Legal Opinions Support Finding Soares Misused Funds
Posted on Wednesday, 15 of October , 2008 at 9:09 pm
By June Maxam
ALBANY—Albany County Comptroller Michael Conners has released the final audit of state and federal forfeiture funds of the Albany County district attorney’s office which includes legal opinions that support the finding that District Attorney P. David Soares misused state forfeiture funds.
Last week, the Albany County Comptroller’s office released an interim audit report of the funds handled by Soares, revealing that nearly $6,200 in cash is missing in addition to evidence.
Additionally, the audit shows a troubling pattern of misuse of those funds by Soares, even using them for alleged electioneering purposes, buying T-shirts, flashlights and whistles that were adorned with his name when such is expressly prohibited by state law.
The audit indicates that Soares improperly wrote checks to himself from the fund, allowed county procurement cards to be improperly used for personal purchases of lunches, alcohol and computer equipment and that over $62,000 was used to pay monthly parking fees for office employees. Forfeiture Audit
Soares has ignored the specific allegations of the audit, including the alleged criminal wrongdoings and has characterized the timing and findings of comptroller Michael Conner’s audit as “suspect”. Apparently he would have preferred that Conners had waited to make the audit public until after the Nov. 4 general election in which Soares’ reelection bid is being challenged by Republican Roger Cusick who is running as an Independent.
The core of Soares” argument to the draft audit is based on the claim that the audit does not deal with accounting issues but deals with “philosophical issues” on the interpretation of the use of forfeiture funds. In his response, the district attorney claims that the opinion by the State Comptroller is non-binding when this is not based upon the law.
“While the district attorney is entitled to his opinion, the audit is based on facts”, Conners said and added that the response outlined by Soares contains no documentation proving his argument disputing the audit.
Some, including Soares’ loyalist, Albany Times-Union reporter Brendan Lyons, has charged that the audit is politically motivated. The job of the Albany comptroller is to watch the people’s money and to provide oversight and leadership into the financial affairs of Albany County. The comptroller is the county’s chief financial officer, conducting departmental audits and ensuring the accuracy and timeliness of information about the county’s finances.
This issue of Soares’ alleged mishandling of public funds in the Albany County District Attorney’s office didn’t just surface during his reelection campaign. It began with a petty cash audit of the DA’s office in May. Petty Cash Audit
Irregardless of when the audit is released, it appears that Conners is doing his job but as the county’s chief law enforcement officer, Soares isn’t properly doing his.
The Times-Union and Lyons, who is said to have a long time association with Christian D’Allessandro, Soares top deputy, chose not to report on the Conner’s final audit of the DA’s office. (NOTE: TU published an article after this one appeared but buried it on page A-11) http://mesomorphosis.com/blog/2008/04/04/investigative-journalism-and-the-signature-pharmacy-steroid-scandal/
In the comptroller’s rebuttal of the DA’s statements, Conners says that “the district attorney’s attempt to discredit the findings in the audit and divert attention from the missing evidence and cash in the safe under his control and the misuse of state seizure money falls on the matter of law and the matter of the facts”.
Conners added, “No amount of spin can reverse the district attorney’s demonstrated disregard of the rules, procedures and laws reference in this audit. The audit speaks for itself as does the district attorney’s practices that violate the law, the state comptroller’s opinion, the acting county attorney’s opinion and outside counsel’s opinion”, all of which are included in the final audit. http://www.albanycounty.com/departments/comptroller/pdf/20081014-DA-audit.pdf
Legal opinions supporting the findings of the final audit were provided by acting County Attorney Craig Denning, The Office of the New York State Comptroller in Opinion 95-8 and Ray Kelly, an attorney who is a criminal law expert, former assistant district attorney, assistant public defender, defense attorney in capital murder cases and former adjunct professor at Albany Law School. http://www.osc.state.ny.us/legal/1995/legalop/op95-8.htm
Kelly’s analysis of the State Forfeiture Statute, its applicability to the DA’s use of state forfeiture funds and the standing of the NYS Comptroller’s Office Opinion Letter 95-08 was obtained in the initial stages of the audit process. Mr. Kelly states in the conclusion of his Aug. 14, 2008 opinion letter, “All forfeiture moneys must be remitted to the County Department of Management and Budget. No forfeiture funds may be utilized for any purpose (no matter how laudable) other than for the investigation, prosecution of Penal Law offenses.”
Denning added in a follow up email to an Aug. 8 meeting, “Opinion 95-8 observes that CPLR Secs.1349(2)(h)(i) and (ii) expressly provide that forfeiture funds “are to be used for law enforcement purposes in the investigation of penal law offenses or for the prosecution of penal law offenses.” The opinion interprets those sections stating: “Youth programs and similar expenditures, although they may be indirectly and generally associated with law enforcement, do not, in our opinion relate to the investigation or prosecution of penal law offenses.” He concludes, “Agency opinions, although not binding on courts, are considered highly persuasive for purposes of statutory interpretation.”
After Soares failed to respond to the findings earlier this year that there was cash and evidence missing from his office, Conners issued the interim audit.
Conners had suggested that Soares consider the appointment of a special district attorney to investigate due to the obvious conflict of interest with the DA’s office.
At a meeting with the county comptroller’s office on Sept. 2, Soares reportedly agreed to reach out to Harry Corbitt, superintendent of the New York State Police, for an investigation into the missing cash and evidence bags from the safe and the “box” noted in the OSC report of 2005.
Conners says that as of Sept. 11, in a conversation with First Deputy Perez of the New York State Police, it was revealed that Soares or his staff had not approached the State Police on the matter and apparently still have not.
On this same date, the Albany County Comptroller called Attorney General Andrew Cuomo to discuss concerns over the missing evidence and cash. Conners and his staff familiar with the audit, met with members of the Attorney General’s staff to discuss concerns about the missing cash and evidence bags.
With the issuance of the final audit, it is expected that Cuomo’s staff will open an investigation into the matter.
Conners says he’s still waiting for a response from Soares in regard to his office’s handling of the agency’s credit cards, including what Conners says was the improper use of the procurement cards on Sept. 2 to order lunch for the 2 ½ hour meeting when he promised to contact the State Police, not only in regard to the missing cash and evidence, but the possibility of a member of his staff allegedly causing a false instrument to be filed with a municipality.
Conners has reminded Soares that he has not received any response about the previous discussion held about the alleged misuse of the procurement cards. Conners reminded Soares that he had repeated his concern in their conversation of Oct. 8.
“As you may remember, I suggested either Friday Oct. 10 or Tuesday the 14 as the two dates for this meeting. I offered to not be present at this meeting if that created any problems for the DA”, Conners told Soares in an email. But neither Soares nor anyone from his office chose to discuss the procurement card issue with Conners prior to the release of the final audit on Tuesday.
http://www.northcountrygazette.org/2008/10/08/missing_funds-2/
http://www.northcountrygazette.org/2008/10/09/soares_probe/
http://www.northcountrygazette.org/2008/10/10/phony_prosecutor/ 10-15-08
EDITOR’S NOTE: Also see http://www.mesomorphosis.com/blog/2008/10/17/brendan-lyons-and-chris-dallessandro-campaign-for-david-soares/
Category: Courts, Crime, Government, New York State, Police, Politics
- Add this post to
- Del.icio.us -
- Meneame -
- Digg
COPYRIGHT 2009 - NORTH COUNTRY GAZETTE All rights reserved. This material may not be published, broadcast, rewritten or redistributed without the express written permission of the publisher.
