“I want you to consider the witnesses that the people are not going to call, [they’re] not going to produce Theofan or Clarson — they’re calling the current comptroller; he wasn’t on the job when Fagen was elected,” Gann said. “[Theofan and Clarson] are the people who had direct contact and direct communication with Fagen.”
Gann told the jury that Theofan told Fagen shortly after he took office to keep a diary logging his work as a councilman, saying that anytime he spoke to a constituent or attended an event, it counted as work.
Gann said before the trial that Fagen was unaware that the city was submitting payroll records to the state on his behalf stating that he had worked up to 40 hours per week in a job that Fagen considered part-time. He told the Herald that the previous administration submitted false documents on Fagen’s behalf for a pension credit to the state, and had turned those documents over to the district attorney’s office in an attempt to have Fagen arrested.
Gann said that Fagen, who was laid off in August 2009 from his sports marketing job, believed he was eligible for unemployment as a councilman because his income during the time in question did not exceed $20,000 a year, or $405 per week, the minimum income to disqualify a person from receiving unemployment.
According to Gann, Theofan informed Fagen that he was eligible to collect unemployment at the time, saying that he would present an email corroborating that statement at trial.
“The case comes down to a question of intent,” Gann said. “[Fagen] reasonably believed that what he was doing was right.”
Regarding the charge involving his consulting work with Willow Advisors, Gann said that Fagen did not begin that job until Sept. 12, 2010, after his unemployment benefits had expired.
“When you use your head, your heart and your common sense, you’ll only be able to come to one conclusion: that Michael Fagen is not guilty,” Gann told the jury.