Lawrence N. Gray, Esq.
20 Fireplace Drive
Kings Park, New York 11754
Supervisor Patrick Vecchio
99 West Main Street
Smithtown, New York 11787
February 13, 2009
Re: Friends of Pat Vecchio Pays for
Tuxedo & Shirt, etc.
Dear Supervisor Vecchio:
On October 20,
2008 Friends of Pat Vecchio paid
$1,500 for “event tickets” to the Smithtown Historical Society. Was the Historical Society honoring
you? Was the gala in recognition of
your devotion to local history or the fact that you personify local history, or
that you are an historic phenomenon yourself?
Your “tickets” contribution looks like you were building up you own gate
with campaign money. You should have
put head hunters out on the street to drum up another table. What did the band play? – Who Let The Dogs Out?
On
July 24, 2008 Friends of Pat Vecchio
paid $236.16 to CARDMEMBER SERVICES for TUXEDO
AND SHIRT. There is no legal way
that you may use campaign funds to pay for personal clothing – clothing of the
type that one would otherwise wear in, or out of, public office. This money must be returned. At a minimum, this expenditure is
presumptively personal and must be reported to the Internal Revenue Service as
income. Did you include the socks and
underwear that you wore? How about
tooth paste, soap and, pro rata, the
oil used to heat your bath water?
Friends
of Pat Vecchio paid $446.55 on July 25th, $412.77 on September 15th, $412.77 on
October 3rd, $412.77 on November 4th, $412.77 on December
2d and $412.77 on December 30th 2008 to SAAB FINANCIAL SERVICES for your personal auto lease. These car payments must be apportioned
between campaigning and personal use according to the State Board of Elections
and the Internal Revenue=2 0Code.
Election Law 14-130 forbids the use of campaign funds for things other
than holding public or party office.
Driving to and from Town Hall from 15 Tarleton Lane in Fort Salonga, or
to breakfast and lunch at the Country Kitchen – and other free eateries -- are
personal expenditures. 2008 was not
an election year for Smithtown Supervisor.
As you are aware, your 2005 running mate, former Smithtown Highway
Superintendent Edmund Lynch pled guilty to larceny and false filing charges in
2007 – all stemming from his theft of funds belonging to Friends of Ed Lynch. You
are on personal notice of the law and the potential consequences for its
violation. Witness your old pal Pete
McGowan who went to the hoosegow.
On August 8th
there is a payment from Friends of Pat
Vecchio of KINGS PARK CAR CARE for $250.87. What for? Are you still
running a gas tab or just plain laundering campaign ca sh? This must also be apportioned between
personal and campaign use.
Friends of Pat Vecchio also paid for your
monthly cell phone. The Town of
Smithtown provides you with office phones from where you do most of your daily
work and deals. It even pays for your
private number which many have the number to.
Your home phone is your home phone.
To the extent that the cell phone is for official or party business it
must be apportioned between the same and personal usage. From July 12, 2008 until January 11, 2009
Friends of Pat Vecchio made five payments of $36.81 for a personal cell phone.
Times
are hard on people. You are now paid
over $111,000 per year. It’s time you
obeyed the law* and stopped
criminally chiseling off Friends of Pat
Vecchio and other freebee sources.
We call the latter Unlawful Gratuities, sometimes Bribe Receiving. Now your former Town Attorney, John Zollo,
wants to run for the Smithtown Council.
This incompetent cost the town millions because of his malpractice in
the Izzo Leaf bag case. Talk to the
former legal illiterate who was replaced by your present one. Tell him he is a nonstarter and should
rather find another law firm for Nicholas “Dirty Nick” Barbato to hook him up
with.
_________________________________________________________________________________
* Legislation Pending in the Senate and Assembly
Senate Bill
S8258 and Assembly Bill A12075 were introduced in June 2006. Their purpose was to improve on Election Law
Section 14-130 which forbids the use of campaign funds for private purposes
unconnected to the holding of public office or party position. The Sponsor’s Memorandum states that “this
bill addresses a number of concerns with how campaign funds are raised and
expended. Currently, New York’s
Election Law, allowing candidates to spend campaign funds for ‘any lawful
purpose’ is among the most lax in the nation.
While spending campaign funds for personal use is technically
prohibited, the lack of any definition for what constitutes a personal use
renders the provision difficult to enforce.
[Not unenforceable.] *** Examples… of candidates using excess
campaign funds for luxury vehicles, sky boxes, extravagant meals, international
travel and home improvements have regularly appeared in newspapers…. There is a growing and justifiable public
perception that campaign funds are being used to enhance the post election life styles
of candidates for public office. Such largesse turns the ideal of
representatives serving the public on its head. Campaign donors have a reasonable expectation that their
contributions will be used for the candidate’s election efforts and the
execution of his or her public duties.
They do not expect their contributions to subsidize personal spending.” The Senate sponsor is Senator John Flanagan
whose own words display an understanding of what the present law expressly
forbids.
The Genesis of Election Law 14-130, Wire
& Mail Fraud, False Filing & Income Tax Evasion
Contributions
received by a candidate or political committee may be expended for any lawful
purpose but "such funds shall not be converted by any person to a personal
use which is unrelated to a political campaign or the holding of public o ffice
or party position." (Election Law
14-130) There are questionable
expenditures by a candidate or elected official where a reasonable or
not-so-reasonable argument has been made that such were campaign related with
the benefit of the any doubt going to the politician. However, the modern-day equivalent of the "Abe Lincoln
defense" --- his office was in his hat --- is not sustainable. An elected public official or candidate
cannot live like Henry VIII (nor his wife Cleopatra) with personal use of
campaign contributions and then justify his high living by asserting that,
"I'm always campaigning." To
a degree that is always true, even if it only means good table manners and
public sobriety. While one cannot draw
a bright line, there is a difference
between lawful campaign expenditures and unlawful personal use of campaign
money. One is campaigning; the other is
the act of crime.
During
an election year, especially during a campaign, meals, transportation, public
events, even parties and the like may be campaign expenditures. But even then differences in degree make
differences in kind. One cannot buy a
new Rolls Royce – or pay for one’s leased SAAB -- and chalk it up to one's
campaign account. On this score, Advisory Opinion 86-4 from the State Board
of Elections states that if an automobile is to be used in a campaign the
expenditure for it must be apportioned between personal and campaign use. A public official merely going from home to
office and back, in and out of campaign years, is not using his or her
automobile for campaigning. Everyone
has to commute to and from work.
United States v. Pisani
Prior
to 1985, there was no statutory or decisional law with respect to the private
use of campaign funds in New York. All
that changed with the advent of United
State v. Pisani, 773 F.2d 397 (2d Cir. 1985) from the Federal Second Circuit Court of Appeals. The court acknowledged that the New York
Legislature had just enacted Election Law 14-130 and that henceforth there
could be criminal liability for the personal use of campaign funds. The law is now conceptually clear even
though it will always be facts that shape the legal inference. One, personal expenditure of
contributor funds is criminal behavior.
Two, depending on the facts, certain expenditures must be
apportioned between personal and office-campaign-related. On the personal portion income tax must
be paid. Three, use of the mails
to submit false campaign fund disclosure reports is Mail Fraud. Electronically, it is Wire Fraud. Four, falsely reporting the true nature of expenditures from a
political committee account constitutes the crime of Offering a False
Instrument for Filing. Five,
one commits larceny by appropriating money from one's campaign account for
personal purposes because a political committee account is, in the eyes of the
law, a separate and distinct legal entity -- it's like stealing from a
corporation or a partnership. Six,
the Internal Revenue Service will presume in the absence of evidence to the
contrary that contributions to a political candidate are political funds which
are not
intended for the unrestricted personal use of such recipient. If it can be shown that the funds were
intended for the unrestricted use of20the political candidate, then the service
will determine whether or not the funds may, as gifts, be excluded from his
gross income -- Commissioner v. Mose Duberstein, 363 U.S. 287
(1960) -- to determine whether or not the funds may be excluded from gross
income….” United States v. Joseph Pisani,
773 F.2d at 406-407 (1985).
Supervisor Vecchio, the last time you spent a
half-dollar of your own money the eagle was wearing sun glasses. I won’t say what your squeezing the buffalo
nickel so hard causes.
Yours truly,
Lawrence N. Gray, Esq.
CC: Assistant District Attorney
Christopher McPartland
Smithtown Council