Delaware County Board Chairman Eisel is satisfied with 30-year no-bid automatically renewed contracts to his friends

I continue to publish records provided by NYS Comptroller regarding audit of no-bid contracts in Delaware County (NY).

Here is the interview with the Board of Supervisors James Eisel.

Eisel stated that contracts in Delaware County bypass public bidding and are "renewed based on the fact that historically, the vendor has been providing that service in a satisfactory fashion to the County".

Just how satisfactory is the "fashion", can be demonstrated by the number of supervisors on the board of directors of the largest "vendor" of Delaware County, the non-profit Delaware Opportunities, Inc., and by the statement of Marjorie Miller that at least two contracts she knows of were awarded without bidding to Eisel's personal friends - the coroner (at an inflated price) and an unnamed friend who leased the Treadwell school building.

Eisel was "not aware of fraud or abuse".

At the same time, Eisel blocked my FOIL request for this very same information that I am publishing now, so I had to obtain it from another source, the New York State Comptroller's office.

Of course, the person who is involved, neck-deep, in the fraud and abuse, will not see it if it is screaming in his face. 

Since, according to the same records, Delaware County employees (including its Assistant County Attorney Carl Becker) did not provide conflict-of-interest disclosures nor filed financial statements for public review, for all the years when no-bid contracts were awarded and automatically renewed, the claim of Eisel and other supervisors that there is no "fraud or abuse" involved, are unverifiable until and unless such statements are collected and an investigation going back 30 years is conducted.

Delaware County attorney Porter Kirkwood does not review all county contracts

I have been covering information provided to me as to the audit of Delaware County no-bid contracts by the New York State Comptroller's office (after the Delaware County stalled by FOIL request of the same information).

You can read my previous posts analyzing the information I received from the Comptroller's office here, here, here, here and here.




Here is the NYS Comptroller's office's report about the interview of the auditor with Porter Kirkwood.

Kirkwood apparently reviews only the contracts that are "given to him" "by respective department heads", and only for "legal format, language, etc.".

That means that Kirkwood does not direct the county "request-for-proposals" process, advertising for public bidding, or decisions of the county whether to submit contracts for public bidding, which are all duties of a county attorney.

The report indicates that Kirkwood "is not reviewing all the contracts of the County".

Yet, the very first thing when he was selected County Attorney was that Kirkwood did is he asked for a $40,000 raise from his $96,000 salary.

The question is - if Kirkwood does not know how to do his job, why should he be paid anything at all out of taxpayers' pocket?

The hand-me-down confidential law clerk of the new Delaware County Judge Richard Northrup

Two new judges took their positions in Delaware County, New York as of January 1, 2015:

1. Delaware County Family Court Judge Gary Rosa, with his law clerk Nancy Deming, a continued member of "judicial selection" committee that vetted Gary Rosa; and
2. Delaware County Judge Richard Northrup, former Delaware County District Attorney of many years, with a hand-me-down law clerk Lauren Clark who "served" the hastily-retired judge Carl Becker, known for his legendary misconduct.

  
Usually judges come to the bench with their own confidential law clerks selected - like Judge Rosa did with Nancy Deming.

The fact that Judge Becker's former law clerk Lauren Clark was "selected" as a confidential law clerk by the newly elected Judge Northrup suggests that Judge Northrup formed the confidential relationship with the law clerk during her clerkship for Becker.  While Northrup was engaged in ex parte communication with her as the County judge's law clerk.

Given Northrup's and Becker's record of self-service and corruption, nothing surprises me about either one of them.

A "historic" fraudulent election of a black woman to the New York Supreme Court bench is cheered on by those who should have reported and disbarred her

On December 31, 2015, Christina Ryba, an attorney who worked for the Chief Judge of Appellate Division 3rd Department and was fired for unethical conduct in her election campaign, was sworn in as a State Supreme Court Justice.

Ryba's election was heralded as a "historic" election of a judge of color.  

The swearing-in ceremony was led by the recently-retired magistrate from the U.S. District Court for the Northern District of New York Randolph Treece (retired to give way to a member of judicial tribe Daniel Stewart, "godson" of a judge, selected through fraudulent selection process, and in an obvious reward for selecting a sitting Chief Magistrate of that same court David Peebles).

Randolph Treece could not have missed the scandal associated with election of Christina Ryba or the stop-gap job for 6 weeks preceding her swearing-in as a judge, offered by Chief Administrative Judge Michael Coccoma to Ryba as a consolation for her firing by the 3rd Department for unethical conduct - a firing that was strategically done so that not to prevent election of Ryba to the bench.

Nor did Judge Peters refer the employee she fired for unethical conduct to the disciplinary panel of her court. 

There were protests earlier in November of 2015 by GOP leaders claiming that

Apparently, for Treece, the most important factor in heralding the fraudulent election of Ryba as a historic event was Ryba's skin color - same color as Treece's. 

And that is - when attorney Treece, licensed in the State of New York, had a duty to report Ryba to disciplinary authorities rather than to herald her elevation to the bench - through fraud and unethical conduct.

At this time, the fraudster Christina Ryba who should have been disbarred instead of sworn to the bench, will "earn" - or rather take from taxpayers $167,700 a year,  with benefits for self and family, which will likely soon be enhanced to $193,000 a year due to the recent judicial pay raises suggested by representatives of business interests sitting as a "judicial pay raise panel".

Christina Ryba's swearing-in to the bench does a disservice to New York black community and to the legal and judicial community, for several reasons:

1) it raises an issue whether the "first black female judge" could be elected without fraud and unethical conduct;

2) it raises an issue whether a democratic judicial candidate can win an election without committing fraud upon voters;

3) it raises a real question about the value of attorney licensing and discipline when Ryba retained her license and her judgeship after what she did - and was fired from the licensing court for what she did, but was not referred to the disciplinary panel and not disbarred;

4) it raises and issue whether Ryba's oath of office is valid, in view of her violation of her oath of office as an attorney for her own personal gain during elections;

5) it raises the issue of Ryba's ability to rule impartially and without corruption or personal gain for the 14 years of her term on the bench, putting validity of each and every decision she makes into question;

6)  it raises the issue whether there is equal protection of laws in New York state where an unethical attorney fired for unethical conduct and fraud upon voters during election campaign is sworn onto the bench - with much fanfare and claims of a "historical" moment.

We do not need such historical moments in New York or in this country.

Judges, whatever their skin color and whatever their gender, should, first and foremost, be honest.

Christina Ryba is not.

Sexual abuse of chlidren by the government, sex-offender-loving 2nd Circuit and Porter Kirkwood's voyeuristic exercises on captive children

I wrote extensively on this blog about "experimental treatment" program invented by Delaware County Attorney Porter Kirkwood (according to his own admission during his failed election bid for a Family Court judge) to treat so-called "juvenile sex offenders" - a non-existent class, by the way, because a "sex offender" means in New York a person convicted of a sex offense, and juvenile delinquency proceedings are civil in nature and do not lead to convictions for a sex offense, or to sex offender registration.

Thus, treatment of children who have never been convicted of a sex offense is illegal experimentation on human subjects.

Moreover, I wrote about the use of plethysmography by Kirkwood's chosen "expert" in the field of "sex offender treatment", the now-late Dr. Richard Hamill, see blogposts here, here, here and here.

I have an experience where a person (my husband's client) who was not convicted of a sex offense, was sent to jail for 4 years by the now Chief Administrative Judge for upstate New York Michael Coccoma, the rescuer of pretty-face corrupt judges or judicial candidates. 

When I was admitted to the bar and while that person was still in jail, he was held in child neglect (around 2010) for failure to comply with Dr. Hamill requirements for a sex offender evaluation (illegal, because the person was not a convicted sex offender) that included plethysmography (a "penile lie detector"), at the price tag of $600 - which our indigent client, obviously, did not have.

I recently found a legal blog describing a case decided by the U.S. Court of Appeals for the 2nd Circuit, a court, which has a policy to rubber-stamp dismissals of civil rights appeals by summary orders, but dedicated a full-blown opinion to a father who engaged in making pictures of his nude daughter "for her modeling career", convicted of a sex offense, convicted of failure to register as a sex offender, and sentenced, as part of post-release supervision, to sex offender treatment that included plethysmography evaluation.

The blog is well-written and funny (even though constitutional violations involved are definitely not funny).

By the way, I found the blog because I was researching background of the 2nd Circuit federal appellate judge, B.D. Parker, who refused to provide a full appellate review (required by law) of my husband's civil rights appeal.  A judge held a soft spot in his heart for sex offenders, giving a sex offender a full opinion on appeal while denying civil rights appeals the right to full statutory appellate review.

According to sex offender-sympathizing 2nd Circuit, subjecting individuals to plethysmography, even when they are convicted sex offenders, is a violation of their substantive due process.

Yet, New York continues to use the technique, and Porter Kirkwood happily announced to the public that the user of that technique was invited to "design" a program of "sex offender treatment" to non-sex offender captive children in foster care in Delaware County, as described in the blogs interlinked above.

If the use of plethysmography is unconstitutional with convicted sex offenders, holding a non-sex offender in child neglect for refusing to submit to that stuff, and sending a person to jail for 4 years for refusing to submit to that stuff, is definitely unconstitutional.

As is submitting children to this voyeuristic procedure that involves criminal sexual abuse of children.

Since Kirkwood was so proud of the program as recently as in November of 2015, most likely, the "program" of sexual child abuse by Delaware County of children in foster care continues at this time.

At taxpayers' expense.

And, Kirkwood is not the only one who is engaged, at taxpayers' expense, in sex abuse of children, in subjecting children to what the court has ruled is an unconstitutional practice even with convicted adult sex offenders.

Look at the "research" done on 132 "adolescent sex offenders" (children!) pre-"treatment" and post-"treatment".

Here are some portions from the decision of the 2nd Circuit.

Good for sex offenders that three male judges took to heart the sex offenders' humiliation in "having the size and rigidity of their penis measured".   Senior-age and senior-status male judges like the ones who decided the case could clearly identify with such a humiliation.  

To the point of thinking that the use of plethysmography is more important an issue to dedicate more time to it in a full-opinion appellate decision than civil rights appeals affirmed left and right by the same judges through "summary orders", without any review of facts or law. 

Apparently, judges in the 2nd Circuit choose cases for full opinions for their entertaining qualities?

And - two years after the 2nd Circuit has declared the practice unconstitutional, it is still used for adult sex offenders, and for sexual abuse by the government of captive children.

 

 

 

The U.S. (federal) court system is posed to work faster - not fairer

Every person coming to court has fundamental constitutional rights.

As a minimum - to due process of law, equal protection of law, impartial adjudication and to, generally, access to courts.

To ensure that, there should be enough judges and enough court personnel.

The U.S. justice system is suffering from large caseloads and insufficient number of judges for decades.

While population grows, both from births and from immigration, while the government is increasingly immune from anything wrong it is doing, while government's misconduct is increasingly exposed through the Internet, one can reasonably expect that civil rights filings would be on the rise.

Yet, according to the end-of-year report of the U.S. Chief Justice Roberts, civil filings in federal courts (majority of which are civil rights filings) actually declined 6%, a very significant drop, in the year 2014, which is a tendency that cannot be reasonably explained by the U.S. demographics or by statistics of governmental misconduct and its exposure in the social media (mainstream media usually takes the back seat in such exposures and joins in only when misconduct results in a great public scandal, such as criminal charges and/or conviction for corruption.

But, that tendency can be reasonably explained by the following:

1) declining economy and rising filing fees;
2) dismissals by federal courts of majority of civil rights lawsuits based on judge-created (unlawful) restrictions to federal courts' jurisdictions;
3) increasing imposition of sanctions by federal courts upon civil rights plaintiffs and their attorneys for the contents of their constitutional arguments/ civil rights actions;
4) increasing use of "summary orders" decided, most often against civil rights appellants, without thorough review and analysis of facts or legal issues by senior-age and senior-status judges.

The number of federal judges does not grow for years and decades, while caseloads do grow.

9 judges of the U.S. Supreme Court continue to decide the ever-growing caseload, where in 2014 out of over 7,000 filed petitions the U.S. Supreme Court reviewed and decided only 75, that is 1%.

With such a percentage of petitions chosen by the court for review, it cannot be said that judicial review by the U.S. Supreme Court exists, and the struggle to get through the bottleneck of selection for review may lead to rampant corruption, as with any scarse and valuable resource.

By the way, there is no information in Judge Roberts' report about judicial corruption in the federal judiciary or measures undertaken by the courts to fight it within themselves.

Yet, corruption in the judiciary, both state and federal, is an increasing problem in this country, and has been for a while.  

Yet, while the corruption becomes a systemic problem, and is rooted in judicial immunity/impunity, inadequate number of judges, control by the judiciary of the legal profession, monopoly of the legal profession over court representation and inability of majority of Americans to afford an attorney, the government undertakes no systemic efforts to fight that corruption. 

Instead of fighting corruption and increasing the number of judges so that meritorious cases are not tossed out simply to control growing caseloads, courts invent ways to control caseloads by simply chilling and thus eliminating the most frequent type of civil filings - civil rights cases, and Judge Roberts' report announced of yet one more of such efforts, the "new" discovery rules.

The majority of federal civil cases are civil rights cases (there are only two bases of civil jurisdiction in federal courts - federal question and diversity, diversity comprising, reportedly, only 14% of federal cases).

Only 3% of civil rights cases concluded by trial in 2003, a decline of 5% from 1990.

Percentage of dismissed civil rights cases increased from 66% in 1990 to 75% in 2003, that is, 12 years ago, a 9 % increase.  So, only 1 in 4 cases in the U.S. survives and proceeds to discovery, and that is a 2003 number, which may be considerably worse at this time.

At the same time, from 1990 to 2000 the U.S. experienced a 13.4% growth in population, which would require a proportionate adjustment of court personnel dealing with civil rights litigation.

Yet, adjustment in numbers of judges and court personnel to help judges handle caseloads did not happen, which led judges to simply cut corners and invent "rules" that would allow them to toss more civil rights cases.

Very few federal civil rights cases even get to the point of discovery.  

Most of them are dismissed before discovery is ever reached, even though governmental abuses and corrupt conspiracies are fact-specific cases where information is within absolute control of governmental defendants, and such cases heavily rely on discovery process.

To get rid of even those civil rights cases that survived motions to dismiss or for a "judgment on the pleadings", federal courts introduced, and the U.S. Congress endorsed without critical review, a new "fast-paced" discovery rules that Judge Roberts describes in his report as shown below, rules that give more "discretion" to judges in what the jury will and will not see and as to how fast the discovery process proceeds, and rules that require an early "face-to-face" conference with judges and lawyers.

 Of course, once again, the majority of cases in federal courts are civil rights cases.

The majority of civil rights plaintiffs are unrepresented because they cannot afford a lawyer and because, due to the recent tendency of federal courts to sanction civil rights lawyers for the contents of their constitutional arguments, lawyers are deathly afraid of taking a civil rights case, or especially proceeding with it to trial.

Federal rules require that civil rights cases are filed where the state defendants reside or have their place of business.

Thus, the immediate "face-to-face" conference requirement disproportionately affects out-of-state and pro se plaintiffs by imposing on them unnecessary costs of inter-state travel in order to discuss with a judge what can be discussed on the phone or in a "face-to-face" video-conference.

While the new rules were touted by Chief Judge Roberts as a measure to fight the alleged "gamesmanship" of lawyers, such rules are very obviously targeting civil rights cases, since it is civil rights plaintiffs whose cases are the most numerous in federal courts and it is civil rights plaintiffs who most depend on discovery from the government.

Moreover, 7th Amendment of the U.S. Constitution requires a trial by jury of all cases where claimed damages exceed $20.00, and most civil rights actions exceed that amount, where the filing fees are close to or exceed in various federal district court 20 times that amount ($400.00).

If the jury is to hear trial of civil rights cases, it is reasonable to expect that the jury should have access to full amount of information, to be obtained through discovery, to make their determination.

Under such circumstances, allowing judges, through the new rules, wide discretion to control discovery and thus, introduction of evidence to the jury, further affects civil rights' plaintiffs right to ever have a fair jury trial.

It is clear that rules are introduced to more "effectively" and more cheaply - dispose of civil rights cases, because of "crushing caseloads":

It is also apparent from the fact that new rules even had to be introduced that not all federal judges were in agreement that their aggressive management of discovery is needed.

In fact, aggressive management of discovery takes MORE judicial resources, not less, since discovery left between lawyers most often does not require any judicial intervention and any judicial resources at all.

So, the claim that federal judges need to more aggressively manage discovery to help their "crushing dockets", is a false claim.  Allowing discovery to proceed, like it does in state court, without assignment of a judge, often for years, will actually save a lot of judicial resources.  On the other hand, the increase in aggressive management of discovery by the court indicates that courts increasingly want to get rid of civil rights cases - and that tendency is contrary to the court's designated role of an impartial adjudicator, not an advocate for a certain mission (such as caseload control and saving money for the government).

Given all of the above restrictions designed to affect civil rights litigation directly or disproportionately, as described above, the doors of federal courthouses are close to be completely shut for civil rights plaintiffs, and the Civil Rights Act increasingly becomes legal fiction which exists and claims providing remedies for violations of constitutional rights by the government, yet, in practice does not do so.  

Failure to provide effective legal remedies to redress fundamental injuries to people can rapidly lead to growing corruption (because the only realistic way to at least somehow escape the effect of corruption is to join the corrupt organization and participate in the corrupt bounty) and to growing social unrest (for those who cannot or would not participate in corruption).

Neither of such tendencies are good for the U.S.

Let's remember that the overwhelming "immunities", court-created restrictions on civil rights litigation and court sanctions against civil rights litigants that are at the core of chilling civil rights litigation in the U.S. date back to the increase of that same civil rights litigation in the 1960s and 1970s and did not exist before that time.

While courts continue to fight civil rights litigation, now with "new" rules, the only way to fight those efforts is to speak out and to actively demand from our representatives in U.S. Congress to take a more active role to control judicial corruption and unlawful judicially created restrictions to civil rights litigation.  





  

Lippman's clumsy attempts to address fundamental unconstitutionality of New York UPL statutes and attorney licensing in his "new" attorney disciplinary rules

As I stated in my previous blogs yesterday and today, New York State Chief Judge Jonathan Lippman, on the eve of his mandatory retirement that will happen tomorrow, continues to fight several civil rights lawsuits, one of them is an appeal and a motion to vacate in Neroni v Zayas, a civil rights lawsuit that I started on behalf of my husband and that is challenging several issues of constitutionality of attorney disciplinary system in New York.

As part of the lawsuit, Lippman fights, among other issues, these two:

1) an equal protection challenge requesting to declare that attorney disciplinary proceedings in New York are administrative and not judicial in nature and that New York violates attorneys' equal protection of laws by not providing to them ANY right of judicial review of those administrative proceedings, such as the State of New York provides to holders of other occupational licenses;

2) a challenge to New York criminal unauthorized practice of law (UPL) statutes and attorney regulation scheme as a whole on the basis of the state's failure to provide a clear definition as to what the practice of law is - essentially, the claim is that, if the State of New York does not know what the heck the practice of law is, it cannot regulate the practice of law or impose criminal liability for unauthorized practice of law.  

In fact, not only New York, but other states, too, struggle with definition of what the practice of law is, and decide what it is on an "ad hoc" (case-by-case) basis, with notice to criminal defendants provided backwards by the court instead of forwards by the legislature through a statute.  

It is obvious that such UPL statutes and attorney regulation of what is not defined are a violation of ex post facto laws prohibited by the U.S. Constitution that every judge and every lawyer is sworn to uphold.

You can read an interesting piece on the manipulation of UPL laws in different states here.

Lippman reflected his strife in Neroni v Zayas in his new attorney disciplinary rules as to these two issues in the following way:

1) he claimed (without authority, since such authority belongs to the Legislature and not to the Chief Judge) that attorney disciplinary proceedings are "special proceedings" (meaning special COURT proceedings) within the meaning of Article 4 of the CPLR - but then did not allow CPLR to apply to disclosure in such proceedings, as it applies to all other "special court proceedings", and introduced a new pleading for the goverment, a "reply";

 

Note Lippman's creativity in inventing a "reply".

For example, a Family Court case is a "special proceeding" within the meaning of CPLR Article 4.  

No "replies" are allowed in such proceedings to be filed by the government, nor in any other "special court proceedings" filed against the government.

A "reply" is allowed under the CPLR in MOTION practice, not in initiating pleadings for a case.

Lippman should not have paraded his incompetence as part of new attorney disciplinary rules, although he, of course, can claim incompetence as of his legacy, that would be true.

The usual three sets of initiating pleadings in court proceedings in New York (and not in special proceedings!) are:

1.  Plaintiff's complaint;
2. Defendant's answer AND COUNTERCLAIM if the Defendant so desires;
3. the Plaintiff's reply to Defendant's counterclaim

In attorney disciplinary proceedings that are commenced by the arm of a licensing agency (even if the licensing agency is a court, it still discharges executive functions of a licensing agency, and therefore, attorney disciplinary proceedings are administrative and not judicial in nature) against an attorney, there is no right of a counterclaim, and thus, there should be no right for a reply.

Yet, Lippman invented such a right for disciplinary prosecutors, while all the way claiming that such proceedings are somehow under Article 4 of the CPLR.  You cannot find anything like that in Article 4 of the CPLR.

2)  As to UPL prohibitions, Lippman included into the new rules this fantastic text:

 

Yes, the practice of law is regulated in New York not by one statute, but by four criminal statutes, none of which provides a definition of what the practice of law, legal services or business of a lawyer is.

Here they are:

Judiciary Law 478 - prohibition of the practice of law without registraton and licensing; registration and licensing procedure are defined in the statute, practice of law or what constitutes "legal services" are not defined;

Judiciary Law 479 - criminal prohibition on solicitation of business for a lawyer; what constitutes that business and what constitutes legal services or the practice of law, is not defined

Judiciary Law 484 - prohibition for natural persons to practice law other than on their own behalf;  practice of law or legal services are not defined either;

Judiciary Law 486 - prohibition of "acts forbidden by this article" without defining what the practice of law, legal services, or doing business as a lawyer is

 

So, the new rules prohibit to disbarred and suspended attorneys this quadruple legislative blunder giving people absolutely no notice of prohibited conduct.

The practice of law in New York, as well as unauthorized practice of law is like obscenity - "you know it when you see it".

That is not how criminal statutes, and regulatory scheme based on such statutes, are supposed to operate, that much must be known even to 1st year law students.

So, Lippman leaves a lasting evidence of incompetence, self-service and corruption.   People of the State of New York could expect nothing else from Lippman. 

Yet, the two elephants in the room, issues of fundamental unconstitutionality of New York UPL statutes and attorney licensing system, that Lippman tried to so clumsily address in the "new" attorney disciplinary rules, remain open.