Senate Dems Ask DiNapoli To Deny Payment to diGenova

by: phillip anderson

Thu Sep 20, 2007 at 17:41:09 PM EDT

Senators Duane and Stachowski urge State Comptroller DiNapoli to deny payment for reported $500,000 contract in partisan Senate Investigations Committee probe

State Senators Tom Duane (D-Manhattan) and William Stachowski (D-Buffalo) today wrote a letter to Comptroller Thomas DiNapoli requesting that he refuse payment for the legal services of Joseph E. diGenova, a high-profile attorney hired by Senate Republicans to serve the GOP-led Investigations Committee in its partisan inquiry of the Governor's office.

Republican Senator George Winner, Chairman of the Senate Investigations Committee, announced diGenova's hiring yesterday without first notifying Democratic members of the committee. The Democrats only learned about the $500,000 six-month contract later through media reports. Under the alleged contract, diGenova could earn up to an estimated $21,000 per week.

Duane and Stachowski, who serve on the Investigations Committee, also requested that DiNapoli forward them a copy of the Senate Republicans' contract with diGenova so they could review its terms and conditions.

"Allegedly hiring a half-a-million-dollar-a-year Republican partisan lawyer on the taxpayer's dollar is completely unacceptable," said Duane, the committee's Ranking Democrat. "Talk about misuse of state resources -- here's a classic example. Rather than getting back to the people's business of tax relief and paid family leave, the Republican majority continues to waste taxpayer money and time pursuing their own political agenda."

Senator Eric Schneiderman (D-Manhattan), another member of the committee, said: "The Attorney General, Ethics Commission and the Albany County District Attorney either have or are investigating this matter. The Senate Republicans are proposing a ludicrous waste of taxpayer money to fund a partisan prosecutor. There is no rationale for this expenditure."

In their letter, the Democratic senators referred to Section 63 of the Legislative Law which authorizes the state's payment of a legislative committee's expenses only when "actual and necessary." With parallel investigations currently being conducted by the Ethics Commission and the Albany County District Attorney's Office -- in addition to an earlier inquiry by Attorney General Andrew Cuomo -- Senators Duane and Stachowski question whether diGenova's retainer meets this condition of "necessity." They also pointed out that they believed the Senate needed to approve the investigation by a vote of the full body.

"Not only is it insulting to ask that New Yorkers foot the outrageous bill for Mr. diGenova's contract, but we see absolutely nothing in the law that would authorize the state to pay for legal counsel in this matter," Stachowski said.

The full text of the letter on the flip...

Hon. Thomas P. DiNapoli
Office of the State Comptroller
110 State Street
Albany, NY 12236

Re: Payment of State Senate Republican Legal Services Fees

Dear Mr. Comptroller:

As we're sure you know from published media accounts, Senate Republicans
have reportedly retained Mr. Joseph E. diGenova, Esq., of diGenova and
Toensing, LLP, a Washington, D.C. law firm, to assist the Republican
Conference in the conduct of what can only be characterized as partisan
hearings presently underway by the Senate Committee on Investigations and
Government Operations. Our understanding is that Mr. diGenova is on
retainer with Senator Joseph Bruno and will be paid up to an annualized one
million dollars.

As a preliminary matter, we respectfully ask that you provide us with a
copy of the diGenova and Toensing contract or retainer agreement for our
review, if it is in your possession or when it is, since we have only the
benefit of press reports on which to rely for information regarding the
terms of this professional arrangement.

Critically important, we also ask that you reject the diGenova contract,
pursuant to your authority under State Finance Law Section 112 (2), for
reasons set forth below.

The primary purpose of this letter, however, is to request that your office
not draw any warrant for the payment of Mr. diGenova's legal expenses in
this regard. This request is premised on the simple, undeniable fact that
the statutory prerequisites contained in the state Legislative Law have not
been met so as to authorize and enable you or your office to cause any such
payment to be made.

It is our understanding that Legislative Law Section 63 directs you as
state comptroller to draw your warrant "for the payment of the actual and
necessary expenses" of a legislative committee duly appointed by resolution
of either house of the Legislature and directed to conduct an investigation
or take testimony, with such expenses being related to the committee's
charged "investigation, inquiry or taking of testimony." The Senate has
never adopted a resolution, at any time pertinent to the matters currently
under consideration by the Committee on Investigations and Government
Operations, directing said committee to conduct any investigation or take
any testimony.

The statute further requires (1) the "rendition of an itemized bill of such
[actual and necessary] expenses" to be (2) certified by the committee
chairman and (3) approved by, in the instant case, the Senate president pro
tempore and upon (4) proof by "affidavit or otherwise that payment of the
expenses is due." I submit to you that, given the current pendency of
numerous impartial and independent investigations into affairs of the
Executive Chamber by the State Ethics Commission and the Albany County
District Attorney, which the Senate's Investigations and Government
Operations Committee only unnecessarily and unfairly duplicate, any legal
expenses incurred by Senate Republicans who control the Investigations
Committee-without any consultation with or consent by the Ranking Minority
Member of said legislative committee, or any other Democratic member of the
committee-cannot be said to be "necessary." For that additional reason, we
believe and hope that you will agree that you are without the requisite
legal authority to authorize the payment of Mr. diGenova's legal fees and
cannot draw your warrant for the payment of any such attorneys' fees.

Moreover, the Legislature has not specifically appropriated any state funds
or monies to date for the purpose of retaining private special counsel for
the Senate's Investigations Committee, pursuant to Article VII, Section 7
of the state Constitution. Therefore, it appears that you, as comptroller,
are not constitutionally empowered to draw your warrant for payment of any
special counsel fees or other indebtedness incurred by the Senate
Republicans in connection with the pending matters.

We thank you in advance for your careful consideration of the issues raised
by this unprecedented and unwarranted intended use and commitment of state
funds for partisan purposes, and welcome the opportunity, should you desire
it, to speak with you further about this.

Sincerely,

Senator Thomas K. Duane
Ranking Minority Member
Senate Standing Committee on Investigations and Government Operations

Senator William T. Stachowski
Ranking Minority Member
Senate Standing Committee on Finance