Mayor de Blasio makes a budget presentation (photo via Mayor's Office)
During the annual budget process, city agencies and entities are at the mercy of the Mayor and the City Council, who ultimately set the budget. But unlike many, the several agencies and officials who regularly monitor, regulate, or litigate against the mayoral administration are put in an awkward situation, annually appealing for funding in a dynamic that can hamper their ability to carry out charter-mandated duties and, in some cases, lead to politically-motivated budget cuts.
The Public Advocate, for example, is meant to act as a watchdog over the mayor, but relies on the mayor to determine the office’s budget.
Representatives of the city’s Conflicts of Interest Board, tasked with training and regulating city employees including the Mayor and City Council members, have said this spring that their agency is underfunded but that repeated requests for additional funding have been turned down by the city’s Office of Management and Budget.
Independent budgeting for oversight or autonomous entities, which include Borough Presidents, the Public Advocate, Comptroller, Department of Investigation, District Attorneys, and Conflict of Interest Board, is a solution that was once widely promoted by members of the public and government officials alike. Under independent budgeting, offices would receive a fixed annual amount scaled to the budget for a larger pertinent office or some set percentage of the city’s overall expense budget.
The Independent Budget Office is the only city agency with fully independent budgeting, a position it enjoys because of its unique oversight duties. Rather than have its budget set by the Mayor, IBO receives "no less than" 12.5 percent of the annual budget of the Office of Management and Budget. The Campaign Finance Board also has a somewhat-independent budget—the Mayor must include an annual amount suggested by the CFB in the Executive Budget without adjusting it, but that amount is subject to recommendations made by the Borough Presidents, Comptroller, and Mayor, and can be amended by the City Council.
Support for independent budgeting seems to have peaked during Mayor Michael Bloomberg’s administration, seemingly fueled by dissatisfaction with an especially thin budget. According to a 2010 report by government reform group Citizens Union, “most” of the borough presidents, the Conflict of Interest Board, former Public Advocates Mark Green and Betsy Gotbaum, and then Public Advocate Bill de Blasio had requested independent budgeting for their respective agencies by that year.
“In this current structure, there is simply no way for a borough president to be a truly independent voice,” Marty Markowitz, then-borough president of Brooklyn, said in a 2010 testimony before the city Charter Revision Commission. “We go in and ‘pitch’ as if we were a nonprofit community group or cultural organization hoping upon hope that in the end, we get the funding we need for the staff and resources to do our Charter-mandated jobs.”
That Charter Revision Commission did not reach a conclusion regarding independent budgeting, but vaguely urged future commissions to “devote significant resources to studying the roles of both COIB and various elected officials so as to make an intelligent assessment of their fiscal needs” and “assure the independence and stability of such entities.”
In the years that followed, however, the $59.5 billion adopted budget for fiscal year 2010 swelled to an $82.2 billion executive budget for fiscal 2017 (the budget currently being finalized), and calls for independent budgeting waned. Between those two budgets, borough presidents’ combined operational budgets increased from $24.2 million to $26.7 million, the public advocate’s budget increased from $1.8 million to $3.3 million, and the five district attorneys combined budgets increased from $259 million to $324 million.
Under the current administration, officials are loathe to call for independent budgeting. Last week, Public Advocate Letitia James declined to comment on the prospect of independent budgeting via a spokesperson. In a statement to Gotham Gazette, Brooklyn Borough President Eric Adams did not say he supported independent budgeting, but that he “would be interested in reviewing any proposal” that he deemed fair. The other four borough presidents either declined to comment or did not respond to repeated requests for comment, as did the five district attorneys.
One remaining proponent of independent budgeting is the Conflict of Interest Board, which has been especially vocal in recent years. The board first proposed an amendment to the city charter to establish independent budgeting in 2009. At the time, COIB said that its ability to fairly judge and regulate city officials was impeded by its place in the annual budgeting process, and requested that it receive no less than seven thousandths of one percent (0.00007%) of the city’s annual expense budget.
Last year, COIB reiterated its proposal with its request adjusted to four thousandths of one percent (0.00004%) of the city budget—a proposal that it stood by this year. The reduction corresponds to the Board’s decision to drop its request for investigative authority. Four thousandths of one percent of this year’s $82.2 billion Executive Budget would have given COIB $3.3 million; instead, it is allocated $2.33 million.
Because COIB is an independent ethics agency without a source of revenue or set constituency, the Board’s argument goes, it should not have to rely on the officials it regulates to pass on the board’s funding. COIB has cited similar independent budgeting systems already in place for the state of Michigan’s Civil Service Commission, New Orleans’ Ethics Review Board, and Philadelphia’s Board of Ethics.
Despite reiterations of this proposal by COIB every year, the city administration has not moved toward a charter amendment despite support from some City Council members. COIB Executive Director Carolyn Miller told Gotham Gazette that in her view, this inaction likely stemmed from administrative reluctance to increase the number of agencies not centrally monitored and controlled for financial reasons, which she acknowledged was “reasonable.”
“There hasn't been that much receptivity generally,” Miller said. “I think probably it's more of an administration issue than a Council issue.”
City Council Member Alan Maisel, chair of the Committee on Standards and Ethics, which has oversight of COIB, told Gotham Gazette that he agrees COIB should have independent budgeting.
“They should not be dependent on a particular budget item because then of course there's always the implication that they're being prevented from doing their absolute necessary job,” Maisel said. “But it's not getting much traction. I think when it comes down to assigning dollars to different agencies this is not a priority.”
COIB’s proposal is primarily an ethical one—although its independent budgeting proposal would increase the Board’s funding, Miller says COIB would still be underfunded. The board’s budget has been markedly anemic even after a 2010 charter amendment mandated that COIB provide biannual ethics training to all city employees. That year, the Board’s supervisors took two percent pay cuts in order to maximize training personnel, and although COIB’s adopted budget increased from $1.88 million for fiscal 2010 to $2.22 million for fiscal 2016, those pay cuts have not been reversed, according to Miller. Meanwhile, the city employee headcount continues to swell, giving COIB more people to train and assist with ethical quandaries.
This year, COIB testified at a preliminary budget hearing that it was underfunded and had made repeated requests to the city’s budget office for more funding. After being denied several times, COIB wrote a letter to the city budget office requesting just $26,000 in additional funds for its “most critical budget needs,” which was granted. Mayor de Blasio said he was unaware of the board’s financial struggle when asked about it by Gotham Gazette at a May 15 press conference, but promised to reexamine the board’s funding.
Although calls for independent budgeting seem aimed at an agency’s financial stability, arguments for independent budgeting are rooted in the ability to regulate, monitor, or prosecute independently. Independent budgeting would provide protection for agencies like COIB, the Comptroller, Department of Investigation, Public Advocate, and District Attorneys—all of whom are ostensibly watchdogs of the mayoral administration—against vindictive mayors who might seek to hobble their effectiveness for political reasons.
When the Independent Budget Office upset Mayor Rudolph Giuliani in 1998, its independent budget ultimately saved it from his attempts to defund the agency in retaliation. IBO had charged the mayor with violating the City Charter by withholding city finance information from the budget office, and Giuliani, a Republican, called IBO “the most partisan group of Democrats” and implied the agency should be abolished. Because of IBO’s independent budget, however, Giuliani was unable to weaken the budget office’s funding in subsequent years.
“IBO would not have come into being were it not for the guaranteed budget line, and it certainly would not have remained in business...Why would the Mayor or Speaker [of the City Council] want the city to fund an agency over which they had no control? You can understand the political calculus,” IBO Director Ronnie Lowenstein told Gotham Gazette. “In the past, borough presidents and public advocates have also fought with similar logic to get a budget guarantee.
Throughout his time in office, Mayor Michael Bloomberg, a Republican-turned-independent, made his displeasure with the office of the Public Advocate clear in word and deed, calling it a “total waste of everybody’s money” even after reducing its budget from $2.9 million to $1.8 million. Last year, former Public Advocate Betsy Gotbaum told Gotham Gazette that mechanisms should have been in place to protect her office from Bloomberg’s personal motivations.
“The mayor…should not be controlling the budget of the person who’s looking over their shoulder,” Gotbaum said. “Because [Bloomberg] would get furious at me and then come June, July, he’d cut the budget.” (All four public advocates, including the current one, Letitia James, have been Democrats.)
As the first former public advocate to be elected mayor, de Blasio quickly increased the public advocate’s budget to $3.2 million for fiscal 2015 and then to $3.4 million for fiscal 2016. James took advantage of the budget increase to carve out an enhanced, especially litigious role for her office. While taking on certain issues and criticizing specific city agencies, James has not been publicly critical of de Blasio. She has also not called for independent budgeting.
Maisel sees the public advocate’s current power and budget as tenuous. “The job of the public advocate is to look into everything and try to correct the things that need to be corrected. Some people take it personally, like mayors,” Maisel said. “Betsy Gotbaum was not a malicious individual, she saw a need for her to do certain things. And Giuliani and Bloomberg both belittled whoever the public advocate was.”
Maisel’s view is in line with the 2010 Citizens Union report, which concluded that it “undermines honesty and integrity in our elected officials if they feel the need to couch their remarks and opinions for fear of having their budget cut.”
The Citizens Budget Commission, a nonpartisan, independent budget watchdog organization, does not have a stance on independent budgeting according to Vice President Maria Doulis, who added in a statement to Gotham Gazette that CBC does “caution against dedicated formulas” for funding agencies.
The Comptroller and Department of Investigation are also responsible for weeding out fraud and abuse among city officials, but have not undergone the same level of financial turbulence from administration to administration as the public advocate. While the Comptroller’s funding has increased steadily from $66 million in the fiscal 2010 adopted budget to $96 million in this year’s executive budget, DOI funding has increased by nearly 43 percent in the past year to $47 million in this year’s executive budget, which scales with a newly proactive role the department has taken on. Spokespeople for both the Comptroller and DOI declined to comment on the prospect of independent budgeting.
Like the Public Advocate, who regularly files suits against the de Blasio administration, District Attorneys are responsible for pursuing public corruption cases against city and state officials. In a notable recent example of such action, Manhattan District Attorney Cy Vance subpoenaed City Hall last month as part of his investigation into the fundraising activities of Mayor de Blasio and his allies.
Some have pointed to a web of political connections between Vance and de Blasio, one strand being the simple fact that de Blasio sets the annual budget for Vance’s office. A spokesperson for Vance declined to comment on the topic of independent budgeting. All five district attorney offices recently testified at a City Council budget hearing that they are in need of more funds.
“In most cases you wouldn't have the investigative agency at the mercy of the executive when the executive is going to be the subject of the investigation, that makes no sense,” Maisel said. “There should be some impartial way of determining how much money a District Attorney gets so it's not subject to the whims of who happens to be in the administration doing the budget.”
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by Aaron Holmes, Gotham Gazette
@GothamGazette
Note: this article has been corrected to reflect that IBO receives no less than 12.5% of the OMB budget, not 10% as previously stated.
CM Van Bramer, Mayor de Blasio, & Dennis Walcott (l-r) (photo via The Mayor's Office)
Members of the New York City Council have joined together with cultural institutions and advocates to petition Mayor Bill de Blasio to increase by $40 million the funding for cultural programming and organizations in the upcoming city budget. With a budget deal due by the July 1 start of the new fiscal year, final negotiations are underway between the City Council and the de Blasio administration, and outside groups are making their last gasp lobbying efforts.
The increase would be split between institutions built on city land, like the Queens Museum and the Brooklyn Botanic Garden, and independent groups, like Harlem Stage. The mayor proposed $144 million in funding for the city’s Department of Cultural Affairs in fiscal year 2017 through his executive budget. This number is down about $15 million from the $159 million in the adopted budget for the current fiscal year. (A spokesperson for the department told Gotham Gazette that a significant portion of the decrease is due to electricity savings realized by cultural organizations.)
The petition to increase funding for the Department of Cultural Affairs in the city budget is in part a response to city funding for cultural affairs having stagnated since peaking at $161 million in 2008. Despite economic growth and increased spending leading to a ballooning city budget in recent years, city funding for the Department of Cultural Affairs has actually decreased slightly overall and somewhat significantly as a percentage of the city budget, which will be in the neighborhood of $82 billion for the coming fiscal year.
A coalition of cultural organizations called One Percent for Culture, which was formed in 2010 to encourage the city to increase cultural affairs funding, is working with City Council members to draw the mayor’s attention to the needs of nonprofit cultural organizations reliant on funding from the Department of Cultural Affairs. The coalition is a nonprofit made up of over 1,300 members, including both independent groups and institutions built on city land. The Brooklyn Museum, BRIC, Alvin Ailey Dance Foundation, and Harlem Stage are all members, for example.
“We are frustrated that culture and the arts have not seen any increase despite the fact that the money is there,” City Council Majority Leader Jimmy Van Bramer said in an interview with Gotham Gazette. Van Bramer chairs the Council’s cultural affairs committee and has worked closely with One Percent for Culture since 2013.
Van Bramer is leading the current Council petition for a $40 million increase in cultural affairs funding, which has the support of Republican Minority Leader Steven Matteo and 44 other members of the 51-seat Council, all of whom signed a letter submitted to the mayor on May 18, just ahead of the Council’s May 19 executive budget hearing on cultural affairs and libraries.
“We asked the Commissioner of Cultural Affairs some very tough questions about where funding for culture is in Mayor de Blasio’s list of priorities,” Van Bramer said in an interview following the hearing on May 19. “[Mayor] de Blasio has been blessed with a very robust economy and a robust budget with billion dollar surpluses, but he has not increased support for cultural institutions.”
De Blasio did approve a $23 million increase in arts education funding in 2014, $1.4 million of which has gone to cultural institutions through their partnership programs with schools. But this is far from the increase in funding currently sought by the City Council, arts organizations and advocates that would go straight to cultural institutions through the Department of Cultural Affairs.
The commissioner of the department, currently Tom Finkelpearl, advises the mayor on the needs of cultural programs and controls the distribution of the department’s funds. Two department funds exist, one of which goes to support the operating costs of the Cultural Institution Group (CIG) members. This group is made up of the cultural institutions built on city land, which include the Queens Museum, the Brooklyn Botanic Garden, and the Public Theater, among others. CIG members are receiving $103.8 million altogether through the Department of Cultural Affairs in the current fiscal year, according to a spokesperson from the department.
The rest of the cultural affairs budget goes into the Cultural Development Fund, from which the department distributes grants to independent cultural groups in the city. These groups are receiving $33.9 million in grants from the Department of Cultural Affairs this fiscal year, according to the department spokesperson.
The City Council is asking that the $40 million increase in the cultural affairs budget be split between the two funds, if it is granted. Spokespeople from CIG organizations and independent groups say they need more funding to keep pace with rising operational costs and public interest. Increasing rents in the city have hit independent organizations hard since 2008, while growing membership numbers have raised the operating costs of city-affiliated institutions, they say, without adequately providing more revenue.
“We have already worked to lower expenses,” said Pat Cruz, director of Harlem Stage. The organization receives approximately $125,000 a year from the city, and has reduced its annual operating budget from $3 million to $2 million since 2014, according to Cruz. She also says that corporate support for Harlem Stage has gone down in recent years. “Unless we receive an increase in funding, we are going to see a lot of visionary programming shut down, and I’m not just talking about Harlem Stage.”
Approximately 70 performance venues have closed since 2008 due to insufficient funds, according to Guy Yedwab, the managing director of the League of Independent Theater, an advocacy group representing theater groups in New York City. Many of the League’s members apply for grants from the city each year. Often, groups will receive funding from the city one year, but not the next, according to Yedwab. The New York International Fringe Festival is one of these groups. “They’ve gotten it so many times in the past, I’m sure it doesn’t come down to an issue of quality. There’s just not enough money,” he said.
Half of the $40 million increase in funding proposed by the City Council would go toward the Department of Cultural Affairs’ grant-making capacity, almost doubling it, and directly impacting independent organizations like the members of the League of Independent Theater. Meanwhile, the $20 million increase in funding the City Council suggests be allotted to cultural organizations built on city-owned land, like museums and botanic gardens, would help these institutions keep up with growing attendance due to the city’s municipal identification card program, IDNYC, which comes with free membership to CIG member institutions and other participating cultural organizations.
The size of the Brooklyn Children’s Museum membership pool has almost tripled due to the program, according to the director of external affairs for the museum, Lucy Ofiesh. “The expansion in our membership was a welcome change but surely had some fulfillment need associated with it,” she said. The museum’s operating budget is $5.1 million, $1.6 million of which comes from the city, according to Ofiesh. “We see about 30 percent of our audience for free every year, and that number continues to grow. So our need for public funding continues to grow, as well,” she said.
Likewise, the Queens Museum, which reopened in 2013 after undergoing renovations funded by the city, has added 3,700 new members through the IDNYC program. While welcome, this growth has come with increased personnel costs, according to the museum’s deputy director, David Strauss. “There’s always a private funder who is willing to fund initiative A or exhibition B, what there isn’t is a foundation that is really excited to fund your security guards, your bathroom cleaners,” Strauss said. The funding that CIG member institutions receive from the Department of Cultural Affairs typically goes toward these types of operational costs. “It’s just going to be an untenable situation if more people are coming in and we cannot afford more toilet paper,” Strauss added.
While IDNYC has brought many more people through the doors of the city’s cultural institutions, it has not brought in enough revenue to account for the costs, much less improve bottom lines beyond them, according to several leaders of CIG member organizations.
Asked about the push for more funding for the Department of Cultural Affairs, mayoral spokesperson Rosemary Boeglin said in a statement that the city “is proud to be the largest local funder of arts and culture in the United States.” Boeglin highlighted the IDNYC program, which was implemented by the city in 2015, and the mayor’s 2014 increase in funding for art education in schools. “We look forward to continuing our close work with partner organizations and the City Council to provide access to awe-inspiring and mind-opening cultural experiences for all New Yorkers, and to discussing all of the council's budget priorities as we approach budget adoption,” she said.
This is not the first time de Blasio has been asked to increase funding for cultural affairs in the city budget. Last year, One Percent for Culture asked the mayor to increase the budget by $30 million, without the backing of City Council members.
“The letter from City Council built out of our campaign last year,” said Heather Woodfield, the director of One Percent for Culture, which is a partner project of the 501c3 organization The Fund for the City of New York. “We came together later in the [budget negotiations] cycle last year, but we found that our strength was aligning together.”
This year, One Percent for Culture launched a public campaign, symbolized by the hashtag #NYCinspire, to build public awareness about the need for increased funding for cultural affairs. The group’s goal is to get more residents of New York City through the doors of all cultural organizations in the city, according to Woodfield. “We are dedicated to increasing access for all New Yorkers to experience and create arts and culture. That means increasing educational opportunities for both youth and for adults and seniors. It also means increasing the workforce in the arts,” she says. (One Percent for Culture is unrelated to Percent for Art, a mandate passed in 1982 that requires one percent of the city’s construction budget go toward public artworks.)
The campaign has brought Council members’ attention to the role of culture in New York City’s economy, according to Council Member Laurie Cumbo, who ran an arts organization in Brooklyn that receives city dollars before running for City Council. But, Cumbo says that this may not be enough to guarantee the petition’s success. “Overall, there is a lack of understanding at this time of the power of the arts in New York City,” she said. “We don’t have a thorough understanding of the power of these institutions as it pertains to employment, tourism, a decrease in violence in our communities, or to the cultivation of artists.”
The City Council passed legislation last year that calls for the development of a Cultural Plan that is intended to answer many of these questions, according to Cumbo. The plan is in development now and will be released in July 2017.
In the meantime, One Percent for Culture will continue to ask Mayor de Blasio to increase the cultural affairs budget, according to Woodfield. “If we don’t get the $40 million this year, we will keep asking,” she said.“We will be talking to lawmakers after the budget is finalized this year and will be formulating a new ask.”
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by Kate Groetzinger for Gotham Gazette
@GothamGazette
Note: this article has been corrected to reflect that The Public Theater is part of CIG.
Mayor de Blasio (photo: Ed Reed/Mayor's Office)
Two weeks ago, Mayor Bill de Blasio and his government legal counsel, Maya Wiley, declared that a new classification had been granted to five outside advisers of the mayor, shielding communication between de Blasio and those advisers - three of whom represent clients with city business - from certain public disclosure requirements. In doing so, de Blasio provoked heightened scrutiny, even some ridicule, of his relationships with these “agents of the city,” as Wiley called them, including the question of whether they should be subject to the same conflict of interest and financial disclosures required of top city officials.
Facing media inquiries about blocking access to communications with one of those close political advisers, the mayor’s legal team presented a tenuous, novel defense. The city had designated five individuals who work outside city government but regularly advise the mayor as “agents of the city” and declared certain communications between the mayor and those individuals exempt from transparency through the state’s Freedom of Information Law (FOIL).
The revelation and ensuing public controversy over the new classification were prompted by the denial of an initial FOIL request, made by NY1 for emails exchanged between the mayor and Jonathan Rosen of BerlinRosen, a consulting firm, and follow up questions about the justification behind it. Wiley, the mayor’s top government lawyer, explained that the request for those communications had been rejected on the premise that Rosen was acting as an “agent of the city” and explained that the protection extended to four others: Nicholas Baldick and Bill Hyers of Hilltop Public Solutions, another consulting firm; John Del Cecato from AKPD Message and Media; and U.S. Ambassador to South Africa Patrick Gaspard. Rosen and Gaspard are longtime friends of the mayor. Hyers, Baldick, Del Cecato, and Rosen were instrumental in de Blasio’s 2013 election - other than Del Cecato, they also represent clients with city business.
Likely intended as something of a throw-away phrase of legalese, the “agents of the city” moniker used by Wiley stuck and put the mayor further on the defensive. “It’s a fictitious phrase,” said Robert Freeman, executive director of the State Committee on Open Government and FOIL expert. “It’s an attempt to stretch an exception beyond what the Freedom of Information law, in my opinion, permits.” Freeman believes the mayor is outright wrong in his contention and that the exemption from FOIL only applies for consultants who have been “retained” by the city.
The five advisers are unpaid, volunteer consultants, not city employees. While they are not officially affiliated with the administration, they have a very public history with the mayor and his political career. “I think it’s appropriate I call them advisers,” de Blasio said, avoiding the “agents of the city” moniker when pressed by Brian Lehrer on WNYC last week, “I think that’s the right phrase.”
De Blasio has repeatedly said that these advisers do not discuss their clients with him and that if they did, the conversations would be disclosed as lobbying. What he is shielding from FOIL is the informal advice they give him, he says, asserting that “these are folks who are advisers, and in some cases advisers for decades.” There are questions not only about the legal validity of this claim, but also about whether these advisers should provide a full public accounting of their conflicts and finances, as deputy mayors, agency heads, and others must.
“The state’s highest court has held that exceptions to the right to access must be construed narrowly in order to foster public access,” Freeman added. “The mayor’s interpretation is exactly the reverse.”
The administration hasn’t explained the legal underpinnings for the exemptions in this case.
Multiple requests for clarification and further comment sent to the administration went unanswered. But, if the mayor can claim these exemptions using in-house legal determination that treats these individuals as de facto employees of the city, it stands to reason that their status extends to other obligations required of officials in the administration.
“By creating this special designation for unofficial advisers whose opinion carry weight, they’ve opened up a can of worms that prompts some very necessary questions,” said Dick Dadey, executive director of Citizens Union, a government reform group.
“They cannot be protected by being called “agents of the city” without bearing the responsibility to comply fully with the ethics laws governing senior employees and not also be required to file financial disclosure forms,” Dadey said.
As Dadey pointed out, there are a number of legal provisions at play. There is FOIL, which states which agency records are subject to disclosure and which are exempt. There is the Public Officers Law, within which FOIL is contained, which regulates the business and professional activities of state employees and officers of city agencies. There is the City Charter’s Conflicts of Interest section, which lays out the different rules and regulations that public servants are required to abide by and the responsibilities of the Conflicts of Interest Board. And, there is the city’s Administrative Code, which establishes financial disclosure rules for various categories of employees and public officials.
“The concept of an agency with a private person is not something I recognize or remember,” said Michael Hess, former corporation counsel under Mayor Rudolph Giuliani. “Therefore, the concept of an outside adviser whose communications are privileged is not something I’m familiar with.”
There is no specific statute in FOIL that applies to unpaid consultants. To claim an exemption from disclosing communications, as the mayor can with employees of the administration, they must necessarily fall under a city agency, presumably the Mayor’s Office in this case. FOIL defines agency as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”
Perhaps Wiley and the administration see the mayor’s “kitchen cabinet,” as he called them, as fitting that “other governmental entity” label. But, the administration has declined to explain its rationale.
FOIL lays out a number of instances where the city can deny access to records, including avoiding an invasion of privacy; protecting trade secrets; protecting the integrity of contract negotiations and awards; preventing interference in law enforcement procedures and investigations; ensuring information security; and in the case of “inter-agency or intra-agency materials” that aren’t statistical data, instructions to staff that affect the public, final policy determinations, and external audits.
The last category seems the most likely one applicable to the mayor’s consultations with the five outside advisers.
By virtue of claiming such an exemption to FOIL, de Blasio is implicitly treating these advisers as employees of the city. And if they are considered employees for the sake of FOIL exemptions, then they may be considered employees under the Administrative Code Section 12-110 that deals with annual financial disclosure for local party officials, candidates for public office, and various city employees.
Information that is required to be disclosed includes name of employer; marital status; spouse’s information; offices held by individual and spouse (trusteeship, directorship, partnership and even honorary positions); information on any additional business, trade or occupation; membership of political organizations; details of agreements and contracts; nature and amount of income above $1,000; reimbursements for expenditure; value of gifts received; assets and property owned; details of creditors, among other requirements.
The disclosure requirements generally apply to employees in a significant “policymaking position” and being a direct adviser to the mayor seems to fit that description. If de Blasio’s advisers were to fill out these disclosure forms, their clients and income would be public information, making completely evident their business before the city.
If the mayor were to contend that these individuals are not eligible for disclosure under the conflicts of interest law, it would logically follow that he cannot claim the exemption under FOIL either.
Conflicts of Interest law falls under Chapter 68 of the City Charter. “The Conflicts of Interest laws have limited jurisdiction,” said Carolyn Miller, executive director of the Conflicts of Interest Board, stressing that they only apply to current and former public servants. “It’s a narrow law,” she said. When asked if COIB could make a legal determination on the “agents of the city” and whether they would be required to file disclosure forms, Miller said she couldn’t discuss either subject.
Last week, Common Cause New York, a good government group, called on COIB to review the emails in question between the mayor and these “agents” of the city, citing their concerns that these consultants may be lobbying the mayor or using insider information to benefit their clients.
“The proliferation of the city's shadow government remains a matter of public interest, especially given this protected class of individuals who operate without oversight or accountability,” said Susan Lerner, executive director of Common Cause New York, in a statement. “Common Cause New York believes that this vague category demands explanation, and that the COIB has an obligation to review the emails withheld.”
The mayor has always maintained that the consultants do not discuss their clients with him. “[I]f any of them were ever to attempt to talk about a business matter related to a client – first of all, I wouldn’t allow it,” de Blasio said on WNYC. “Second of all, that would be something – of course that is discloseable – but what I’ve said from the beginning is they don’t talk to me about their clients and business matters with clients, they just don’t.”
At a recent unrelated press conference, Gotham Gazette asked the mayor if the public should not be allowed some insights into the conversations he is having with what he described as “a kitchen cabinet” like other mayors have had, even if portions of the discussions were redacted, as emails obtained through FOIL often are. “I understand the question,” de Blasio said, “but I believe that their role as advisers was appropriate, and the way it’s being handled based on legal guidance is appropriate.”
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by Samar Khurshid, senior reporter, Gotham Gazette
@samarkhurshid @GothamGazette
Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.
Note: this article has been corrected to reflect that John Del Cecato does not represent clients with city business.