ALBANY, N.Y. – A lawyer appointed by the governor has determined there is enough evidence to remove Comptroller Alan Hevesi from office for using a state employee to chauffeur his wife, another blow to Hevesi's already battered re-election campaign.
However, the lawyer, former U.S. attorney David Kelley, told Gov. George Pataki in a report issued Saturday that he was not "in a position to advise you at this time to proceed with a recommendation for removal."
The state Ethics Commission determined last week that Hevesi, the state's financial watchdog, had violated the law when he used a staffer to drive for his wife. Hevesi claimed the driver was needed to provide security for his wife, but the bipartisan commission said state police found no threat that justified the arrangement.
"Considering the record as a whole, I believe there is a preponderance of evidence that the comptroller knowingly and intentionally violated New York's public officers law," Kelley said in his 24-page report to Pataki.
Kelley said any likely violations of state law were civil rather than criminal.
The ethics panel said Hevesi apparently had no intention of repaying the state for the three years of service until after his Republican opponent, J. Christopher Callaghan, went public with a complaint.
Following Callaghan's complaint, Hevesi paid the state almost $83,000, but the commission said that was likely too little and on Friday Hevesi was ordered to pay an additional $90,000.
Hevesi, running for a second four-year term as the state's chief financial officer and trustee of its $140 billion pension fund, has said the voters should decide if he remains in office, not politicians.
"The governor's special counsel declined to recommend removal," Hevesi spokesman David Neustadt said Saturday. "Now 5 million voters can choose their next comptroller based on the records, performance and qualifications of the two candidates."
After the scandal erupted, Hevesi faced calls for his resignation and Eliot Spitzer, the popular white collar-crime fighting attorney general and Democratic front-runner for governor, withdrew support for his one-time ally.
The Hevesi campaign has continued airing a new 15-second TV spot in which the comptroller apologizes.
"I'm a good comptroller who did a dumb thing," Hevesi says in the ad. "If you give me a chance to keep serving you in a job I love, I'll owe you everything and the politicians nothing."
Pataki was still reviewing Kelley's report, said spokesman David Catalfamo. He did not know if Pataki, who was campaigning for Republicans in Delaware on Saturday, would make a decision on whether to recommend removal by the Senate before Tuesday's election.
Kelley said he believed it was "premature" to make a recommendation for removal because it was unclear what burden of proof the Senate would use in a trial. The Senate could use either the "beyond a reasonable doubt" standard used in criminal proceedings, or the less stringent "preponderance of evidence" standard used in civil trials, he said. It would take a two-thirds majority vote by the 62-member chamber to remove Hevesi.
Mark Hansen, a spokesman for Senate Majority Leader Joseph Bruno, said he did not immediately know which standard the Senate would use.
A Siena College poll released Friday showed Hevesi was favored by 39 percent of likely voters and Callaghan by 35 percent. The poll's sampling error margin was 4 percentage points. A mid-October poll by Siena had Hevesi leading Callaghan 52 percent to 25 percent.
A WNBC/Marist College poll also released Friday showed Hevesi maintaining a 48 percent to 36 percent lead over Callaghan with 14 percent undecided.