoming schedule and changes to the schedule on an ongoing basis as the Superintendent received that information.
• The creation of records outside the ordinary course of business and the events in question carries the risk of creating inaccurate or misleading records, which occurred here.
• Howard requested and the Superintendent produced selective information regarding Senator Bruno.
• The Superintendent and Howard produced sensitive scheduling information of the kind not typically produced and did so without conducting a security review.
• The Superintendent personally handled and oversaw the document creation and production. This was contrary to more than twenty years of State Police practice and procedure and was something that the Superintendent himself had never done before.
These points are explained fully herein.
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II. THE REPRESENTATION BY THE GOVERNOR’S
OFFICE THAT IT WAS ACTING PURSUANT TO A
FOIL REQUEST IS NOT SUPPORTED BY THE FACTS
The investigation disclosed that persons in the Governor’s Office carried out a plan to obtain and disseminate information about Senator Bruno’s use of state aircraft before any FOIL request was made.
A. The Governor’s Office Had a Plan to Generate Press
Coverage of Senator Bruno’s Use of State Aircraft
Beginning in May 2007, persons in the Governor’s Office planned to generate press coverage of Senator Bruno’s use of state aircraft to attend fundraisers and other political events, rather than for official state business as he had certified. On May 23, 2007, Darren Dopp, the Governor’s Communications Director, wrote an e-mail to Richard Baum, Secretary to the Governor, relaying that Howard said the "records exist going way back. Itineraries showing where th