Silver should pay his own legal bills

Gov. Andrew Cuomo promises the Moreland Commission will bring charges against whomever has broken the law, but the practical matter and cynical side of me says Assembly Speaker Sheldon Silver will walk away without facing criminal charges and we the people will have to pick up the legal defense bills for civil suits.

Public Officers Law affords protection to state officers and employees against personal liability in the event that such officers and employees are sued individually, so long as “the employee was acting within the scope of his public employment or duties.” Criminal acts are outside the scope of employment. The people should not have to pay for Silver’s exorbitant $500 per hour legal defense fees when his actions were based on criminal conduct or official misconduct.

Under the Penal Law, official misconduct occurs when there is a duty by a public servant, the public servant refrains from the duty and the public servant derives a benefit. A public servant can obtain a benefit by avoiding scorn, ridicule or possible discipline in breaching his duty.

Silver violated this statute in handling the Vito Lopez cover-up. The Assembly has a Sexual Harassment/Retaliation Policy that places a mandatory duty to report allegations of sexual harassment against Assembly members, oral or written, to the Assembly Ethics Committee for investigation. The speaker’s office sent neither of two emailed complaints to the Ethics Committee. The speaker’s office did not notify the Ethics Committee because it presumed the complaints could not be made orally, but needed to be written. Emails are written, not spoken.

Silver did benefit from not having an Ethics Committee investigation. The Joint Commission on Public Ethics investigation states that the speaker’s office was concerned about the “likelihood of sensationalized press” (page 34), attorney Mariann Wang’s assurances that she would not file any public document related to the allegations (page 36), the “desire to keep this away from media scrutiny” (page 40) and “recordings made by Complainant 1 that are headline-making” (page 41).

We should not be paying legal defense fees under these circumstances. At the very least, the attorney general should require a man who is making more than $350,000 a year to pay his legal bills until a determination of criminal liability is made.

Bill Licata, Esq.