WEEK IN REVIEW : de Blasio's move to exempt records from FOIL response reminiscent of Schneiderman's attempt

By LOUIS FLORES

With his approval ratings at an all-time low and his chief spokesperson resigning, Mayor Bill de Blasio (D-New York City) sought this week to curtail negative press about how much influence lobbyists have over his administration.

To undercut a year-long investigation by the cable news channel, NY1, into Mayor de Blasio’s close relationship with the unregistered lobbyist, Jonathan Rosen, Mayor de Blasio classified Mr. Rosen and four other advisors as “agents of the city” in an effort to fabricate legal privilege to thwart a Freedom of Information Law request filed by NY1, seeking records of correspondence between Mayor de Blasio and Mr. Rosen.

The investigative reporting by NY1 and by other news outlets, including by Progress Queens, have questioned the role of lobbyists, registered or unregistered, including Mr. Rosen, in particular, who provide advice to key government officials at the same time when the lobbyists represent clients with businesses before the same key government officials.

Although correspondence between the public and government officials are generally subject to FOIL requests, by designating his political advisors as “agents of the city,” Mayor de Blasio has reclassified his political advisors as quasi municipal employees. The end result proposes to exempt records of his communication with these five political advisors from being subject to disclosure under FOIL requests.

Maya Wiley, counsel to Mayor de Blasio, said at a press conference Wednesday that, “Freedom of Information Law actually provides exemption from communications between the City and itself and its agents. And in certain circumstances there are folks who are not City employees but are acting as agents of the City.”

Following Ms. Wiley’s remarks, Mayor de Blasio added that, “There is no one who has held office who hasn’t had a group of advisors and with each one of them you have to know how to handle them properly and treat them properly. Jonathan Rosen is someone who I have consulted with for years and years, and we made a legal determination that that was a category that was different and appropriate.”

It was notable that Mayor de Blasio stressed that nobody paid Mr. Rosen to provide advice to the mayor.

Besides Mr. Rosen, four other political operatives were likewise designated as “agents of the city” to thwart the release of records of their communication :  Nicholas Baldick and Bill Hyers of the unregistered lobbying firm, Hilltop Public Solutions ; John Del Cecato of the campaign consulting firm, AKPD Message & Media ; and Patrick Gaspard, the U.S. Ambassador to South Africa.

During the press conference, whenever reporters asked questions that Mayor de Blasio didn’t like, he repeated his habit of chastising reporters, saying, at one point to one reporter that, “Either again I think you are either willfully missing the point or not listening carefully.”

The backlash was almost immediate to Mayor de Blasio’s determination to keep secret records of his communication with his political advisors.

As reporters participating in the press conference were tweeting information about Mayor de Blasio’s answers, reaction was swift and negative in respect of Mayor de Blasio’s style and substance.

Danielle Tcholakian, a reporter for DNAinfo New York, tweeted criticism of the exemption created to withhold records of communication between Mayor de Blasio and his political advisors, disapproving of the legal advice being given by City to justify the withholding.

About Mayor de Blasio’s demeaning attitude toward reporters, Harry Siegel, a columnist for The New York Daily News, incorporated an obscenity into a tweet posted in response to Mayor de Blasio’s treatment of the press.

For a report published by The Wall Street Journal, Robert Freeman, the state’s head of FOIL compliance, said that if the City had not retained or paid the agents, then Mayor de Blasio had to turn over the records being sought under the FOIL request.

Editors at The New York Post seized on the opportunity of Mayor de Blasio’s secretive turn to compare Mayor de Baslio with former President Richard Nixon in a photo illustration complete with former President Nixon’s famous phrase, “I am not a crook.”

In the past, the State Attorney General has claimed a similar privilege

In 2014, State Attorney General Eric Schneiderman (D-New York) likewise attempted to thwart a FOIL request, filed in his case by Chris Bragg, a reporter, at that time then, at Crain’s New York Business, seeking records of communication between the State Attorney General’s Office and Jennifer Cunningham. Ms. Cunningham, like Mr. Rosen, is an unregistered lobbyist, who provides advice to key government officials at the same time when her consulting firm, SKDKnickerbocker, represents clients with business before some of the same key government officials.

According to a report published by Crain’s New York Business, Mr. Bragg noted that State Attorney General Schneiderman misinterpreted an advisory opinion issued by Mr. Freeman, the state’s chief FOIL compliance officer, in order to withhold the release of the sought-after records. The specific reason for rejection was the decision made by the State Attorney General’s Office to treat the records of communication as “intra-agency records,” a designation that would exempt the records of communication from disclosure in order to ostensibly protect the deliberative process used by government officials to carry out their duties. Such action accorded Ms. Cunningham treatment as if she had been a paid State consultant, even though, in reality, she was not paid by the State.

State Attorney Schneiderman’s invocation of privilege to withhold records of communication by his office with Ms. Cunningham, who also happens to be the State Attorney General’s ex-wife, drew scorn from government reform activists. During the 2014 election cycle, John Cahill, the Republican Party opponent running to unseat State Attorney General Schniederman, made a campaign issue out of State Attorney General Schneiderman’s invocation of the FOIL exemption.

“The Attorney General’s Office should be above reproach and [State Attorney General Schneiderman] has, in my opinion, debased the Office of Attorney General by trying to confer this phony status on his political consultant,” Mr. Cahill said during a campaign press conference, according a report published by The New York Daily News.

Unregistered lobbyists provide advice to key government officials at the same time that the lobbyists represent clients with business before the same key government officials

Mr. Rosen’s firm, BerlinRosen, has provided advise to Mayor de Balsio at the same time that BerlinRosen also represented clients, such as the real estate developing firm, Two Trees Management, with business before the City. At the same time when BerlinRosen was providing advice to Mayor de Blasio, Two Trees Management was negotiating for the approval of its zone-busting redevelopment project of the old Domino Sugar factory in Brooklyn. Later, Two Trees Management made a $100,000 contribution through a limited liability company subsidiary to Mayor de Blasio’s nonprofit lobbying arm, the Campaign for One New York.

Ms. Cunningham’s firm, SKDKnickerbocker, has provided advise to State Attorney General Schneiderman at the same time when SKDKnickerbocker also represented corporations, such as Herbalife. In the same year when the Crain’s New York Business FOIL request was denied, the State Attorney General’s Office had reportedly opened an investigation into Herbalife’s business practises. In the past, each of Herbalife and its outside counsel, Dickstein Shapiro LLP, had made sizeable contributions to the Democratic Attorneys General Association, a lobbying group of states' Attorneys General, after the lobbying group had made a sizeable campaign contribution to one of State Attorney General Schneiderman’s campaign committees.

The use of the Democratic Attorneys General Association and its counterpart on the other side of the political aisle, the Republican Attorneys General Association, to funnel campaign contributions and other perks to states' Attorneys General was the subject of an investigation by the journalist Eric Lipton and published by The New York Times. Mr. Lipton’s reporting on the subject was awarded the Pulitzer Prize for investigative reporting in 2015 for revealing that the undue influence of lobbying and campaign contributions by corporations under investigation had infiltrated and potentially compromised the offices of states' Attorneys General.

The FOIL exemption claimed by State Attorney General Schneiderman didn’t hold forever

After Crain’s New York Business each of published its report about State Attorney General Schneiderman’s invocation of an exemption to prevent the release of records of his office’s communication with Ms. Cunningham and appealed the FOIL denial, the State Attorney General’s Office released 72 pages of e-mails that corresponded with Ms. Cunningham’s representation of the interests of her clients, according to a follow-up report published by Crain’s New York Business.

Nevertheless, the State Attorney General’s Office kept secret records of communication between the State Attorney General’s Office and Ms. Cunningham wherein she was acting in accordance with her unpaid role as an advisor to State Attorney General Schneidmerman.

Whereas Mayor de Blasio has been reportedly identified to be the subject of a wide-ranging, Federal corruption investigation before he invoked an exemption to withhold the records of his political advisors, some of whom also represent clients with business before the City, at the time when State Attorney General’s Office invoked the deliberative process exemption to withhold the release of records of his political advisors, he has, in the time since, become the subject of an explosive investigation by the journalist Lee Higgins and published in March by The Journal News.

That report noted that Moshe "Moses" Stern, a government witness in the Federal corruption trial against former State Sen. Malcolm Smith (D-Cambria Heights), had appeared on a radio show with then State Sen. Schneiderman (D-Upper West Side) to endorse State Sen. Schneiderman’s 2010 State Attorney General campaign. The report added that Mr. Stern would also appear on the same radio show two more times, but for those times, Mr. Stern used an alias to further express support for State Sen. Schneiderman’s campaign. In the report published by The Journal News, a spokesperson for State Attorney General Schneiderman denied that the State's top prosecutor was under Federal investigation for any wrongdoing.

The wide-ranging, Federal corruption investigation into the political and fundraising activities of Mayor de Balsio that serves as the backdrop to Mayor de Balsio's efforts to block the release of potentially problematic records of communication comes at a time when the nation’s top Federal prosecutor for New York’s southern district, U.S. Attorney Preet Bharara, has launched a campaign to investigate and prosecute elected officials, who embrace the corrupting and exploiting role of money in politics such that the public become the victims of the theft of honest services otherwise dutifully owed to the public by elected officials.

Whether Mayor de Blasio's efforts to block the release to NY1 of the records of communication between him and his "agents of the city" succeed, at least some of those records may eventually fall into the hands of U.S. Attorney Bharara. His office has reportedly issued subpoenas to City Hall and to BerlinRosen.

It is not yet known if City Hall has provided records of any kind in response to the reported subpoenas. A spokesperson for the U.S. Attorney's Office declined to answer questions submitted in advance by Progress Queens for this report.

Despite a prior complaint against political activities by Ambassador Gaspard, he continues to meddle in New York politics from afar

In January 2014, after Mayor de Blasio had been sworn into office and Councilmember Melissa Mark-Viverito (D-Spanish Harlem) had been selected to serve as the New York City Council speaker, a Republican Party operative, E. O’Brien Murray, filed a complaint with the U.S. Office of Special Counsel, alleging that activities undertaken by Ambassador Gaspard to support Mayor de Blasio's mayoralty campaign and Councilmember Mark-Viverito's speakership campaign had violated the Hatch Act, according to a report published by The New York Daily News. Ambassador Gaspard's brother, Michael Gaspard, is a political operative with the lobbying firm, The Advance Group, which represented Councilmember Mark-Viverito's winning speakership campaign.

The Hatch Act is a Depression-era reform law enacted to prohibit Federal executive branch employees from engaging in certain political activities.

Ambassador Gaspard was later cleared of wrongdoing by the U.S. Office of Special Counsel, according to a follow-up report published by The New York Daily News.

Despite the filing of the prior complaint and the subsequent investigation, Ambassador Gaspard has ostensibly continued to engage in political activities in coördination with Mayor de Blasio and without regard to the Hatch Act, as evidenced by the Mayor’s Office move to designate Ambassador Gaspard as an “agent of the city.”

An establishment political operative for the Democratic Party, Ambassador Gaspard had previously served as White House political director during President Barack Obama’s first term in office and as chief of staff of the New York City Council under former Council Speaker Peter Vallone, Sr. (D-Astoria).

During his time as White House political director, Mr. Gaspard would generally attend weekly meetings wherein senior Obama administration officials would keep the progressive wing of the Democratic Party locked in what Jane Hamsher, then the publisher of the news Web site, Firedoglake, termed the “veal pen.” Ms. Hamsher’s term was intended to serve as a metaphor to describe how senior Obama officials wanted to restrain party activists from pressuring conservative Democrats to support greater political, social, and economic reforms, according to a report published by The Nation magazine.

At the time of Mr. Murray’s filing of the Hatch Act complaint, he accused Ambassador Gaspard of being a “political hack.”

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