The Attorney General's Pension Management Proposal

• The Bill That Isn't

The first thing to know about Attorney General Cuomo's pension bill is that it doesn't exist, at least not in public. Or if it does, it hides extremely well.

The bill was announced on 8 October 2009, in this Press Release of the Office of the Attorney General. Entitled the “Taxpayers’ Reform for Upholding Security and Transparency” (T.R.U.S.T.) Act, the bill's main feature is the replacement of the State Comptroller as “sole trustee” of the Common Retirement Fund (CRF) with a Board.

But the bill doesn't appear to actually exist yet, as far as I can tell. I can find no bill number, no public language. (And when I say “exist” I mean “exist in public.”) Senator Foley, alleged to be the bill's prime Senate sponsor, doesn't have the bill on his introduction record, and a search of two New York State bill databases, here and here, with the search terms “Transparency” and “Retirement” (separate searches) comes up with no relevant legislation. The former term I used because, often, when a bill has a popular name, like this one does, the name will appear in the bill's first Section, or in the Sponsor's Memorandum in Support. And the latter term because the bill's likely to amend New York State's Retirement and Social Security Law.

Either way, the point is that those searches were likely to have found the bill, if it were introduced. I must conclude therefore that the bills are not yet introduced. The Attorney General has spent a lot of time and money drumming up support for his bill, in suburban downstate, and on Long Island, and in Rochester, and in Western New York, but not one of these Press Releases features a bill number. The Attorney General has managed to build a lot of bipartisan support for a bill that does not, as far as I can tell, actually exist.

If someone knows the bill number, please E-Mail me with it at Albany_Exile at Yahoo.com. I'd love to take a look at it.

We are not assessing a bill, as there isn't one. Rather we're assessing a concept.

The best-known piece of this proposal, and apparently its centerpiece, is the proposal to dump the “sole trusteeship” of the CRF and replace it with management by a board of directors. So that's what this article is devoted to.


• Backdrop

The CRF is the pool of money that pays for the pensions of most State and local employees, including pretty much everyone except for most teachers. Teachers are covered by the fund of the New Yorks State Teachers' Retirement System (NYSTRS). The CRF has the money from 2 separate retirement systems, one for police, one for everyone who is neither a cop, nor a firefighter (they seem to be in the police system), nor a teacher.

The NYSTRS fund is managed by a Board, the CRF is run by the State Comptroller as a sole trustee.

The Attorney General's policy concern for this issue arises from multiple scandals that have arisen revolving around former Comptroller Alan Hevesi.

I make no claims to know the facts of the various Hevesi matters in any kind of detail. In broad terms, however, the scandals revolve around the exchange of money or employment of certain individuals to encourage certain pension fund investments. Effectively it's a form of lobbying the Comptroller to invest in certain ways. Some of these lobbyists were honest, some less so. The system has come to be known as “pay to play.” The investments themselves may have been legitimate in many cases, but the system itself is obviously questionable at best.

Some allege that the sole trusteeship system, which places sole responsibility for a rather large pile of money with one person, encourages corruption by providing a readily available point of entry for those who would engage in corrupt practices. The Attorney General thus proposes establishing multiple points of entry. The bill has this as its specific, explicit purpose. The following is a quote from the Press Release linked to above:

“For decades, the State pension fund has been weakened and corrupted by the sole trustee model,” said Attorney General Cuomo. “The model has allowed pay-to-play to flourish in a system meant to protect the retirement accounts of thousands of hard-working public employees. To put it simply - the model doesn't work. It’s about as sensible as having a single lock on Fort Knox. Today’s legislation will ensure that the fate of our public retirement fund isn’t decided by one individual, and that the entire system is rid of the kind of pay-to-play that infected and derailed it in the first place.”

That's the policy purpose of the bill. Obviously it's quite possible, and I'd go so far as to say it's likely, that the bill also has a political purpose: To undermine the current State Comptroller (Thomas DiNapoli, a potential rival, though for what I can't really guess), and add to Attorney General Cuomo's emerging reputation as a fighter of corruption in all its forms.


• The Sole Trusteeship

Having established that the explicit, deliberate purpose of the Cuomo proposal (we can't quite call it a bill yet, regrettably, as seen above), is to lessen corruption, judging the bill is thus heavily contingent upon its ability to do just that. That's only fair.

The CRF may or may not be unique among public pension funds in having a sole trustee, but it surely is at least nearly so. As described above the teachers' retirement fund, the NYSTRS, is managed by a board, as are the 5 pension funds for New York City employees. Jun Peng, in his 2009 book State and Local Pension Fund Management, does refer to the CRF's sole trusteeship system as “unique” (page 93). So, even allowing for the fact that Peng might be wrong, at the very least we can fairly say that the sole trusteeship system is very rare.

Now keep in mind I am fairly certain that in most cases it isn't the Comptroller actually running the CRF on a day-to-day basis. He likely has staff who does most of that. In fact they are likely career civil servants who are highly-paid, highly-skilled, very good at what they do, and largely invisible to us. But the point is that the Comptroller is responsible for the fund. (Such terms as “trustee” and “fiduciary” are made to imply responsibility as much as they are made to imply day-to-day duties.) And, further, that he could steer investments in certain directions regardless of what his likely-capable staff tells him.

I went through some of the writings on management of pension funds. For the most part, the writers assume it is a board or committee of some kind managing the fund. The sole trusteeship is rare enough that the issue of the relative advantages and disadvantages of sole trusteeship versus board management hasn't come up all that much. That doesn't mean, however, that the issue hasn't come up at all.

In 1968, a conference on pension fund management was held, and in 1969 a book was produced based on this conference, with the awkward title of, Pension Fund Investment Management: Proceedings of the CFA Research Seminar, Sep 13-14, 1968, Charlottesville, VA. For some reason, when this book was published, all the conference participants were assigned 3-letter false names, and those false names were then randomly-rotated, thus keeping everyone anonymous. (Why people would participate in a conference and think they had some kind of expectation of anonymity is completely beyond me.)

At a panel discussion at that conference, the following relevant exchange was had:

“HAP: Isn't the conclusion that somebody should act alone, either the company or the bank? It's a joint management that runs into trouble, it's the centralization of responsibility that produces the best results in performance, whether it be company-operated or bank-operated.”

“VAL: The closer you get to one man doing it, the better. Get away from the committee. You've got to get down to one man. Get the right man, give him responsibility, and let him go. Not only in investment, but in anything you do.”

“KEN: That's true. That works in the bank too. You must get away from the committee system.”

“TED: The investments that two people are going to agree on, are going to be insipid investments. They are the ones that are not going to be very bad or very good. But the investments that they're going to disagree on may be those that make a lot of money.” (Pages 10-11)

On page 12, all of the participants in the panel again agree that unitary management of a pension fund is best.

Jun Peng's 2009 work has already been mentioned. The following quote is telling:

This brief story of the New York pension system offers two lessons. First, the unique pension governance structure [the sole trusteeship] limits to some extent the reduction in pension contribution by the State government, which can be best appreciated in comparison with New Jersey. The independence of the New York pension system trustee allows it to be more willing to challenge any government attempt to reduce pension contribution. Second, even such independence cannot render the system impervious to the temptation of pension contribution reduction in times of strong investment return and, thus, the risk of volatility to state and local government operating budgets. (Page 164)

Peng, mostly by accident, does point to a specific disadvantage of the sole trusteeship system, which he curiously fails to consider seriously. On Pages 162-163 he considers then-Comptroller H. Carl McCall's reduction of local government employer pension fund contributions to near-zero levels, which occurred in the late 1990s and early 2000s. Peng considers this move solely in the context of that the fund was doing quite well at the time, and didn't necessarily need a great amount of money from the employers. Investment returns were funding the system quite well. He fails to consider, however, the obvious fact that Comptroller McCall was preparing for a run at the Governorship in 2002, for which the support of perpetually cash-strapped local government officials would surely have helped.

Based on these writings, it appears as though the best thing that can be expected from switching to a board system is an at-best neutral result. So, I must ask, why spend the money to establish a board and then staff it up and then make it work on a day-to-day basis for a result that's at best neutral.

What kind of analysis did Attorney General Cuomo engage in to produce this proposal? Did his policy people find writings that I didn't find?

Well, perhaps he studied the fund management of other States, which by and large do not have the sole trusteeship system, and discovered it to be corruption-free or nearly-so.


• Pension Fund Corruption in Other States

So, are pension funds managed by boards corruption-free or nearly-so?

In a word, no. In and of itself, that fact didn't surprise me, but what did surprise me was to find this article on the website of Governing magazine, dated 5 November 2009, detailing a “pay-to-play” scandal in California's CALPERS retirement system, which is run by a board. I must admit that I expected to find the occasional scandal or corruption involving other states' pension funds, but I hadn't expected to find something that similar to New York's scandals, that quickly, dated that recently.

In the Spring of 2009 a civil trial began related to an odd, multi-layered scandal involving the city of Milwaukee's public pension funds, as detailed in this article on the website of the Milwaukee Journal-Sentinel, posted 2 May 2009. This scandal didn't involve investments, but still.

Here, the Heartland Institute discusses the under-funded and “scandal-plagued” nature of the State of Illinois' public pension funds. And, also involving Illinois, here is an April 2009 proposal from the Illinois State Treasurer to reform the Illinois pension funds in the wake of various scandals. The funds at issue are all managed by boards, but it hasn't helped Illinois remain scandal-free. In an interesting twist, the Treasurer has proposal involved consolidating the State's 5 pension funds into a single entity. While this isn't quite the same as his having proposed a sole trusteeship, it does provide some evidence against the “more is better” idea underlying the Cuomo proposal.

It is clear that, at least at first glance (and second glance, for that matter), that neither the body of writings on pension fund management nor a cursory analysis of other states' funds so much as suggests that changing the management system would exclude corruption from the system. At most it would offer the potential, sooner or later, for a pay-to-play system to emerge with multiple points of entry.

If the Attorney General and his policy staff have some kind of specific reason to think this measure will work, if they have some analysis indicating why their idea will succeed where other board management schemes have failed at forestalling corruption, if they have some kind of analysis showing that corruption in other states' pension funds, while it does happen, is measurably less than in New York? If they have any of that? They are for some reason keeping it a secret. To rely on “common sense,” is a bad idea. As journalist (or is he a “humorist?” I'm not sure honestly) Charles Pierce points out in his darkly humorous 2009 work Idiot America: How Stupidity Became a Virtue in the Land of the Free, common sense “rarely is common and even more rarely makes sense” (page 35). At the very least, it is fair to say that common sense alone is not enough to justify this conclusion.


• Conclusion

Why do something like this in the middle of a fiscal crisis when the State might run out of money for normal operations in under a month? From the body of writings on pension fund investment, the move from sole trusteeship to board management would be a neutral one, and that's being rather generous. It would doubtlessly be expensive, and disruptive. How could it not? The board will need staff. The board will need to be elected. The board will need to do a lot of report-reading in order to come up to speed.

And is there anything New York State needs less at the moment than to enact a policy potentially expensive, doubtlessly disruptive, and unlikely to achieve its specified aims?

In any other time, if the money was there, the answer would be a “why not?”

But, not now. This measure ultimately has a lot more to do with Attorney General Cuomo's quest to become Governor of New York (and why anyone would want that job is beyond me) than it does with policy.

Scenes from an Extraordinary Session

I wandered about the New York State Capitol building for a few hours on November 10, 2009, before and during the Extraordinary Session of the New York State Legislature. I was even more smartly dressed than usual. I appeared to blend in well. I left before the Legislature passed the few bills it would pass during the Session. During my brief visit, this is what I saw.

For some reason I start on the 5th floor, I guess so I could wander my way down which seems easier than wandering up. The Capitol is very much like a maze, with twisty passages and rooms that sometimes seems slightly bigger from the inside than you'd think they “should” be from the outside. There's a lot of climbing up and down short staircases. The 5th floor is a little dingy, more dimly lit than you would expect.

There are several Senate Majority offices about, and one Senate Minority office, mostly different kinds of counsels. This implies lawyers, and there's a good amount of these offices, so that implies a lot of lawyers. This makes me think of how the Majority has hired outside counsel to manage the investigation into Senator Monserrate. They obviously have a lot of lawyers on payroll, and they can't all be that busy. They should use in-house counsel for the investigation.

Senator Neil Breslin has an office in the Capitol Building, as advertised on his official Senate website. This might imply that he, and Upstate, retain some influence in the New York City-dominated Democratic Conference. But what you can't see from the website is that Senator Breslin's office is off in a particularly dingy, dimly lit corner of the fifth floor, which is as I mentioned generally speaking dingy and dimly lit to begin with. Frankly, based on where his office is, Senator Breslin actually seems rather marginalized. Later on this afternoon, I'll come to see Senator Breslin, on the floor of the Senate and in the hallways outside the Chamber. He's confined to a wheelchair for some reason. Was there some news about him that I missed? Google searches tell me nothing. He seems unhappy.

In an amusing case of bad timing, Senate Elevator 3 is out of service. Senate Elevator 4 is manned by an elevator operator, whom I now know is the retiring “Sandy,” one of the last elevator operators at the Capitol. The Extraordinary Session marks her last day on the job. An era has ended.

I see someone on Sandy's elevator with two apparently identical Blackberries. Overkill much? Even assuming one is State-issued for State-business and the other is for political and personal business, wouldn't it be cheaper to the State to reimburse him for State business done on his personal Blackberry rather than buy him a second one? Does he ever confuse them and accidentally send a political E-Mail or two from his State Blackberry? Or perhaps they are both his, neither belonging to the State, and he just really, really likes Blackberries? There is no way to know.

I decide that I should not fret over how many Blackberries some random person has. I wander to the Senate, and I sit in the gallery and I look around at the magnificent chamber. Some of the Anti-Federalists, writing about the U.S. Senate, worried that it would maintain itself in “opulent splendor” on the public dime. I don't know if the New York State Senate Chamber qualifies as “opulent splendor,” but it's certainly something above nice. The Chamber looks very old, very historic. This is not the first time I've been in the Senate Chamber, I attended a couple of the Extraordinary Sessions during the coup period, but the effect hasn't worn off for me yet. Each time I see it I understand less and less how the Senators can sometimes behave so pettily. Just seeing this chamber makes me want to behave well, makes me want to impress the history that surrounds me. I can imagine many historic moments taking place in this chamber. I know all-too-well that pettiness and thuggery is part of the story of Albany as well; it always has been, and it always will be. I know this, but somehow, in the gallery looking down at the Senate Chamber, I can't imagine it.

I look over and see Senator Bonacic flirting with one of the female clerks, teasing her about her “science fiction” colored glasses (they are some kind of neon color). I shouldn't say he's flirting; I don't know his intent. He may just being friendly. But from my vantage point it looks like flirting, and whatever it is the girl doesn't appear to be enjoying it very much. She seems embarrassed, but she does put up with it well, giggling in a manner that to me sounds fake to me. But, again...Just like I can't know his intent, I can't know her feelings. I just describe what I see, as best I can.

I look at the staff of the Senate Republican Minority. They look lean, hungry, tired, defeated. Even a little scared. I wonder if a lot of them have been called to testify at the trial of former Majority Leader Bruno. I know some have, you see their names on the witness list.

Or perhaps they are just tired. It's likely been a long night. Because the Democratic Majority is so narrow, a few Republican votes can matter a lot, and hence the Minority staff is likely to be involved in the deficit reduction negotiations.

I see Senator Addabbo, who beat then-Senator Maltese to represent a district in Queens. From his look, I would think he was either a cop or a mob enforcer (the two types are physically similar, which I guess makes sense), not a Senator. I think perhaps he is an ex-cop, but his official biography says no. He seems to be a career politician.

To some that would sound like an insult I suppose, but I don't mean it that way. I don't mind the thought of career politicians. Max Weber wrote that politics is a vocation and calling, and if it's a vocation it can surely be a career.

Like Republican Senator Joseph Robach and Democratic Member of the Assembly Kenneth Zebrowski, Democratic Senator Addabbo is following in his father's footsteps; politics is the family business. All 3 of these families are thus contenders to join the long-standing New York tradition of political families and political dynasties. I don't mind dynasties, so long as the individual members of the dynasty are deserving. This has surely been the case with at least some of New York's dynasties, which include the Yates, Livingston, Jay, and Roosevelt families. It's easy to think of those people as being national figures, but they were all New Yorkers.

I wonder if the Robachs, the Zebrowskis, or the Addabbos will become New York State's next political dynasty. Or perhaps all 3 will.

I see Jim Odato, reporter for the Albany Times-Union, wander across the Senate floor. I hadn't realized reporters were allowed there. I have read that bloggers can supposedly get credentials now-a-days, I wonder if I should. Odato doesn't seem to be comfortable with the fact that people recognize him, which seems odd to me. More on that in a few paragraphs.

The gay marriage activists are out in force today. This is understandable. As I write this, 2 days after the Extraordinary Session, we know that they were to be disappointed; there was no vote on gay marriage on the 10th. But during the Session, none of us knows that yet.

Some of the activists remain out in the hallways, chanting slogans very loudly. Anywhere except the Senate Chamber, it's impossible to not hear them, and that's the point. Some of them file into the Senate Chamber, and during the Pledge of Allegiance they loudly over-emphasize “with liberty and justice for all,” their meaning clear. The gay marriage activists, though loud, are not disruptive. In video footage, I see them being more confrontational than I witnessed personally, but they still were not disruptive or violent. I think of how Senator Diaz has claimed activists “jammed” his phone and threatened his staff. I wonder if he was exaggerating or not.

I note the presence of Lieutenant Governor Richard Ravitch at the podium, fulfilling his Constitutional duty to preside over the State Senate. I note Temporary President Malcolm Smith sitting in “floor leader” chair. I hadn't expected this somehow. The Senate has 3 leaders at the moment, and it's hard to tell who does what. Somehow, though, I had expected to see Conference Leader John Sampson in the chair, but he deceptively sits like an ordinary member. Same with Majority Leader Pedro Espada. They all share some power, but, today at least, they allow Malcolm Smith the dignity of the spotlight.

The gay marriage activists appear to think that the issue of gay marriage will be dealt with as soon as the Senate gavels in, which is of course not the case. We endure many long minutes (20 or so, maybe more) of speeches honoring veterans, especially those who currently serve in the State Senate. Senator Eric Adams manages to work his support for gay marriage into his speech in a clever way. Honoring veterans is a noble cause to be sure, but it seems cruel to do it at the start of an Extraordinary Session with so many important issues are up for consideration. Eventually, the Senate goes “at ease” (basically meaning they are still in Session but there's nothing to do just now). The bills, they say, are being printed. After the bills are printed, they will, we are told, go through the Rules Committee or the Finance Committee first. Despite its name, which might imply that it deals with the Rules of the Senate, I know that the Rules Committee has broad jurisdiction and can deal with any matter the leader of the Senate deems appropriate. (For the moment there are at least 3 leaders of the Senate so I'm not sure how they manage that.) For a bill to go through Rules during the normal Sessions means it's on the fast track. And I have read that, in the waning days of a regular Session, when most important things go through, Rules and Finance are the only committees that meet regularly. Rules can meet several times a night during the final days of normal Session.

The activists in the gallery don't seem to know the process. I find this interesting; I wonder if it's the fault of college Political Science classes, not giving a practical enough political education, or perhaps the fault of whatever advocacy organization they are part of not informing them. I suppose it could be the fault of the Senate itself, but somehow I don't like to think of it that way. I expect legislatures to have seemingly-arcane rules, and I don't blame them for it

I leave the gallery foolishly thinking that a Rules Meeting might be imminent. If it is, I want to be sure I catch it, but it was not to be. Too bad, I was looking forward to seeing my first Rules Committee meeting.

I wander out into the lobby of the Senate; the location where, I have read, the term “lobbying” was supposedly coined. (I actually don't believe that story.) The couches are obscenely comfortable, even if they are ridiculously over-sized. You sink into them, like quicksand. I'm not an overly small man, and they surround me, envelop me. It's a very strange feeling, sinking into this big couch, surrounded by powerful people. The activists wander through the lobby on occasion. This seems appropriate, as in a sense they are lobbyists, they are just using different tools than we normally understand lobbyists to use. Placards and signs and demonstrations aren't allowed in the lobby, so they fold their signs in half, and wander through to get to the other side, then unfold the placard and resume demonstrating. Outside the lobby, where signs and placards are definitely allowed, the loud demonstrations continue. The sound of it echoes through the lobby. There is a State Police presence, but they don't interfere. Nothing illegal happens.

I see Senator Pedro Espada in the lobby, conversing with a group of people. I wander close, trying to hear (you can't possibly have an expectation of privacy having an open conversation in the lobby of the New York State senate), but between the loud roar of protests and the low drone of conventional lobbying there's too much ambient noise. I see the Senator straining to hear the voices of those to whom he's talking, so I know he's having trouble too. I note that he looks different than the other times I've seen him in-person. He seems tired, worn, a little hunted. Jet lag from Puerto Rico? Is the pressure finally getting to him, breaking through the frighteningly calm facade he likes to project?

I converse briefly with some lobbyists, because it seems I look like I might know what's going on. I am, after all, more smartly dressed than usual (did I mention that?). I explain what I know. I don't know how to describe myself. Do I pretend to be a lobbyist? Do I call myself a reporter? A blogger? Luckily it doesn't seem to come up. I find it odd that the lobbyists don't seem to know the process any better than the activists. And, again, I wonder if this is the fault of Political Science classes in college or of the organization not properly informing its employees. Or both. And then there's always that other possibility, that maybe parliamentary procedure could be a lot clearer than it is, and not something you'd have to become familiar with. That still feels unrealistic to me, but I need to keep it in mind.

My mind wanders a bit. I try, unsuccessfully, to overhear some random conversations. I wonder if real reporters will report what they hear in public conversations, or if this is considered taboo. Or perhaps they know that nothing of importance is ever discussed that openly. I'm not interested in "scoops," however, I just want to hear informal political discourse. I want to hear if these people use the same kind of language in informal political discourse as they do in speeches and the like.

I sink back down into the over-sized, overly comfortable couches in the Senate lobby. Senator Monserrate walks by. I jot down “it's funny seeing someone walk by whom you've advocated should resign.” I don't know if he notices me or not.

I see Fred Dicker of the New York Post, wandering around. He seems, oddly, to be in the same kind of confused fog that I and the lobbyists are in. I infer that he doesn't know what's going on either, and that he and I are in the same boat. I quickly jot this down. I am far from only one who notices Dicker. I take note of the others and wonder who they are. Do they think that Dicker knows what's going on, and that they can figure it out themselves by watching what he does and noticing who he speaks to?

Like Odato had earlier, Dicker seems nervous and suspicious that people know who he is, are noting his motions and trying to see where he may be going. Famous reporters, like Fred Dicker, Jim Odato, and Liz Benjamin are part of the story of Albany. They are not really neutral observers. Willingly or not, they have worked their way into life at the Capitol and are part of the story as much as tellers of the story. These people are often opinion makers as much as they are reporters, and are thus used by “sources” who wish to plant a story or two. Dicker's column in particular seems like a grand place to plant a story, and of late I can't help but notice how many of his stories are beneficial to Attorney General and apparent Gubernatorial hopeful Andrew Cuomo. It makes me wonder who his sources are, which of course is part of the point. To wonder about his sources I had to read the story to begin with, and that means I bought the paper or visited the website or both. The reporter gains a source, the sources gets the story planted, and we in the public “gain” juicy political gossip. Fred Dicker's targets, however, sometimes suffer, and not always justly. In my brief period “covering” State politics I've so far seen little in the way of concern on Dicker's part for his targets.

For the moment, however, Dicker is the target. He's been noticed, by multiple people, and he oddly enough doesn't seem to like it. Has he not realized after all these years that he is part of the story? That he's subject to scrutiny as much as the politicians are? Perhaps he hasn't. What about Odato? Benjamin? I make a note to later see if anything's been written about this, about the "reporter as story" phenomenon.

I wander to the Assembly side of the Capitol, which seems quiet and boring. Today at least, the upper house, which Political Science teaches us should be genteel and scholarly and collegial, is actually the nexus of activity and action. Some of this is doubtlessly due to the fact that the Assembly has already passed gay marriage, multiple times, and thus the activists are drawn to the Senate. But some of it must also be due to the way the Senate's ongoing implosion generates news, excitement, and activity.

I leave, convinced I've seen everything I can see for today. And besides, I have someplace to be.

The oddest thing about my afternoon at the State Capitol is that I almost feel more in-touch behind a computer, occasionally checking the blogs, than I do in the center of the action. Granted, information in the blogs is not always accurate, and can be out-of-date by the time it's uploaded (5 minutes or less after it was obtained, that's how fast things move around here). But is that any different from if I had sources of my own, telling me the same thing I'd have learned from some blog anyway, 5 minutes after I was told and 10 minutes after it was proven wrong or out-of-date?

But what I do not have is an excuse to be as smartly dressed.

The Case for Senator Monserrate's Resignation

Introduction

In this article I shall outline a case for Senator Hiram Monserrate's resignation from the State Senate.

I'm not the first person to call for his resignation, and I doubt I'll be the last. My argument might have some similarities with those of others, but I'm pretty sure mine is noticeably different. I don't only deal with the assault conviction, for example. My argument is also pretty cynical, is amoral, and is based on an overall pattern of conduct and on lost credibility. The assault conviction is a factor, but not the only one. I don't care about Senator Monserrate's defense fund. I have no anger toward him about the coup. Though the way he started it, then backed out of it so quickly, is a factor, because I feel that reflects a great personality defect.

However, I take the position that, between the assault conviction and other circumstances, Senator Monserrate has destroyed all credibility for himself, and has crossed a line that makes him unfit to hold public office. There's quite likely other incidents reflecting his various personality defects, but frankly I've spent too much time and bandwidth on this matter as it is.

Senator Monserrate seems unable to follow-through on any important political action he takes, and seems to be brave only when he has a lot of backup or is facing someone weaker than he. This is the mentality of a bully, and while there may be other bullies in New York State politics besides Senator Monserrate, none of them have had public downfalls the way Senator Monserrate has.

Senator Monserrate picks fights, or starts them, and then backs down when he realizes he's in over his head. Contrast this with Senator Perdo Espada. Whether you like Senator Espada or not, he is not afraid to fight an opponent as strong as, or stronger than, he. Like him or not, that's an admirable character trait, one which is necessary to be a leader in State politics, and one which Monserrate lacks to such a degree that he's incapable of being credible even as a follower, let alone a leader. He has chosen to be a high profile Senator, and has since this decision revealed himself to be not up to the challenge. As it's too late for him to be an anonymous back bencher, it's time for him to go and find something else to do.

Who I feel the most pity for is his staff.


Resignation, Not Expulsion

I find resignation, not expulsion, to be the appropriate path here. I am not comfortable with the bizarre, expensive process to “investigate” Senator Monserrate that the Senate Democrats have initiated.

Expulsion has been used but one time in the recent history of the State Legislature. (Maybe one time ever.) In 1920, several sitting, duly elected, sworn-in Members of the State Assembly were expelled for the crime of belonging to the completely legal Socialist party. Their expulsion took place after they had been sworn in, and had voted for leadership positions. The expulsion process they were put through was lengthy and bizarre, incorporating what amounted to a full trial in the Assembly Judiciary Committee that went on for months. (Sources: Louis Waldman's Albany: The Crisis in Government, 1920; Seymour Martin Lipset and Gary Marks's It Didn't Happen Here: Why Socialism Failed in the United States, 2000; New York State Senate, Revolutionary Radicalism: Its History, Power, and Tactics, 1920.)

In my research, I haven't located a price tag for the proceedings (granted, I wasn't looking very hard, as it was of secondary concern to me), but it doesn't sound cheap and, so far, the contemporary Senate Democrats have shown no sign of being able to handle it at a discount rate in the case of Senator Monserrate. The process the Senate Democrats have initiated is thus not only expensive, but historically tainted.


Why is This Even an Issue?

Some appear to wonder why this is even an issue. Why not have automatic expulsion upon conviction of any crime? Shouldn't out public servants be exemplary?

At this point, we need to face the fact that the notion of an “exemplary public servant” is a myth. Your favorite politician has done something wrong, or borderline, or will be accused of doing something wrong even if he hasn't. The basis for the accusation will be something innocuous that will appear bad or wrong somehow when the correct tone of voice and choice of words is used to describe it.

And that's the best case scenario. The worst case scenario is that your favorite politician has some deep flaw, which will one day become public in an alarming and hurtful way.

It's really best if you disavow yourself of the notion of an exemplary politician. There are no real “good guys” in this story. We need to be more realistic about our expectations.

Even more importantly, Senator Monserrate was elected by the people of his district. What you or I may think of him matters a lot less in our system than does the mere fact that he was elected. This is an electoral democracy, after all. To throw out Senator Monserrate, or any elected politician, is to undo the outcome of an election. That should be a rare and terrible occurrence.


A Matter of Credibility, Not Morality

But, as stated above, Senator Monserrate needs to, for the good of the Senate and (more importantly) his district, resign as soon as possible. He simply has no credibility left. None. As we shall see, the assault conviction is simply one incident among several.


Incident One: The Gang of Four....Sorry, Three

Readers will likely recall that Senator Monserrate, actually he was Senator-Elect at the time, was part of the original “Gang of Four,” or “Four Amigos,” four dissident Democrats who were decidedly uncomfortable with the idea of Senator Malcolm Smith as Majority Leader and Temporary President of the Senate.

Readers will also, however, recall that Senator Elect Hiram Monserrate caved in early, after just a few days really, and the Gang of Four quickly became the Gang of Three.

For the first time since his election to the State Senate, Senator Monserrate picked a fight he was not prepared for. The next time he made a big move and wasn't prepared to follow through, the consequences were greater.


Incident Two: The Coup That Wasn't

As is well-documented, Senators Monserrate and Espada, together with all 30 Republican Senators, launched a successful coup against then-Majority Leader and (then and current) Temporary President Smith back in June 2009. (Seems so long ago, doesn't it?)

Note Senator Monserrate in the picture attached to this article. He appears to be attempting to hide in plain sight, and to me at least he looks slightly uncomfortable. He had helped to initiate chaos he was unable to deal with the consequences.

And this was the second time, a more serious variant on what he had already done when he flirted with the Gang of Four. Whether the reasons for the Senator's actions were cynical or sincere is beside the point. Regardless of his motives, Senator Monserrate seems unable to stand up to anyone for very long. In Senator Monserrate, we have a person who is capable of causing chaos and then being frightened by it, like a child who is bewildered when his castle made of building blocks topples after he kicks it. It's not like the level of opposition his actions engendered was somehow not predictable. He just wasn't prepared.

Senator Monserrate really should have confined himself to the back bench. It would not have saved him from Incident Three, but it would have prevented the cumulative weight of these incidents from bearing down upon him.


Incident Three: The Assault Conviction

The details of Senator Monserrate's assault conviction are pretty well known, but let us review them anyway. In middle December 2008, then Member of the City Council and Senator-Elect Monserrate and his girlfriend had some kind of accident or altercation at their apartment. The girlfriend ended up with a seriously slashed face.

Hiram Monserrate was eventually charged with felony and misdemeanor assault. He was acquitted of felony assault, related to the slashing. He was, however, convicted of misdemeanor assault, relating not to the slashing but what happened afterward.

I am normally loath to post links to the New York Post (a publication which usually belongs not in the newsstands but in the toilet hanging off a plastic roll) but the article linked to above (the first of 2 links in the previous paragraph) has an important virtue: It features embedded video footage of now-Senator Monserrate dragging his bleeding girlfriend, post-slashing, first through a hallway, then through the apartment building foyer, then into an emergency room. She appears to be frightened, and clearly makes repeated attempts to get away from him.

Senator Monserrate was not convicted of anything related to the slashing incident. On that matter, there was clearly reasonable doubt, as the alleged victim had recanted her story and clearly did not want Monserrate prosecuted. However, the Judge concluded, the post-slashing dragging constituted misdemeanor assault. There was no reasonable doubt on that fact pattern; it was caught on video.

A sitting New York State Senator now faces jail time. While this outcome is not likely, jail time for first-time misdemeanors seems to be rare, it's well within the realm of the possible. That means it's also possible that the Senator will be drawing public pay while being unable to fulfill his public duties, because he is sitting in a jail cell.


Conclusions

Senator Monserrate should resign. He's done for anyway. As this link shows, the Queens Democrats, never his friends to begin with, have already designated his replacement, Assembly Member Jose Peralta. If there is a primary, all that's necessary to win is showing footage of these 3 incidents (the assault; the Gang of Four/Three; and the coup).

Again, and again, and again.

Senator Monserrate is the political equivalent of the schoolyard bully. Some of those guys can stand up for themselves, but most can't. Senator Monserrate can't. He clearly has personality flaws. If he had remained a back bencher, a member of the body who kept mostly quiet and did his thing, this wouldn't have mattered so much. He may have even been able to survive the assault conviction, by arguing that it was a private matter that didn't impact his job. But it's far too late for that.

And if he doesn't resign? Should the Senate follow through with the expensive and historically questionable process of removal?

I have no answer for that. Right now I'm just hoping he does the right thing and resigns.