This is what prosecutors do in attorney disciplinary proceedings - they claim they are part of an executive branch to defeat constitutional challenges to the propriety of the proceeding and they claim they are part of judicial branch to protect themselves from disclosure of public records that may get them fired.
Normally, a prosecutor is a representative of an executive branch of the government.
In a valid court proceeding, a neutral prosecutor, an executive officer elected by the people, who is independent of the court, makes decisions whether to investigate or prosecute a case, investigates and prosecutes cases.
In attorney disciplinary proceedings, the disciplinary committee constitutes, as I already wrote on this blog, of unpaid "volunteers", attorneys in private practice, private competitors of the disciplined attorney.
The attorneys representing these unpaid volunteers are paid by the state.
Seethroughny.net shows that the prosecutor that is currently prosecuting my disciplinary case, Mary Gasparini, is paid as part of the judiciary, had a rate of pay in 2013 of $98,692.00 and was actually paid in 2013 $101,114.
This hefty payment came out of your pockets, New York taxpayers, so I, as a taxpayer, I became very interested when Ms. Gasparini asked a referee to adjourn a conference date because Ms. Gasparini was scheduled on the proposed date of the conference to speak at a CLE (continued legal education) seminar.
As far as I know, public speeches at privately held seminars for which attorneys pay through their noses, are not part of "duties" of prosecutors, so I filed a Freedom of Information Request with the disciplinary Committee seeking timesheets of Ms. Gasparini on the day of a prior CLE seminar where she "spoke". I was interested how can a public prosecutor appear at such seminars on her state-paid time.
Actually, I was very interested in those time-sheets of Mary Gasparini because two of the prior prosecutors of the case, Steven D. Zayas and Peter Torncello, "resigned amid investigation" into allegedly filing false time-sheets.
So, I filed a FOIL request:
My first answer was an irate "Second Reply Affirmation" claiming that I am trying to "thwart" the disciplinary proceeding any way I can.
I guess, raising constitutional issues, including obvious issues of disqualification of a referee, in a timely filed motion to vacate, renew and reargue and based on documentary evidence and proper legal authorities is considered "thwarting" disciplinary proceedings. So much for a neutral and impartial prosecutor.
In her "Second Reply Affirmation", under oath, Mary Gasparini:
(1) acknowledged that she did ask the referee (whom she called a "judge") for an adjournment because of her appearance to speak at a CLE seminar;
(2) claimed (without supporting documents) that she is not compensated for speaking at the CLE seminars; and
(3) claimed that speaking at CLE seminars (during business hours as a prosecutor and while obviously delaying proceedings that she is prosecuting) is somehow part of Ms. Gasparini's "duty".
I cannot verify truthfulness of Mary Gasparini's first statement that she is not compensated for speaking at the CLE seminars, but she is, in fact, compensated, by the taxpayers, for speaking at CLE seminars while doing nothing as to her direct duty of prosecuting cases.
Also, while Ms. Gasparini's statement is unverifiable, or, at least, she has failed to provide documents from the CLE provider confirming that she is not being compensated for her "speaking" at CLE seminars, copies of recordings from that seminar, including Ms. Gasparini's speech, are being sold as online access and as CDs. I wonder if Ms. Gasparini is not compensated for sales of those either.
My second answer was a response from Ms. Gasparini's boss, attorney Gregory J. Huether.
Mr. Heuther claimed that the Committee is an "auxiliary of the court", therefore, it is part of the judiciary and cannot be reached by FOIL.
In fact, when denying my FOIL request about policies, time-sheets and paychecks, Mr. Huether, a seasoned attorney, had to know he is violating the FOIL law and the policy New York State Court Administration, distinguishing between "administrative" records (reachable by FOIL) and court records (not reachable by FOIL, but reachable under Judiciary Law 255).
I guess, even when trying to prosecute an attorney for allegedly frivolous conduct, the disciplinary prosecutors do not feel beneath them to engage in frivolous conduct themselves - when it suits to protect their own personal interests and careers.
Time-sheets of a public employee, whether that is an employee of a court or of an executive agency, are administrative records reachable by FOIL.
When prosecutors try to pretend that they are not part of the court when I challenge constitutionality of disciplinary proceedings under the "judge-advocate rule" and that they are part of the court when they want to protect themselves by stonewalling my access to public records, their own time-sheets that can potentially lead to their "resignation", as it did with Mr. Zayas and Mr. Torncello, that is called prosecutorial misconduct.
Yet, there is no hope that disciplinary prosecutors will at any time be disciplined for that misconduct, because who is going to discipline them - themselves or the court that they are "the auxiliary" of?
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