The Irrationality Of New York State's VAM Scores

Carol Burris has a piece in the Washington Post about Sheri Lederman's case against NYSED over her VAM score, which went from 14 out of 20 one year to 1 out of 20 the next despite her students' test scores remaining stable.

Burris points out Lederman is not the only irrational VAM score around the state:

Lederman was not the only teacher in the school to get a poor score. In 2014, 21 percent of the staff at E.M. Baker School received a score of “ineffective,” 21 percent “developing” and 57 percent were “effective.”  Just the year before, not one teacher received an “ineffective” score.

The irrationality was not limited to the teachers of Sheri Lederman’s school, one of the highest performing elementary schools in the state. In 2014, 44 percent of the teachers of the Fox Meadow School in Scarsdale received growth scores that said they were not “effective” teachers with 22 percent rated “ineffective.”  Yet 61 percent of the school’s students were proficient in English Language Arts, and 75 percent were proficient in math—more that double the state’s proficiency rate.   Similar results were found at the high-achieving Harbour Hill School in Roslyn, where 36 percent of its teachers received growth scores that labeled them “ineffective.”

The Lincoln School in Rochester, is a school designated as a priority/failing school by the state. Its proficiency rate was less than 3 percent. In 2014, 100 percent of its teachers received “effective” state scores, with 7 percent being rated “highly effective.”  At another school facing receivership, The Martin Luther King Jr School in Utica, New York, 60 percent of the teachers received “effective” VAM scores and 40 percent were given VAM scores of “highly effective .”

NYSED never showed cause for why Lederman received the 1 out of 20 on her VAM score the year after she received 14 out of 20.  They instead tried to have the Lederman case dismissed twice (here and here), arguing there was no harm to Lederman because she was rated "effective" overall despite the "ineffective" VAM score.

However the case did go to trial and the judge didn't sound like he was buying the "Because We Said So" bell curve argument NYSED showed up with for why Lederman was deemed "ineffective" on her VAM:

The more Ms. Galligan tried to defend the bell curve of growth scores as science, the more the judge pushed back with common sense. It was clear that he did his homework. He understood that the New York State Education Department’s VAM system artificially set the percentage of “ineffective” teachers at 7 percent. That arbitrary decision clearly troubled him. “Doesn’t the bell curve make it subjective? There has to be failures,” he asked.

...

“Did her students learn nothing?” Justice McDonough asked. “How could it be that she went from 14 out of 20 points to 1 out of 20 points in one year?” He noted that the students’ scores were quite good and not that different from the year before.

Back behind the bell curve Ms. Galligan ran. As she tried to explain once again, the judge said, “Therein lies the imprecise nature of this measure.”

Burris writes that a decision is expected in two to three months - the Lederman's have argued that not only Sheri Lederman's rating should be overturned but the court should  “declare the measure an abuse of discretion” because “the State Education Department does not get a pass on unreasonable and irrational actions."

Of course the evaluation system that the Lerdermans have out on trial has been made that much worse by Governor Cuomo and the Legislature this year, with test scores now increased to about 50% of a teacher's evaluation rating, so the "irrationality" of the state's APPR VAM matters greatly and a decision by the judge to declare the measure "an abuse of discretion" will have serious consequences for the governor, the Legislature, the Board of Regents, NYSED and teachers and schools all across the state.

No One Wanted To Rally With Andy

More evidence Cuomo's become the laughing stock of the state:

ALBANY—Governor Andrew Cuomo abandoned plans to hold a rally about rent regulations this afternoon after tenant activists began marshaling a protest.

As Capital reported Wednesday, the rally was to be held at a community center on 134th street in Harlem in the early afternoon. Cuomo stated his support for strengthening rent regulations, but advocates—skeptical from his handling of the issue in 2011—spent Wednesday getting arrested outside the governor's Capitol office.

They lampooned the rally, and several Democratic legislators who were invited did not struggle to contain their enthusiasm.

“No one was going to go,” said one invited legislator.

I know there are readers of this blog who remain convinced that Cuomo is the same powerful pol he was earlier in his tenure and certainly, the ed reforms he imposed in the budget show he's still very, very dangerous.

Nonetheless, there's a lot of evidence - from the polling to this rally he called and then had to call off when no one was going to go - to show how weakened he has become.

Why Is Cuomo Engaging In A Massive Email Purge Of His Administration?

If you haven't heard yet, Governor Andrew Cuomo - the man who promised "the most transparent and accountable government in history" - is engaging in some spring cleaning:

ALBANY—The Cuomo administration has now fully implemented a policy of automatically deleting emails of rank-and-file state workers that are more than three months old, resulting in an effective purge of thousands of messages in recent days.

According to memos obtained by Capital, mass deletions began Monday at several state agencies after officials finished consolidating 27 separate email platforms to a single, cloud-based system called Office 365. It lets I.T. administrators purge any older messages, and can be set up to do so each day.

The 90-day deletion policy was first adopted in June of 2013, but its enforcement to date has been haphazard at best, employees and officials say. News of its implementation has drawn fresh concern from good government groups in both New York and elsewhere, who say automatically deleting emails is unnecessary and could stymie access to public information.

The Cuomo administration claims there's no room to save emails older than 3 months, but that is not true:

New York's contract with Microsoft, which developed Office 365, allows for 50 gigabytes of e-mail storage per employee. Reinvent Albany estimated this would be enough to handle up to 30 years worth of messages.

Bob McManus in the NY Post wonders just what Cuomo's trying to hide with the email purge:

Gov. Cuomo is conducting an early spring cleaning of Albany’s e-mails — all of them, right down to cyber bedrock.

But is this a big deal? If you can’t trust Uncle Andrew, who can you trust?

Never mind that US Attorney Preet Bharara — fresh from taking down Sheldon Silver — seems to be breathing right down the gubernatorial neck. “Stay tuned,” the prosecutor warned — with both eyes fixed firmly on Andrew.

Never mind that Cuomo’s former chief of staff, Larry Schwartz, who left as the noose was tightening around Silver’s neck, now can’t find a job — reportedly because of Bharara’s continuing probe.

Never mind that state Attorney General Eric Schneiderman just opened an inquiry into Cuomo’s casino-siting commission.

And never mind that an administration that has cut as many ethical corners as this one — especially regarding campaign-finance regulations and related transgressions — long ago forfeited all presumption to the public’s trust.

What’s important is that Cuomo’s cyber scrubbers soon will have vaporized all e-mail generated by state government that’s more than three months old — eradicating evidence of, well, who knows what.

New Yorkers will never know.

Those who trusted Andrew Cuomo no longer have reason to. Those who didn’t have had their worst suspicions confirmed.

“We must use technology to bring more sunlight to the operation of government,” said Cuomo in 2010.

Two years later, the winds were shifting: “You can always have more transparency.” But “you can’t live your life in a goldfish bowl.”

Apparently not.

Now he says, essentially, all that ancient history is just clogging up government and nobody ever looks at it anyway. Which is sort of true — a critical exception being prosecutors tracking down prey.

Does Cuomo have any such concerns? Should he? A reasonable person might ask whether incriminating (or, at least, embarrassing) e-mails relating the administration’s policies, practices and politics are disappearing into the void.

The Daily Gazette also wonders just what Cuomo's trying to hide with the purge:

When someone hastily starts destroying documents for no good reason and with no good explanation, it raises questions.

So when a number of state agencies in the administration of Gov. Andrew Cuomo began automatically deleting thousands of email files this week after holding onto them only 90 days, those questions turned to suspicions.

What are they trying to hide?

There is no technical or legal reason state workers’ emails need to be destroyed so quickly. In approving this policy back in 2013, state officials said large email files are "difficult to manage and interferes with operations." But they didn't say how.

Keeping large numbers of emails in your own personal file might get cumbersome after a while. Anyone these days who routinely deals with emails has that problem. But how does cleaning out a personal email file and storing those emails in a cloud-based system interfere with the ability of people to do their jobs? It doesn't. So why the haste in destroying the records?

Under the state Freedom of Information Law, email files are treated the same as paper files. Certain ones must be kept for a certain period of time, while others can be regularly discarded.

The problem with the Cuomo administration's blanket policy to hold onto electronic documents for only three months is that the public doesn't know which ones were OK to destroy and which ones should have been kept longer.

And if the state government should ever pass ethics reform requiring more disclosure and transparency, it's likely we'll find out that many of the emails that had been destroyed should have been retained. By then, they'll be long gone and unavailable for public scrutiny.

Right now, the public doesn't even know which departments are following the deletion policy and which ones aren't.

Also, the decision over which emails to destroy and which to keep is being left to individual employees, who are following a cumbersome and complex set of guidelines with no independent oversight.

Leaving sole discretion to individual workers as to how and when to follow the Freedom of Information Law provides neither consistency nor comfort.

With the uncertainty over which emails should be kept and which can be deleted, the state should be erring on the side of keeping them. That's what other government agencies around the country do.

The federal government, for instance, requires that emails from rank-and-file employees be kept for seven years. Some states require that they be kept from two to five years. Even the Central Intelligence Agency has proposed that emails created by outgoing employees be held for three years. Imagine that. A spy agency is less secretive than New York state.

As noted earlier, there appears to be no legitimate technical reason for purging the files so quickly. The space for storage is apparently more than large enough to accommodate all employee emails for a very long time. According to a report in Capital New York, each state employee, under the state contract with Microsoft, is allocated 50 gigabytes of email storage. That's enough to hold tens of thousands of emails, perhaps 30 years worth.

So if it's not a burden on the state's computer system, why does the administration need a policy to get rid of email files after only 90 days? The short answer is: It doesn't.

This indiscriminate purging must be halted right away, before any vital records are destroyed. All the emails generated from now on should be retained until a more concise policy requiring appropriate retention times is put into place.

If the administration insists on continuing to automatically delete so many state documents at such a rapid pace, then the public won't ever be able to find out if it’s hiding something, and if so, what.

Come to think of it, that's probably exactly what they're hoping for.

Cuomo's already under fire for refusing to release his six figure book contract with HarperCollins, owned by News Corporation, after it was revealed that News Corporation has lobbied the Cuomo administration multiple times before and since the contract was given to Cuomo to write his book - a book that has sold less than 3,000 copies.

In addition, Cuomo has refused to add ethics reforms that would affect him to his ethics reform package in the budget - things like closing the LLC loophole that allows rich people to give money multiple times to candidates like the governor through shell companies created just for that purpose - while giving an ultimatum to the legislature over reforms that would affect only them, a move that has led some to call Cuomo a hypocrite over ethics reform.

Finally we have the whole Moreland mess story, which reared itself into the news again this week when Fred Dicker revealed that Larry Schwartz, Cuomo's former secretary, had not left the Cuomo administration in January as an administration statement had stated but was instead still on the state payroll collecting $181,000+ a  year in a new position created specifically for Schwartz.

Schwartz was the Cuomo admin official who decreed the Moreland Commission "pull back" subpoenas to Cuomo's donors during the heyday of the corruption commission Cuomo abruptly shut down in March of 2014 and Schwartz was invited to talk to the feds over just those kinds of matters last August, so the funkiness around the Schwartz departure had many wondering just what Cuomo was hiding.

Now comes the massive email purge, which sounds very much like a cover-up of some sort, since the emails don't actually have to be deleted and can simply be archived to the state's cloud account.

It's been reported in the past that Cuomo and the senior minions he has around him don't use any method of communication that has a paper trail - they communicate through Blackberry PIN messages that leaves no trail.

But now Cuomo's having state workers under the senior level purging emails, which smacks of hypocrisy at best, since Cuomo is on record saying this:

Mr. Cuomo, a Democrat, is no stranger to the consequences of a paper trail. Before becoming governor, he spent four years as state attorney general, a perch from which he witnessed how long-forgotten e-mails could become pivotal during investigations. In 2008, he even accused a top official at the New York Power Authority of “extremely troubling conduct” for deleting e-mails from his BlackBerry as word leaked that he was likely to be investigated by the attorney general’s office.

I wonder what Cuomo, if he were still attorney general, would say about a gubernatorial administration engaged in a massive email purge under false pretenses even as that administration is under at least two investigations (Moreland, casino bids)?

Would he call it "extremely troubling conduct"?

No matter what Cuomo would call it, it certainly counts as "extremely troubling conduct" in my book and something that I hope federal prosecutors investigating Cuomo's administration were prepared for and know how to handle.

Astorino: Cuomo At Center Of Albany Corruption

If you're a regular reader of this blog, you know I've covered this story many times - Sheriff Andy Cuomo claims he rode into Albany to clean up the corruption but nobody - nobody - is dirtier than Cuomo in Albany.

The Astorino campaign hammered that point home yesterday:

ALBANY — Gov. Cuomo received $2.7 million in donations since 2010 from companies that have received a combined $7.2 billion in state contracts, his Republican opponent charged Wednesday.

Rob Astorino's campaign released a 100-page document detailing companies that gave money to Cuomo while also having business before the state.

Astorino said the numbers show that Cuomo not only didn't crack down on Albany's pay-to-play culture like he promised, but took it to historic new levels.

"This perfectly illustrates Mr. Cuomo's modus operandi," Astorino, the Westchester County executive, said. "He promises to do what the voters most want; then when the camera lights go dark he turns around and does the exact opposite. Mr. Cuomo has played New York reformers for fools, whether they be from the political left, right or center.

Back on September 4th when the Daily News reported that Cuomo took $1.25 million from companies that won state development grants, I posted the following:

 Sheriff Andy Cuomo likes to make believe like he rode into Albany to clean up the corruption in the state capital.

Nothing like taking a bunch of money from donors, then handing them millions of dollars in state grants for cleaning up Albany, eh?

Kinda like taking money from REBNY, then handing out $35 million in tax breaks to the real estate industry.

Or taking a couple of million from overseas gambling consortia, then expanding legalized gambling around the state.

Or taking $800K from charter school operators, then forcing NYC to pay charter school rents in perpetuity.

Or taking hundreds of thousands from Hollywood producers, then handing out millions in tax breaks to the film industry that essentially pays them to make movies in NY.

Or shutting down his Committee To Save New York PAC so that he didn't have to reveal the donors.

Quite frankly, Sheriff Andy Cuomo needs his own sheriff to police his activity. 

Astorino is going to try and hammer this corruption point home, but unfortunately the corrupt Cuomo has so much money in his campaign war chest that there's little chance the message will cut through all the negative ads Cuomo's been running about Astorino.

About the only way the public's really going to learn about Cuomo's corruption is if the US attorney investigating Cuomo over the Moreland mess indicts him.

Cuomo's Weakened Stature Gets The Politico Treatment

The Politico article, Andrew Cuomo's Progressive Blues, that went up this morning and got prominent placement on the Politico website, is not going to make Andrew Cuomo or his campaign happy.

The takeaway: Andrew Cuomo's political stature is diminished and his future as both governor and presidential candidate are limited.

Even more interestingly, de Blasio is depicted as Cuomo's political savior this election cycle, and likely to be more powerful than Cuomo himself within the Democratic Party in the near future.

How quickly fortunes change in politics, where just last spring de Blasio got rolled over charter schools and the pre-K taxes by Cuomo and was declared near-DOA in some press accounts.

But I'm less interested in de Blasio's resurgence in press accounts than I am with Cuomo's downward trajectory.

Last spring after Cuomo got his fourth on-time budget and rolled de Blasio over charters and taxes, he was riding high, was fully expected to win a big re-election victory, take that momentum into a second term as governor and perhaps build on it as a future presidential candidate.

Now the press frame for Cuomo, days before the Democratic Primary, is this:

This should be Andrew Cuomo’s springboard moment: He has tens of millions in the bank and every sign of routing his largely forgotten Republican challenger to win a second term. Throw that together with what’s still one of the best-known names in Democratic politics and a record of balanced budgets and wins on gay marriage and gun control, and election night should, for an ambitious big-state governor, be the first step toward a White House run.

Barring true shockers, Cuomo will win his Democratic primary Tuesday, as will his embattled running mate, former Buffalo-area Rep. Kathy Hochul. But the governor is finishing the nomination fight amid a sense in Albany that his political clout is diminished, progressives who believe he’ll always value his power over their principles, and a re-calibrated rivalry with New York City Mayor Bill de Blasio.

 Cuomo’s even fallen behind in usefulness to Hillary Clinton — the New Yorker who’s likely to clear the field of most other Democrats, particularly those also from the Empire State — with the upstart challenge from Zephyr Teachout and her running mate Tim Wu exposing Cuomo as out-of-touch with the political passions of many liberal New Yorkers, and with a larger sense of progressivism that’s now defined much more by economic than social issues.

That’s the progressivism represented by de Blasio — a former Cuomo aide whom the governor started off the year all but trolling, and on whom he’s finished the primary season leaning, repeatedly, to backstop him.

...

Cuomo stormed into Albany four years ago on a promise of cleaning out corruption, fixing the always-disastrous state budget and restoring New York as the progressive leader of the country. He’s arriving on primary day with a federal investigation of supposed meddling into his anti-corruption Moreland Commission — which exacerbated political troubles simmering over a left-wing revolt over spending cuts and tax breaks he’d signed off on and a failure to press for stricter campaign finance rules. That only intensified as Cuomo attempted to get Teachout thrown off the ballot in a move that made many New York politicos privately shake their heads.

Even Cuomo’s 2011 push for legalizing gay marriage, at the time a controversial effort that was seen as a definitive progressive validator for an eventual White House run, has faded from people’s minds. 

...

Crystallizing the progressive state of mind last week, as is often the case, were the local picks of the New York Times editorial board. The Times endorsed neither Cuomo nor Teachout, but they very strongly backed Wu — essentially as a way of punishing the governor without going so far as to support putting the state in the hands of a Fordham law professor whose own prior political experience was topped by working on Howard Dean’s presidential campaign.

“The Times is out to kill Cuomo,” said one supporter of the governor who asked not to be identified.

Regardless of what happens in Tuesday's primary or November's general election, Cuomo does not have the juice that he did in the first term to make everyone go along with what he wants or turn them into roadkill.

His "fear factor" to make others go along has been permanently diminished by the Moreland mess, by the machinations with the Working Families Party that make him seem weak and needy, by his reliance on de Blasio to save him both with WFP and help running mate Hochul in her battle with Wu, and by his refusal to engage in the campaign publicly.

Cuomo's been in hiding for a while now, first over the Moreland mess, when he hid from view to avoid having to address the scandal, now in the campaign, when he refuses to even mention his Democratic Primary opponent's name, let alone debate her in public.

If the emblem of the first Cuomo term was the iron fist, the emblem for the second will be a tattered glove:

“Governor Cuomo apparently doesn’t believe in the philosophy that it’s not whether you win or lose, but how you play the game,” said Mark Green. “But by being so focused on his percentage rather than being a happy warrior campaigner — welcoming debates, interacting with the press and public — he’s probably helping himself next week but not next term. … Ideally he’ll be either a better governor by being more principled than hair-splitting, or he’ll have a harder time because he would have lost some of the fear factor that enables him to get his way.”

And of course the elephant in the room that never gets stated explicitly in the Politico article but hovers above all else in Cuomo's future is what US Attorney Preet Bharara, the federal prosecutor looking into alleged tampering of Cuomo's Moreland Commission by the governor and his staff, does in the case.

Does he indict one or more members of the Cuomo administration on corruption, conspiracy, obstruction and/or witness tampering charges?

Does he indict Cuomo himself?

Remember, Texas governor Rick Perry has just been indicted on a charge that seems slight compared to what Cuomo and his minions are alleged to have done with the Moreland Commission and former Virginia governor Bob McDonnell was just convicted on 11 counts of corruption and is going to jail.

Cuomo's legal jeopardy in Moreland will trump everything else that has happened so far and will happen in the second term.

About the best Cuomo can hope for is Bharara to issue a report taking him to task for meddling in Moreland and failing to clean up Albany politics as he had pledged to do.

Bharara has already publicly admonished Cuomo in the media - on WNYC, on Charlie Rose - so you know his Moreland investigation isn't just going to end quietly without comment from him, not after he took on Cuomo so prominently and publicly.

Political fortunes turn quickly, as we can see from how high Cuomo was riding in the aftermath of his budget victory last spring to now as he totters toward re-election, which means Sheriff Andy, ever the wily politician, will try and turn things around again.

But given what has happened these past five months, since he closed down Moreland and needed de Blasio to get him the Working Families Party nomination, we have witnesses the diminishing of the once impervious Andrew M. Cuomo and I just do not see how that "fear figure" can be put back together again to operate in the way he did in the first term.

As I've noted before, that's good for those of us who want to turn back some of his worst policies - the tax cap, the charter school budget giveaway, APPR.

Last night, I posted about Eva Moskowitz's recent p.r. blitz and wondered what might be behind the Eva Media Tour.

I suspect Andrew Cuomo's diminished stature and weakened political power is behind her recent media blitz - especially now that national political outlets like Politico are talking up her bitter enemy, Bill de Blasio, as the new power in New York State.

Governor Cuomo Not A Very Popular Guy On Social Media

.@mahoneyw examined about 1,200 Twitter messages expressing position on gov's race; only 12 - 1% - said something in support of @NYGovCuomo.
— Liz Benjamin (@CTLizB) September 2, 2014

Think about that for a minute - 1% of the 1,200 Twitter messages examined expressing a position on the governor's race were supportive of Governor Cuomo.

What does that say about our governor?

Why Isn't The Press Covering The Moreland Investigation Any Longer?

Thomas Kaplan reports many people around the state are taking the primary season to publicize their unhappiness with Governor Cuomo:

He has been snubbed by unions representing teachers and state workers. Editorial boards are skewering him. Political rivals are lobbing attacks from his left and his right.

A year ago, it looked as though Labor Day would mark the start of Andrew M. Cuomo’s smooth glide toward a second term as New York’s governor.

Now, Mr. Cuomo’s bid for re-election seems to have become more of a chore than a coronation.

Mr. Cuomo is expected to easily fend off a long-shot challenge by a law professor, Zephyr Teachout, in the Democratic primary next Tuesday. In November, his matchup against a Republican, Rob Astorino, the Westchester County executive, could wind up one of the most lopsided elections for governor in the country.

Instead of a nail-biting political contest, this year’s race has produced something else: months of grievances by union members, gun owners, liberal activists and others unhappy about Mr. Cuomo’s time in office.

Cuomo's shills tell Kaplan the complaints will all go away after he's re-elected:

At the same time, interviews with Democratic officeholders, labor leaders and political operatives suggest Mr. Cuomo’s unhappy days may be just that — a period of disquietude that will ultimately be overshadowed by a landslide victory in November.

“Would you rather not go through it? Of course you wouldn’t,” said Keith L. T. Wright, a state assemblyman from Harlem and the chairman of the Democratic Party in Manhattan. “But it’s a cost of doing business.”

Mr. Wright predicted Mr. Cuomo would emerge unscathed from his two electoral challenges. “It’s almost like a mosquito buzzing in your ear,” he said. “The question is, do you get the can of Raid or Off! and spray him? Or do you get the rolled-up piece of newspaper and smack him away? I think it’s a nuisance, because I don’t think either candidate is really up to his level.”

Nearly unstated in the article?

The Moreland investigation that US Attorney Preet Bharara is conducting.

What happens to Cuomo if he's re-elected but one or more members of his administration are indicted?

What happens if Cuomo himself is indicted. as has just happened to Rick Perry in Texas?

The Cuomo people want you to think his re-election is a done deal and once he's safely back in office for four years, he's going to settle all family business, helping the people and groups who helped him and damaging the ones who didn't.

That would be business as usual for Cuomo, but I'm not sure that's where things go.

Cuomo has been severely weakened by Moreland, the best he can hope for out of Bharara's investigation is a report that publicly criticizes him for horse trading away the commission for an on-time budget and there's an outside chance he's going to have deal with criminal cases against either himself or members of his administration.

I don't know why we're getting all these election horse race stories that deal with his re-election as a foregone conclusion but fail to mention the effect the Moreland mess will have on that.

Thomas Kaplan was one of the writers of the July Times story on Moreland that made the summer a very difficult time for Governor Cuomo.

Kaplan is very aware of the possibilities regarding Moreland, yet none of that showed up in the article.

It may be that neither side is leaking, so nothing's making it into the papers.

But what Bharara does with this Moreland investigation will have a large impact on what happens to Governor Cuomo for the next four years.

Politico: Obama's Teacher Evaluation Reform Agenda In "Disarray"

It's a mess out there:

The idea seems simple enough: Identify the best teachers and reward them. Pinpoint the worst and fire them.

That’s been a linchpin of the Obama administration’s education agenda from the start.
But now the administration’s initiative is in disarray, with states scaling back, slowing down and, in some cases, putting off tough decisions until Obama is out of office.

Teachers union pressure, error-riddled evaluations and a wave of more difficult tests for students have won many teachers a reprieve from the newfangled evaluations during the school year now getting underway.

Teachers have filed suit in a half-dozen states to block complicated new evaluation formulas that in some cases have rated them based on the test scores of students they never taught. Parents have protested that their children have been required to take tests created for the sole purpose of evaluating teachers. One county in Florida is developing 724 new final exams — in classes like welding and P.E.

And after spending millions to develop modern evaluation systems, many states find they’re not identifying all that many bad teachers. In Rhode Island, 95 percent of teachers were rated effective or highly effective last year. In Florida and Indiana, it was 97 percent. In Tennessee and Michigan, 98 percent.

“It would be nice if we could have some kind of objective external measure to say, ‘This is what constitutes good teaching — or good enough teaching.’ But the fact is, there’s no way the statistical measures can do that,” said Brian Gill, a senior fellow at Mathematica Policy Research who works on so-called value-added calculations.

How much longer until it all falls apart?

Hard to say in New York, where Governor Andrew M. Cuomo is a staunch education reformer who claims teacher evaluation reform as one of his big accomplishments in his first term.

But the more these systems are revealed as error-riddled, the more the public learns that teachers are being rated on test scores for students they didn't teach or for subjects they aren't licensed in, the more teachers sue over the error-riddled ratings, the more teachers remind parents angry over testing that many of the tests their children are taking are for the sole purpose of rating teachers, the faster this evaluation reform agenda falls apart.

With NYSED and the Board of Regents in New York State now looking to make the test score component of the APPR teacher evaluation system 40% of a teacher's rating, you're going to see a lot of teachers getting rated using test scores for students they never taught or for subjects they aren't licensed in.

It behooves teachers rated "ineffective" or "developing" on that test score component to sue SED, the Regents and the governor over that system.

And of course continued pressure on the politicians who back this crap is important - helping Tim Wu beat Kathy Hochul for lieutenant governor is a way to send a message to the Common Core-supporting, education-reform shills in Albany that they may pay a price for pursuing that agenda.

A few years ago, the Endless Testing regime, the Common Core implementation and evaluation reform seemed like a done-deal in New York State, baked into the system, with little parents or teachers could do to fight them.

But as it becomes more and more apparent that much of this reform agenda is half-baked, error-riddled, indeed, even harmful to students and teachers, the more likely it is we can get this stuff pulled.

When Joe Nocera starts writing columns about the toxicity of the Endless Testing regime and test-based accountability for teachers on the Times opinion page, we're starting to get there.

Much work to be done yet.

But as we start a new school year here in New York City, you've got to smile to see a front page story in Politico about the Obama administration's evaluation reform agenda being in "disarray" and on life support that looks like it will be pulled when Obama leaves office.

Cuomo Signed NYSUT Leadership Pension Giveaway At Same Time Evaluation Deal Was In Works

When I first learned about Governor Cuomo signing the NYSUT leadership double pension giveaway, I figured there was some quid pro quo going on between the governor and the union leadership to get him to sign off on it.

Tonight we learn from Jessica Bakeman that there was indeed a quid pro quo:

ALBANY—Under a law approved in the final days of this year's legislative session, New York State United Teachers' elected officers will, for the first time, be able to simultaneously accrue time toward their state and private union pensions.

The law, signed by Governor Andrew Cuomo last month, allows NYSUT officers to accrue time toward their pensions through the state Teacher Retirement System while serving as union leaders. More specifically, it lets school districts offer paid leaves of absence to teachers who vacate their classroom positions to work for the union, while NYSUT reimburses the district for the officers' salaries and benefits.

After NYSUT officers serve for five years, they become vested in the union's private pension system, spokesman Carl Korn said. Therefore, officers could eventually be earning time toward both—a benefit former NYSUT president Richard Iannuzzi said is inappropriate.

...

The Legislature considered the bill at the same time Cuomo and lawmakers were negotiating changes to the state's teacher-evaluation system. The bill was introduced in early June, when Cuomo's office was engaged in closed-door negotiations with NYSUT over changes to the rating system. The Assembly passed the pension bill on June 19, the same day Cuomo announced he had reached a deal with the union, and the Senate passed it the next day.

Rather than fight the APPR teacher evaluation system, NYSUT leaders agreed to a lame change to APPR, then got Cuomo to sign off on their double pensions.

Last week I said here's another case for Preet Bharara to look into.

Now after it's revealed the pension giveaway came at the same time as the evaluation deal was getting done, I'll double down on that:

Bharara needs to look into the Cuomo/NYSUT double pension deal.

NY1, Time Warner News Send Debate Invitations To Cuomo And Teachout (UPDATED - 7:35 PM)

From State of Politics:

NY1 and Time Warner Cable News in Albany are inviting Gov. Cuomo and his Democratic rival, Zephyr Teachout, to a live, hour-long Sept. 2nd debate that will air statewide and be hosted by NY1 Political Anchor Errol Louis and Capital Tonight Anchor Liz Benjamin.

Invitations have also been sent to Rep. Kathy Hochul and Tim Wu to participate in a separate debate for Lieutenant Governor on Sept. 3rd.

“NY1 and Time Warner Cable News are committed to a full discussion of the issues in the Democratic primary race and we’re looking forward to hearing what the candidates have to say,’’ said NY1 Political Director Bob Hardt. “Debate season is officially underway.”

Invitations were e-mailed to the campaigns earlier this afternoon – with an RSVP date set for Aug. 28th. Both the Teachout and Wu campaigns agreed to the debate – while the Cuomo and Hochul campaigns did not immediately respond to the invitations beyond acknowledging they had been received.

Two issues here:

First, Cuomo has minimized his public appearances even more than usual ever since the Moreland mess broke open with the NY Times story in July.

With his poll numbers stable, Cuomo has no strategic reason to debate and won't until/unless he sees a drop in his poll numbers.

Second, for some reason he's afraid of Errol Louis, the Road to City Hall host.

He has refused to appear on Louis' show and I doubt he'll break that streak by agreeing to a debate with Teachout moderated, in part, by Louis.

In short, he ain't coming out, folks - not unless he has to.

Cuomo is going to use the Rose Garden strategy here, sit on his lead, and use his money advantage to beat his GOP opponent Astorino to a pulp.

He's going to ignore his Democratic opponent Teachout - at least in public.

In private, they're worried about her or they wouldn't have been sending fake protesters with ties to the Cuomo campaign to her appearances.

But in order to get a real live Cuomo in this campaign (as opposed to the one who called into Maria Bartiromo for an interview that aired on tape last Sunday), we're going to have use some shame on him.

So let's shame him as much as we can - with tweets, with calls, with Facebook posts, with calls and letters to the newspapers and other media outlets.

May not work, since Cuomo seems without shame, but sure is worth a try.

UPDATE - 7:35 PM) - I should note that the other Time Warner Cable News reporter who would be moderating the NY1/TWC News debate is Liz Benjamin, another reporter Cuomo is scared of.

In fact, he's so scared of her, he had a flack put together a 35 page dossier on her:

A top aide to New York Governor Andrew Cuomo assembled a 35-page dossier on the work of an Albany political reporter considered hostile to his administration, highlighting any shred of criticism in a document that reflects the intense sensitivity of a governor on the brink of taking the national stage.

The document was provided to BuzzFeed by a New York City political operative who said he believes it reveals Cuomo’s “scary dark side.” And the document does offer a glimpse into Cuomo’s obsessive and often difficult relationship with the media who cover him. Communications Director Richard Bamberger, who acknowledged preparing the document, called it “meaningless” and “garbage,” while warning that its leak set a “dangerous precedent.”

...

“This is a glimpse at the old Andrew Cuomo we all knew and hated,” said the New York City politico who provided the documents to BuzzFeed. “He has worked hard to keep this scary dark side at bay, but every now and again it reveals itself, and it’s ugly. The secret dossier on Liz Benjamin is the stuff of Richard Nixon and Eliot Spitzer.”

“One has to wonder if similar dossiers are being put together on other reporters,” he said.
Bamberger said that there are not files on other reporters. He also denied that the Benjamin document constituted a “file.”

Yeah - no way Cuomo's doing a debate he doesn't want to do with two media people he's terrified of.

Remember, Union Leaders Did Their "Endorsement" Work During Working Families Party Convention

I keep hearing some NYSUT people brag how NYSUT refused to endorse Andrew Cuomo for governor and am hearing from the same people that NYSUT is making sure the AFL-CIO does not endorse him either.

All of this is fine, dandy and absolutely meaningless.

I want to remind everybody that when it mattered, when Andrew Cuomo absolutely needed the union leadership - including the newly minted NYSUT leadership - to back him, they did.

That was during the weekend when it looked like Working Families Party might actually endorse Zephyr Teachout over Cuomo for the general election.

Polls had shown that Cuomo was running away with the race against his GOP opponent Rob Astorino - unless a third party candidate from the left entered the general election.

Then polls showed this:

Major elections in the United States are almost always two-party affairs. Yes, third-party candidates run, but they’re rarely competitive, and they almost never win. Still, there are exceptions, and the 2014 New York governor’s race may be one of them.

The progressive Working Families Party perceives Democratic Gov. Andrew Cuomo to be too centrist, and it will decide this weekend whether to field its own candidate instead of cross-endorsing Cuomo. (New York allows candidates to appear on multiple ballot lines.) An opponent from his left could put Cuomo’s re-election bid in at least some danger.

An average of early polls by Quinnipiac University and Siena College shows the governor garnering 38 percent support, Republican Rob Astorino 24 percent and an unnamed Working Families Party candidate 23 percent. That’s down from Cuomo’s average lead of about 30 percentage points over Astorino in a two-way affair.

As I detailed earlier this week, early gubernatorial polling of two-way matchups is pretty reliable — 30 percentage point leads are nearly impossible to overcome. But an early-stage 14 percentage point lead in a three-way contest may be a different story.

Cuomo was desperate to avoid that third party candidate from the left and his union allies were happy to oblige by threatening WFP activists that if the party nominated Zephyr Teachout over Andrew Cuomo, they would defund the party:

When Working Families Party state committee members gather at their convention tomorrow, far more than the endorsement for governor will be at stake.

The very future of the labor-backed party will be on the line, and according to one labor source, the damage done by the disagreement over whether or not to back Gov. Andrew Cuomo again may very well be irreparable.

“Regardless of what happens now, the way the party has conducted itself has done lasting damage to relationships with key (union) affiliates,” the source said. “It’s unclear if the party will ever be the same.”

Union leaders were burning up the phone lines this morning, discussing whether the time had finally come to pull their support of the party they helped create and have financially sustained since 1998.

According to another labor source involved in these talks, a number of the largest and most significant unions – including 1199 SEIU, HTC, the laborers, RWDSU, and the UFT – were prepared to call it quits with the WFP, knowing that their withdrawal could very well lead to the party’s “collapse.”

The Teamsters and TWU were also involved in these discussions, which were far enough along to warrant talk of drafting of a joint statement, although one was never actually released.

The UFT controls NYSUT - it was the UFT leadership, backed by Randi Weingarten, who instituted the Spring Time Putsch that dethroned the previous NYSUT leadership and replaced them with pro-Cuomo shills.

The Spring Time Putsch was all about making sure that the suddenly aggressive old NYSUT leadership would be replaced by a more compliant Cuomo-friendly leadership - which is exactly what happened.

That the UFT was part of the union leadership that threatened WFP if Teachout was endorsed and was behind the NYSUT putsch to get rid of the old regime that had turned on Cuomo tells you all you need to know about how much they've already helped Andrew Cuomo.

An endorsement by the UFT, the NYSUT or the AFL-CIO is not needed at this time because all the help Cuomo needed to win re-election - keeping a third party candidate from the left out of the general election race - was engineered by the unions, including the UFT and the NYSUT, last spring.

Why Is Andrew Cuomo Still Trying To Knock Zephyr Teachout Off The Ballot?

The NY Times editorial board says Cuomo should stop trying to get her kicked off the ballot and instead debate her:

New York State voters rarely have enough real choice on their ballots, and Gov. Andrew Cuomo seems determined to keep it that way. Ever since another Democratic candidate for governor, Zephyr Teachout, arose on his left, Mr. Cuomo has tried to throw her off the primary ballot on the shaky grounds that she hasn’t met the state’s five-year residency requirement. 

On Monday, a Brooklyn judge tossed that argument out of court, ruling that Ms. Teachout is perfectly qualified to be on the Democratic primary ballot on Sept. 9. But Mr. Cuomo, true to form, won’t back down. His aides immediately promised an appeal of the ruling. That is political bullying, and the governor should back off and engage with Ms. Teachout as a serious candidate. Doing otherwise suggests he is more nervous about winning a second term than he would like to appear.

Ms. Teachout, who grew up in Vermont, has energized her audiences with humor and biting criticism of the governor’s ethical failings. Once a campaign aide for Howard Dean, she says she supported Mr. Cuomo in 2010 but now condemns him for meddling with the Moreland Commission he appointed to investigate Albany corruption. She also criticizes him for his “tax breaks for the rich,” his failure to reform campaign finance and redistricting, and his failure to pass laws protecting women’s equality. If elected, she promises to bring back the “trustbusting” era of the Roosevelts.

Although Mr. Cuomo is leagues ahead in the polls and has a $32.5 million bankroll, he should not dismiss Ms. Teachout and her growing number of followers as irritants. Her criticisms are mostly legitimate, and he should defend his first term in a series of robust debates with her in the weeks before the primary, rather than through the timidity of litigation.

Teachout herself has a Top 10 list of why Cuomo won't stop trying to get her knocked off the ballot - my favorite is #1:

Teachout's "No.1reason" Cuomo should drop residency appeal:"The Gov will be tempted to tamper with the witnesses in this case, too." Ouch!
— Fredric U. Dicker (@fud31) August 12, 2014

Cuomo's leaving the country for Israel, so there will be no opportunity to ask him why he won't drop the residency appeal against Teachout or debate her unless reporters ask him these questions overseas.

I suspect that's a side benefit to his trip overseas, the first he's made since he was elected governor.

In any case, let's put as much pressure on him and his campaign as we can to point out the absurdity of his residency appeal of Teachout and the cowardice of his refusal to debate her.

Teachout herself covered the absurdity over the residency appeal:

.@zephyrteachout: "Where exactly was (Cuomo) living before he ran in '02? Oh yeah...in DC doing his part to create the mortgage crisis."
— Liz Benjamin (@CTLizB) August 12, 2014

I guess I can see why he's afraid to debate her.

Judge Rules In Favor Of Zephyr Teachout In Ballot Challenge - Cuomo Will Appeal (UPDATED - 4:50 PM)

Well, that didn't take long.

We learned a little while ago that a judge has ruled Zephyr Teachout can stay on the Democratic Primary ballot:

A challenge to Zephyr Teachout's ballot status brought on behalf of Governor Andrew Cuomo is invalid, a state Supreme Court judge ruled today.

Teachout, a Fordham Law professor who first challenged Cuomo for the nomination of the Working Families Party, successfully collected petitions to appear on the Democratic ballot in September.

Lawyers acting for the Cuomo campaign didn't contest the validity of the petitions in this trial, but argued that the Vermont native failed to meet a five-year in-state residency requirement for state candidates.

But Justice Edgar G. Walker ruled Monday that although Teachout has spent significant time out of state in the last five years for academic and family pursuits, and though until recently she listed a Vermont address on her drivers license, she clearly established sufficient "intent" to reside in New York, and that the challenge to her residency was invalid.

Cuomo told Conor Skelding at Capital NY that he hadn't decided whether to appeal the decision:

Reached by phone, Connor told Capital he hadn't yet decided whether to appeal the judge's decision. If he does, the appeal will be heard by the state's Appellate Division, Second Department on August 19.

But we learn now that he will appeal the decision:

Martin Connor, Cuomo's election attorney, on Zephyr Teachout decision: "We will be appealing today's decision."
— Jon Campbell (@JonCampbellGAN) August 11, 2014

What might the appeal be based on?

Perhaps this:

In his decision, which followed a two-day trial in Brooklyn last week, Walker wrote, "Whether or not Ms. Teachout misrepresented her actual residence address to regulatory bodies in New York or elsewhere for self-interested purposes, any improprieties are for other bodies to address and not relevant to this determination."

In any case, the Cuomo campaign will do their best to eat up as much of Teachout's money and energy as possible with court challenges.

Democracy Cuomo-style!

UPDATE - 4:50 PM: Times reporter Nick Confessore raises a good point in Teachout's favor:

Teachout filed NYS tax returns w/NYC address for 5 yrs, so she was paying one of the highest state/local tax rates in the country. 1/2
— Nick Confessore (@nickconfessore) August 11, 2014

Why would she do that if she could plausibly file from Vermont? 2/2
— Nick Confessore (@nickconfessore) August 11, 2014

Cuomo's Legal Troubles - It's What We Don't Know That Matters Most

Two pieces out on Cuomo's legal jeopardy today, one by Jeff Smith at Politico and the other by Blake Zeff at Capital NY, both of which report Cuomo is in some trouble over the Moreland mess.

Jeff Smith at Politico says Andrew Cuomo's got serious problems because now that he's given them the open, prosecutors could be looking into anything:

Andrew Cuomo is in serious trouble. Preet Bharara, the hard-charging U.S. attorney for the Southern District of New York, has turned up the heat on his administration's alleged interference with an anti-corruption commission he appointed, and for the first time in the New York governor's four-year tenure, he's lost control of a situation. That's an awful feeling for any politician, but especially for one who so prizes control, and who prides himself on playing political chess while his opponents play checkers. It's the classic tale of a pol so consumed with avoiding a short-term image hit that he risked his long-term freedom. (I know the story well, because five years ago this week I lost control of a similar situation and ended up in prison for obstruction of justice.)

Smith recounts how two Cuomo aides - Larry Schwartz and Joseph Percoco - are reported to have helped Cuomo meddle with Moreland, looks closely at the law and what he knows can happen when federal prosecutors start to look into you and concludes:

U.S. attorneys don’t get together and swap stories about the time they brought down a political staffer, and they don’t become U.S. attorneys general that way, either. Make no mistake: Bharara wants Cuomo’s scalp, and he has two people he can leverage to get it, if indeed the governor blessed the original thwarting of subpoenas, the more recent pressure on commissioners to make false statements backing up his denial of interference, or both.

Unfortunately for Cuomo, some obstruction statutes treat accomplices before the fact as principals, which means that he would be liable for anything Schwartz or Percoco did, provided he had advance knowledge. And given his legendary micromanagement – Cuomo is famous for producing groundswells of support at opportune junctures, whether on behalf of policy initiatives or his own career advancement – it’s hard to believe that he wasn’t at least aware of his aides’ actions. (As ex-governor David Paterson wryly observed amid mounting pressure to abandon his re-election bid and make way for then-Attorney General Cuomo, “Drumbeats remind me of orchestras, and orchestras remind me of orchestration.”)

If a sole aide is implicated in an effort to protect his boss, he’ll sometimes take the fall by saying that he acted independently, hoping that his boss – especially one about to easily re-elected to a powerful governorship – will appreciate his extraordinary loyalty and remember him post-prison. That option might be preferable to giving up one’s boss, an act that makes a high-level political adviser essentially unemployable by other politicians, lobbying firms and trade associations.

But if there’s a second aide who is implicated, and whose proximity to the principal affords knowledge that the principal approved – or even orchestrated – a cover-up, the calculation is very different. The first aide is no longer simply weighing the benefits of cooperation (a substantially reduced sentence) against the costs (the cognitive dissonance of betrayal and future reputational damage); he is now weighing the odds that the other aide might implicate him first, rendering his own information nearly useless. That’s the crux of the Prisoner’s Dilemma, and it’s why each player’s dominant strategy, according to the game theorists who use it, is to snitch before the other guy can.

Smith pushes back against some of the conventional wisdom that has made it into the papers, particularly in the Daily News from Bill Hammond, that Bharara has nothing on Cuomo legally:

Many, including New York Daily News columnist Bill Hammond, believe that Cuomo will walk. Hammond – and some criminal defense attorneys who agree with him – offer several reasons for this, most notably Bharara’s limited federal jurisdiction over this state investigation of state officers. 

However, legal precedent that prosecutors need not prove that an official federal proceeding was pending during the alleged offense, nor must they prove that the offender is aware of an investigation’s federal character. Indeed, according to holdings in New York’s own 2nd Circuit and in the neighboring 3rd Circuit, a defendant’s belief that a witness is reasonably likely to confer with federal authorities can be inferred from the nature of the offense and additional appropriate evidence; Bharara’s seizure of the Moreland Commission’s files, unambiguous public announcement of his intent to investigate and serial prosecutions of Albany legislators since taking his post would seem to provide sufficient evidence. In simpler terms: Ignorance of an investigation is no defense.

Hammond also seconds Cuomo’s argument that he can’t possibly interfere with his own commission, citing the precedent of pre-Depression-era Gov. Al Smith, who twice appointed himself the sole Moreland Commission member. But Smith did not deputize 34 commission members as deputy attorneys general with autonomous law enforcement power, which seems to render the comparison moot.

By Hammond’s account, prosecutors would be hard pressed to discredit repeated public statements from commissioners who have denied any improper interference or intimidation. Yet it would seem that a jury might weigh other evidence of interference – documents and, potentially, sworn statements buttressing that evidence – more heavily than public pronouncements made only after pressure from Cuomo aide Percoco, who even offered to draft the statements, according to multiple sources.
Lastly, Hammond argues that the commission’s eventual pursuit of many inquiries to which Cuomo objected indicates that any attempted Cuomo interference was ultimately ineffectual. That’s not unlike arguing for a terrorist’s innocence after the bombs he planted failed to detonate. The commissioners’ apparent steadfastness absolves the Cuomo administration of nothing.

As I wrote when New Jersey Gov. Chris Christie’s George Washington Bridge fiasco broke, federal prosecutors aren’t limited to investigating the matter that first attracted them to a target; probes often widen as new information emerges. Like wartime generals, federal prosecutors rarely have just one attack route. Just as they brought down Al Capone for income-tax evasion, not bribery, bootlegging or murder, they could end up indicting Christie for any number of other imbroglios about which troubling facts have emerged since the “Bridgegate” story broke. As someone who did time after a five-year, off-and-on inquiry that began with an examination into a 3x5 campaign postcard and ended in obstruction-of-justice charges due to discoveries from an unrelated investigation into a car bombing (!), I’m well-acquainted with the unforeseen places to which these inquiries can lead.

Blake Zeff has a piece at Capital NY today that reports Bharara may have an easier time proving witness tampering after the fact by Cuomo aides than meddling with the commission's initial work to obstruct justice:

When it comes to the underlying allegation of meddling in the investigations, the language in this statute does present jurisdictional challenges for Bharara, though not necessarily the one that keeps getting cited.

While pundits and legal observers have questioned whether a federal prosecutor can look into a state entity like the Moreland Commission, Bharara and others do this all the time. (If you don’t believe me, ask incarcerated former state senator Vincent Leibell about the feds’ ability to look into Albany dealings).

Instead, the key challenge for the federal prosecutor when it comes to the accusation of interference into the Moreland leads is demonstrating that the quashed subpoenas aimed at entities like Cuomo’s media buying firm might have compromised federal investigations (or potential ones).

In other words, were the firm Buying Time or the Cuomo support group Committee to Save New York the subject of federal interest? This is not impossible, but you can see why establishing the link presents a high bar.

By contrast, the same statute is far more straightforward when it comes to alleged efforts to influence the statements of the commissioners. Consider that Bharara had already made clear there was a federal investigation into Team Cuomo’s handling of the Moreland Commission. By definition, that key jurisdictional hurdle—whether a federal investigation was at stake—is cleared.

Add to that the fact-pattern that exists in public reports:

• Bharara reveals he's interested in the Moreland Commission's activities.
• Commission co-chair William Fitzpatrick reportedly says that top Cuomo aides asked them to pull back a subpoena and that he was exasperated by the role of the governor’s office in the commission, saying “the interference has got to stop,” according to a participant of a meeting he had with the governor’s top aide Larry Schwartz.
• Days after the initial Times report, Fitzpatrick (whose wife is reportedly up for re-appointment for a judgeship next year by Cuomo if he wins) puts out a statement writing something quite different: “The bottom line is nobody ‘interfered’ with me or my co-chairs.”
• Later that week, the Times Union reports that “Joseph Percoco, a longtime political aide to Gov. Andrew Cuomo, contacted several members of the state's now-shuttered anti-corruption commission in the past week and encouraged them to make public statements supporting the governor and affirming the panel's independence.”
• The story adds that prosecutors said they “would be interested in interviewing any commissioners whose public statements might be contradicted by commission records and internal communications, according to information provided to the Times Union.”
• It’s further reported by Ken Lovett of the Daily News that Moreland co-chair Kathleen Rice and others who served on the commission were “livid that the governor and his team last week sought public statements of support from members of the now-defunct panel, sources say.” 
• Lovett has a commission-linked source accusing Fitzpatrick of “carrying water for the governor while everyone else is being candid with the U.S. attorney and trying to help protect the integrity of the investigation by not speaking out.”
• He further reports that Rice and Milt Williams, the commission’s third co-chair, were not pleased when Cuomo suggested they agreed with Fitzpatrick’s statement attesting to the panel’s independence. 
• While Cuomo told reporters, “I’m sure if they had a different opinion you would have heard from them,” a spokesman for Rice bluntly told Lovett: “It was not a joint statement.”

Another development may also matter to investigators in this context.

The panel’s investigations chief, Danya Perry, reported to have quit due to concerns about the governor’s office’s meddling, recently took a job with former top Cuomo aide Steve Cohen at MacAndrews & Forbes, Lovett reported. While a trustworthy source who knows both Perry and Cohen emphasized that both were high-integrity professionals, the person added that the appearance and timing of the move would give prosecutors little choice but to look into it.

Put all this together with the likelihood that some members of the commission are talking to prosecutors (and leaking to reporters), and starts to look like a charge of trying to influence a witness in a federal proceeding would be easier for Bharara to bring in connection with the commissioners' statements than with the administration's dealings with the commission itself.

The most important issue for me is whether Bharara would limit his investigation to Cuomo administration tampering during and after the Moreland Commission or whether he might pick up the strands of the Moreland Commission investigations into Cuomo donors that were short-circuited by Cuomo administration meddling.

I have a difficult time seeing why Bharara would limit himself only to tampering and not pick up other strands of the Commission work, especially since he said the following:

A powerful federal prosecutor on Wednesday reiterated his pledge to pick up where Gov. Andrew Cuomo's anti-corruption commission left off.

Late in the interview, Rose briefly asked Bharara about his previous criticism of Cuomo for abruptly shutting down the Moreland Commission in March. Cuomo had appointed the panel nine months earlier with a charge of investigating public corruption in New York.

Bharara noted his office has received the documents at the center of the various investigations that were halted when Cuomo disbanded the commission.

“Our interest above all other interests is to make sure that the job is getting done, because we are the people who do our jobs," Bharara told Rose. "So we asked for and received -- we were voluntarily offered -- all the documents that have been collected by the commission so the work could continue, because if other people aren’t going to do it, then we’re going to do it. That’s our main mission."

"We have the documents and we have the resources and we have the wherewithal and we have I think the kind of fearlessness and independence that is required to do difficult public corruption cases.”

In addition, I have difficulty believing that somebody as politically astute as Bharara - he made his political bones working for Chuck Schumer - would go toe-to-toe with Andrew Cuomo in public, chastising him for shutting down the commission, warning him that coordinating statements from Moreland Commission members after the fact was potential witness tampering and obstruction, unless he really had something on Cuomo.

I dunno, I could be mistaken, but if after all the public wrangling between Bharara and Cuomo, if this all just ends up with a sternly-written report about executive meddling in commission work, Bharara's going to look like a chump and Cuomo will make sure the world knows it.

Much of the conventional wisdom around the case - that Cuomo's got no legal jeopardy to worry about because federal prosecutors will have a difficult time proving he broke federal laws and they have "limited federal jurisdiction over state investigations of state officers" (as Jeff Smith put it) - is based on what is known about the Moreland matter that is in the public record.

It's what we don't know that Preet Bharara does know about Moreland that matters most here.

Has Bharara picked up the Moreland investigations into Cuomo donors that Cuomo administration officials put the kibbosh on?

Was Bharara investigating anything before Cuomo shut the commission down that linked to commission work?

What pressure is Bharara putting on Schwartz and Percoco?

What has he been told by Moreland Commissioners that hasn't made it into the public record yet?

While it's possible we have all the information about the Moreland mess, it's a lot more likely there's a lot we don't know about the Moreland matter, a lot we don't know that Bharara does know, and a lot that is happening behind the scenes that renders the speculation of journalists and defense attorneys based upon what is in the public record not much use.

Cuomo To Leave Country

Governor Andrew Cuomo is loath to leave the State of New York, having made very few trips out of state during his time as governor, so it's always news when this happens:

New York Gov. Andrew Cuomo and a delegation of state legislative leaders are scheduled to fly to Israel this week in the governor's first international trip since taking office in 2011, according to a person with knowledge of the plans.

Mr. Cuomo and leaders including state Assembly Speaker Sheldon Silver and Senate Majority Coalition co-leaders Dean Skelos and Jeffrey D. Klein are set to travel Tuesday night on a commercial flight to Tel Aviv as a "demonstration of solidarity" with Israelis during the continuing conflict between the nation and Palestinians, this person said.

During the two-day trip, the Democratic governor is expected to meet with Israeli government officials as well as with individuals affected by the conflict, including New Yorkers who are living in the country, this person said.

It wasn't immediately clear whether Mr. Cuomo would meet with Israeli Prime Minister Benjamin Netanyahu, who last month invited the governor to make the journey.

The trip serves a political purpose, of course, since New York has the largest population of Jews outside of Israel.

But it can also serve a legal purpose too, like when he gets back and says:

Subpoena?

What subpoena?

I was in Israel.

Actually I think the bigger reason for the trip is this:

Mr. Cuomo, who is said to have national political aspirations and faces re-election in the fall, would likely earn international attention for the trip. It also would distract from a difficult few weeks at home, as headlines for the first-term governor have focused on a controversy involving his administration's handling of an anticorruption commission.

It also would give Mr. Cuomo a credential common to ambitious governors. Republican New Jersey Gov. Chris Christie in 2012 traveled on a "Jersey to Jerusalem Trade Mission," where he visited the Western Wall and met with Mr. Netanyahu.

Republican Texas Gov. Rick Perry has visited the country several times, most recently in the fall of 2013.

Mr. Cuomo, however, has traveled beyond the borders of New York state only a handful of times since taking office. He hasn't visited Israel since 2002, during his first (unsuccessful) gubernatorial bid.

That's what this is about - giving him a chance to get some "international politics" headlines.

Cuomo Pushes Back Hard Against Bharara From Behind The Scenes

US Attorney for the Southern District Preet Bharara warned Governor Andrew M. Cuomo to stop tampering with potential witnesses in his Moreland Commission investigation a couple of weeks ago, but that hasn't stopped Cuomo from meddling in the matter.

After the Bharara warning, Cuomo said the U.S. Attorney had made it clear that “on going public dialogue is not helpful to his investigation,” and the governor would “have no additional comment on the matter.”

But neither the Bharara warning to stop meddling with witnesses nor Cuomo's assertion that he would make no more public statements about the Moreland investigation are keeping Cuomo and his camp from manipulating and finagling things behind the scenes.

To wit, take a look at the events of the last three days.

On Thursday we got Charlie Rangel, a politician with some links to Cuomo (and ethics issues of his own) attacking Bharara in public statements:

Gov. Andrew Cuomo at least has Congressman Charles Rangel in his corner.

Mr. Rangel, who secured Mr. Cuomo’s endorsement during his most recent re-election bid, offered a defense of Mr. Cuomo’s handling of an anti-corruption commission he created, even questioning the validity of a federal investigation now aimed at the governor.

“I know that most of the attacks are coming from the New York Post,” Mr. Rangel told Observer today, claiming the right-leaning tabloid (and not the New York Times, which ran a front page story about Mr. Cuomo’s Moreland Commission) was fermenting the controversy. “We have a commission where the commissioners said that no one interfered with them and we have the New York Post saying they don’t believe them.”

“The fact is, no prosecutor should be critical of anybody until the case goes before the grand jury. That’s our system of government and I’d really hope he’d have a thorough investigation of the whole thing. That’s the only way fair-minded people should look at issues like that,” Mr. Rangel continued, speaking of U.S. Attorney Preet Bharara. “There’s certain people who make the accusations just to make a headline in the newspaper.”

OK, doesn't take a genius to see Cuomo's fingerprints on this attack - Rangel, who struggled for endorsements in his re-election bid, is paying back Cuomo, who did endorse him (albeit late) in the cycle.

And the line of attack is a pattern we're going to see going forward - Preet's an out-of-control cowboy looking to fatten his press clippings scrapbook (“There’s certain people who make the accusations just to make a headline in the newspaper.”)

The Wall Street Journal, a newspaper that often serves as an unofficial public relations outfit for Andrew Cuomo and the Cuomo administration, published an article last night that continues this line of attack:

Manhattan U.S. Attorney Preet Bharara has charted a confrontational and independent course in his investigation of New York Gov. Andrew Cuomo's disbanding of an anticorruption commission, former prosecutors and political observers said.

Mr. Bharara has launched a broad inquiry, including publicly criticizing the governor's dissolution of the commission and using tough prosecutorial tactics, all without seeking approval from the Justice Department in Washington, according to people familiar with the matter.

Prosecutors customarily inform the department of matters of national importance, current and former federal officials say, though the Manhattan U.S. attorney's office, arguably the most powerful of the 93 nationwide, is given more free rein.

George J. Terwilliger, a top Justice official in the Ronald Reagan and George H.W. Bush administrations, and now a partner at Morgan Lewis & Bockius LLP, said prosecutors tread on dangerous terrain when cases spill into public view. "The normal way federal prosecutors operate is they shut up until they put up," he said, speaking generally and not about Mr. Bharara.

Here we see a doubling down on the line of attack that Preet's a cowboy acting on his own - the WSJ report says he has launched a "broad inquiry" (i.e., a "fishing expedition"), taken the extraordinary measure of publicly criticizing one of the potential targets in the investigation (i.e., he should "shut up until he puts up") and hasn't had the Obama White House or Department of Justice sign off on his investigation ("all without seeking approval from the Justice Department in Washington.")

The Journal writer gets some off-the-record attacks from "former federal prosecutors" to back up this line of attack - Bharara's an out-of-control cowboy out on his own:

A key staffer in congressional investigations of the George W. Bush administration's firings of U.S. attorneys, Mr. Bharara has steered an independent path since he was nominated by President Barack Obama in 2009. But his approach to the Cuomo administration investigation has been unusually confrontational, former prosecutors say.

Mr. Bharara's tactics have included criticizing Mr. Cuomo during a radio interview in April for agreeing to disband the commission in exchange for lawmakers passing the ethics-overhaul bill that he sought. Mr. Cuomo has defended the deal.

Mr. Bharara also issued preservation notices to state lawmakers and to the governor's office, instructing them to retain all records and documents related to the Moreland Commission. Generally, former federal prosecutors said, U.S. attorneys simply issue subpoenas.

He took what former prosecutors called a rare step when he sent letters to Mr. Cuomo's office and the commission, saying the administration's contact with commissioners could represent witness tampering or obstruction of justice. Prosecutors generally don't give warning that actions could constitute crimes in the midst of continuing investigations.

There we see the pattern in the line of attack again:

Bharara's taken an "independent path" that is "unusually confrontational" - issuing preservation notices instead of subpoenas, going on the radio to criticize the shutting down of the Moreland Commission, sending warning to Cuomo's office and the commission over potential tampering and obstruction instead of just issuing indictments.

The former federal prosecutors are all off-the-record, of course, but with Cuomo's having been the state attorney general, it's not much of a stretch to see his fingerprints are behind these off-the-record attacks on Bharara as well.

The WSJ writer than picks up Rangel line of attack, that Bharara's investigation is all political, just Preet looking to advance his own career:

Mr. Bharara is employing these tactics as he grapples with Mr. Cuomo, a former state attorney general whose own investigations damaged former Gov. Eliot Spitzer's standing. Until now, Mr. Cuomo had been building a record as a corruption fighter.

Federal prosecutors in the New York City area have a history of using the U.S. attorney's office to launch political careers, including Rudy Giuliani in Manhattan and Chris Christie in New Jersey. Mr. Bharara has publicly denied having any political ambitions, though his investigations of insider trading have earned him national attention.

We do get a friend of Bharara's to back him up at the end of the WSJ piece:

Mr. Bharara's supporters said his prosecutions are apolitical. 

"Preet doesn't care about his win-loss record," said Viet Dinh, an assistant attorney general in the George W. Bush administration and close friend of Mr. Bharara. "What he really cares about are what the facts are and the integrity of his investigation."

But the overall gist of the article is, Bharara's an out-of-control cowboy conducting a criminal investigation for his own political ends and acting in ways that other federal prosecutors who aren't out-of-control would act.

The day before, the same WSJ writer co-wrote a piece that questioned what Bharara really had in this investigation:

Mr. Bharara's probe into the actions of the Cuomo administration with respect to interfering with the commission, dissolving it and the aftermath of that decision is now a top focus of prosecutors, according to people familiar with the probe.

While it is unclear whether he could make a criminal case on that front, Mr. Bharara views the enterprise as a victory even if it doesn't ultimately lead to charges against anyone in the administration, according to a person briefed on the investigation. If his office brings one case that the Moreland Commission failed to refer for prosecution, the investigation will be worth it, the person said.

This article seemed to suggest, as much of the conventional wisdom around the investigation has, that Bharara will not be able to bring any criminal charges against Cuomo or anybody else in the Cuomo administration for witness tampering, obstruction of justice or conspiracy to cover-up crimes, but will have to settle for maybe bringing a couple more cases against lawmakers.

Again, the thrust of the attack - Bharara is out-of-line, out-of-control, and fishing for something he's never going to get.

Bharara may have warned Cuomo to stay out of the Moreland matter, but that hasn't stopped Cuomo and his camp from trying to engineer the narrative of the investigation from behind the scenes.

Seems pretty clear to me that Cuomo is working very, very hard to undercut Bharara and damage both the federal prosecutor himself and the investigation he is conducting with both the public and the media.

It remains to be seen if that kind of attack will work as Bharara continues his investigation and the grand jury he has convened continues to hear testimony and evidence.

But what we don't need to wait to see is Cuomo's desperate maneuvering to try and save himself - if you're watching closely, that's all over the news these past three days.