LAW OFFICE OF
HARRY KRESKY
250 WEST 57 TH STREET, SUITE 2017,
NEW YORK, NY 10107
TELEPHONE: 212-581-1516
FAX: 212-581-1352
E-MAIL: HARRYKRES@AOL.COM
June 7, 2007
BY HAND
Hon. Andrew M. Cuomo
New York Attorney General
120 Broadway
New York, NY 10271
Dear Mr. Cuomo:
I write as counsel to the duly constituted Independence Party county committees in Kings, New York, Queens and Richmond Counties concerning a two year effort by Independence Party State Chair Frank MacKay and the State Executive Committee, which is dominated by upstate counties, to use their control of the Party's State Committee to dis-enfranchise Party members in New York City and their elected leaders. Three aspects of this situation are, I believe, of concern to your office and to your newly appointed Special Counsel on Public Integrity who, I know, is familiar with the intricacies of election law.
The three aspects, which will be discussed in turn, are: (1) criminal conduct; (2) flaunting of the New York Election Law and its apportionment of power between state and county organizations; and (3) racial discrimination.
Criminal conduct. In June, 2006 Michael Zumbluskas, an ally of Mr. MacKay in Manhattan, filed a fraudulent certificate with the New York City Board of Elections claiming to have been elected Chairperson of the New York County County Committee of the Independence Party. When the filing was challenged in court and an attempt to contest service defeated, Mr. Zumbluskas' attorney declined to defend the proceeding on the merits. Mr. Zumbluskas was subsequently elected to the Executive Committee of the State Party.
Mr. Zumbluskas' gambit was a prelude to an audacious and fraudulent effort to prevent the organizing of duly constituted county committees in all five counties within the City of New York. After designating petitions were filed naming over 4,000 Independence Party members as county committee candidates, an anonymous filing was made of 1,569 fraudulent opportunity to ballot petitions under false names. The opportunity to ballot petitions were designed so that they did not contain the name of a single real person. The subscribing witnesses corresponded to recently filed voter registration forms containing the names of "persons" whose addresses turned out to be homeless shelters. When the shelters were contacted there was no record of any such person living there. Enclosed is a letter to the Commissioners of the New York City Board of Elections describing the scheme in detail. This scheme to prevent the election of county committees also included the sending of intimidating and misleading letters to candidates for county committees in an effort to induce them to resign, and the hiring of a phone bank to call candidates for the same purpose. Enclosed as well is a letter to the investigative unit of the State Board of Elections requesting a formal investigation and identifying the likely perpetrators. I have been advised that due to that office's backlog, no action has yet been taken.
In the past month, meetings have been held with representatives of the Distinct Attorneys of Kings, Queens, New York and Richmond Counties. The focus there was on the crime of filing a false instrument.[1] It was recommended that your office was the venue for investigating and taking appropriate action against the entire course of conduct outlined in this letter.
Flaunting of the Election Law. Most recently, the Independence Party State Committee has been used as a vehicle to undermine the architecture of New York's Election Law which allows county organizations of political parties to determine the course of local affairs including nominating candidates and authorizing candidates who are members of other parties to run under New York's fusion laws.
On May 30, 2007 notice was given by State Chairman MacKay of his intention to put before the June 10, 2007 meeting of the State Committee an amendment to the Party rules that is directly contrary to explicit provisions of the Election Law. (A copy of the proposed amendment is enclosed.) It purports to take the power to issue certificates of authorization to candidates in New York City from the executive committees of the local organizations and give it to the State Executive Committee. Section 6-120(3) of the Election Law, however, states, inter alia:
In the event that such designation or authorization is for an office to be filled by all the voters of the city of New York, such authorization must be by a majority vote of those present at a joint meeting of the executive committees of each of the county committees of the party within the city of New York, provided a quorum is present at such meeting. (emphasis added)
In the last two mayoral elections the county organizations of the Independence Party acted pursuant to Section 6-120 to authorize the candidate of their choice.
What makes this proposed rules change still more egregious is that on March 12, 2007 Justice Joseph S. Levine of the Supreme Court, Kings County ruled that a prior amendment to the rules of the State Committee of the Independence Party giving it power to remove members and officers of constituted county committees was invalid. (A copy of the decision is enclosed.) In his ruling Justice Levine made specific note of the fact that the amendment directly conflicted with a provision of the Election Law giving county organizations the power to remove their own officers. It is a measure of the perpetrators disrespect for our laws and our courts that two months later they are attempting something even more blatant. In fact, they have lost 14 of 16 court cases in which their machinations were challenged.
The rules change proposed on May 30, 2007 is likely to pass, and litigation will surely follow. I am aware that it is the practice of your office and the State and New York City Boards of Elections to take no position in litigation between members of the same political party. However, the rules change described above is an effort to undermine the architecture of New York's electoral system and is a blatantly illegal power grab. I believe it is incumbent on your office to take a position on this issue, and I will be asking the State and City Boards to do the same.
This attempted re-write of the Election Law comes after the failure of previous efforts to destroy the New York City organizations of the Independence Party. In 2006 four proceedings were commenced to dis-enroll some 134 New York City members from the Party including the citywide leaders and leaders of local county organizations. All of the proceedings were dismissed. Justice Levine and Justice Emily Jane Goodman of Supreme Court, New York County, found that there was no evidence of acts that could be a basis for dis-enrollment. (Copies of their decisions are enclosed.) Two additional proceedings in Kings and Queens Counties were also dismissed. Subsequent to the dismissal of these proceedings, proceedings were commenced in Kings, Queens and Richmond Counties to challenge the organization of county committees in New York City. These proceedings were dismissed as well.
Thomas Connolly, a Vice Chair of the state Independence Party and the Rensselaer County Chair, one of the main perpetrators, is on the payroll of State Senator Carl Kruger. Recently Senator Kruger also gave employment to A. Joshua Ehrlich, an attorney who has and continues to represent the perpetrators in their campaign of disenfranchisement. For state employees to be engaged in such activity should be of concern to your office.
Mr. Connolly chaired the committees set up to conduct both the dis-enrollment and the removal proceedings. After Justice Levine's March 12, 2007 decision, Mr. Connolly converted his committee to one seeking to remove rank and file Independence Party county committee members from New York City who circulated designating petitions in 2006 to one seeking to remove them from the State Committee to which they had been elected by Independence Party voters in their Assembly Districts. Of the thirteen people sought to be removed, six are Black or Latino. On behalf of these members I submitted a statement to Mr. Connolly objecting to this effort (see enclosed).
It pointed out, inter alia, that the "hearing" Mr. Connolly intended to conduct is part of an ongoing pattern of harassment by Mr. Connolly, Independence Party Chairman MacKay and those associated with him, including Frank Morano and William Bogardt who are the other members of the "Removal Committee," to drive members of the Independence Party residing in New York City out of the Party and/or from positions of local leadership. This history hardly qualifies them to sit on a committee whose purpose is to judge members of the Independence Party to whom they are opposed.[2]
Race discrimination. These actions are particularly pernicious in light of the fact that the overwhelming majority of the Black and Latino members of the Independence Party reside in New York City.[3] If the efforts of the State Committee succeed, these members will have no say in decisions central to the functioning of the Independence Party in their city and the political perspective put forth by its candidates. In this regard it is noteworthy that the amendment to the Independence Party rules proposed on May 30, 2007 applies only to New York City. In other words, in 57 counties across the State, where the Independence Party membership is primarily white, political power resides with locally elected county organizations. In the five counties of New York City Party members are subjugated to a State Committee controlled by white persons from other parts of the State.
It is the most recent action - the proposed amendment - that has brought my clients to the recognition that the magnitude and boldness of the perpetrators and their course of conduct requires the intervention of New York's chief law enforcement officer.
Respectfully yours,
Harry Kresky
cc: Jerry Goldfeder, Esq.
[1] Further instances of false filings involved Frank Morano, Mr. MacKay's chief ally on Staten Island. Mr. Morano has been a contender for position of Chair of the Richmond County Committee against Sarah Lyons, one of the county leaders who has retained me to ask your office to intervene. Mr. Morano filed documents with the New York City Board of Elections falsely claiming to have been elected Chair on two separate occasions in 2006, forcing Ms. Lyons, the duly elected Chair, to take legal action.
[2] The members of the "Removal Committee" are among the prime movers of the aforesaid campaign. Mr. Connolly has acted as the floor manager at the meetings where the State Committee voted to take these actions. Justice Goodman noted in her decision dismissing the dis-enrollment proceeding, that Mr. Connolly had assumed the dual role of hearing officer and petitioner in the court proceeding and stated that the dis-enrollment proceeding appeared to be motivated more by politics than by principal. In addition to making the false filing described above, Mr. Morano moved the rules amendment and the establishment of the "Removal Committee" at the January 2007 State Committee meeting. As for Mr. Bogardt, he has functioned for many years as the chief lieutenant of Independence Party State and Suffolk County Chair, Frank MacKay. On May 8, 2007 Mr. MacKay wrote to members of county committees in New York City that, "This action is taken to not only dissolve these illegal county committees..." and "...we are taking legal action against those Party members who participated in defrauding our political system."
[3] In September 2005, five members of the State Executive Committee
were recalled from office pursuant to the Party rules. Two were
African American and one was Jewish. In February 2006 three interim
county organizations in New York City were summarily dissolved by the
State Committee. The dissolution was upheld in Court.
