All Good Things…

Today marks my last post on Res Publica (at least for awhile, perhaps forever).  Some will no doubt sigh in relief.  Others – a few anyway – might feel genuinely let down.  Many who have heard me talk for at least three years about re-entering Gloversville politics might be wondering at this sudden change of direction.  I’m sure it may be a bit of an unexpected surprise, but the issue has been bubbling along underneath the surface of my existence for some time, but really took on serious consideration over this last year.

So, here’s what’s changed:

_________

College:

This is the biggie.

The human condition, sadly, is only able to look out from the present, but we really have no idea which way the twists and turns of fate will take us.  All the way back in 2008 I thought to myself, “Hey, if you’ve got so much to say and such a burning desire to be back in the hot seat, why not start a blog to let people know how you feel?”

So I did, with the full intention of using the material researched on this blog as a springboard to one of two possible offices – Councilman-at-Large or Mayor – the choice of which was going to be determined by my time availability.

About a year ago, the first bump in the road to fulfillment of that plan occurred in the form of a scholarship opportunity.  I didn’t find out about it until late 2011, but apparently all the way back in 2008 New York State created the Veterans Tuition Award and, fortunately for me, I was eligible.

Like so many people with a dream to go back to school, the triple threat pressures of time, money and children made going to college unsustainable if left to my own devices.  But this scholarship changed everything!  Removing even one of those roadblocks to college suddenly made college possible.  I had to take the opportunity.  I’m not getting any younger.

Even then I thought, “I can do it.  I can be in political office, work my full time job with its relatively heavy overtime needs, attend college with a nearly full time credit load and not go batshiat crazy in the process.

What a dreamer.

As the year has progressed since I first veered onto this new path, college has – not entirely unexpectedly – become increasingly more time intensive.  I imagine it’ll only get worse from here.

So, the thought that I could do it all has had to be reconsidered in the light of reality.  The truth is, I can’t do it all, not consistently anyway.  Something would suffer.  Either the city’s needs, college or my family (who have already suffered enough as it is).  I had to choose a path, and I choose college and whatever direction that takes me in.

But that wasn’t the only reason for this change.  There’s a little more.  In the last year I’ve begun reconsidering the wisdom of party politics, and I also began to truly contemplate what my role in the local political process would look like if I were to make the attempt.

Frankly, I thought it looked ugly.

Time to lose the party:

I chose as my major Public Policy/Public Affairs.  My aim is to ultimately qualify to be a City/County Manager, though other options, such as law school, may present themselves.

A few months ago, I learned most managers avoid having a publicly defined political persuasion.  Government is rife enough with political issues.  An appointed leader needs to be free of that if s/he is going to work adequately with everyone.  With my future plans in mind, and a growing disgruntlement with the form of my party’s stance on issues, I began to seriously reconsider the wisdom of being complicit in partisan politics.

But I’ve held this dream tightly for years and it wasn’t something I was going to quickly give up.  To that end, even as I rethought the whole notion I still went about routing a petition to become a member of Gloversville’s Republican Committee.  My thought was that I might have some singular influence upon that body and actually turn the political process in this city from one of personalities, deals and conflicts toward process improvement.

Instead, after finding myself in a 25 minute conversation with the committee’s President I quickly realized I’d overestimated any possible influence one person – especially an outsider – could have in such a body.  What I hoped for was never going to happen.  Two weeks later, after some soul searching, I resigned.

Not willing to subject my city, my family and myself to painful electioneering and gridlock:

At the same time college was starting and my mind was turning away from partisan politics, election season was kicking off and I found myself fulfilling a promise to assist with my friend, John Clo’s, campaign for City Court Judge.

I had the opportunity to witness the serious emotional and physical stress of that endeavor on he and his family.  I watched as a party picked candidate, selected not for her talents but for the simple expediency that she is not John Clo battled Clo to what, as I write this, appears to be an electoral victory.  This was a harsh campaign.  It really dawned on me (not for the first time)  that I, like Clo, am a party outsider.  If I were to run for anything, what I see happening to Clo will be my fate.

So I have to be realistic.  I’m not much of a political uniter.  I fear my presence as an elected official would simply fracture the council more than it has been these last few years.  Not only would I spend four years wasting my time,  I might actually make things worse through infighting.  Since my goal has always been the betterment of the city, it no longer seems appropriate I put myself in a position that might endanger it further.

The conclusion of the matter…

All of this – college, the realization that I need to be neutral politically, and a lack of desire to turn my city’s and  family’s life into a three ring circus – have forced me to abandon this long held dream.  Permanently abandon?  Well, maybe not. Who knows the future?  It certainly won’t be for a decade or so, and after I take the opportunity to finish a number of other items on the bucket list.

I haven’t ruled out restarting this blog in the future, but if such a thing does come to pass it will  somehow be different from the current incarnation.  Alas, this particular effort must now go away.  Thank you all for reading, commenting, and occasionally arguing. I plan to leave the blog in place through the end of the month in case there is anything people need from it.  After December 1st, it will go dark.

–Lance

Ad Hominem Uber Alles

Back when I was a lad, I read a book entitled, Fallacy: The Counterfeit of Argument. It was an eye opener as to how people could dismiss points of discussion by attacking the person, not the issue.

A classic example of this is the Ad Hominem attack, which is defined as follows:

An Ad Hominem is a general category of fallacies in which a claim or argument is rejected on the basis of some irrelevant fact about the author of or the person presenting the claim or argument…  This type of “argument” has the following form: 

1. Person A makes claim X.
2. Person B makes an attack on person A.
3. Therefore A’s claim is false.

The reason why an Ad Hominem (of any kind) is a fallacy is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made).

In The Leader Herald, Kelly Nevin’s recent Letter to the Editor, “Letter Writer Showed Bias, is a classic example of this sort of attack.  Rather than countering the information provided in Heath Hardman’s earlier letter to the editor, she adroitly sidesteps a substantive rebuttal by giving us the following statement:

Hardman is a John Clo campaign supporter, and also acted as a City Court intern.

The statements contained within Hardman’s letter are completely false, and a gross misrepresentation of DiMezza’s qualifications and experience.

The reader is led to believe that because Hardman is on John Clo’s side, any information provided by him is not valid and should be dismissed.  The writer makes no effort to discuss the particular points of Hardman’s comments.  Her goal is simply to “out” Hardman as a partisan operative, and thereby discredit whatever he has to say.

Fortunately for Hardman, and Clo, and anyone else who believes in Clo as a candidate, “Ad hominem attacks are ultimately self-defeating.  They are equivalent to admitting that you have lost the argument.”  As soon as I show that Hardman’s letter was based on credible information, her defense evaporates.

To that end, in analyzing Hardman’s letter, I note he makes the following comment:

In her campaign materials, she claims experience at a firm in Westchester County but never gives the name.  Perhaps that is because the name of the firm was Friedman & Kwiatkowski… I think it is misleading to refer to yourself as an employee when you entered into a partnership.

If I’m understanding Nevins letter properly, she is claiming that Hardman’s statement about DiMezza being a partner in a law firm is “completely false and a misrepresentation of DiMezza’s qualifications and experience.”

Is it?

As of this writing, I am aware of only three pieces of written campaign literature from the DiMezza campaign.  The first is a single page flyer.  Within this document, DiMezza makes the statement, “…work as an Associate Attorney at a criminal defense firm in Westchester County.”  There is no mention of her role as a partner in the firm.  A second piece of literature completely omits any reference to her experience at that firm.  A third, and recent advertisement placed in the Leader Herald weeks after the “partnership” controversy erupted, continues to omit any reference to her partner status.   Even her own website maintains no mention of her role as a partner:

And yet…..

The New York State Supreme Court, in the Matter of Kwiatkowski v. Grievance Committee for the Ninth Judicial District, clearly states she was a partner, not merely an associate:

In June 1996, she entered into a partnership agreement with Friedman.

Yes, the report goes on to make the statement, “However, Friedman continued to control the firm, and the respondent continued to be paid as an employee.,”  but that doesn’t change the fact her REAL title was “partner.”  The issue, one must understand, is not how she was paid, but what her actual position was in the company.  She received 68 counts of censure for actions taken not as a random employee, but because of her leadership position within the firm.  For most people, becoming a partner in a firm is a big deal.  It is not something one casually accomplishes and then downplays or ignores unless one is intentionally attempting to obfuscate the truth.  Under normal circumstances, most people are very happy about rising to such a position.  They change the sign on their door, update their Facebook page and throw out all of their old business cards in order to get new shiny ones that have PARTNER written in bold letters.  They are PROUD of their accomplishment!

Not in Attorney DiMezza’s case.  No, for her it appears she wants to claim the experience, but otherwise remain as far away as possible from any mention of her status as a partner in that particular law firm.

Verdict:  Hardman’s assertion is correct.  In her campaign literature and website, the firm Friedman and Kwiatkowski is never mentioned, and court papers clearly show Traci DiMezza nee Kwiatkowski considered herself a partner in the firm.

Nevins’ blanket dismissal of Hardman’s comments means she is also accusing him of misrepresenting DiMezza’s qualification and experience when he writes:

Furthermore, DiMezza claims extensive appeal work in her campaign materials, but only has seven appeals reported in the appellate division reporter – none of which she prevailed at in any significant way.

So, does DiMezza indicate she has “extensive appeal work?”  And was her success rate in that appeal work not particularly noteworthy?  Well, as a matter of fact, she does, and it isn’t.

On her website, she makes the statement:

… a criminal defense firm in Westchester County; and her work through the Schenectady County Public Defender’s Office, as a criminal appellate attorney. Criminal appellate work requires a firm command of the penal code, criminal procedure, criminal case law, and evidentiary procedure. As such, Mrs. DiMezza’s experience in the field of criminal law surpasses that of most criminal trial attorneys. 

In her single page flyer, she makes the statement:

… work as an Associate Attorney of a criminal defense firm in Westchester County; and her work with the Schenectady County Public Defender’s Office, as a Criminal Appellate Attorney.  Mrs. DiMezza believes that her experience in the field of criminal law surpasses that of most criminal trial attorneys.

These are virtually identical write-ups.

Her handout, naturally less detailed due to space limitations, is still preaching the same message:

Advanced criminal law experience, including work as a Criminal Appellate Attorney with the Schenectady County Public Defender’s Office.

All three statements intend to inform the reader that this is a person who is knowledgeable.  Buzz words such as “firm command,” “surpasses,” and “advanced” all insinuate a comprehensive understanding of the subject material.

So, what does reality show?

A Lexus Nexus search* only revealed 7 – just 7  - Appellate Court rulings for Traci DiMezza (including a search under Kwiatkowski), with zero wins and seven losses.  Compare this to Trainor’s seven wins and 2 losses and Clo’s 31 wins and 5 losses.  It seems reasonable to suggest that if 7 losses surpasses the record of “most criminal trial attorneys,” then Trainor’s 200% better record makes him phenomenal, and Clo, with thirty-one wins is practically a legal god.**  I guess I just would have expected more, somehow, from someone who is making such a grandiose claim.

Verdict:  From my perspective, Attorney DiMezza is grossly exaggerating her level of experience.  Hardman is correct.

At this point I think it should be quite clear that Ms. Nevin’s claim is itself a gross distortion of reality.  Hardman’s assertions have the force of irrefutable fact behind them, whereas Nevin’s opinion has nothing but empty air.

That claims for experience are being made without an obvious basis in reality is important because it could constitute misrepresentation on the candidate’s part.  The 2012 Edition of the Judicial Campaign Ethics Handbook makes it clear that:

A judicial candidate may not knowingly make a false statement or misrepresent the identity, qualifications, current position or other fact concerning himself/herself or his/her opponent (22 NYCRR 100.5[A][4][d][iii]).

Another guiding document, known as the Model Code of Judicial Conduct (Canon 5), further states:

except to the extent permitted by Section 5C(2), shall not authorize or knowingly* permit any other person to do for the candidate* what the candidate is prohibited from doing under the Sections of this Canon

It would be imprudent to insinuate Ms. Nevin is intentionally misrepresenting her candidate’s qualifications.  She may very well believe what she’s saying and not understand how to check her candidate’s claims.  On the other hand, it strains credulity to believe Attorney DiMezza is unaware of her own record.

Despite appearances, this write-up certainly does not intend to formally call either person’s veracity into question.  My opinions, such as they are, have been based on what I feel is a solid informational foundation gleaned from recent and reputable sources; but one must always allow for the possibility that other sources exist that would modify things if I were aware of them.

Unfortunately, despite providing ample opportunity for a substantive rebuttal, no such information has been forthcoming.   Attorney DiMezza has come closest of all respondents to settling the matter, but note that even in her own personal response to my letter to the editor she still omits any reference to being a partner in her former law firm despite incontrovertible evidence that she was!

I grow increasingly concerned that the claims made by the DiMezza campaign are serving to pass off a less knowledgeable candidate as someone who is of equivalent training and experience to the current City Court Judge.  If these claims are in any way exaggerated, and if she truly is lacking in the necessary level of experience, yet wins the position, she will face a steep learning curve.  It will then be Gloversville, and its citizens, who will suffer as we once again start from scratch.

Gloversville needs educated, experienced, passionate individuals in key leadership positions to create the synergy necessary to move the city forward.  As residents with good minds and an obvious ability to think, there is no doubt that both Trainor and DiMezza can be key players in the city’s renaissance.  I just do not believe either candidate is at a level of experience sufficient to play that particular role at this particular time.

–Lance M. Gundersen, Sr.

*To look up a citation at a law library:  if the cite says 31 A.D.2d 146, that means volume 31 page 146 of the Appellate Division Reporter.  31 N.Y.2d 146 would be in the New York Reports reporter.  the 2d (or 3d) just means second or third edition.  31 N.Y.S.2d 146 would be in the New York Supplement Reporter.   There is (at least) a law library at the Montgomery County Courthouse.  Lexus Nexus can be found at the FMCC Library, which is open to the public.  It may also be available at Gloversville or Johnstown Libraries, but that was not able to be determined prior to publication.

**  The number of appellate court rulings is not a comprehensive list of a candidate’s legal work; but when a candidate is claiming appellate experience, it is fair to use any figures gleaned from the record as a benchmark.

Financial Condition and Payments for Accrued Leave

(8-24-12 / 1:51pm – At the time I launched this, I hadn’t realized that Jack Kinzie had a Letter to the Editor in the paper today to which my post is clearly a rebuttal.  So, Jack, I can’t agree with you on this one.  Sorry.  Read on…)

After my recent Letter to the Editor regarding the race for City Court Judge, a few people were quick to remind me that I was being unfair.  I had, they said, omitted any commentary on the dark side of my chosen candidate, John Clo.  They told me that he had to have been in some measure responsible for issuing himself some $5,260 worth of “buybacks.”  One person referred me to the recent Comptroller’s report as proof that my candidate was wrong and, at the least, should have paid this money back.

Readers should know there were two reasons I chose to mention nothing about this.  First, there were space limitations that prevented it.  At 400 words, I was already hard pressed to stay within my limit as it was.  Second, I disagree that John Clo did anything wrong, and no amount of what I feel is “witch-hunting” is going to change my mind on that.

Following are some thoughts on my most recent (like, today) review of the Comptroller’s report regarding this topic.  I believe what I’ve found in this document will prove beyond a shadow of a doubt that my choice for City Court Judge did nothing wrong, and is not obliged to sate the anger of anyone who has, for whatever reason, set their sights on him as the boogeyman in this issue.

Our story opens in the “Audit Results” section of the document.  Paragraph three, if I write nothing further, stops the anti-Clo argument in its tracks.  Decimates it.  Eviscerates it:

The City payroll clerk is solely responsible for maintaining leave records and interpreting the collective bargaining agreements and employee contracts when crediting employees’ leave. City officials did not provide any oversight of these records or payments made for leave accrual buyouts. As a result, we found approximately $28,270 in payments for leave that were not supported by contract or resolution.

Later, on page 12 of the document, under the “Payments for Accrued Leave” section, the Comptroller’s Report further amplifies this same statement:

The payroll clerk was solely responsible for maintaining leave records and interpreting the collective bargaining agreement and employee contracts when crediting employees’ leave. 

The City Attorney, then or now, is not a financial specialist.  The city hires people to do that sort of work.  Apparently, unlike Clo’s detractors, the New York State Comptroller’s Office understands that fact and puts the “blame” for the issuing of these funds right where it belongs.  First, on the point person who is in charge of it (the payroll clerk) and second on those who should have kept oversight on that position’s activities (the Common Council).  That is why the document makes the following statement in the “Background” section near the beginning of the document…

The City Council is responsible for the general management and control of the City’s financial affairs, including establishing appropriate internal controls over financial operations.

…and follows it up within the main body of the report (on page 12) with the statement:

City officials did not provide any oversight of these records or supported payments made for leave accrual buyouts.

… and, on pages 13 and 14, with the statement:

City officials’ lack of oversight over the payroll clerk’s maintenance of leave accrual records and the calculation of leave buyouts resulted in employees and officials receiving payments for accrued leave that were inaccurate or that they were not entitled to.

As a matter of fact, in 20 pages of report, the Payroll Clerk’s position, and the Common Council (“City Officials”), are both mentioned numerous times as the responsible parties involved.  The City Attorney is mentioned only once, and not as a responsible party, but merely a recipient of authorized funds.  Hence the wording of that section:

In 2008, the City allowed the City Attorney to sell leave accruals back to the City…

“Yes, Lance, that’s all well and good, but if Clo knows he was not “entitled” to those funds, then he should pay them back,” or so says the operative reason for banging on the man.

No, says I.  Not true.

I’m not going to play a Clintonesque word game (depends upon what the definition of the word “ENTITLED” is) but words do have meanings, including the word “allowed:”

to give permission to or for; permit

Clo may not have been entitled to this money according to any standing legislation, but he became legally eligible for it the moment the Council “allowed” buybacks to occur, regardless of whether or not the buyback occurred through a lack of oversight, or through the actual passage of a resolution.  The fact that the Comptroller’s report indicates he was “allowed” is sufficient.  It wasn’t like he cut his own check or something.

“The hell you say!,” says they, but I’m absolutely drop-dead serious.  It was definitely incorrect that this money was allowed, but, on the other hand, it was not criminal, or theft, or in any way a punishable offence.  It was wasteful, but the document clearly lays out to whom the “blame” for that waste accrues, and it isn’t the City Attorney.

So to ask a person, years after the fact, after taxes have been paid,  tax returns filed, the money used in various ways over a period of years to back all of that out of their lives simply because somebody else made an error in judgement – a LEGAL error in judgment at that – is, to me, far too much ado about nothing.  Yes, it’s tax payer money.  Yes, it means more taxpayer money was poorly spent.  But stop beating on the guy who received it and concentrate more effort on stopping the folks who allowed it in the first place, or we’ll simply be putting out even more of these distracting brush fires in the future.

Now, to be honest, I am under no illusion that this review is going to change the mindset of those who, for whatever reason, are fixated on Clo being somehow responsible.  The record is clear that he isn’t, but sometimes people won’t let go.

To those folks, people I highly respect and agree with on many other issues, I have only this to say.  I guess all that’s left for you to do is to decide which imperfect candidate you’re going to back (if any at all).  John Clo is only guilty of  legally receiving funds offered to him by those who should have known better. Traci DiMezza is guilty for having been censured 68 times by the New York State Supreme Court , as well as having almost no relevant experience in the intervening years leading up to this run for office.  Matt Trainor has some of the same experience as Clo, but not nearly close to the same amount.  Additionally, he would be taking his seat on the bench with a court case for misconduct still hanging over his head – whether guilty or not still to be determined.

That’s the decision you face.  There are no perfect candidates.

For me, the choice is clear.

–Lance