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With Session Ending and Trial Looming, No Legislative Response to Bid-rigging Scandal


Cuomo Flanagan Heastie

Flanagan, Cuomo, Heastie (photo: The Governor's Office)


With just three scheduled days left in the legislative session and the corruption trial of several close associates of Governor Andrew Cuomo for their roles in a bid-rigging scandal scheduled to commence in October, the Legislature has yet to pass any meaningful legislation to prevent such abuses of the procurement process.

State Comptroller Tom DiNapoli has introduced a comprehensive bill to address the issue, which is the basis for a Senate bill sponsored by Senator John DeFrancisco, a Syracuse Republican, and sister legislation by Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat. The legislation would restore authority of the Comptroller to pre-audit all state contracts over $250,000, particularly for SUNY and CUNY affiliated non-profits, a power that was stripped in 2011.

That year, Cuomo and legislative leaders (who are now headed to jail) said that the scaling back of oversight was necessary in order to expedite approval for the governor’s signature economic development initiatives. The idea that the Comptroller’s contract review slows down projects is misguided, according to budget watchdogs. The Comptroller has up to 30 days to approve a contract, but on average approves contracts within six days, according to April figures provided by DiNapoli’s office.

The absence of an independent oversight body appears to have cleared the way for the massive $800 million bribery scheme that took down close Cuomo associate and friend Joe Percoco, as well as then-SUNY Polytechnic President Alain Kaloyeros, who Cuomo had heaped praise and responsibility on, and several major donors to Cuomo who were awarded large contracts. The alleged scheme was uncovered by the office of then-U.S. Attorney Preet Bharara.

More recently, Bart Schwartz, head of Guidepost Solutions LLC, who was hired by Cuomo to probe the contracting process and what might have gone wrong, found significant flaws. In his review of the $417 million awarded to vendors at Buffalo’s SolarCity project and other upstate initiatives, he found that at least $49 million was awarded using a “sloppy process.” The Buffalo News first reported the details of Schwartz’s report, which the Cuomo administration had failed to make public, but was obtained through the Freedom of Information Law (FOIL). Schwartz was paid as much as $1 million for his investigative work and the Cuomo administration has indicated that it accepted his recommendations for cleaning up contracting processes.

While DeFrancisco’s bill has passed the Senate’s finance committee, and the Assembly on Wednesday tweaked its version of the bill to match the Senate’s, legislative leaders offered reserved endorsements of the legislation, and it has yet to be calendared for a floor vote in either house.

Both Republican Senate Majority Leader John Flanagan and Democratic Assembly Speaker Carl Heastie have said they support the restoration of pre-auditing powers to the comptroller’s office, but that they are working towards a “three-way agreement” with the governor before advancing the legislation, which is backed by good government groups and many rank-and-file lawmakers.

Meanwhile, the governor has been defiant, saying that the powers should not be returned to the Comptroller. Instead, Cuomo in his 2017 policy book proposed expanding the oversight powers of the state inspector general to include procurement at CUNY and SUNY nonprofits, as well as new inspectors general, appointed by and reporting to the executive branch. In the aftermath of the scandal, Cuomo also vowed to create a chief procurement officer in the executive branch.

“The proposed legislation does not address the issue and is both burdensome and duplicative,” said Cuomo’s counsel, Alphonso David, in a statement to Gotham Gazette. “The vast majority of these contracts are subject to OSC [Office of the State Comptroller] post-award oversight and these measures only add significant delays and increase costs for New York taxpayers.”

David’s statement highlights a key difference between the governor’s proposal and the “clean contracting” legislation backed by the comptroller and government reformers, which emphasizes prevention, making SUNY and CUNY projects subject to the same early scrutiny and standards as other state-funded projects, rather than after-the-fact oversight.

“The governor's proposal utterly and totally misses the point because it creates addition inspector generals who are appointed by the governor,” said John Kaehny, executive director of the government reform group ReInvent Albany. “The problem...was bid-rigging; the state contracts were rigged to favor one vendor over the others, and that could have been prevented by independent, pre-contract review.”

Representatives from the Reinvent Albany, New York Public Interest Group, League of Women Voters, and Citizens Budget Commission gathered at the Capitol this past Wednesday, with the blessing of other government reform groups, to call on Albany to pass the legislation -- with or without the governor’s support.

“If lawmakers are at all serious about addressing the problems that happened with last year’s bid-rigging scandal they need to support prevention of these crime -- and that means independent pre-contract review,” said Kaehny.

They noted that the Legislature is granted power to enact legislation without the governor’s support, first by passing it through both houses. If Cuomo does not then sign or veto the bill, it would automatically become law in 10 days. If the governor vetoes it, the Legislature could independently reconvene to override his veto. More than a majority, two-thirds of each house, must vote in favor in order pass legislation rejected by the governor. As a result, veto overrides are rare; the last time the Legislature successfully overrode a gubernatorial veto was in 2006, during a tumultuous budget negotiation that took place during the last year of Governor George Pataki’s final term, when legislative leaders went to bat over a property tax rebate and cuts to state university funding. 

Among those who floated the idea of the Legislature passing the bill without the governor’s support is Senator DeFrancisco, who expressed frustration the procurement reform legislation was not calendared earlier.

“I try to advocate for it all the time. I know the governor is apoplectic against it and he’d rather have an inspector general that he can control,” DeFrancisco told reporters at the Capitol on June 12. “Hopefully reason will prevail.”

When asked to elaborate on the problems with the governor’s proposal, DeFrancisco said, “What he wanted in the budget was to have an independent inspector general, appointed by him to review his contracts. I don’t think you have to be a lawyer, you just have to be somewhat sane to realize that that’s not a check and balance on anybody. He doesn’t want to lose that control and have that oversight. There’s no other logic why he wouldn’t do it.”

Speaker Heastie, in an interview with Gotham Gazette, remained coy about the possibility of passing the legislation and reconvening to override a potential gubernatorial veto.

"Those are always options, that are there but again you are asking me what you are going to do on failure, I don’t like to report on failure,“ he said, adding that there is always “the summer” and “next session” to pass legislation.

“The end of session is a deadline, but it’s not the end of the world if there is ever a need for us to do anything legislatively. We said we’ll come back if the actions in Washington dictate us to come back,” he said. “If we have to come back, the members will come back."

Majority Leader Flanagan expressed only slightly more enthusiasm about the idea of procurement reform. Calling the oversight measure “extraordinarily important,” Flanagan said, “I expect we will have procurement reform before the end of the session, whether it’s [legislation proposed by] Senator DeFrancisco or a variation of that bill, I expect we will move in that direction.”

The bill has widespread support in the Legislature; minority leaders say they also support the comptroller-backed proposal, which also ends contracting for non-academic purposes by state-controlled non-profit organizations, and transfers all economic development awards to the the Empire State Development Corporation.

However, Independent Democratic Conference (IDC) Leader Senator Jeff Klein struck a different tone Thursday, saying he opposed DeFrancisco’s legislation. The IDC and GOP have a power-sharing alliance in the Senate. Klein said he intends to introduce a new bill this week, which instead of restoring the comptroller’s powers would appoint an independent investigator to look at claims of misconduct. When pressed, he did not clarify how this proposal differed from the governor’s proposal.

“Right now the power of the comptroller is post-audit -- so what I would assume is if there is any problem in the procurement process, you’d be able to spot any problem post-audit. Then why would you need to have pre-audit ability?” said Klein. “I think what we need is a downright investigator -- someone who has the power to investigate the contracting process as it moves forward, to make sure there’s no favoritism, to make sure there’s no bribery.”

This past week, the bill’s Assembly sponsor, Peoples-Stokes, also expressed second thoughts about how the legislation could slow the approval for contracts for minority- and women-owned businesses that are awarded grants by the state’s Empire State Development Corporation, or impact healthcare organizations like Roswell Park Cancer Institute, a public not-for-profit that would be subject to increased scrutiny.

“The last thing we want is processes to slow down their ability to grow...At first blush, it seems like great legislation, when you delve in there’s some things that need to be tweaked,” said Peoples-Stokes. “I’m grateful there’s some lawyers and a team around here that can help me straighten something out. I think what happened in 2011, that maybe we should takes some looks at, but all these other things.”

Earlier this year, a month after talks of a long-awaited pay raise for lawmakers turned sour, legislative leaders seemed ready to take a different approach than they are now, vowing to stand up to the executive branch.

In January, during his remarks on opening day of the 2017 session, Flanagan urged his fellow lawmakers to stand up to the governor over the economic development programs, which were marred by the alleged bid-rigging scandal and other accountability problems. Urging his fellow legislators to “ask tough questions” on the progress of economic initiatives like Start-Up NY and Regional Economic Development Councils, Flanagan cited the Legislature’s power as a check on the governor.

“It’s very simple, the legislative power of the state is vested in the Senate and the Assembly,” Flanagan said in January. “Not the attorney general, not the controller, and not the governor.”

In the budget deal passed in April, Cuomo’s signature economic development and infrastructure programs were fully-funded and no new oversight measures were passed.

Another bill, sponsored by Senator Thomas Croci, a Long Island Republican, would create a searchable “database of deals,” cataloguing all businesses that have been awarded state subsidies -- a system in place in six other states -- has made no headway in the Senate or Assembly.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Reviews Are In: What Watchdogs Say About The New State Budget


Cuomo budget presentation

(photo: The Governor's Office)


A new state budget was passed in April in typical Albany fashion: with almost no time for public scrutiny of the bills or proper review by the legislators who quickly voted them through. Since the $153.1 billion budget was passed, watchdogs both in and out of government have released analyses, helping to better inform citizens and increase accountability.

The budget was adopted a little over a week into the new fiscal year, which begins April 1, after compromises were reached among legislative leaders and Governor Andrew Cuomo on contentious issues such as raising the age of adult criminal responsibility, education aid, a college tuition affordability program, the allocation of large sums of affordable housing monies, and more. The frantic and secretive nature of state budget adoption leaves a lot to digest afterward.

Now, about two months after the budget was passed, those analyses by watchdogs can bring to light a few common themes and several other key points.

Aside from general criticism of the process itself, there are the issues of the large lump sum appropriations, projects funded by mysterious sources, and the governor faulty marketing of his budgetary discipline.

Comptroller Tom DiNapoli
State Comptroller Tom DiNapoli released a report on the state budget that includes critiques of the budgeting process and the end result. The budget continues to rely heavily on appropriations from the federal government, at almost a third of state revenue, despite the unpredictability of state aid from Washington, D.C. under President Donald Trump and the Republican Congress.

“Although the budget came together more than a week into the fiscal year, the Legislature and Executive acted on critical budget issues that will help New York move forward,” DiNapoli said in a statement. “However, billions of dollars in spending lacks key details that would better inform the public about how their tax dollars are being spent.”

The Comptroller’s report included a lengthy chart showing the legislature’s inaction on ethics reform, criticizing the fact that, among other things, the budget “intentionally omits” measures such as requiring advisory opinions on legislators’ outside income, closing the LLC loophole in corporate political contributions, and extending the Freedom of Information Law (FOIL) to cover the Legislature. The Comptroller was equally pointed on the state’s procurement practices, which have come under fire due to rampant corruption in the state’s contracting process, stating that the changes were needed to “ensure spending accountability and transparency” in a statement. A measure to authorize the IG to investigate criminal wrongdoing in the state’s procurements was intentionally omitted.

The Comptroller was critical of the quickness of the process, essentially disallowing public review. Also criticized was the prevalence of lump sum appropriations, which can make state money harder to track.

“It should concern all New Yorkers that budget decisions in Washington may force tough fiscal choices for the state and raise new questions for local governments and nonprofits that rely on state funding,” DiNapoli said. “Federal actions that could adversely affect New York, as well as economic uncertainty, are key risks to this budget.”

Citizens Budget Commission
In a statement on the day the budget was adopted, CBC President Carol Kellermann said “achieving a fiscally sound budget is more important than an ‘on time’ budget,” referring to the emergency budget extender passed when negotiating parties couldn’t reach a deal on time. Still, CBC expressed dismay that the state budget was neither on-time nor fiscally sound.

In a later report, CBC also criticized Governor Cuomo for misleadingly saying that the adopted budget continued his “record of holding State Operating Funds spending annual growth to no more than 2 percent.” In reality, CBC explained, spending growth is closer to 3.7%, well above the 2% benchmark that Cuomo prides himself on. The budget is able to exploit this loophole by not “adjusting for payment timing differences and accounting changes,” such as through premature debt service payments or “shifting expenditures out of state operating funds spending.”

CBC has created a “budget navigator” to allow citizens to see how city and state money is being spent.

Empire Center for Public Policy
Empire Center, a conservative think tank based in Albany, has released a slew of criticisms of the budget. Condemnations expressed on the Empire Center blog cover health care spending, certain tax breaks, and the “free” college tuition program. Empire Center is also critical of the added tax deduction for union dues, “effectively a $35 million gratuity for an already privileged caste of (mostly government) workers.”

“The positives in New York’s FY 2018 budget make up a pretty short list—while the negatives are in some respects worse than usual,” wrote E.J. McMahon, Empire Center’s founder and research director, in a budget breakdown post on the Center’s blog.

McMahon argues for more transparency and accountability with the Water Infrastructure Improvement Act, which he says “used to be put before voters in New York.” Now that doing so is no longer a requirement, McMahon writes, “the governor and Legislature obviously figure, why bother?”

Citizens Union
Citizens Union identifies the budget’s large non-specific lump sum funding in its “Spending in the Shadows” report. The watchdog identified nearly $13 billion in the budget in nonspecific funding: around $3 billion “subject to decisions of one or more particular elected officials,” and nearly $10 billion “in approximately 40 different economic development and infrastructure pots listing no official with spending authority.” The group also found that there was “inadequate reporting as to how these funds are eventually spent.”

Citizens Union calls on the governor and Legislature to publicly identify all nonspecific funding and to publicly disclose information, such as purposes and the requester, regarding these funds, especially ahead of spending, not afterward as is often the case. Further, the organization calls for amending state finance law to introduce accountability and conflict-of-interest identification to public contracting, the disclosure of grants and contracts “awarded under nonspecific lump sum appropriations and reappropriations,” and for “aging the budget bills for three days.”

Reinvent Albany
Reinvent Albany has focused largely on procurement reform, which has become a major point of contention, particularly after the Buffalo Billion corruption scandal broke. Along with other watchdog groups, Reinvent Albany issued a release in May calling for “five clean contracting reforms,” all of which failed to make it into the budget:

1. Require competitive and transparent contracting for the award of state funds by all state agencies, authorities, and affiliates. Use existing agency procurement guidelines as a uniform minimum standard.

2. Transfer responsibility for awarding all economic development awards to Empire State Development Corporation (ESDC) and end awards by state non-profits and SUNY.

3. Empower the Comptroller to review and approve all state contracts over $250,000.

4. Prohibit state authorities, state corporations, and state non-profits from doing business with their board members.

5. Create a ‘Database of Deals’ that allows the public to see the total value of all forms of subsidies awarded to a business – as six states have done.

The groups have continued to call for such reforms, but legislative leaders have been hesitant to challenge Cuomo, who is opposed.

New York Public Interest Research Group
NYPIRG also criticized the opacity of the state budget process, which notorious for taking place largely behind closed doors, especially in terms of the final, major deals reached, with the infamous “Three Men in a Room” process determining what stays and what goes -- largely without public input. (There’s been a fourth man in the room of late given the addition of IDC Leader Jeff Klein along with the governor, Assembly speaker and Senate majority leader.)

“The process by which these decisions were made was awful and arguably worse than in the recent past,” said the organization in a statement shortly after the budget’s passage. “Virtually all the deliberations in developing the budget were conducted behind closed doors. There were no hearings, no open meetings, and with the three day legislative review period waived by the governor lawmakers were voting on bills that they had little time to comprehensively review.”

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by Ben Brachfeld & Jynn Schubert
@GothamGazette

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Lawyers of Color Largely Shut Out of Queens Surrogate’s Court Business


Court room 
(photo: Karen Neoh)


For decades, the judicial courts in Queens have been plagued by nepotism and patronage charges, with judges accused of awarding lucrative appointments to a select few.

Some of the highest earners of guardianship appointments, doled out by Surrogate’s Court for those who die or become incapacitated without wills, frequently have ties to the County Democratic Party machine, headed by Congressional Rep. Joseph Crowley.

A demographic breakdown of the highest earning beneficiaries of Surrogate's Court appointments over the past seven years suggests that a pattern of favoritism may be creating a systemic barrier to entry for lawyers of color, and even amplifying racial disparities throughout the judicial system.

Assignments are bestowed by Surrogate Judge Peter Kelly, who was elected to a 14-year term in 2010 after being nominated by the Queens Democratic Party and faced no opponent.

Of 929 lawyers who are eligible for Surrogate’s Court assignments, and the fees that come with them, only 153 have received appointments from 2010 through 2016, the vast majority of them -- 129 -- are white. A similar ratio exists on the eligibility list: of 929 lawyers, about 850 of them are white.

Of nearly $7.2 million issued to attorneys over seven years of Surrogate’s Court appointments, around $6.4 million (88.1 percent) went to white attorneys, but just $699,249 (9.7 percent) went to black attorneys; $137,325.00 (1.9 percent) went to Latino attorneys; and just $21,795 (.3 percent) went to Asian attorneys.

A year-by-year analysis of the data reveals a widening racial gap regarding the frequency and size of appointments. In 2015, almost 92 percent of the guardianship money paid made by the court went to appointees who were white, up from nearly 82 percent white just five years earlier. In 2016, percentage of money earned by whites dipped again to 88 percent.

Of the top 10 Queens Surrogate’s Court earners over the last seven years, all were white. Of the top 20 earners, 19 were white.

Topping the list is Scott Kaufman, Rep. Crowley’s longtime campaign treasurer and business partner to Crowley’s brother Sean, who has raked in nearly $300,000 from Surrogate’s Court in seven years. Kaufman is currently being investigated by the state courts inspector general, for exceeding the $75,000 cap on how much one appointee may earn in a year, and then continuing to earn appointments the following year, despite being ineligible according to court rules, The New York Post reported on Monday. (Kaufman maintains that he is in compliance with the rules and that no one has contacted him regarding an investigation.)

The ninth highest earner is Albert F. Pennisi, a regular financial contributor to the Queens County Democratic Party, whose law license was suspended for five years in 1990 for his role in an illegal kickbacks scheme.

Fifteenth on the list is the son of former Surrogate’s judge Louis D. Laurino. The elder Laurino was censured in 1988 by the Commission on Judicial Conduct after the agency found he had rented offices to three lawyers to whom he granted lucrative appointments. He also was accused of pressuring a lawyer to hire his son, as well as a nephew, and making an improper political contribution to the late, scandal-scarred Queens Borough President Donald R. Manes, according to The New York Times.

Queens Surrogate’s Court judges have long been selected by the borough’s Democratic Party Chair, an arrangement that many see as responsible for the court’s rampant patronage. Judge Kelly, who worked alongside his predecessor Judge Robert Nahman as Acting Surrogate for several years before taking the bench, ran unopposed in 2010. Kelly’s sister, Ann Anzalone, is Rep. Crowley’s district chief of staff and a Democratic district leader.

Kelly and Crowley are both white, as are most of the Queens Democratic machine leaders, and while both men have expressed intentions to diversify Queens’ judiciary courts, the money trail shows little headway. Presented with data on the stark lack of diversity of lawyers receiving Surrogate's Court assignments, a spokesperson for Crowley’s office said the party has no influence over the diversity of Surrogate’s Court appointees -- the lawyers that receive assignments from the judge.

"The Queens Democratic Party is committed to diversity in all areas of our community. The party does not, nor should it, have a role in the selection of lawyers, but has made a commitment to nominating a diverse slate of judges to stand for election," said a spokesperson for the Queens Democratic Party.

‘A Road to Nowhere’
Queens is often hailed as one of the most diverse places in the world; more than a quarter of borough’s population identifies as Latino, another quarter is Asian, and about 18 percent is black, according to 2015 U.S. Census data.

The borough has become home to more people of color; from 2010 to 2015, the number of Latinos in Queens grew by nearly 5 percent, and the borough’s Asian population rose by over 16 percent.

But when it comes to the borough Surrogate's Court, diversity among guardianship appointments appears to be declining, and for those lawyers of Asian or Latino descent, appointments are almost non-existent.

In order to get appointments, lawyers must be on the Office of Court Administration’s eligibility list, which itself is lacking in diversity.

To determine the ethnic identities of those on the list of eligible lawyers as well as the 153 who received court appointments over the last seven years, their names were run through a VAN/Votebuilder database, which creates voter profiles based on voter registration, geographic information, public records, and a variety of other resources.

Of 929 eligible attorneys, 830 were identified as white, 45 as black, 29 as Asian, and 15 as Latino. Nine more could not be easily identified by VAN’s database.

Getting on the eligibility list is not particularly difficult -- lawyers must take a three-hour “guardian ad litem” course with the New York Bar Association and fill out a form demonstrating their competence in the material, then renew their eligibility every two years to remain -- but an apparent bias in the way the assignments are distributed may discourage lawyers of color from even applying.

When they do get on the list, it often proves to be “a road to nowhere” for lawyers of color, as one attorney, who spoke on the condition of anonymity, put it, so they choose not to renew their eligibility.

A review of all payments disbursed by the Queens County Surrogate’s Court between January 1, 2010 and the end of 2016 found an inverse relationship between the changing demographics of the borough and the racial identities of the court’s beneficiaries.

Of the 153 attorneys who received Queens County Surrogate’s Court payments during the seven-year review period, 129 (84 percent) were white, 17 (11 percent) were black, four (2.6 percent) were Asian, and three (1.9 percent) were Latino, according to the data.

The percentage of total money paid to black, Latino and Asian lawyers remains lower than the percentage of payments made to black, Latino and Asian attorneys -- a sign non-white attorneys are receiving less lucrative appointments and possibly making less for the same work.

One former appointee, Jimmy Wu, was for years the sole Asian attorney assigned “guardian ad litem” cases by the Queens Surrogate’s Court judge. He was assigned to act as a guardian for incapacitated immigrant seniors with no known family members in the United States. The jobs were so complex and the money so insignificant that it amounted to pro-bono work, he said.

"A lot of people don't want to take on these kinds of cases. I knew the community needed help so I was willing to give time to it," said Wu, who added he was likely chosen because he speaks Chinese dialect, and previously worked for the court system.

The most recent case Wu took on, is still not fully resolved, though he now lives California, where he works as a pro-tem judge in San Mateo County Superior Court. Wu said that at the time, he was not aware that he was the only Asian appointee.

"If I was the only one, there should be more," said Wu. “I was told ‘Wait until we trust you and you'll get bigger cases,’ but after five or seven cases, I got tired of waiting.”

Currently, there are at least 29 Asian attorneys on the eligibility list, but aside from Wu, only three were paid for Surrogate’s Court work during the seven-year period, most of them in 2016. Most years, there was just one, or zero, Asian attorneys in the pool of appointees.

These four Asian attorneys also received disproportionately small appointments. Despite making up 2.6 percent of the total appointees, Asian lawyers benefited from just .3 percent of money paid out by Queens Surrogate’s Court from 2010 through 2016.

Similarly underrepresented are Latino attorneys. Over the course of seven years, just three lawyers identified as Latino were paid for appointments. One of them, who received a handful of small payments in 2010, like Wu, appears to have stopped renewing his eligibility, according to the current list. That leaves just two out of at least 15 eligible Latino lawyers who are actively receiving appointments. One of them, Jose Araujo, is also the Queens Democratic Board of Elections commissioner, creating an inherent conflict of interest, and potentially a quid-pro-quo relationship, as Gotham Gazette has reported. In other words, this year there is just one Latino lawyer receiving court appointments who does not appear to have a patronage arrangement with the Queens Democratic machine.

Recognizing that Latino lawyers are underrepresented on the list of those eligible, Judge Kelly did reach out to the Latino Lawyers Association of Queens County in 2015, and held a Q&A session in an effort to recruit a more diverse pool of applicants -- a gesture that was appreciated by members of the organization.

“Our organization is dedicated to increasing the representation of attorneys of color in all areas of practice in Queens. We respect the autonomy of judges and we will continue to work with all parties to make Queens more diverse,” said Catalina Cruz, president of the Latino Lawyers Association.

Perhaps these efforts paid off, because there was a slight uptick in total Surrogate’s Court payments going to lawyers of color in 2016. Judge Kelly did not respond to multiple requests for comment.

Widened Racial Gap
While the number of guardianship appointees who are black is somewhat more representative -- 17 black lawyers have been paid by the Queens Surrogate’s Court from 2010 through 2016, and 41 are currently eligible for appointment -- overall, the cases they have received are fewer and less lucrative than those assigned to their white peers.

Of the $7.2 million in payments issued to attorneys over seven years, around $6.4 million (88.1 percent) went to white attorneys, but just $699,249 (9.7 percent) went to black attorneys.

Additionally, the year-by-year trend indicates that the racial gap in Queens Surrogate’s Court payments is widening, both in number of appointments per year and profitability of the cases assigned.

From 2010 to 2016, the percentage of money paid to white attorneys grew from 81.75 percent in 2010 to 87.79 percent in 2016, down slightly after peaking at 91.9 percent in 2015. At the same time, the percentage of Surrogate’s Court assignment money paid to black attorneys has declined from 14.44 percent in 2010 to 7.19 percent in 2016, after previously falling to 6.86 percent in 2015.

The percentage of number of Surrogate’s Court payments made to white attorneys rose from 77.98 percent in 2010 to 85.39 percent in 2016, after peaking at 90.02 percent in 2015.

Meanwhile, the number of fees disbursed to black attorneys declined from 18.38 percent in 2010 to 9.82 percent in 2016, after previously falling to a low of 8.27 percent in 2015.

Leaders of New York City’s minority bar associations, like the Metropolitan Black Bar Association, say the organizations were founded to help mend systemic problems that lead to racial disparities and create a pipeline to opportunity for more lawyers of color.

“Institutionalized bias happens across all kinds of structures,” said Paula Edgar, president of the Metropolitan Black Bar Association.“Whether there is explicit bias or implicit bias, it seems to me that there should be a focus on shifting the commitment to diversity. Because Queens is a diverse borough and we should have representation in the court and access to opportunities to reflect the diversity of the borough.”

Lack of Diversity in the Judiciary
On a larger scale, New York State’s judiciary has failed to keep up with the changing demographics of the state, according to a 2014 report from the New York State Bar Association.

“The composition of the government, including the judicial branch, must reflect the composition of the governed or risk losing credibility. The lack of judicial diversity in certain regions of New York is incompatible with the egalitarian ideals of our democracy,” the report cautions.

In Queens, where nearly half the population is foreign born, the court system’s lag in diversity has had rippling consequences.

In March, The Daily News reported that “at least four Queens judges have made empty threats to potential jurors with limited English skills, telling them they have to take language lessons or return to court to prove their proficiency.”

Two of the four judges – Ira Margulis and Kenneth Holder – were elected to their offices as official nominees for the Queens Democratic Party, meaning that they were effectively picked by the Queens Democratic boss, Rep. Joe Crowley.

Margulis was a Queens Democratic Party pick in 2003 and again for his Queens County Civil Supreme Court position in 2011. Holder was a Queens Democratic Party pick for Queens County Civil Supreme Court in 2007, when he moved up from his Civil Court position.

Campaign finance records show that neither Margulis nor Holder had their own campaign committees the year they were elected, meaning they would have been reliant on the Queens Democratic organization for campaign assistance.

Amidst all the scrutiny of Queens Surrogate's Court this year, two state legislators from Queens quietly introduced a bill that would gut court oversight by giving Surrogate's Court judges the power to waive annual reporting requirements for court-appointed guardians based on their previous years of service.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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While Calling for CUNY Investigations, Cuomo Sought Endorsements from College Presidents


Cuomo Sanders Excelsior 
(photo: Kevin Coughlin/Governor’s Office)


Public university administrators and college presidents enthusiastically supporting a governor’s proposal to fund tuition for potential students is a situation that would normally invite little scrutiny.

That picture becomes murkier when the university’s management has been a frequent target of that governor; is the focus of an expanding investigation conducted by the state’s inspector general, who reports to the secretary to the governor; and the governor publicly calls for greater oversight of the university system while seeking its top officials’ endorsements of his tuition subsidy proposal.

This describes the state of affairs for the state-controlled City University of New York (CUNY), which has been in the crosshairs as a former City College president and affiliated foundation are facing a federal probe and a state investigation targeting university-wide financial practices is underway.

The latter is spearheaded by Inspector General Catherine Leahy Scott, who served as Assistant Attorney General under then-Attorney General Andrew Cuomo before he was elected governor in 2010. Cuomo, a Democrat, appointed Scott to her current post in 2013, after she had served as acting Inspector General for a year. Cuomo was reelected in 2014.

After unveiling it in January alongside Senator Bernie Sanders, Cuomo spent months pushing his Excelsior Scholarship program, which would make CUNY and State University of New York (SUNY) tuition-free for many students from middle-class families. The scholarship was passed as part of a state budget deal in early April and signed that same month to great fanfare, with Cuomo extolled by Hillary Clinton.

In between, Cuomo also outlined his 2017 government ethics agenda, which included greater oversight of the CUNY and SUNY systems, and sought the endorsements of Excelsior by top CUNY and SUNY officials, including all the college presidents. As the governor negotiated with legislative leaders, Cuomo’s office announced in a March press release that nearly every CUNY or SUNY president was backing the plan.

The I.G. investigation began in October 2016 after CUNY board Chair William Thompson Jr. sent a letter to Inspector General Scott following revelations about deposed City College president Lisa Coico’s misuse of funds from the affiliated 21st Century Foundation, a nonprofit.

Earlier this month, Mr. Thompson, a Cuomo ally, said on City & State’s Slant podcast’s Slant podcast that he has thus far met with Scott about a half-dozen times, and stated that the board was looking “top-to-bottom,” at the makeup of the faculty and administration. Thompson did not respond to a request for comment for this article.

In November, Scott’s office took the unusual step of releasing its preliminary report; it detailed investigators’ discoveries that discretionary presidential funds were being used inappropriately, oversight was lax, and significant resources were being utilized to pay for “duplicative” government lobbying.

Following the release, the governor said in a statement that he was “directing the CUNY Board to review the entire senior management at CUNY,” and indicated that he intended to appoint “separate Inspector Generals for both SUNY and CUNY” who would investigate wrongdoing, including through reviewing contracts and hiring. The system saw high-level officials depart for other posts.

Then, in his Fiscal Year 2018 Executive Budget, issued in January, Cuomo included a proposal to compel CUNY to collect from each affiliated organization and nonprofit 10 percent of its annual revenue for use in “tuition assistance initiatives.” The idea swiftly drew a letter from the presidents and chairs of the 11 largest foundations to the CUNY trustees, insinuating that the measure was at best a threat to the foundations’ ability to raise money and at worst illegal, and asking them to make their opposition known. Ultimately, the measure did not make it into the adopted budget, finalized in April.

The governor also called for the state I.G. to have expanded oversight over the university, which was likewise not found in the final budget.

At the same time, the governor’s office was working behind the scenes to whip up support for the governor’s headline-generating proposal, reaching out to members of the public universities and dispatching staffers to campuses to sell presidents on the measure.

A spokesperson for the governor insisted it was only natural for university officials and college presidents to back a proposal like Excelsior, but did not answer questions about whether the governor still intended to appoint university-specific inspectors. The spokesperson would not characterize conversations between CUNY administrators and executive staff beyond stating that they were policy discussions, but called concerns raised around the push for endorsements’ relationship with the push for oversight “insane” and “conspiracy theories.”

“Anyone pretending a link exists between the implementation of this initiative and an independent inquiry by the inspector general is both wildly misinformed and delusional,” said Abbey Fashouer, the Cuomo spokesperson, though Gotham Gazette had stressed that no specific link was being alleged and only posed questions about the timing of the endorsement overtures coinciding with calls for greater oversight and investigations.

Emails obtained by Gotham Gazette through the Freedom of Information Law indicate that the governor’s staff was contacting CUNY presidents in February to request statements in support of the Excelsior program. Ultimately, except for the presidents of Baruch College and Manhattan Community College, all CUNY college presidents issued statements supporting the proposal, released all together in the mid-March announcement from the governor’s office that touted “statewide Support from SUNY and CUNY Leadership.”

Asked about communication between the Inspector General’s office and each of the CUNY presidents, a spokesperson for the I.G.’s office said the office would not comment on an ongoing investigation.

In a January email, Kingsborough Community College president Farley Herzek thanked the governor’s Brooklyn regional representative, Drew Gabriel, for visiting the campus. “I appreciate being able to discuss the Governor’s proposed Excelsior opportunity. We deeply appreciate every opportunity there is to mitigate the financial challenges of attending college and the Governor’s plan does just that,” Herzek wrote.

He also attached a document with information on 24 different types of scholarship programs in California, and wrote that families of 40% of his students came from households with incomes less than $20,000 per year; the students had, in focus groups, said that non-tuition costs were their “greatest stressors,” and often had to attend school and work at the same time.

“Since the proposed Excelsior Scholarship is a ‘last dollar’ type of scholarship and students are required to be enrolled in 15 credits or more we may be excluding a very large and needy population of New Yorkers,” he wrote (the community college course-load requirement is lower than that for the four-year colleges), and offered to assist the governor in “moving his Excelsior Scholarship proposal forward.”

Herzek’s positive statements on the proposal and access to higher education generally, and his statistic about the percentage of low-income students attending his college, appear verbatim in his endorsement from the governor’s press release. His concerns about the program’s effectiveness were not included. Herzek did not respond to a request for comment from Gotham Gazette.

“Oversight of the Executive Branch should not be done by the Executive Branch,” said Reinvent Albany Executive Director John Kaehny, referring to a university whose board is controlled by the governor being investigated by an office headed by a Cuomo appointee. Kaehny also called it inappropriate for the governor to enlist CUNY administrators’ help to push a signature proposal. The concurrent timing of Cuomo's public push for oversight and private push for endorsements raises questions about the motivations provoking those endorsements of Excelsior.

Spokespeople for both the inspector general’s office and the governor’s office vigorously insisted that the I.G. is fully independent from any executive influence and a spokesperson for Cuomo argued that there was nothing inappropriate about the governor’s dual efforts: calling for more oversight of the university systems while seeking their leaders’ backing for his top 2017 proposal.

When fully phased-in, Excelsior will cover tuition to CUNY and the SUNY for students from households making up to $125,000 a year in 2019, provided they meet certain requirements. These include the stipulation that students take at least 30 credits per academic year and remain in the state after graduation for a period equaling the length of time they received the scholarship.

The program is a “last dollar” approach, meaning that it will cover the remaining tuition balance after all other scholarships and grants have been applied, and does not contribute anything towards non-tuition costs like books and housing, which often form the majority of student costs given that CUNY and SUNY already have relatively low tuition. It is meant to complement programs already in place to help students from the lowest-income families.

The stringent requirements have provoked criticism from many advocates, academics, and editorial boards, who have called it insufficient, onerous, and more. Some have also pointed out that at current funding levels, CUNY schools will likely be overwhelmed by the expected uptick in enrollment provoked by the scholarship.

Assemblymember Deborah Glick, a Manhattan Democrat and chair of the Committee on Higher Education, said that funds would have been better allocated to operating aid for CUNY, but did not think there was anything inappropriate about the governor requesting support from members of the system.

“The flip side of that is, should there be no communication between the governor and the city university while there are some particular things under review?” she said, and referenced the governor’s appointment of state budget director Robert Mujica to the CUNY board, a move she called “aggressive and inappropriate,” as a bigger problem.

A spokesperson for the governor’s office dismissed critics of the proposal as mostly “private universities” upset that they “weren’t included” in Excelsior.

In fact, in addition to the faculty union, skeptics of the program have included the CUNY Graduate Center’s newspaper, the president of the SUNY Student Assembly, and SUNY’s own trustees; an academic program coordinator at CUNY’s Borough of Manhattan Community College offered a point-by-point evisceration of the scholarship in an op-ed for Inside Higher Ed. Several state legislators sought significant changes to Excelsior that did not occur before the program was passed. In a phone conversation, Professor Katherine Conway, chair of the CUNY Faculty Senate, said the plan “is not going to do anything for [the poorest of students.]”

To be fair, Cuomo never said it would -- he instead billed Excelsior as “tuition-free for the middle class,” part of his Middle Class Recovery Act that he framed as his direct response to the anxiety shown in the 2016 presidential election. But, many critics point out that Cuomo made a mistake in making it clear he was not interested in additional help for the state’s neediest students, or potential students, who often struggle, don’t graduate, or don’t enroll because of non-tuition costs.

Asked if the body she chairs had been privy to any conversations between the governor’s staff and CUNY administrators, Conway, the chair of the faculty senate, said it had not, but added that “it isn’t in our interest to confront the governor.”

Spokespeople for both the Inspector General and the governor insisted that the investigation, given its focus, could not have had any bearing on CUNY leaders’ decisions to enthusiastically back a pressing agenda item.

“It's an ongoing investigation and the scope has been laid out publicly,” said the spokesperson for the Inspector General’s office.

A spokesperson for the CUNY system said in an email that he was not aware of any conversations between a member of the governor’s staff and a CUNY president or administrator that had touched on the ongoing investigation. In relation to internal conversations surrounding the program, he wrote that the Chancellor’s office “has been in continuous communication with college presidents and state officials, including at the Higher Education Services Corporation, about details of the Excelsior Scholarship program that will be addressed in the regulations to be issued later this month.”

But it was not simply the ongoing I.G. CUNY probe, but that the governor was publicly calling for more investigation and oversight of CUNY administration that may have added pressure to CUNY administrators and presidents to endorse the governor’s signature 2017 proposal. Neither Cuomo’s office nor the offices of CUNY presidents’ nor the CUNY Chancellor’s office would comment on this relationship.

Sources have indicated that with CUNY Chancellor James Milliken initially somewhat lukewarm to the proposal, LaGuardia Community College President Dr. Gail Mellow acted as a primary influencer in coaxing some of her CUNY colleagues to support Excelsior, helping get them to “yes” on endorsements. Both Milliken and Mellow declined to comment on the matter. Cuomo held both the Excelsior launch and celebratory bill-signing events at LaGuardia Community College.

Government observers and watchdog groups have called for oversight of the city and state university systems to be expanded under the state Comptroller, not the Inspector General, including certain contract oversight powers that were stripped by Cuomo and the Legislature in 2011.

In an email, Kaehny of Reinvent Albany said that his organization “believes that independent oversight by the Comptroller and Attorney General is far more effective than Inspector Generals appointed and controlled by the governor.”

***
by Felipe De La Hoz, Gotham Gazette
     

Read more by this writer.

For Second Time, Legislature Sends FOIL Penalty Bill to Cuomo


bill signing Cuomo

(photo: Philip Kamrass/Governor's Office)


A bill that would greatly strengthen New York’s Freedom of Information Law (FOIL), already vetoed once by Governor Andrew Cuomo, has again passed both houses of the Legislature -- with some minor adjustments.

The bipartisan legislation, which passed the Assembly in May and the Senate on Monday, mandates that city or state agencies be liable for court costs incurred by any individual who submits a FOIL request, is wrongfully denied documents, and then prevails in a lawsuit. Currently, the public officers law states that a court “may” award legal fees -- leaving the decision up to a judge -- rather than “shall,” a word change that would effectively penalize state agencies that willfully disregard disclosure law.

The governor’s office did not provide indication which way Cuomo is leaning this time.

The Freedom of Information Law allows everyday citizens, journalists, advocates, and others to seek and obtain information, like documents and communications, from government entities. The scope of the law is fairly wide, though there are significant exceptions, including for the deliberative process and much of what the state Legislature does.

Nearly identical legislation passed the Legislature in 2015, but Cuomo vetoed it, along with another FOIL-related bill, at the eleventh hour and with some harsh words. In his 2015 veto letter, Cuomo wrote that the bill “would allow attorneys’ fees to be assessed against a state agency, even if the state agency ultimately prevails.”

In the same letter, Cuomo, who regularly rails against the Legislature’s FOIL exemption, suggested that tightened FOIL requirements should also apply to the legislative branch. The governor is known for communicating himself in ways that are not FOIL-able -- for example, he is known not to use email.

Based on feedback from Cuomo’s office and recommendations from the Committee on Open Government, which helped craft the bill, the legislation has been amended to create a two-tier system. The first tier relates to situations where the complainant in the FOIL lawsuit was victorious because the agency failed to respond to a request or appeal, in which case the court would still have discretionary authority to award attorneys’ fees. The “second tier” mandates the award of attorney fees when a party denied access to records “has substantially prevailed” and the court finds that “the agency had no reasonable basis for denying access.”

“We think [the two-tier system] address the veto messages that we had prior and conversations we’ve had with the governor’s office,” said Assemblymember Amy Paulin, a Democrat from Scarsdale who authored the bill and sponsored it in the Assembly, in an interview with Gotham Gazette. “So we are very confident that it will be a law this year and it will give everyone the opportunity to to file a complaint when there’s been a violation.”

This legislation, which has the backing of the newspaper industry and has been the subject of numerous editorials, would have immense implications for news outlets, good government groups, think tanks, and other organizations focused on transparency.

Reinvent Albany and the New York Civil Liberties Union also worked closely with Paulin and Senator Patrick Gallivan, the Senate sponsor, to fine tune the language, and hailed the legislation as an important step.

“We think this bill is a very big deal and, if the governor signs this, it will be the most important transparency legislation to pass in quite awhile,” John Kaehny, executive director of ReInvent Albany, told Gotham Gazette.

Kaehny noted than many are dissuaded from bringing FOIL lawsuits, even when they are confident they were wrongfully denied, because they fear being stuck with the legal bill. “How many people or groups can afford to ‘win’ a FOIL lawsuit when winning gets them a government document and a bill for $10,000 or $50,000 in attorneys' fees?” he asked rhetorically.

Other states -- including California, Colorado, Florida, Illinois, and New Jersey -- already have such laws granting legal fee reimbursement to those who file FOIL requests and are wrongly denied.

A spokesperson for the governor’s office said the bill is “under review.”

Gallivan and Paulin said they were hopeful that Cuomo would sign this version of the bill. “If the governor cares about transparency, he should sign it,” said Gallivan.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

Petition Asks Cuomo to Prioritize Voting Reforms


bk voters

Brooklyn Voters Allliance Action (photo: Sam Raskin)


Members of a new advocacy group, Brooklyn Voters Alliance Action, gathered outside Governor Andrew Cuomo’s New York City office Tuesday afternoon to deliver a petition urging the governor to take action on voting reforms.

The 30 or so demonstrators highlighted five key points they would like the governor to address in the petition they presented, which they said had 1,500 signatures on it. The state has about two weeks to pass any new laws before the end of the legislative session in Albany and Brooklyn Voters, along with a variety of others, is looking to the governor to take the lead on electoral reform.

The petition demands include early voting, automatic voter registration, providing electronic poll books, allowing for changes to one’s party registration closer to elections, and restoring parolee voting rights. Activists hope to increase access to the ballot and voter participation, which is notoriously low in New York, at least in part due to the state’s roundly-acknowledged antiquated voting laws.

“We have 1,500 signatures on this petition saying that this is something New Yorkers want,” said Nicole Hunt, a Brooklyn Voters Alliance organizer. The group delivered the petition to a staffer from the governor’s office in the lobby of 633 3rd Avenue at approximately 1:15 p.m.

The effort came the same day that Cuomo was participating in a political rally at the Javits Center, launching a push to flip the U.S. House of Representatives to Democrats through the 2018 elections. Meanwhile, the Legislature was also in session in Albany, where there are just nine more days of session after Tuesday.

“While Gov. Cuomo attends a rally on this same day to support electing more Democrats to Congress, he neglects voting reforms that would protect and benefit voters in his own state,” a Brooklyn Voters Alliance Action press release promoting the event read. “New Yorkers demand that Gov Cuomo provides more than excuses and empty rhetoric on voting reform.”

“We have been trying to get voting reform passed this legislative session,” Hunt said. “Cuomo talked about getting it into the budget and then kicked the can down the road. We think that the governor has more power to change this than he is letting on.”

Hunt also added that the group tried to meet with a Cuomo representative, but have “gotten nowhere,” and believes the governor is insufficiently attentive to his constituents.

In January, Cuomo outlined an extensive voting and election reform agenda as part of his 2017 State of the State policy platform. None of the reforms made it into the budget that was passed in April, and there has been almost no indication that electoral reform will move in the legislative session since. The Democratically-controlled Assembly has passed a slew of electoral reforms, but the Republican-controlled Senate has not. Cuomo has been virtually silent publicly on electoral reform since January, only addressing it when asked by reporters.

The Brooklyn Voters Alliance Action leadership also voiced skepticism of the Independent Democratic Conference (IDC), a faction of elected Democrats in the state Senate that allies with Republicans in a ruling coalition. BVAA blames the IDC, along Cuomo’s lack of leadership, for stifling efforts to amend voting laws.

“He’s [Governor Cuomo] at a rally today with Nancy Pelosi to push turning Congress blue, but he can’t even keep his own state Senate blue!” Hunt said. Even without the IDC, Republicans hold a one-seat majority in the 63-seat Senate with 31 elected Republicans and Senator Simcha Felder, a Brooklyn Democrat who caucuses with the GOP.

As Gotham Gazette reported Monday, there are currently two bills stuck in Senate committee that would address the implementation of electronic poll books and allow voters an additional seven days to cast their ballots through early voting. Some advocates believe e-poll books will be passed through both chambers, but that little else will get through the Senate.

Cuomo has taken the position recently that there is not enough political will in Albany to tackle voting reform (or government ethics reforms). Especially without aggressive advocacy from Cuomo, it appears that there is little hope for major electoral reforms, like early voting or same-day registration, this year.

In response to an inquiry from Gotham Gazette about the petition presented Monday by the Brooklyn Voters Alliance and whether the governor plans to take any public action on electoral reform before the end of the session, a spokesperson sent the same statement provided to Gotham Gazette previously:

“Since taking office, the Governor has repeatedly proposed voting reforms that have been opposed by the legislature and stalled during the budget process. We will continue to push to modernize our election system and we will work with all parties who join in those efforts.”

But those seeking the changes are not satisfied with how Cuomo has handled the issue, feeling as though he has put voting laws on the backburner. As a result, there are rallies planned to pressure Albany in the coming weeks, including by a large coalition known as Easy Elections NY, which includes a variety of government reform groups. “I would say if people are concerned about the state of our democracy, removing the barriers to participating in our democracy should be our number one priority,” said Amanda Ritchie, an activist with the Brooklyn Voters campaign. “Voter suppression is real and we need reform this year. We are not waiting any longer.”

***
by Sam Raskin & Amanda Tukaj
@GothamGazette

The Week Ahead in New York Politics, June 5


New York City Hall

New York City Hall


What to watch for this week in New York politics:

A city budget deal was announced Friday night by Mayor Bill de Blasio and the City Council. As the week begins we're digesting and dissecting that and awaiting full details.

The City Council holds several committee hearings this week, and there is a full-body Council "Stated" meeting on Thursday at which new bills are introduced and bills that have been passed through committee voted through the full Council.

Speaking of the City Council, there are several candidate forums this week as the calendar moves toward the September primaries. There's also a Brooklyn District Attorney candidate forum this week -- see details below. Candidate petitioning begins this week, so you'll start to see political operatives, party members, campaign volunteers, and candidate supporters with their clipboards looking for signatures.

Mayor de Blasio will hold a town hall in Queens Thursday night and is set to speak about truth, politics, and media in "the Age of Trump" on Friday. De Blasio has three public events on Monday -- see all the details below.

The state Legislature is back in session this week, with just 11 meeting days left in the session over the next three weeks. There are four session days this week.

As always, there's a variety of other events to be aware of - see our day-by-day rundown below.

***Do you have events or topics for us to include in an upcoming Week Ahead in New York Politics?
e-mail Gotham Gazette editor Ben Max: This email address is being protected from spambots. You need JavaScript enabled to view it.***

The run of the week in detail:

Monday
At 10:30 a.m. Monday, "Mayor de Blasio and Schools Chancellor Carmen Fariña will visit P.S. 81, where they join an elementary school P.E. class. After, the Mayor will make an announcement." At 1 p.m., "the Mayor, Police Commissioner James O’Neill, and Chief of Crime Control Strategies Dermot Shea host a press conference in Central Park regarding crime statistics." Both events are open to the press and will include question-and-answer sessions. In the evening, the Mayor is expected to make his weekly appearance on NY1's Road to City Hall during the 7 and 10 p.m. hours.

Public Advocate Letitia James will speak at the mayor's 10:30 a.m. press conference. She'll then attend Congressional Rep. Carolyn Maloney's luncheon featuring Rep. Nancy Pelosi.

The New York State Legislature will be in session on Monday in Albany.

At 8:30 a.m. Monday, the Mayor’s Office to Combat Domestic Violence, the Department of Cultural Affairs, and advocacy groups will host the “Connecting the Dots Conference,” discussing the intersection between intimate partner violence (IPV) and the arts. The conference will take place at the Gibney Dance Center in Lower Manhattan.

At the City Council on Monday
--The Committee on Transportation will meet at 10 a.m. for an oversight hearing regarding how New York can “more effectively address traffic congestion.”
--The Subcommittee on Zoning and Franchises will meet at 10:45 a.m.
--The Committee on Land Use will meet at 11 a.m.
--The Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse, and Disability Services will meet at 1 p.m. to discuss proposed laws relating to “requiring autism spectrum disorder reporting.”

At 10:30 a.m. Monday, Manhattan Borough President Gale Brewer will “join the Citizens’ Committee for New York City and the Manhattan Solid Waste Advisory Board (SWAB) to announce the 2017 slate of Community-Scale Composting Grant awardees” at Lydia’s Magic Garden in East Harlem.

At noon Monday, OATH Commissioner Fidel Del Valle, Queens Borough President Melinda Katz, Congresswoman Grace Meng, and others will announce an upcoming forum on “What to do if you get a city-issued summons.”

At 6 p.m. Monday, Congressional Rep. Adriano Espaillat will hold a town hall meeting at the Adam Clayton Powell, Jr. State Office Building. City Council Member Bill Perkins will be in attendance. Topics will include “comprehensive immigration reform, housing, health care, social security, seniors, youth, education and infrastructure.”

At 6:30 p.m. Monday, the New York City Bar Association will host “Part-Time vs. Full-Time State Legislatures: The Virtues and Potential Ethical Challenges.” Jennifer Rodgers of Columbia Law’s Center for the Advancement of Public Integrity will moderate a panel consisting of former Assemblymember Richard Brodsky; former US Attorney Robert Capers; and Richard Briffault, Professor of Litigation at Columbia Law School.

At 7 p.m. Monday, there will be a debate between candidates vying for the 40th City Council District seat at BKLYN Commons. The attending candidates will be incumbent Mathieu Eugene, as well as Brian Cunningham, Pia Raymond, Jennifer Berkley, and Rose St. Albord.

At 7 p.m. Monday, the Brooklyn Reform Coalition will host a forum for candidates for the Democratic nomination for Brooklyn District Attorney. Participants will be Acting DA Eric Gonzalez, City Council Member Vincent Gentile, Ama Dwimoh, Marc Fliedner, John Gangemi, Patricia Gatling, and Anne Swern. The forum will take place at the First Unitarian Church in Brooklyn Heights.

Tuesday
The New York State Legislature will be in session on Tuesday in Albany.

At 9:30 a.m. Tuesday, in Albany, the Senate Standing Committee on Corporations, Authorities, and Commissions will hold a public hearing regarding “the future hiring practices of the Port Authority of New York and New Jersey.”

On Tuesday at 10 a.m. in Washington Square Park, Gov. Cuomo and a variety of Democratic elected officials and activists will hold a rally to build support for flipping the House of Representatives in 2018.

At 8 a.m. Tuesday, the New York City Economic Development Corporation will hold a meeting at the Bulova Corporate Center in Queens regarding the proposed Sunnyside Yard Project.

At 8:30 a.m. Tuesday, the New York City Food Policy Center will host “Saving Regional Farms: Why Every New Yorker Should Care.” Panelists include City Council Member Dan Garodnick; Assemblymember Didi Barrett; Steve Rosenberg, of Scenic Hudson; Karen Washington, of Rise and Root Farm; and Chris Cashen, a farmer at Miller’s Crossing.

At 10 a.m. Tuesday, the Business Council of New York State will host its “Information Technology & Telecommunications Forum & Luncheon” at the Hilton Albany, “focusing on the issues of a state “iCenter”, cyber security, data breach, and internet issues related to business and privacy.” Newly appointed State CIO Bob Samson will address the luncheon.

At 12:30 p.m. Tuesday, Brooklyn Voters Alliance, which is part of the Easy Elections NY coalition, will rally outside Gov. Cuomo's Manhattan office to demand the governor live up to his word and prioritize voting reforms this legislative session.

At the City Council on Tuesday
--The Committee on Aging will meet at 10 a.m. for an oversight hearing regarding how to “improve and expand services” for “naturally occurring retirement communities.”
--The Committee on Resiliency and Recovery will meet at 1 p.m. for an oversight hearing regarding “preserving affordability in NYC’s flood zone.”

On Tuesday at 6 p.m. in Brooklyn, there is one in a series of hearings by the New York State Education Department, "seeking continuing stakeholder and public input as it develops the state Every Student Succeeds Act (ESSA) plan." There are "13 public hearings will be held across the state to gather feedback on the state’s draft ESSA plan and written comments will be accepted May 9 – June 16."

Wednesday
The New York State Legislature will be in session on Wednesday in Albany.

At 11 a.m. Wednesday in Albany, the Assembly Standing Committees on Social Services, Code, and Labor, as well as the Puerto Rican/Hispanic Task Force, will hold a joint public hearing to “review available services for victims of human trafficking.”

At 10 a.m. Wednesday, the City Planning Commission will hold a public meeting at Spector Hall.

At 12:30 p.m. Wednesday, the Vera Institute of Justice will host “The Fate of Police Reform in the New Administration.” Yale Law School Professor Tracey Meares will “connect [President Obama’s] Task Force’s recommendations with her recent research on police reform and discuss the relevance of both in a world in which federal efforts to push police reform are likely to diminish.”

At 5:30 p.m. Wednesday, City & State will host “Restoring New York’s Justice System: Truth, Fairness, and Transparency in Asbestos Litigation” at the Renaissance Albany Hotel, discussing why New York should pass the “Truth, Fairness, and Transparency in Asbestos Litigation Act.” Panelists include Judge Peggy Ableman, Special Counsel at McCarter & English; Phil Goldberg, Director of the Public Policy Institute’s Center for Civil Justice; and Paul Johnson, a filmmaker.

At 6 p.m. Wednesday, the Manhattan Institute will host “What's Happened to the University,” discussing the “profound cultural transformation” of the American university brought on by student protests. Panelists will include Frank Furedi, Professor at the University of Kent, and MI Senior Fellow Heather Mac Donald.

At 7:30 p.m. Wednesday, Brooklyn Young Democrats will host a candidates’ forum for Democratic candidates in Southern Brooklyn City Council races at the Salty Dog in Bay Ridge.

Thursday
The New York State Legislature will be in session on Thursday in Albany.

On Thursday, Hillary Clinton will deliver the commencement address for Medgar Evers College’s graduating class at the Barclays Center.

On Thursday and Friday, Civic Hall and Personal Democracy Media will host the 2017 “Personal Democracy Forum” at NYU’s Skirball Center, discussing technology and the Internet in politics in the age of Trump. Speakers include U.S. Senator Cory Booker; immigrant activist Jose Antonio Vargas; Shannon Coulter, founder of #GrabYourWallet; and others.

The full City Council will meet at City Hall at 1:30 p.m. Thursday. The meeting will be prefaced by the Speaker’s pre-stated press conference, hosted by Speaker Melissa Mark-Viverito.

At 7 p.m. Thursday, Mayor de Blasio will participate in a town hall at the Lost Battalion Hall in Rego Park, Queens. Also present will be Queens Borough President Melinda Katz, City Council Member Karen Koslowitz, Assemblymember Andrew Hevesi, and State Senator Toby Stavisky.

Friday and the weekend
At 8 a.m. Friday, New York Building Congress will host a “Construction Industry Breakfast” discussing transportation and infrastructure at the New York Marriott at the Brooklyn Bridge. Ali Chaudhry, Deputy Secretary of Transportation to Governor Cuomo, will discuss “the Governor’s transportation and infrastructure priorities in New York.”

At 10 a.m. Friday, HUB Third Avenue will host its “Annual Meeting and Leadership Breakfast,” honoring Bronx Borough President Ruben Diaz Jr, Bronx Overall Economic Development Corporation President Marlene Cintron, Roberto Clemente Plaza designer Garrison Architects, and a “lifetime achievement” award for Richard Propper.

At 10 a.m. Saturday, Congressional Rep. Adriano Espaillat will join a Q&A session with WE ACT for Environmental Justice regarding “the EPA, climate justice, and budget cuts.”

At 2:45 p.m. Friday, Mayor de Blasio will sit down with Buzzfeed editor-in-chief Ben Smith at the Northside Festival in Brooklyn. He will speak about “truth, lies, and politics in the Age of Trump.”

At 4:30 p.m. Saturday, Indivisible Rivertowns and Rockland Citizens Action Network will host “Trump Democrats: How the IDC Flips NYS Red” at the Ethical Culture Society of Westchester in White Plains. Senate Minority Leader Andrea Stewart-Cousins and Senator Michael Gianaris will “provide an inside view on the IDC.”

At 2 p.m. Sunday, there will be a “Queens Stand Up Rally” at MacDonald Park in Forest Hills for coming “together for liberty and our democracy in this uncertain time.”

***
Have events or topics for us to include in an upcoming Week Ahead in New York Politics? E-mail Gotham Gazette executive editor Ben Max any time: This email address is being protected from spambots. You need JavaScript enabled to view it. (please use "For Week Ahead" as email subject).

***
by Ben Brachfeld and Ben Max
@GothamGazette

As Session Nears End, Electoral Reforms Mostly Stalled & Cuomo Quiet


Cuomo voting 2015

Gov. Cuomo votes (photo: The Governor's Office)


Governor Andrew Cuomo’s prediction that there is insufficient political will at the New York State Legislature to pass any significant voting reform measures this year may be coming to fruition.

During the final weeks before the end of the legislative session, this year June 21 -- when lawmakers leave the Capitol and return to their districts for the remainder of the year -- there is typically a final thrust for policy measures that did not make it into the budget, which this year was passed in early April.

On the electoral front, there has been a growing push from voting reform activists, civil rights organizations, and some Democratic elected officials to modernize New York’s arcane system, but, given the reluctance of Senate Republicans and, at least in part, Cuomo’s lack of prioritization of electoral reform despite saying in January he backs an ambitious agenda, major reforms appear to be elusive.

Citing numerous barriers faced by voters during the 2016 elections, Attorney General Eric Schneiderman and New York City Bill de Blasio have joined the call for Albany to pass meaningful electoral reform, a cause that has been championed by other Democrats in the state Assembly majority and Senate minority.

Democrats in both legislative houses have introduced a slew of voting reform bills -- including legislation on early voting, automatic voter registration, electronic poll books, and “no excuse” absentee ballots, among other measures -- as they do each year. While most passed the Democrat-controlled Assembly, as usual, the efforts are stalled in the Senate, where Republicans control the chamber by a slim majority given the help of Senator Simcha Felder, a nominal Democrat who conferences with Republicans, and bolstered by the Independent Democratic Conference (IDC) in a coalition agreement.

The Senate has passed a significantly slimmer electoral package, most of which would do little to increase voter access or enhance voter registration.

So far, the only electoral legislation passed in both houses would allow polling place inspectors to work eight-hour half-shifts, when previously they were made to work 16-hour days. It is a move intended to help Boards of Elections recruit staff and improve efficiency on election days.

Another piece of legislation, sponsored by IDC Senator Diane Savino and Assemblymember Amy Paulin in their respective chambers, would require special ballots to be mailed to domestic violence victims and has passed each house’s election committee and is calendared for floor votes.

The Assembly election committee is meeting on Tuesday, June 6, to consider a dozen more electoral law changes.

Other relatively minor pieces of electoral legislation close to being passed in both houses relate to the way candidates are listed on the ballot, the creation of an inventory of official campaign websites, and protecting the ballot information of domestic violence victims.

One sign of the lack of agreement on major electoral reforms, though, relates to consolidating New York’s repetitive primary election days, a cause that has bipartisan support -- in theory. Both the Senate and Assembly have passed bills to consolidate federal and state primary elections -- a move projected to save the state $25 million and help increase voter turnout -- however the houses cannot disagree on which month to hold the joint election.

The congressional primaries were split from state level primaries in 2012, when the federal MOVE Act mandated that federal elections allow sufficient time for absentee ballots from those in the army and overseas to be collected. The Assembly bill requires the joint primary to happen in June, in order to allow more absentee ballots to trickle in, while the Senate suggests an August date, which would still meet federal regulations. Democrats argue that the August date would suppress voter turnout given peoples’ summer vacations.

The only bill designed to expand voter access that has advanced in the Senate is an early voting bill, sponsored by Senate Minority Leader Andrea Stewart-Cousins, which would allow eligible New Yorkers an additional seven-day window prior to election day to cast their ballots, but it too appears unlikely to reach the Senate floor.

Stewart-Cousins’ bill, which mirrors legislation by Assemblymember Brian Kavanagh that has passed the Assembly, would open poll sites for seven days ahead of election day, allowing one day in between the early voting period and elections. Each county, depending on its size, would be required to make at least one and up to seven polling sites available during that period.

In March, when Stewart-Cousins forced the Senate election committee to vote on the measure, Democratic members of the committee voted to advance the bill to the Senate floor, only to have it diverted to the local government committee by GOP members. As Politico wrote, the majority conference is able to kill legislation without explicitly voting against it by pawning it off to another committee, which is unlikely to meet more than once or twice before the end of session and does not have to calendar a vote.

A bill for automatic voter registration, sponsored by Senator Michael Gianaris, a Democrat from Queens, was defeated after a vote was compelled in the same manner.

While Cuomo, a second-term Democrat, unveiled a sweeping electoral reform agenda during his 2017 State of the State, by April, following the passage of the budget, he appeared to have lost any can-do, telling reporters, “There is more to do; there is no political will to do it. Otherwise we would have done it in the budget."

This lack of enthusiasm on voting reform is echoed by Senate Majority Leader John Flanagan, Republican of Long Island, who, when asked recently by a reporter, noted the fiscal component of early voting. “Early voting is defined so many ways, is it just one day?” he asked rhetorically. “I was just joking around that I’m supportive of early voting, just start 5 o’clock instead of 6. It is a serious subject and something we should be talking about, but how do you do that without costing astronomical amounts of money? Our county boards of election are strapped right now.”

While there is still time left in the legislative session, without Cuomo using his influence, movement on the issue in unlikely, according the Blair Horner, executive director of New York Public Interest Group, one of the advocacy organizations lobbying for electoral reform.

“Lawmakers don't have to face voters until next year so they are more likely to do popular things on even number years than odd number years. The governor has not shown a lot of leadership on this, so they haven't felt a lot of pressure,” Horner said.

De Blasio, no ally of Cuomo, told Gotham Gazette last week that he and unnamed partners intend “to launch a major effort” to see voting and election reforms passed in Albany by the end of the session.

Cuomo’s office told Gotham Gazette that the governor continues to support modernizing the state’s electoral laws and will keep pushing for measures to do so despite their lack of movement through the Legislature. A spokesperson did not answer whether the governor would make any public push to see his desired electoral reforms passed.

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Max & Murphy Podcast


Max & Murphy

Ben Max, right, of Gotham Gazette, and Jarrett Murphy, left, of City Limits


"Max & Murphy" was a podcast hosted by Ben Max of Gotham Gazette and Jarrett Murphy of City Limits that began in 2016 as a brief discussion on the latest in housing policy but quickly expanded to lengthier discussions of a wide variety of political and policy issues, including interviews with candidates for office, elected and appointed government officials, advocates and other experts. In 2017 the show was an important stop for candidates for top city offices and in 2018 for candidates for state offices and so on through much of the 2021 New York City elections. Also in 2018, the podcast was picked up by WBAI radio, where the show initially aired on Wednesdays from 5 to 6 p.m. Portions or full episodes of the show were then posted to the podcast streams, and to the Gotham Gazette and City Limits websites. When Jarrett Murphy left journalism for nursing school, the show became Max Politics, as noted above. 

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Anger, Protests & Potential Bellwether in Democratic Senate Primary Already Underway


protest alcantara IDC

(photos: Samar Khurshid/Gotham Gazette)


“No fake Democrats! Take the New York Senate back!,” yelled the crowd of protestors huddled on the sidewalk outside 5030 Broadway in Inwood, near the northern tip of Manhattan. The demonstrators -- a cohort of about three dozen older New Yorkers, millennials, and one as young as 10 years old -- were one of a number of groups that had gathered at locations across the city on a recent Wednesday to protest at the offices of Democratic state Senators who the protesters believe have betrayed them. These senators are members of a breakaway faction called the Independent Democratic Conference (IDC), which leverages its numbers to help Republicans control the legislative chamber, at odds with the Democratically-controlled Assembly.

The protest at 5030 Broadway, organized by True Blue NY, a four-month-old grassroots group, took aim at Sen. Marisol Alcántara of District 31, who was elected last year and joined the now eight-member IDC. Alcántara’s election has coincided with a groundswell awareness of state politics -- owing largely to the election of Donald Trump as president, a wake-up call to many Democrats -- and a growing movement by grassroots groups to make the bicameral New York Legislature entirely Democratic. Activists’ patience with the IDC has vanished, and with it much tolerance for the breakaway Democrats from other Democratic elected officials.

protest IDC senateAlcántara’s membership in the IDC is anathema to those hoping that New York Democrats can stand up to Trump administration policies, many of which Democrats believe will do significant harm to the state’s most vulnerable people. Democrats at the national, state and local level have increasingly come to call for IDC members to make their way back into the fold and caucus with the 23 mainline Democrats, as well as one other nominal Democrat, Senator Simcha Felder, who conferences with Republicans. After the recent election of Democrat Brian Benjamin to the state Senate, Democrats have 32 members, including Felder and the IDC, to 31 Republicans. But, they remain in the minority.

Many leaders in the Democratic National Committee, the state Legislature, local county committees, and elsewhere have weighed in, urging the wayward Democrats to make their way back home. (Democrats like Governor Andrew Cuomo and Senators Charles Schumer and Kirsten Gillibrand have largely stayed out of the discussion, however. Gillibrand recently indicated her disapproval of the IDC and called for Democratic unity.)

Alcántara’s opponents have declared their ultimatum to the senator: either join mainline Democrats or be replaced by someone who will. And those opponents see a clear path to deposing her in next year’s election by supporting former City Council Member Robert Jackson, who has already declared that he is challenging Alcántara though the primary is 16 months away.

Jackson, a three-term Democratic Council member who left office in 2013, also ran for Senate District 31 last year, losing to Alcántara by a margin of just 533 votes in a four-way Democratic primary (He ran in 2014 as well but lost to Adriano Espaillat, who is now a member of the U.S. House of Representatives). Jackson was a close third, after Micah Lasher, who was just 294 votes behind Alcántara but has thrown his weight behind Jackson’s campaign this time around.

Jackson is confident that the numbers are in his favor. “The race is pretty simplistic,” he said in a phone interview, citing last year’s vote totals and touting the recent endorsement he received from Lasher, which he believes will be more than enough to put him past Alcántara in a 2018 primary. “Then you take into factor, after Trump’s election as president, all of the various groups that have basically risen up from the dirt as beautiful flowers,” he said, referring to grassroots organizations that have sprung up to protest the IDC, groups that can mobilize support for his campaign. “There are many groups that are basically now standing up and fighting the system that basically they feel is not in their best interest.”

Democrats who backed Alcántara and other IDC members now find themselves in an awkward position of explaining their support while also calling for a unified Democratic conference. Public Advocate Letitia James endorsed Alcántara in last year’s race, but recently wrote in an editorial for City & State that “it’s time for Albany’s Democrats – mainline and Independent Democratic Conference – to come together. This is the only real way we will move forward on so many critical issues like reproductive choice, health care, education funding and the DREAM Act.”

Gotham Gazette sought comment from James’ office on whether she would support Alcántara next year, but a spokesperson did not respond.

Jackson cited the same policy issues, challenging Alcántara’s assertions, and those of her colleagues and supporters, that the IDC allows its members a place at the negotiating table and the ability to deliver resources to their communities. Instead, Jackson said, the IDC is simply “eating crumbs off the Republican plate,” while holding up the larger progressive Democratic agenda.

But Alcántara’s victory resonated with residents of her district who are glad to see a Latina representative in the overwhelmingly white and male Senate. Some of those residents and local Democratic party functionaries showed up at the protest outside Alcántara’s office to stand up for her and drown out the voices of her critics. “Marisol! Latino power!,” they yelled in unison, inching forward and eventually circling the members of True Blue NY to, peacefully, drive them away. True Blue NY members slowly trickled away as police officers stepped in with barricades to cordon off the two groups and clear the sidewalk.

“The IDC exists because of lack of leadership from the Democrats themselves,” said Alcántara supporter Manny De Los Santos, a state committee member and president of the Northern Manhattan Democrats for Change, at the protest. “At the end of the day, we need leaders that can not only represent the district where they live but also bring resources to this community, and Marisol has done just that. We had a senator who spent a lifetime in the Senate and wasn’t able to deliver resources to the community. As a rookie state senator, she has done that.” De Los Santos said Alcántara is a “pure Democrat” and vowed to fight back against those questioning her credentials. Alcántara has a history in labor unions and clearly progressive politics, which made her joining the IDC so shocking to some. The IDC pumped thousands of dollars into her primary, however, as she aligned with the breakaway faction.

The fight is likely to be a long, drawn out battle -- both in the 31st Senate District and elsewhere -- as groups like True Blue NY and No IDC are vowing a sustained campaign of opposition to the entire IDC. Just recently, the Manhattan County Democratic Committee, headed by Chair Keith Wright, a former Assembly member, passed a resolution vowing not to support members of the IDC in next year’s elections, and the prominent progressive Working Families Party (WFP) rallied against the IDC once the Democrats gained the numerical majority.

“Here in this very supposedly blue state, we have a state Senate controlled by the Republicans and propped up and enabled...by these eight Democrats,” said Bill Lipton, New York State Director of the WFP, in a May 25 NY1 interview, “these IDC independent Democrats whose voters elected them under the auspices that they were going to stand up and caucus with the Democrats. So people are extremely frustrated, they’ve become woke to this idea that these folks are not doing what they’re supposed to and we’ve just seen an outpouring of support.”

The WFP, with its considerable resources and strong grassroots following, could play a strong role in swaying voters away from reelecting IDC members. At the same time, the IDC will also be able to wield its own campaign finance machinery, which they employed in Alcantara’s favor last year, spending nearly $100,000 dollars in advertising and other support.

As it stands, Alcántara seems the most vulnerable of the lot. “People are really surprised to learn about [the IDC] and dismayed and that’s why all these people are out here,” said Lisa DellAquila, a co-leader of True Blue NY, at the Wednesday protest. DellAquila said the group had signed up hundreds of people in the last three months alone and held a recent summit attended by representatives of about 50 community groups, nonprofits and advocacy organizations. “We’re gonna have a big push to primary all the members of the IDC and Simcha Felder,” she said, insisting that the IDC dynamic, propping up Senate Republicans, is increasingly becoming untenable. “[IDC Leader] Jeff Klein is severely wounded right now,” she said. “I think he needs to come back to the Democrats and bring the IDC with him. Let’s unify and pass progressive legislation in New York.”

Alcántara was not made available to comment for this article. Instead, IDC spokesperson Candice Giove pushed back against the criticism, both of the senator and of the IDC at large. "Senator Alcántara was humbled to see so many Latina women come out to support her in the face of protesters from outside of the district attempting to distort her record, which includes securing $10 million in legal aid for immigrants in the face of bad policy coming from Washington,” said Giove, in a statement.

That pushback, along with Alcantara’s statements on the Senate floor in response to criticism of the IDC, have invited accusations of race-baiting by critics. Jackson reiterated that line in the phone interview. “They’re playing the race card,” said Jackson, who is black. “All of those people out there [protesting] are from the community...they live in the district.”

Giove also addressed the growing calls for Democratic unity, insisting that, "Thirty-two is not a magic number unless there are 32 Democrats who are ready to stand up and unite on policies that combat Donald Trump.”

“Until we achieve unity and stand up for women, immigrants, and the most vulnerable New Yorkers, all talk about a majority is nothing more than meaningless rhetoric on the part of failed leadership,” she said in the statement. “The Independent Democratic Conference has made its positions and its values clear. We are asking every other Senator to do the same. It's time to call the roll.” Giove’s comments are in reference to the fact that Felder continues to conference with Republicans and that at least one mainline Democratic senator, Ruben Diaz Sr., is not supportive of a variety of socially progressive measures.

Jackson, however, sees it another way. If nine people in a room are holding up a ceiling, he said, and eight of them walk away, “What happens to that ceiling?” If the eight-member IDC abandons the Republicans, he’s confident the ninth holdout, Simcha Felder, will too. Otherwise, he thinks they will all see a backlash at the polls.

“This is a movement that Jeff Klein and the IDC cannot stop,” he said.

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

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Note - This post has been updated to include a reference to Sen. Kirsten Gillibrand's recent comments on the IDC.   

10 Bold or Bizarre Proposals for a New York Constitutional Convention


voting constitutional convention


When New York voters head to the polls on November 7, Election Day, printed on their ballots will be the question, “Shall there be a convention to revise the constitution and amend the same?”

A "yes" vote would trigger a state constitutional convention process that could lead to major changes to the New York constitution.

While the first New York Constitution dates back to 1777, the version used today was adopted in 1894, with significant modifications made following the 1938 constitutional convention. Of those in support of a convention, some simply want New Yorkers to have the chance to debate key aspects of the antiquated, 52,500-word document, while others have clear policy agendas, like government ethics reform. There are many more mainstream ideas being discussed, but also a variety of more radical proposals that could be on the table if a convention were to be called.

The debate over whether to support a “yes” vote for a convention largely revolves around the potential to enact long-sought policy measures lawmakers seems unwilling to implement versus fears that hard-earned protections could be dismantled.

Advocates of various political affiliations see the constitutional convention as an opportunity to push for changes to redistricting, campaign finance, and term-limits for legislators -- not to mention a comprehensive rewrite of the at-times illegible constitution document that has many vestigial pieces.

At the same time, many labor unions and leading lawmakers are voicing their opposition to a convention. Of Albany’s five legislative conference leaders, only Assembly Minority Leader Brian Kolb has consistently backed a convention. Governor Andrew Cuomo has said he supports holding a convention, Mayor Bill de Blasio has said he does not.

Due to the democratic nature of a convention, people from all over the state and across the political spectrum frustrated by a lack of movement on their priorities in Albany are seizing on the opportunity to promote their causes, and are considering running their own delegates -- representatives will be elected in 2018 if a convention is approved this November.

Often, proposed constitutional amendments are framed in terms of “rights,” as in the right to clean air, the right to clean water, the right to hunt or farm, the right to equal treatment, the right to have a pension, and so on. Also being introduced, though, are some more unorthodox, even seemingly outlandish constitutional changes, like legalizing recreational marijuana, a dramatic restructuring of the state Legislature, or the splitting up of New York State.

Organizations (and individuals) pining for a convention are not necessarily powerful or well-funded -- anyone with internet access can start a political action committee -- and more radical proposals would be likely be countered at a convention by moderates with other priorities or competing interests.

The multi-phase process is also designed to prevent the convention from being hijacked by a single fringe agenda. If a majority of voters say “yes” to the convention question, which appears on the ballot once every 20 years, the following Election Day, New Yorkers elect delegates to an Albany convention, who would then be charged with crafting amendments to improve and streamline the constitution. The final, key step would be that any proposed constitutional changes coming out of a convention go to voter referendum the following year.

As a result, New Yorkers should not fear the exchange of ideas that a ConCon would allow, according to SUNY New Paltz Professor Gerald Benjamin, a constitutional scholar and longtime convention proponent.

“There’s no common agenda for a constitutional convention. Lots of people support a right to clean water, for example, and some other people think it would lead to excessive litigation. My view is that a convention cannot and will not produce radical solutions,” Benjamin said. “There are going to be 10,000 proposals, and each will be deliberated.”

A recent Siena College poll found that a strong majority of New Yorkers, 62 percent, from across the political spectrum support holding a constitution convention, a once-in-a-generation opportunity to modernize the lengthy, outdated New York State document that is the foundation of state law. Two-thirds of Democrats, 55 percent of Republicans, and 59 percent of independents polled said they support a ConCon.

But the same study found that New Yorkers are mostly uninformed about a convention; only 13 percent have heard a “great deal” or “some” about it. The disparity between the two sets of poll responses may indicate voter frustration with their state government, which has been home to a seemingly endless torrent of corruption scandals.

At the same time, powerful labor unions are spending big money to convince voters to reject the convention in November. While support of a ConCon remains strong, even among union families, according to the latest poll, labor organizations like the United Federation of Teachers and SEIU-1199 have already launched campaigns to sway New Yorkers towards a “no” vote.

“Support for ConCon has remained consistently strong over the last couple of years,” said Siena College pollster Steven Greenberg, in releasing the latest poll. “But the question remains, will that support stay strong as voters hear more about ConCon, particularly as we move into the fall and various interest groups start spending money to educate voters – both in support and opposition – about ConCon? Only time will tell.

In the meantime, we've compiled a round-up of 10 of the more intriguing proposals that have emerged ahead of the upcoming referendum, ranging from bold to bizarre.

1. Reforming the Court System
While the New York State Bar Association has not taken a position on a constitutional convention, in February, the NYSBA issued a report highlighting how an overhaul of the state constitution could go a long way towards streamlining the state’s notoriously complicated court system. A constitutional rewrite could simplify everyday legal processes related child custody, traffic tickets, business disputes, and more.

"The potential to simplify the state's court system, promote access to justice and reduce unnecessary costs and inefficiencies make the issue of court consolidation one that is ripe for consideration at a constitutional convention, should voters choose to hold one," the report says.

2. Home Rule
The constitution’s “home rule” statute, which dates back to 1963, says that anything not explicitly stated as purview of cities in the state constitution is placed in the authority of the state. Many issues impacting New York City fall into this grey area, including mayoral control of New York City schools and city speed limits. Cities are left disempowered and at the mercy of the state on many issues affecting local constituents. Local leaders, like the mayor of New York City, are then reliant on votes from far-off legislators related to especially parochial matters.

One proposal, laid out by Effective NY, a liberal think tank, would change the wording of the statute to grant cities power unless specifically restricted by the constitution (like the United States Constitution’s ninth amendment, which grants states any powers not explicitly granted the federal government). Other states, like New Jersey and New Mexico, already have provisions defaulting control to municipalities.

3. Unicameral Legislature
Does New York State really need two legislative houses? Some point to gridlock in Albany as a byproduct of the fact that New York has two legislative houses that often pass conflicting measures.

Nebraska is currently the only state that has a unicameral Legislature, or a Legislature with one house.

In 1962, the Supreme Court “one man, one vote” ruling required districts in both legislative chambers in state houses to be divided by population rather than geographic districts. The decision led to redistricting, which allowed Democrats to retake the state Assembly, although legally-dubious gerrymandering has allowed Republicans to retain control of the Senate, though currently by a sliver of politicking that is beyond district lines.

According to Professor Benjamin, of SUNY New Paltz, there is no rationale for bicameralism now that both houses are selected by the same formula.

“The idea there is that bicameralism suggests that there are different bases of representation. The Senate is a territorial and the House is population-based representation. Before 1960, you could have two different bases, but now it’s no longer defensible,” said Benjamin.

While some argue bicameralism is necessary to give Republicans a voice in the legislative process, Benjamin says GOP lawmakers should compete for the majority.

Some who are interested in unicameralism take a different view. Last year, Assemblymember Mark Johns, a Rochester Republican, proposed legislation to eliminate the Assembly and instead increase the numbers of Senators from 63 to 75, though the bill never made it to the floor and no companion bill has been presented in the Senate.

4. Make Lawmaking Unpaid
In the past two years, already waning public trust in the state Legislature was shattered following the convictions of both legislative leaders on public corruption charges. In order to restore that trust, one lawmaker is exploring ways to get money out of politics completely.

Legislation introduced earlier this year by Republican Assemblymember David DiPietro, whose district includes Erie and Wyoming counties, would make the Legislature unpaid -- volunteer positions with an even lighter part-time schedule than lawmakers currently are required.

“If we remove pay from the equation, only those entirely interested in serving the public would consider running for office,” DiPietro wrote in his legislative column in February. “This action would save the state millions of dollars, and bring about a new era of citizen leadership. Holding this position is an honor and one that should be respected. This isn’t a full-time position and there’s no need to make it one. This is a part-time position in which you serve the people and you should be serving them with a clear conscience.”

While no groups have specifically proposed this as a potential ConCon agenda item, a constitutional amendment would be required.

5. Special Prosecutor for Certain Police-Involved Deaths
Governor Andrew Cuomo signed an executive order appointing Attorney General Eric Schneiderman a special prosecutor for unarmed civilian deaths involving police officers in 2014, and though he has renewed the executive order since, there has been no movement in the Legislature on a bill to make a permanent special prosecutor.

While civil rights organizations like the American Civil Liberties Union have not taken a position on the upcoming convention referendum, should the public vote to hold a convention, this would be one plank advocacy groups might push to enshrine in constitutional law.

6. Single-payer Healthcare
Federal efforts to “repeal and replace” the Affordable Care Act have renewed the discussion around New York having its own comprehensive healthcare system.

“The New York Health program,” authored by Assemblymember Richard Gottfried, who chairs the Assembly Committee on Health, would provide comprehensive, universal health coverage for every New Yorker, and has passed the Assembly three years in a row. A similar bill has been sponsored by 30 Senate Democrats, a number which is likely to rise to 31 now that the seat of Senator-turned-City Council Member Bill Perkins has been filled, but without the requisite 32 votes in the 63-seat chamber, it is unlikely to pass any time soon.

Effective NY argues for a constitutional amendment that grants New Yorkers the right to health care, enabling a single-payer system.

7. Limit Messages of Necessity
Messages of Necessity, which allow the Governor and Legislature to override the otherwise-required three-day aging period for any piece of legislation, are often misused in Albany. Major legislation, including the recently-passed $153 billion state budget, are pushed through with little scrutiny from lawmakers, the media, and the public.

According to one proposal put forward by Effective NY, the constitution would be amended to require a two-thirds vote in the House and Senate in order to enable a Message of Necessity.

8. Pensions for All
More than half of private sector employees in New York State do not have access to a retirement savings plan through work. This spring, Obama-era rules allowing state- and city-based retirement savings programs were rejected by the Republican-controlled Congress. Both New York City and the State had been exploring the possibility of creating a publicly-backed private-sector retirement-savings program, but those possibilities appear scuttled, or at least on hold.

A constitutional convention could be the best way to compel the state to guarantee a retirement program for all working New Yorkers. Samuels of Effective NY, who is committed to spending significant money for a “yes” vote on the ConCon question, has been advocating for a private sector retirement savings program for years.

9. Legalizing Marijuana
Could New York become the next state to fully legalize medical and recreational marijuana? The legal cannabis movement is spreading across the United States, with eight states now allowing recreational use of the drug.

New York State recently created a medical marijuana program, but only for a short list of 10 health conditions, and it may only be consumed in specific forms. However, due to highly restrictive zoning requirements that prevent access and the limited number of patients that qualify, marijuana dispensaries are struggling, according to the Buffalo News.

There is also a criminal justice reform element to legalizing marijuana, as countless have been arrested and jailed for minor, non-violent drug offenses. While Gov. Cuomo unsuccessfully advocated for decriminalization laws in 2012, the governor and the Senate have consistently opposed legalizing recreational use.

Jerome W. Dewald, who founded the PAC Restrict & Regulate in NY State 2019 (RRNY), says he has talked to marijuana industry leaders about utilizing the constitutional convention to advocate for full adult-use cannabis legalization in 2019.

“It’s commonly accepted that our legislature is the most corrupt in the nation. New York is important [for marijuana legalization] and there is no viable mechanism to get our agenda in New York besides for a constitutional convention,” said Dewald.

10. Upstate Secession
On the more extreme end of the spectrum are the Upstate New York secessionists. Ever since Vermont successfully broke away from New York in 1791, there have been secession movements in the state, though they have mostly remained on the fringe.

The Divide NYS Caucus is a coalition of New Yorkers who are unhappy with state policy they feel is unfairly dictated by New York City lawmakers. The Assembly is controlled by Democrats, many of them from the city, while Republicans -- many of them from Long Island and upstate -- currently cling to the majority in the Senate thanks to partnerships with breakaway Democrats. In 2015, the secession movement gained steam, when upstate New Yorkers -- mostly conservatives upset over issues like the gun control Safe Act of 2013 and Cuomo’s 2014 hydrofracking ban -- organized a protest in the Southern Tier. Now the caucus is seizing on the potential for a convention as a way to drum up more support.

The group proposes dividing the state into two or three autonomous regions, separating upstate from New York City, and possibly segregating Suffolk and Nassau counties as well. Each region would have its own Governor and regional legislators, who would serve six weeks out of the year at the state Legislature, according to Divide New York Caucus Inc. Chair John Bergener.

“The state government under the proposal would have about the same powers of the Queen of England,” said Bergener. “We are required to have an administrator and a Legislature, but we are not required to give them power.”

While the consensus from constitutional experts is that secession is implausible and potentially damaging to upstate’s economy, which relies heavily on New York City tax revenue, a recent bill sponsored by Assemblymember Stephen Hawley (Western New York), and co-signed by eight of his colleagues in the Assembly GOP, calls for a referendum on whether to separate New York City from the rest of the state.

Related legislation introduced in the Assembly and Senate aims to increase power to the counties, allowing them to supersede state law, or exempt regions outside New York City from certain provisions of the SAFE Act.

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

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