I’ve previously posted about the Long Island school district  scandal surrounding lawyerswho were carried as full time employees on various district’s books in order to receive state pensions.  The mess continued yesterday and has exploded with Attorney General Cuomo’s announcement that this was fraud.  State Comptroller Tom DiNapoli has  announced rules to stop this from happening in the future.

I had a long chat with an elected official friend of mine about this.  We both agreed that some of the lawyers involved simply took advantage of a long-standing perk of the job.  They weren’t malevolent about it.  In fact, it’s unlikely that they gave it any thought at all.  It was just what school district attorneys did.  And they were wrong, and what they did was to enjoy perks to which they were never entitled, at the expense of the taxpayer.

Of course, some of the lawyers may have known full well that what they were doing was wrong. 

Albany’s response, like Newsday’s sensationalism, is naturally directed at the symptom rather than the disease.  My friend and I agreed that while the focus was on the surface of the problem, it misdirected attention away from the cause.  This means that the problem will continue in other areas unabated, until a decade from now another scandal erupts and everyone points fingers again. 

I’m not so arrogant as to believe that no one in Albany has figured this out.  They just realize that more play is gained by putting out fires then disrupting the machinery of government by fixing what’s broken. 

This brought my friend and I to the point of questioning what these attorneys, the ones who practiced “municipal government” law, actually brought to the table.  If this was there specialty, why didn’t they know that what “everybody did” was wrong?  What else were they wrong about?  Why have them if they can’t be trusted?

My elected official friend is one of the good guys.  He wants nothing for himself, and truly believes in trying to help make things better for everyone.  He’s such a Pollyanna.  But he’s not a lawyer, and realizes that local governments depend heavily on their legal counsel for advice.  This scandal reflects a fundamental failure of legal counsel to fulfill their function, and simultaneously a fundamental failure of elected officials to be capable of performing their function because of their need to rely on their legal counsel.

In other words, this is a system that is doomed to sanction fraud, abuse, corruption and error, because it lacks any mechanism to know when it’s happening.  The non-lawyers desperately want to be able to rely 100% on their legal counsel, so that they can press forward in reliance on their advice.  They are incapable of challenging or questioning the legal advice, and are thus captives to the word of a single lawyer.

This is hardly a new problem.  In fact, State Comptroller DiNapoli, who started his political career at 18 on the Mineola School Board, approved putting the lawyer on as full-time employee back in the 1970s.

“It was a school board vote taken 32 years ago, based on information the members had before them,” said Dennis Tompkins. “You can’t cast a blanket over every school attorney — that every one is guilty of fraud or trying to game the system. Each one has to be looked at on a case-by-case basis. At the time he took the vote, he thought it was proper.”

“Mr. DiNapoli moved that the board appoint Henry Weinstein as school district attorney for the school year 1976-77 at an annual salary of $7,000 for all legal services to be rendered, with N.Y.S. Employees Retirement and Social Security benefits and with an expense allowance not to exceed $500,” the minutes read.

Tom DiNapoli was taken in like they still are today.  No one would attribute criminal intent to his vote, and yet it might have landed him on the front page of Newsday with the word “fraud” across his face. 

Municipal attorneys make a million decisions, small and large, that guide a public authority in its conduct.  These ultimately dictate major policy decisions, and impact on the lives of residents and taxpayers in ways they will never know.  In school districts, it toys with the lives of students and teachers.  In every municipality, it is a critical factor for taxpayers, who pay the price of decisions, good and bad. 

In many districts, the attorneys wield far more power than any elected official.  By the mere shake of a head, they can “authorize” conduct that is flagrantly illegal, and the elected officials will then happily engage in a corrupt practice because the attorney said they could.  These practices then become embedded in the institutional history of the municipality, and are perpetuated until the day comes when a scandal breaks out.  If that day ever comes.  In the meantime, everyone suffers for the corruption. 

The problem has long been clear to me.  One attorney, hired by a municipality to be the legal pontiff whose mere word makes everything right or wrong, is an invitation to abuse and corruption.  Sure, there is always an Article 78 proceeding to challenge the municipality’s action, but rarely does this happen as the impact is broad-based and no one is individually harmed sufficiently to be worth the price of a lawsuit.  Also, rarely does anyone know what happens in this mini-enclaves until long afterward, if ever.  Outsiders aren’t often watching, as they are home with their families trying to enjoy what little free time they have left.

So my elected official friend asked me, “Okay, so assuming that’s the problem, what’s the answer?”  Discussing the limitations of lawyers was a frustrating experience.  Not because he didn’t get it.  He did.  But because it was all so very vague and generally unhelpful. 

There are some things that most lawyers agree upon, and other things that are merely educated guesses, and other things that are simply wrong coming out of the lawyer’s mouth.  The lawyer’s loyalty is inherently divided: He wants to keep the gig, so he’s compelled to help the municipality achieve its goals, even when they may be questionable.  Many elected officials have their own corruption issues, believing that they are above the law, and want their lawyer to be mini-John Yoos, approving torture if they want to keep their job.

My friend inquired, how is he, a non-lawyer, supposed to distinguish the things lawyers know from the guesses?  How is he, a non-lawyer, supposed to know when the lawyer is lying through his teeth to appease his master by approving corrupt practices?  How is he, a non-lawyer, supposed to move forward to fulfill his duty when he can no longer rely on legal counsel?

Aside from the routine explanations that law is more art than science; that lawyers whose opinions are unchallenged are often inclined to give unreliable advice. This problem is pervasive and inherent in the single-lawyer reliance of municipalities.  But small governmental units can’t afford a groups of lawyers to keep an eye on each other, to challenge each other, to provide all sides of a position.  Nor would these units ever accomplish anything if the lawyers were left to argue amongst themselves forever.

And so Albany will pretend that the problem is with a handful of school district lawyers who have defrauded the public.  And will turn a blind eye to a system that breeds corruption and abuse at a huge cost to taxpayers, both in the actual dollars spent as well as the failure to deliver the quality and nature of services that justifies their existence.  This is a huge mess, and disease remains virulent.