Text of Astorino letter:
This letter is prompted by a grossly misleading television ad now being run on your stations by the Democratic State Committee on behalf of New York Governor Andrew Cuomo regarding frivolous allegations in a lawsuit entitled The Westchester County Independence Party, et al. v. Robert P. Astorino, et al. (the “Federal Lawsuit”). I am writing, as campaign manager for Astorino for governor and on the advice of counsel, to request that the commercial be immediately pulled from the air.
The television ad, like the federal lawsuit, is a palpable litigation stunt which is false, misleading and scandalous.
The political, vacuous nature of the federal lawsuit is exposed by the plaintiffs themselves – a strip club owner and self-proclaimed publisher (Sam Zherka); a long-time political operative (Giulio Cavallo) who, until recently, was the subject of the now notoriously dismantled Moreland Commission. Cavallo sought, and was appropriately denied, the position of Westchester County Health commissioner, a position for which he was unqualified; a government employee (Dhyalma Vazquez) who was also properly denied a promotion for which she was not qualified and a former county employee (Irma Drace), who lost her county job because she was unable to pass the required Civil Service Test.
On October 31, 2013, these individuals, all of whom are long-standing political operatives and members of the Westchester County Independence Party, filed the federal lawsuit purporting to allege various civil claims, including a claim under the RICO statute, the Hatch Act and certain constitutional claims. Predictably, the plaintiffs conducted a press conference announcing the filing of the complaint in the hope it would derail Mr. Astorino’s 2013 re-election as county executive. This tactic failed, with Mr. Astorino winning re-election by a landslide.
On its face, the original federal lawsuit was laughably deficient and sanctionable under Rule 11 F.R.Civ.P. Realizing this reality, the plaintiffs voluntarily amended the complaint as of right, filing a second amended complaint. This pleading was equally frivolous and meritless. Nonetheless, the predictable second press conference followed.
In March 11, 2014, the defendants requested permission from the Court to (1) dismiss the amended complaint on multiple, equally compelling grounds and (2) seek monetary sanctions against the plaintiffs and their attorneys. Among other things, the county executive and the co-defendants pointed out that the RICO claim failed to allege, let alone satisfy, any of the well-settled pleading requirements under the RICO law.
Recognizing the glaring fatal defects of the Federal Lawsuit, following a hearing the Court granted plaintiffs’ request for “one last chance” to file a valid complaint. Plaintiffs filed their Second Amended Complaint on June 24, 2014. The Second Amended Complaint dropped 30 defendants and the Hatch Act Claim. However, it failed to cure the fatal defects endemic to this politically motivated lawsuit. As a result, County Executive Astorino and the co-defendants will file formal motions to dismiss the complaint on September 12, 2014. We expect the motions to be granted.
The Democratic State Committee has cherry-picked words from this frivolous lawsuit to make it appear as if Mr. Astorino is guilty of or being investigated for some sort of criminal behavior.
It begins to ominous music:
“The Rob Astorino Story. Racketeering. Conspiracy. Fraud.” None of these allegations are remotely true. Indeed, as noted by the court records, they are all meritless.
Negative advertising is nothing new in this state.But allowing this ad to stay on the air would set a dangerous precedent. If words from a frivolous civil lawsuit can be used to fabricate a smear television ad campaign, where does it stop?
Anyone is free to file a civil lawsuit against any elected official in this state for virtually any reason. Is that really an acceptable basis for television advertising? If this is permitted it has the potential to cause chaos in our political system. Frivolous lawsuits will be become a campaign weapon of choice, and voters will easily be misled into making choices based on innuendo and untruths.
The television ad is as disingenuous and misleading as the federal lawsuit. We understand the Cuomo Administration’s desire to distract the public’s attention to his dismantling of the Moreland Commission to protect political allies, such as Mr. Giulio Cavallo. However, the governor’s re-election campaign should not be permitted to do so through an outrageously false and misleading television advertisement.
I have been advised by legal counsel that this sensationalism paid for by New York State Democratic Committee against Rob Astorino plainly does not constitute a “candidate use.” Under Columbia Broadcasting Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94 (1973), and Nat’l Conservative Political Action Comm., 89 FCC 2d 626 (1982), your station is not obligated to air any advertisements from third parties, such as the New York State Democratic Committee, as third parties have no guaranteed right of access to air their advertisements on your station. Thus, broadcasting stations are not protected from legal liability for airing a false and misleading advertisement sponsored by the New York State Democratic Committee. Moreover, broadcast licensees have a legal responsibility to review and to eliminate any false, misleading, or deceptive materials contained in advertising. (See Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising, 74 F.C.C.2d 623 (1961).] Failure to prevent the airing of “false and misleading advertising” may be “probative of an underlying abdication of licensee responsibility” that can be cause for the loss of a station’s license. [Cosmopolitan Broad. Corp. v. FCC, 581 F.2d 917, 927 (D.C. Cir. 1978).] We urge you to stand up for the truth and put a stop to these misleading advertisements on your station.
Accordingly, for the foregoing reasons, the ad should immediately be pulled from your stations.
Astorino For Governor