The Letter Below Was Submitted To The Albany Times Union In Response To The Sunday, October 7, 2007 Article Entitled,

To the Editor:

In your article, "Bruno Files Kept for Years," (Oct. 7, 2007), Brendan Lyons writes that itineraries produced to the Times Union from the files of the New York State Police concerning travel by Senator Joseph Bruno "appear to raise doubt about the assertion in a July report by Attorney General Andrew Cuomo that such records were 'not ordinarily created or maintained by the State Police.' " As the principal investigators and authors of the Attorney General's Report, we believe your article is factually incorrect and leaves a misimpression.

A correction to the Times Union's misstatements and related points are outlined below:

. Your main assertion is that our Report did not consider the State Police's prior practice of retaining itineraries. This is plainly wrong. We were aware of, and our Report noted, the existence of some itineraries in prior years. (Report at 8). Those itineraries were irrelevant to our analysis for three reasons. First, those itineraries were not for the trips examined in our Report; they were for an earlier timeframe. Second, the number of these itineraries is limited: a handful of sporadic itineraries does not constitute an "ordinary" practice of obtaining and maintaining itineraries. Indeed, the very sparsity of these records proves the exact opposite: they were the exceptions, and the policy was not to collect, maintain or release them. Third, and most important, the documents prepared for and released by the Governor's Office were not comparable to the preexisting itineraries. The preexisting itineraries were based on information provided directly by the Senator's Office in the normal course of government business. They were never prepared for or provided to the press, or even produced under FOIL -- until now, to the Times Union.

. The records in question in our Report were fundamentally different. These records were created solely at the request of the Governor's Office for presentation to the media. They were newly created synopses of where the State Police had driven Senator Bruno, created after the fact, based on their memories, which on one occasion proved to be faulty. (Report at 20). These newly created documents were so unusual that Acting Superintendent Preston Felton claimed he said they "were not to be used as Senator Bruno's itineraries" and that he "did not believe these documents constituted State Police 'records.' " (Soares Report at 24).

. Some speculate that the retention of sporadic records obtained from Senator Bruno's office in earlier years may indicate the Pataki administration was "tracking" Senator Bruno's use of state aircraft. There was no evidence of any leaks to the press of this information. However, this might explain why Governor Pataki reportedly revoked Senator Bruno's right to use state aircraft. In our opinion, this would have been a legitimate response to any finding of misuse of the aircraft.

. Contrary to your implicit suggestion, the conduct at issue was neither routine nor proper. Acting Superintendent Felton said he was angry and upset when he found out what was done here, and he apologized to Senator Bruno for helping create "an appearance of impropriety." As Governor Eliot Spitzer stated, there were "serious errors in judgment on behalf of two members of the executive chamber," and there was "evidence of gross misjudgment," in that the conduct "created an appearance that the State Police were being used inappropriately, and certainly above what would be required to provide information to the public."

. Finally, we agree with the Times Union's opinion that the aircraft usage was, in our words, "an abuse of taxpayer funds." But it was not illegal in our opinion because the law concerning use of state aircraft was "porous" and therefore covered Senator Bruno's conduct. Governor Spitzer used the same word - "porous" - months earlier when he told his staff that Senator Bruno's conduct was legal. (Soares Report at 26). In our Report, we recommended a "bright line" standard be adopted for the use of state aircraft, strictly allowing for only government uses, and explicitly banning mixed use, to remedy the porous nature of the laws.

Our Report effectively concluded that aides to the Governor acted improperly in using the State Police to create documents, under the pretext of a FOIL request, to publicize another official's behavior that, according to the District Attorney's Report, the aides had already concluded to be legal.

In short, we found the "Air Bruno" matter to be an abuse of taxpayer dollars and the "Troopergate" matter to constitute improper behavior. In the law, one bad act does not excuse another. The Times Union seems to believe it is an "either, or" situation to remedy. We believe it is both. While we understand the Times Union's unique interest and involvement in this matter, it is important to us as investigators to keep the factual record clear.

Sincerely,

Ellen Nachtigall Biben
Special Deputy Attorney
General for Public Integrity

Linda A. Lacewell
Special Counsel


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