Lawyer: Enough evidence to oust Hevesi

[Ron Burgundy]

Lawyer: Enough evidence to oust Hevesi

By MARK JOHNSON, Associated Press WriterSat Nov 4, 4:15 PM ET

A lawyer appointed by Gov. George Pataki has determined there is enough evidence to remove Comptroller Alan Hevesi from office for using a state employee to chauffeur his wife, but refrained from recommending that the governor move to oust the elected official.

Former U.S. Attorney David Kelley said in his report to Pataki that there was a "preponderance of evidence" Hevesi knowingly violated the law when he used a staffer to drive for his ailing wife from 2003 to 2006. However, Kelley said he was not "in a position to advise you at this time to proceed with a recommendation for removal" by the Senate.

Hevesi, a Democrat running for re-election, has insisted he will not resign, but recent polls show him losing his once-large lead over his Republican opponent, J. Christopher Callaghan, who exposed the scandal.

Hevesi, running for a second four-year term as the state's chief financial officer and trustee of its $140 billion pension fund, has said voters should decide whether he remains in office, not politicians.

In a statement Saturday, Callaghan said: "It is now clear that Mr. Hevesi's days are numbered."

Kelley said he believed it was "premature" to recommend Hevesi's removal because it was unclear what burden of proof the Senate would use in a trial. The Senate could use either the "beyond a reasonable doubt" standard used in criminal proceedings, or the less stringent "preponderance of evidence" standard used in civil trials, he said. It would take a two-thirds majority vote by the 62-member chamber to remove Hevesi.

John McArdle, a spokesman for Senate Majority Leader Joseph Bruno, said Senate lawyers were trying to determine how the process would work. Officials said they could find no case in which a statewide elected official has been removed from office through a recommendation by the governor to the Senate. In 1913, Gov. William Sulzer was kicked out of office, but that was done through impeachment.

A state Ethics Commission report last week said Hevesi violated the law when he used a staffer to drive his wife around. Hevesi claimed the driver was needed to provide security for his wife, but the bipartisan commission said state police found no threat that justified the arrangement.

The panel said Hevesi apparently had no intention of repaying the state for the three years of service until after Callaghan went public with a complaint. Hevesi then paid the state almost $83,000, but the commission said that was likely too little. On Friday, Hevesi was ordered to pay an additional $90,000.

"Considering the record as a whole, I believe there is a preponderance of evidence that the comptroller knowingly and intentionally violated New York's public officers law," Kelley said in his 24-page report to Pataki.

Kelley cited numerous factors in backing a case against Hevesi, including his failure to keep records of the employee's time spent with Hevesi's wife and Hevesi's having been ordered to pay for similar services when he was New York City comptroller. He noted that Hevesi's likely violations of state law were civil, not criminal.

David Catalfamo said the governor was still reviewing the report. He did not know whether Pataki, who was campaigning for Republicans in Delaware on Saturday, would decide whether to recommend removal by the Senate before Tuesday's election.

"The governor's special counsel declined to recommend removal," said Hevesi spokesman David Neustadt. "Now 5 million voters can choose their next comptroller based on the records, performance and qualifications of the two candidates."

On Friday, a Siena College poll showed Hevesi leading Callaghan, with support from 39 percent of likely voters, compared with 35 percent. The poll's sampling error margin was 4 percentage points. That is a huge drop in support for Hevesi from a mid-October Siena poll that had Hevesi leading Callaghan 52-25 percent.

A WNBC/Marist College poll, also released Friday, showed Hevesi maintaining a 48-36 percent lead over Callaghan with 14 percent undecided.

Both polls were conducted Oct. 30 through Nov. 1.