"Why would you ever want to Proffer?":A Good Question For Any Council

No Strings is about truth-telling, not negativity. As you know, we’ve been fairly optimistic about the City’s new administration and Council’s new approach to City business-- setting budget priorities and holding a series of proactive work sessions on a variety of issues.

Most recently, the Council held a work session to explore a code of ethics for the City that would better conform with the New York State Public Officer’s Law and would give clearer guidelines to Council and City staff alike.

All of these meetings, including the upcoming pre-budget session on city finances, suggest that Council’s role is changing for the better, becoming the policy-makers and policy-watchers the City Charter says they should be. Councilors are elected to set priorities and goals for the City, and to monitor the progress of staff in achieving those goals.

After all, if Council doesn’t stay on top of things, or is encouraged to stay out of the City’s business, then they might not notice that changes are needed until it’s too late. Here’s an example:

In the midst of Council’s review of the City Attorney position, we posted a comparison between what the City paid in outside legal services and what the City paid its own City Attorney. We got those numbers from City records, records available to any member of the public through the FOIL process.

At the time, because we were mainly interested in the big picture, we didn’t go into specific bills for specific legal work performed by the City’s major outside legal counsel, Harris Beach. But now that we’ve taken a closer look, we’ve come across things that Council should have known about-- but did not.

Most of the Harris Beach work for the City is not all that noteworthy-- the usual sorts of tasks common in municipal law: responses to challenges to property assessments, some labor law consultations, bonding, and the like.

But one big bill stuck out like a sore thumb-- the one from attorney Tom DeSimon who is “co-leader of the Government Compliance and Investigations Team” at Harris Beach (read his company bio here). The bill, which you can read for yourself here details DeSimon’s conferences with then-City Attorney Clark Cannon and then-City Manager Rich Rising regarding “Attorney General inquiry” including five telephone conferences regarding “terms of R. Rising proffer agreement and debriefing schedule.” There is also a $2000 charge for a meeting in Syracuse “with Attorney General for R. Rising debriefing.”

Even though Rising was the City Manager and the City was paying the bill, the Council was never informed of nor provided a copy of Rising’s proffer agreement. In fact, we didn’t even know, before discovering this bill, what a proffer agreement was. Do you?

Findlaw, an online legal resource, gives the following description of a proffer, also referred to, in the legal world, as a “Queen For The Day” agreement:

“A proffer agreement (also known as a queen for a day agreement) is a written agreement between the prosecutor and an individual allowing the individual to provide information about a crime or possible crime to the government, with the assurance that his words will not be used against him in the government's case-in-chief in the event of a subsequent trial…The proffer itself, which is given in a proffer session attended by you, your attorney, the prosecutor and the case agent, is almost always informally seen as a prelude to a written immunity or plea bargain agreement, provided that the government, in its sole discretion, finds your proffer truthful. (In fact, there is no reason for you ever to make a proffer absent this informal understanding.)” (you can read more about it here).

Under what circumstances would a person sign a proffer agreement? Again, Findlaw offers the following analysis:

“Why would you ever want to proffer? Because, and only because: 1) you have exposure; 2) indictment is a foregone conclusion if you don't work out a plea deal or immunity agreement; 3) you want a plea deal or immunity agreement; and, 4) the prosecutor will not give you either without first hearing your proffer. Even in this scenario, as noted above, proffering is a high-risk venture."

Augustine asked a NYCOM attorney for a definition of a proffer agreement and any information that could be offered about circumstances which might lead to one. NYCOM corroborated the ‘queen for a day’ characterization referenced above. Additionally, here’s an example of a proffer letter we found in a law book that allows viewing via the Internet (so we’re not in violation of any copyright here).

At the time of the Attorney General’s investigation, Council was briefed by Cannon and Rising about the general situation and some Councilors, including us, wanted to get a ‘second opinion’ about the matter from an independent source. The request was taken as a challenge to personal integrity rather than as an effort at responsible city decision-making. Because Council’s attitude was hands-off , no one pressed for details. If we had, perhaps we would have known about this proffer agreement and why anyone in our city government would sign one.