| Today, the Soares report was released, as Phillip wrote about last night.
Here are some of the findings:
Furthermore, even assuming an "unauthorized exercise" of "official functions," it does not appear that anyone knew that their "act[s] [were] unauthorized" (Penal Law § 195.00 [1]). The evidence showed that Dopp was aware that the Executive Chamber had oversight of state aircraft usage. The evidence further revealed that Dopp was aware of prior scandals involving the abuse of state resources by public officials. Dopp also knew that the Spitzer Administration implemented the certification policy in January 2007. Considering all this, it is not unreasonable for Dopp to believe his actions were authorized. In addition, it is extremely unlikely that the ODA could prove otherwise beyond a reasonable doubt. Turning to Howard and Felton, they each explained that they were simply following their superior's direction to obtain and/or create the documents. Based on this, it would be difficult to attribute to them knowledge of
an unauthorized act. For the purposes of the ODA's analysis, we assumed a hypothetical worst case scenario where the evidence was evaluated in a light most unfavorable to each witness. This means we assumed, for purposes of this analysis, that the Executive Chamber directed the State Police to gather information on Senator Bruno's use of state transportation for the specific purpose of releasing information to the media to "smear" him. Further, such a view entailed assuming that there was no FOIL request in existence when the information was gathered. Rather, the FOIL request was assumed to have been a pretext to cover up the true purpose for collecting the information. Even making these assumptions, the ODA concludes that no crime occurred.
This FOIL request was also a primary part of the findings: |
Another, and less egregious, view of the facts is that Dopp acted outside of his authority by gathering documents for the media before a written FOIL request was submitted, and that William Howard and Preston Felton acted outside of their authority by soliciting the creation of the synopses documents. However, this argument, too, fails to constitute criminal conduct.
The Freedom of Information Law (FOIL) is the bare minimum that the government must comply with in the release of documents to the media and public. There is nothing which prohibits the government from providing more than what the FOIL requires. Indeed, the Court of Appeals has stated that it has "consistently interpreted the statute liberally to implement" its broad purpose of governmental accountability to its citizens (Matter of Weston v Sloan, 84 NY2d 462, 466). Further, the requirement that a FOIL request be made in writing is not an absolute. Rather, "agencies may choose to accept oral requests for records and act in an informal manner in their responses to requests for records" (Comm on Open Gov't OML-AO-2791). Although the FOIL does not require an agency "to prepare any record not possessed or maintained by such [agency]," nothing in the FOIL prohibits an agency from so doing (Public Officers Law § 89 [3] [a]). Thus, Dopp, Howard and Felton going beyond the FOIL to provide accountability for the use of state transportation is not conduct of a criminal nature.
It's interesting to note that the FOIL request was prepared BEFORE the FOIL request was submitted. I'm sure if the Republicans had their way, they would say that Gov. Spitzer prepared the FOIL himself! But that is not the case and nothing here says that anything done involving this incident is illegal.
The report concludes:
In sum, the most appropriate Penal Law Section potentially applicable to the facts at hand is Section 195.00 [1] official misconduct.[14] To be guilty of official misconduct, one must knowingly act to "obtain a benefit or deprive another of a benefit," and knowingly commit an "unauthorized exercise of his [or her] official functions." There can be no crime if all elements are not met. Here, the compiling of information on the use of state resources and turning it over to the media do not appear to be an improper exercise of official function. That these actions may have been done with ill intent does not turn a lawful action into an unlawful one. Neither does the fact that the individuals involved acted outside of the FOIL. However, we would again emphasize that our assumption of ill intent here was solely for the purpose of our analysis. As we find no evidence of unauthorized action and, thus, no official misconduct, it is not necessary for us to go any further. Therefore, we make no finding on whether ill motive existed.
The conclusion seems sensible to me. It might have been an ill act, but that doesn't make it illegal. That can be said of a lot in politics. It might be dirty, but it doesn't break the law.
If you read the full report, it's a whole bunch of legal lingo that you MIGHT want to read to understand the report. But I would say the most important part is the analysis, FOIL and conclusion parts that I quoted here. The report is interesting though and I think it really shows that there's nothing illegal about this. This isn't Nixonian, I guess you could say. |
