The Fighting 29th

All about New York's 29th Congressional District

Sanford Dickert, who was fired by the Massa Campaign after a short tenure as campaign manager, has created a website devoted to his legal case.  It contains a huge number of documents, including court filings and supporting information.

Between his site and email conversations with Dickert, I've learned more than I've ever wanted to know about this dispute.  In this post, I'm going to do my honest best to separate out the charges that are relevant to the election from those that are part of the employment dispute.  Based on my review, there are three:

1. Was there illegal activity that Massa knew about and should have reported?
2. Is Massa trying to duck payment of a debt he's contractually obligated to pay?
3. Did Massa commit perjury?

My conclusion:  There's no solid evidence to support any of these claims in the mountain of paper released by Dickert.

Let's begin with a bit about the evidence presented by Dickert.  He provides a number of documents that, to my knowledge, haven't been previously available to the media.  These include the employment contract between him and the Massa Campaign, and the preliminary filings for arbitration between the parties.

There's a wealth of information here, but it's mainly in the form of allegations, not facts.  Dickert includes some emails and campaign literature to support some of his allegations, but he generally points to the affidavits of some of his friends to support his reading of the case.  The Massa campaign has yet to provide most of their side of the story, which I assume would include their affidavits.

In other words, we're at the beginning of a process, this discussion is premature, and the best evidence (except for the contract itself) is he-said/he-said.  With that in mind, let's look at the charges that could be made against Massa that are relevant to his character:

1.  Massa knew about illegal activity he should have reported.

Let's start with some background. Dickert is an adjunct professor at Cooper Union in New York City.  When Dickert was hired by the Massa campaign, he apparently brought one of his former students and that student's friend with him as volunteers for the campaign.  These two were 18 and 19 years old, and they quit the Massa campaign the day Dickert was fired.  While in Corning, the students were housed in an apartment paid for by the campaign (at Dickert's suggestion, and perhaps without Massa's approval, though that's up for dispute).   A third resident of the apartment was another college-age boy, and the fourth was a 25-year-old woman who also worked for the campaign.

In his affidavit, Massa alleges that Dickert provided alcohol for underage drinkers in that apartment.  This charge is based on after-the-fact evidence:  Massa and the landlord apparently found beer and vodka in the apartment after Dickert was fired.  Dickert and the Cooper Union students claim the alcohol was purchased by the 25-year-old.  What's important for this discussion is that the only evidence that Massa had was circumstantial, and it was discovered after Dickert and the students left town.

The second major claim is that Dickert asked Massa's 16-year-old son to stay the night in the guesthouse where Dickert was living.  This charge is the least-well-documented of the whole bunch.  As far as I can tell from my email correspondence with Dickert, this looks like some kind of misunderstanding between Massa and Dickert.  My sense is that Dickert doesn't really understand how touchy parents can be about their teenagers.  But Massa certainly doesn't allege that anything remotely illegal happened between his son and Dickert.

By the way, the newspaper stories don't mention that the 16-year-old was Massa's son, presumably because they don't print the names of minors involved in alleged crimes.  However, it's clear in the now-public documents that Massa's son was the only 16-year-old involved.

Finally, there's the charge that Dickert solicited high-school boys for employment in the campaign.  The affidavits from Dickert's students bear this out.  The dispute is over whether he should have been doing it.  Massa thinks it's illegal and says he specifically instructed Dickert not to do it.  Dickert says it isn't illegal.  The real issue here isn't the supposed illegality: Massa also contends that parents complained about Dickert's solicitations, which of course is poison to a campaign.

In addition to the possibly salacious (but actually fairly tame) allegations, there are a few charges about Dickert's lack of knowledge of Federal Campaign laws, but none of that rises to the level of anything reportable to authorities.

I should note that in my first post, I hadn't seen the documents and assumed that the liquor and 16-year-old story were somehow connected to a party (especially since some damage occurred at the apartment).  That's not true, and I apologize for the error.  The truth is actually less damaging to Massa - something illegal might have happened, but nothing that happened could be credibly reported to the authorities.

2.  Massa's trying to get out of paying an obvious debt.

This brings us to the beginning of this whole mess:  the employment contract.  As an outsider, I have to read it as it stands, without the interpretation that Dickert and Massa attach to it.  I'm not a lawyer, but I've been involved with negotiation of contracts far more complex than this one.  I wouldn't have signed this contract.  There should have been more detail around the termination section, and more discussion of termination in general.

Dickert's position is that the Massa Campaign owes him at least $39,000, plus a $50,000 win bonus if Massa wins the election.  The campaign's position is that they owe Dickert a hell of a lot less than that, that he was terminated for cause, and that fraud is involved, since he misrepresented his resume.

I don't think we need to go into the nitty-gritty detail to determine whether Massa's ducking a bill.  My take is that Dickert gets to $39,000 using some extremely optimistic arithmetic that includes damages that are called for by a state labor law of questionable applicability.  In addition, the $50K is a no-go, because he was terminated for cause, and the contract says that he gets that money only if the termination was without cause.

Common sense doesn't have much place in a legal proceeding, but it does have a place in this discussion, since we're trying to see if Massa is trying to welsh on a debt.  Dickert was employed for about six weeks, and actually worked for a little more than a month, since he took some unpaid leave.  For his work, he expects between $39K and $89K, depending on how the campaign turns out.  Clearly, Dickert didn't work out.  That's got to be at least partially his fault, and his short tenure can't be the key to victory.

A reasonable person would not fork over potentially $89K for one month of work.  This is a legitimate dispute, not a ruse to avoid payment.

3.  Massa committed perjury.

This is the weakest accusation of the bunch.  Massa's affidavit in this case was signed under oath, so if he lied in that document, he's a perjurer.  The supposed evidence for this perjury is that Massa's account differs from three other affidavits filed in the case.

Two of the other affidavits are those of Dickert's student and friend.  They deny a couple of the charges made by Massa, but these two only saw a little bit of the entire picture.  In addition, they're clearly loyal to Dickert, having left the campaign the day he quit.  At best, this is a difference of interpretation, not evidence of perjury.

The other affidavit is by the woman who recommended Dickert to the campaign.  It addresses the issue of Dickert's inexperience.  In my opinion, it's a straw man.  Massa is charging that Dickert lied about leaving the Kerry campaign in 2004.  The affidavit shows that Massa was told that Dickert was inexperienced -- it doesn't address the more serious charge of misrepresentation.

Perjury is just a non-starter in this he-said/he-said dispute.

My conclusion is that there's nothing here that would make a reasonable person change their vote.  That doesn't mean that this whole mess won't affect votes.

I don't want to speculate about why this information was released less than a week before the election, but I hope we can return to the real issues of the campaign.  This is a sideshow.

First the good PR: Randy Kuhl got some bill signing front page love with Governor Pataki in Corning, and Eric Massa got a sloppy wet kiss from the Elmira Star-Gazette.

Now, the good for one, bad for the other PR: The Rothenberg Political Report has rated the 29th "toss-up/tilt Republican", which I believe is a little more competitive than their last rating. The dispute between Sanford Dickert and the Massa campaign got aired on the AP wire late yesterday, and today's Democrat and Chronicle and Star-Gazette ran followups featuring Dickert's denial of Massa's charges. Also, I missed the Finger Lakes Times coverage yesterday, which was probably the most balanced of the bunch.

Rochesterturning reports that the New York State Republican Party is distributing mailers that feature the picture of a terrorist and the slogan

Democrats are More Concerned with Protecting the Rights of Terrorists than Protecting the Lives of Americans

Classy, yet understated.

The Kuhl campaign is running two new ads.  One is a remix of the attacks on Massa, and it claims that he'll raise taxes and cut Social Security benefits.  I saw it last night, but it hasn't hit YouTube.   The second ad is an endorsement by State Senator Kathy Young, and you can view it after the break.

Reader Patrick writes to report that Eric Massa was one of the three area Democrats who received the Buffalo News' endorsement today.  The others were Louise Slaughter (NY-28) and Brian Higgins (NY-27).  The News declined to endorse anyone in the Reynolds/Davis contest in NY-26.

The Elmira Star-Gazette and Rochester Democrat and Chronicle report on court documents filed by the Massa campaign in an employment dispute with their fired former campaign manager.  One of the accusations against Sanford Dickert, who was dismissed in June, is that he invited teenage boys to his apartment, gave them alcohol and hard liquor, and invited a 16-year-old boy to stay the night.

Massa says that he did not know of any of these things until Dickert was dismissed.  Affadavits filed in the case include a number of accusations of against Dickert, including lying on his resume, soliciting donations contrary to campaign finance laws, and distributing literature that did not represent Massa's true positions.  Dickert was hired in April and fired June 13.

Reader Rich points out Bob Lonsberry's column, in which Bob clarifies by quoting some of the documents filed.  First, the other teenage boys were college-age employees of the Massa campaign, one of whom says that the alcohol was purchased by another 25-year-old campaign worker for her personal use.  So I assume "teenage" in that case means 18 or 19. Lonsberry's reading of the filings says that it was Massa's 16-year-old son whom Dickert asked to spend the night.

Lonsberry tries to spin the differences in the affidavits into perjury on Massa's part, and likens the whole case to the page scandal.

The perjury claim is far-out.  Employment disputes often devolve into he-said/she-saids, and having different perspectives on the performance of a fired employee does not mean that someone's lying.  Also, the affidavit from which Lonsberry quotes is by a student at Cooper Union, where Dickert is an adjunct professor (according to his personal web page).  An employment arbitration proceeding would presumably go further into the details of what relationship, if any, exists between Dickert and the student.

As for the "teenagers" and alcohol,  Lonsberry claims that the Massa campaign has a special duty towards them, because they were "like pages".  I don't think that's true.  If they're all college-age (pages aren't), then they are adults, and can be treated as such.  If the campaign manager procured liquor for them, he should be fired, and he was.  If Massa had called the cops, then  the students would be in trouble for the actions of an irresponsible employee.  This is an area where discretion should be exercised, and it sounds like it was.

The revelation that the 16-year-old was Massa's son puts a whole new spin on the facts of the story.  If Massa's son was the only person at that party under the age of consent, and Massa has heard the whole story of the party from his boy, we have to assume nothing that happened there was worth calling the cops about.  Frankly, if I were Massa's 16-year-old son, I'd be a hell of a lot more scared of Eric Massa than the Corning PD.

The real scandal here would have been Massa paying the guy to go away.  That didn't happen.  But so close to the election, who knows what will develop out of this.

The Kerry kerfluffle is the kind of ridiculous stuff that happens near elections, made worse by Kerry's typically ham-fisted handling of the whole non-event.  The Kuhl Campaign has issued a press release asking Massa to disavow Kerry's remarks.  The Massa campaign's rejoinder included this remark:

George Bush and John Kerry and Randy Kuhl have had their chance and failed to bring home either victory or the troops.  It’s time for a change down in Washington, and change is coming on Tuesday.

In case you're wondering, that noise you hear is Kerry going under the bus. 

Tight races are decided by the most fickle and least informed voters: last-minute undecideds.  In the 29th, both candidates are using every technique at their disposal to close with voters who haven't been paying attention until now.

Yesterday and today's Democrat and Chronicle has a couple of round-up stories that detail efforts to sway undecideds.  One of the important points made in today's story concerns the marginal value of additional spending.  At some point, additional money spent on advertising doesn't work.  But neither campaign knows if they've reached that point.  So they just keep spending.

The marginal value of advertising is especially questionable in the Northern 29th.  The Rochester media market has three close Congressional races along with the legislative and judicial contests.  Almost every ad during local programming (like the news) is a political advertisement.  Ads for the 29th are probably drowned out in the overall din of political ads.

The Kuhl campaign is trying to fill the space between the ads -- the local news -- by announcing grants in different parts of the district and hoping for media coverage.  Today, Kuhl will announce grants for Ontario and Monroe county projects.  Last week, he announced grants in Elmira and Corning. 

Lacking the incumbent advantage of announcing pork, the Massa campaign has opted for a more personal approach: touring the district and pressing the flesh. Massa began a week-long tour of the eight counties in the 29th yesterday.

Reader Rich writes to report that he saw a slightly altered version of the RNCC "Sniper" ad.  Instead of a the crosshairs of a rifle scope, the ad showed "pictures and a dart".   No video has been posted of the altered ad.

The Massa campaign's media firm has posted a slightly altered version of the "Kuhl's a liar" ad.  This version doesn't contain the shot of the WETM newswoman that caused WETM to pull the ad.  It also says it was approved by Massa but sponsored by the Democratic Congressional Campaign Committee, which indicates that the DCCC might be spending on ads in the 29th.  That would be a "coordinated" rather than an "independent" expenditure, and if so, it hasn't been posted yet by the FEC.

Majority Action, an independent action group, has posted an Internet-only ad in opposition to Randy Kuhl's position on stem cells.   Both the Majority action ad and the new Massa ad can be seen after the break:

New Massa Ad:

Stem Cell Ad:

The Rural Patriot reports on receiving two calls from the NRCC.  The subject of the first was immigration, and the second, taxes.  Patriot adds an analysis of the claims made in the calls.

As the election nears, more communication will be targeted, and more of it will be "under the radar" - in the form of calls and mailers.  Calls like this aren't very effective, but they're also pretty cheap, especially if they're robo-calls.

The "big story" this morning is the disruption (video) of a Kuhl press conference in Corning by a group of Massa supporters, who tried to get Massa signs in the background.  The event was scheduled by Kuhl to announce a grant for some improvements to downtown Corning.  Kuhl announced a similar grant Friday in Elmira. 

In the video, Kuhl complains about being thwarted "doing his job".  That's news to me:  I thought near-election press events pimping pork were "campaigning", not "doing your job". 

In other unimportant news, the latest Massa ad has been pulled by WETM, a TV station in Elmira, because it contained a shot of one of their reporters and their logo.  The Massa campaign called it an "honest mistake" and are re-cutting the ad without the shot.