Empire State Indivisible activists

The 2018 elections saw a sweeping victory for Democrats, as they recaptured the House of Representatives, in part thanks to victories in New York, where the party also took full control of the state Legislature for the first time in nearly a decade. The state election saw several moderate Democrats, who had comfortably worked with Republicans for years, swept out of power and replaced with a new cohort of progressives buttressed with grassroot activist support, while several suburban swing districts went from red to blue.

This year, with all U.S. House and state legislative seats on the ballot, along with the presidential race, grassroots activists are seeking another round of wins to keep progressive legislators in power or move Democratic seats left, while also flipping Republican-held seats and electing a Democratic president.

Empire State Indivisible, part of a vast network created in the aftermath of Donald Trump’s ascendancy to the White House, contributed significantly to those 2018 wins where New York congressional seats flipped and the State Senate went Democratic, and by a wide margin. Activists now want to replicate those results, endorsing young Democratic candidates seeking to challenge incumbent congressional representatives in the upcoming primaries, while ensuring that certain incumbents who face challenges themselves are able to survive.

Announcing its first wave of 2020 endorsements, Empire State Indivisible is backing three Democratic candidates in the June 23 primary – Manhattan Assemblymember Yuh-line Niou, who was first elected in 2018 and faces a well-funded primary challenger; Adem Bunkedekko, who is running against Democratic Rep. Yvette Clarke in Brooklyn’s 9th congressional district for a second time after a narrow 2018 defeat; and Melanie D’Arrigo, who is challenging Democratic Rep. Tom Suozzi in Long Island’s 3rd congressional district.

“The case we're making in this announcement is around the need to not just elect Democrats, but elect better Democrats,” said Ricky Silver, co-lead organizer of Empire State Indivisible, in a phone interview, echoing much of the motivation behind 2018 efforts the group was involved with regarding the New York State Senate.

Empire State Indivisible was part of the True Blue NY coalition of organizations that rallied around progressive Democratic candidates who in 2018 successfully ousted members of the former Independent Democratic Conference (IDC), a rogue faction of state senators who shared power with Republicans and helped them hold the chamber. Though the eight-member IDC was dissolved in the months before the primary, the resentment they had engendered among activists and voters carried through to the election. Six of its members lost their seats and, with additional victories in Brooklyn and outside the five boroughs, Democrats regained control of the chamber. But the progressive movement was not limited to the state Legislature alone, of course. True Blue NY also endorsed Alexandria Ocasio-Cortez, who defeated the Democratic heavyweight Rep. Joe Crowley, and has since risen to national prominence. Meanwhile, other Indivisible chapters helped swing a number of state Senate and House seats in other parts of the state.

“I think the IDC was one of the most transparent ways an elected Democrat can support Republicans, in the fact that they literally caucused with the Republicans. But that certainly isn't the only way,” Silver said, in a general critique of longtime elected officials who, in their quest for power, no longer seem to represent their constituents. “Democrats or elected officials in general focus on power dynamics and focus on the consolidation of power over the actual progressive causes that they run on.”

Silver said Niou, Bunkedekko, and D’Arrigo are all progressive organizers who have shown they stand up for their communities. Empire State Indivisible plans to bolster each of the candidates’ campaigns, sending volunteers to gather ballot petition signatures, canvass, and for get-out-the-vote efforts.

For Empire State Indivisible, Niou has been a crucial partner in advocating for campaign finance reform, enhanced tenant protections, and greater transparency in the workings of the state Legislature. Some of those efforts were especially fruitful given the Assembly’s more progressive voices and the new Senate majority.

“New York leads the nation in income inequality, reminding us that we need outspoken advocates in Albany who are ready to fight for a government that works for all of us and not just some of us,” said Kellie Leeson, co-lead organizer of Empire State Indivisible, in a statement. “Assemblymember Yuh-Line Niou understands the issues that matter and has proven during her short time in Albany that she is a fierce ally and is ready to stand up to support tenants, improve our schools and protect the most marginalized among us.”

Niou welcomed Empire State Indivisible’s support. “I'm proud to have them on my side as I keep building a people-powered movement in Lower Manhattan,” she said in a statement.

Bunkedekko and D’Arrigo face a different set of challenges.

Bunkedekko is making a second attempt at unseating Rep. Clarke, a 14-year incumbent, after coming close in the 2018 primary – Clarke got 52% of the vote to Bunkedekko’s 48%. Empire State Indivisible criticized Clarke for being far too “passive” in office, praising Bunkedekko as a good alternative.

“For us, it’s all about getting out into our communities and doing the work to engage with people one-on-one, and that kind of commitment is what we look for in candidates,” said Shannon Stagman, co-lead Organizer of Empire State Indivisible. “Adem focuses on the people of his district - they’re his priority. Politics can often feel removed from everyday life, but Adem is out there connecting with his community members every day. He’s ready to take their flights to Washington.”

D’Arrigo, meanwhile, faces Rep. Suozzi, who has only held his Long Island seat since 2017. Empire State Indivisible criticized Suozzi’s decision to join the so-called Problem Solvers Caucus, a bipartisan group of representatives that, according to ESI, resembles the IDC.

“Largely backed by corporate interests and dark-money groups like No Labels, the Problem Solvers Caucus has continually acted as a roadblock for progressive policy and a limiting force on the House’s ability to hold the President accountable,” Empire State Indivisible’s announcement reads.

In a statement accompanying the announcement, D’Arrigo echoed that critique. “Our campaign is about restoring Democratic values to a safe blue seat occupied by a corporate politician who caves to the GOP and ignores our district's priorities,” she said.

Silver framed the fight in stark terms. “The Democratic Party is going through a crisis in some ways where simply standing for progressive values isn’t sufficient in the age of Trump,” he said. “Voting records and co-sponsorships of bills, for example, used to be the way that elected democrats across the state...validate their progressive chops and we believe that the time calls for something greater than that....When we look around at New York's elected leadership at all levels, we still see a lot of bluster in terms of the things that electeds say they support but very little action. And so we're looking to continue our efforts to elect Democrats that are not just there to speak, but they're there to fight.”

What's The [Data] Point? Episode 87 -- 7 days: Budget Season Begins, with CBC President Andrew Rein [You can download What's The [Data] Point? wherever you get your podcasts, including on iTunes]

It's been seven days since the start of the new budget season, which commenced this year with the New York City Preliminary Budget released by Mayor de Blasio on January 16. The Governor's Executive Budget, released just yesterday, may have a significant impact on the City’s finances this year: with the State facing a large budget gap, the Executive Budget proposes reorganizing school aid formulas and restructuring the local obligation with respect to Medicaid funding. CBC President Andrew Rein joined the podcast to discuss the start of this year's budget season.

Listen to the conversation and let us know what you think: Ben Max of GG (@TweetBenMax), Maria Doulis of CBC (@MariaDoulis). Listen below or download wherever you get your podcasts!

(photo: Darren McGee/Office of Governor Andrew M. Cuomo)

Governor Andrew Cuomo released his 2021 executive budget proposal in Albany on Tuesday, presenting an $178 billion spending plan for the next fiscal year, including $105.8 billion in state operational spending, a 1.9% increase over the current year, according to the governor’s budget documents.

The governor proposed significant reforms to quickly-increasing state Medicaid spending and a radical rethinking of education aid to localities, the two largest parts of the budget that he’s forecasting will nonetheless grow at 3% each this year.

Cuomo’s budget plan closes a daunting $6.1 billion projected budget gap through several broad measures: a still-vague plan to slice projected Medicaid spending by billions, a far lower increase in education aid than is sought by many officials and advocates, and holding other state operational spending growth to typically low levels. But it still accounts for ongoing and increased spending for a wide variety of the governor’s priorities, from economic development to infrastructure, housing and homelessness to child care.

The governor promoted tax cuts for the middle class that are continuing to go into effect and proposed a new tax cut for small businesses. And he spoke of his top line priorities including legalization of adult use of marijuana and gestational surrogacy, passing the Equal Rights Amendment, and reforming the state’s bail reform laws, among other items.

“All of this done, there's no gimmicks, there's no new casino revenue, there's no major fee increase, there are no new revenues,” he said. “This is not the time to come up with creative, although irresponsible, revenue sources to solve a problem which doesn't really exist.” Though there are indeed no new fee increases, the governor’s budget proposes extending fees on oil and gas wells and other facilities, which was due to expire March 31, though the 2024 fiscal year. He also proposed imposing a Certificate of Need fee on hospital construction projects, projected to bring in $70 million, and creating a new Motion Picture Theater alcohol permit. Altogether, Cuomo’s budget document shows a net $51 million increase in revenue from those and other actions.

“You can be a progressive and you can be fiscally sound, and that's exactly what this budget does,” Cuomo said. His proposal sets the stage for negotiations with the Legislature over the next few months. Both the State Senate and Assembly will release their own one-house budget resolutions that detail each chamber’s budget and policy priorities. The three sides have just over two months to come to an agreement before the April 1 start of the 2021 fiscal year.

The governor has delivered nine budgets that have been on time or close to it since he has been in office, a marked sea change from the period before his tenure. But this year presented him with the second-largest budget gap he has ever faced, after his first year when he closed a whopping $10 billion hole through major cuts to school aid and a redesign of the state Medicaid program.

In total, Cuomo is projecting Medicaid spending to grow to about $20 billion in the 2021 fiscal year, up from $19.4 billion this year, a 3% increase. Education aid is also expected to increase at the same rate, to $28.5 billion, an increase of $826 million, far below the state Board of Regent’s request of $2 billion. Executive agencies are expected to increase spending by only $100 million.

The $6.1 billion projected hole for next fiscal year, which Cuomo alternately raised alarms about and downplayed as very manageable, owed largely to an uptick in Medicaid costs, prompting the governor to reinstitute the Medicaid Redesign Team that he formed in 2011.

Cuomo announced Tuesday that he is tasking the “MRT II” with finding $2.5 billion in savings, and imposed several mandates that would, he said, protect localities from adverse impacts while making them more responsible for Medicaid spending. Under his proposal, localities will have to absorb any cost increases beyond 3% annual growth and those that fall below that threshold would receive 25% of the “savings.”

Another $2 billion to fill the budget gap came from higher-than-expected tax receipts, while the budget also reduces projected spending on assistance to localities by $1.78 billion. Agency operations saw a $359 million reduction in spending from the original forecast and $252 million came from other savings and spending revisions.

“The Executive budget tackles some tough issues but we need to more closely examine the specifics and the broader impact of these proposals,” said State Comptroller Thomas DiNapoli, in a statement, citing the challenge in finding Medicaid savings. “The best way to get the state back on solid financial footing is with recurring actions and higher reserves that will better position the state for when the economic downturn in the cycle arrives.”

Bemoaning the disparities in education spending between the richest and poorest schools, which spend $36,000 and $13,000 on average, respectively, per pupil, according to Cuomo, the governor proposed scrapping the current Foundation Aid formula that determines how a lot of school aid is distributed. Instead, he proposed sending about 85% of the $826 million increase in foundation aid to the poorest schools across the state.

“The current formula is designed to achieve political needs, not equity,” he said, insisting that the formula is not progressive and must be recrafted. The exact details of Cuomo’s long-term restructuring of education aid are yet to be seen, but the assertions for both this year and beyond could set up one of the most significant areas of debate between the governor and legislators.

Cuomo is also proposing a $257 million increase, about 3.4%, in higher education aid, while calling for an expansion of his Excelsior Scholarship program to provide tuition-free public college to middle-class students.

New York State GOP Chair Nick Langworthy had harsh words for the governor’s budget proposal. “Andrew Cuomo has run New York’s budget into the red to the tune of at least $6 billion, but all we heard from him was dishonest rhetoric, obfuscation, and his fuzzy Albany math,” he said in a statement, calling the governor’s time in office a “colossal economic failure.”

There were progressive critiques of the governor as well, including from Sochie Nnaemeka, state director of the New York Working Families Party, who noted that the governor does not support increasing taxes on the wealthy to fund housing, education and healthcare. “With this budget, Governor Cuomo has again shown that he cares more about the bank accounts of the wealthiest New Yorkers than the basic well-being of working New Yorkers,” she said in a statement.

In his speech, Cuomo largely reiterated many proposals he advanced in his State of the State speech earlier this month, many of which call for major investments in the state’s capital program that funds long-term infrastructure projects, as well as continuing investments in programs that are already underway. Notably, though he spoke of legalizing adult use of marijuana, he did not address the revenue implications of doing so. "Legalize adult use cannabis," Cuomo said. "I believe it is best done in the budget. I said that last year. I believe the budget is the opportunity, frankly, to make some tough decisions and work through tough issues. That without the budget, can often languish, and I suggest that we get it done in the budget."

After not mentioning changing the bail reform laws passed last year, which have become the source of significant debate and controversy, during his State of the State speech, Cuomo briefly addressed the high-profile issue in his budget presentation. "Bail laws," Cuomo said. "Reform is an ongoing process, it's not that you reform a system once and then you walk away. You make a change in the system. It has consequences and you have to understand those consequences. We need to respond to the facts but not the politics. And we need to act on information and not hyperbole. Let's understand the facts, understand the consequences discuss it intelligently, rationally and in a soluble way and then let's make the decisions that we need to make, and we will do that as we move forward over these coming weeks."

While Senate Majority Leader Andrea Stewart-Cousins has indicated a similar openness to altering bail reform, Assembly Speaker Carl Heastie has said the law, which only went into effect January 1 of this year, needs more time to be implemented and that he has no appetite to revisit the changes at this time.

Cuomo yet again brought up protections for gig economy workers, and his budget proposal includes a bill to establish a Digital Marketplace Worker Classification Task Force that would provide recommendations on how to approach new regulations related to "wages, classification, employment criteria, safety and health regulations, collective bargaining, and anti-discrimination protections for on-demand workers." The nine member task force of mostly gubernatorial appointees would have to submit its proposals by May 1. 

[Read: With Cuomo Promising Gig Economy Regulations, New York Leaders Consider Pros and Cons of California Model]

Cuomo proposed a $10 million increase in funding for outreach efforts for the 2020 Census, building on a $20 million allocation last year and an announcement that another $40 million in state resources would be redirected towards the undertaking.

He cited a $33 billion five-year plan to tackle climate change, including a $3 billion Restore Mother Nature Bond Act that he wants to put before voters this fall, with another $740 million in additional state funding. About $28 billion is set aside for renewable energy projects while $1.5 billion is pegged for carbon-free transportation alternatives. It is not immediately clear how much of this or other monies Cuomo discussed is cumulative including prior allocations or new only to the next budget.

Cuomo added another $25 billion for state infrastructure projects, bringing his regularly-updated long-term plan to $275 billion overall. He allocated another annual commitment of $750 million to the Regional Economic Development Councils, which he credits for decreasing the upstate unemployment rate, but critics have questioned for their effectiveness and efficiency in creating either short-term jobs or long-term economic sustainability in distressed areas of the state.

Cuomo also proposed a $133 million allocation, which he called “the most funding ever to provide supportive housing and services primarily to the mentally ill.” That includes $128 million for the Homeless Housing Assistance Program (up from $64 million currently) and $5 million to house homeless veterans.

To combat child poverty, the governor proposed expanding the Empire State Child Tax Credit at a cost of $157 million in 2021. That expansion would provide an average of $400 to about 400,000 working families with children under the age of four, he said.

The governor also spoke of a spate of proposals that will not have a budget impact but that he has made his top priorities in the legislative session including new gun control measures, a ban on flavored vaping products, legalizing e-scooters and e-bikes, and passing a new domestic terrorism law that is one piece of his response to an increase in hate crimes.

Note - this article has been updated with details about the governor's proposal regarding gig economy legislation.  

Cuomo, center, with 2018 legislative majority leaders (photo: Kevin P. Coughlin/Governor's Office)

After two years of legislative negotiations, commission reports, and lawsuits, parts of a planned salary increase for state officials remain up in the air, and the fate of long-sought restrictions on legislators’ outside income sits entirely with state lawmakers themselves.

The raises and corresponding outside income limitations were made by a commission created by the governor and Legislature created to alter the laws dictating compensation for statewide elected officials, state agency commissioners, and members of the State Senate and Assembly. It recommended pay raises for all of those positions to be phased in over three years. For legislators, who are allowed under state law to earn income outside their government salaries, the commission coupled the second and third phases with tight limits on non-governmental income.

A series of lawsuits filed last year challenged a number of parts of the commission’s final product, which was binding according to the statue empaneling it, with some alleging restrictions on outside income to be outside the body’s purview, and another questioning the legality of giving an unelected body lawmaking authority in the first place. The latest suit, filed in December, claims the state constitution prohibits changing the salary of the governor and lieutenant governor during their terms in office.

The final outcome of the suits, one of which is on appeal, could even have implications for the raises that have already gone into effect (raising, for example, legislators’ annual salaries from $79,500 to $110,000), but the courts have already determined that the outside income restrictions set up by the compensation commission are invalid.

With rulings in the second half of 2019 striking down the outside income limits before they could go into effect, and other pending court decisions throwing the pay hikes into uncertainty, good government advocates and others are calling on the Legislature to take up the restrictions through statute in the 2020 legislative session, which began January 8. They have noted that the commission’s outside income restrictions are consistent with those for members of Congress and would limit potential conflicts of interests, something Governor Andrew Cuomo has advocated for years and a notion supported by many of his fellow Democratic officials.

“We think when you’re a public official, you should have one master, and that master is the public that you’re sworn to serve. Not a business, not a profession, just the public,” said Blair Horner, executive director of the New York Public Interest Research Group (NYPIRG), in an interview.

Ethics watchdogs have for years sounded the alarm over state legislators’ ability to divide their fiduciary interests between the public they are elected to serve and their private sector careers. When former Assembly Speaker Sheldon Silver was arrested in 2015 on corruption charges related to using his power in the Legislature to enrich his private law practice, good government groups called for swift action to limit outside income.

Hope for that action finally came in 2018, when leaders in Albany set up the pay commission, appointing four former or current city or state comptrollers -- Bill Thompson, Scott Stringer, Carl McCall, and Tom DiNapoli -- to carry out its mandate.

The commission’s final recommendations, “which have the force of law and supersede existing law,” according to its enacting statute, would have raised the governor’s salary from $179,000 to $250,000, and the Lieutenant Governor’s from $151,500 to 220,000, over the three-year period from 2019 to 2021. The Attorney General and State Comptroller would also see raises from around $150,000 to 220,000 over the same period. Four tiers of state agency commissioners would also get varying raises.

For legislators, the commission went further. Members of the State Legislature, who in 2018 had a $79,500 salary to serve in the “part-time” body, had not gotten a raise in nearly two decades before the commission members voted to raise them to $130,000 by 2021, with the first phase-in to $110,000 to take place at the beginning of 2020. They also acted to eliminate legislative stipends for all but a handful of leaders. In the second and third years of planned salary increases, a limit of 15 percent of their base pay would be placed on the outside income legislators could earn. Modelled on restrictions for members of Congress, the recommendations place a complete prohibition on outside income when the legislator has a “fiduciary relationship” with the employer or client.

Last year, two Albany Supreme Court justices in separate suits struck down the outside income limits. In the case challenging the unelected commission’s law-making ability outright, brought by the legal advocacy group Government Justice Center, Justice Christina Ryba upheld the first phase of raises but ruled the outside income limits to be beyond the commission’s statutory mandate and, therefore, unlawful, according to a spokesperson for Comptroller DiNapoli, whose office is responsible for cutting checks to state employees. Because the pay raises scheduled for 2020 and 2021 were accompanied by outside income restrictions, they too were struck down.

In October, the Times Union reported the state would not be appealing the courts’ decisions. A spokesperson for Attorney General Letitia James has repeatedly declined to comment when Gotham Gazette has inquired about the status of the lawsuits and state appeal.

Just Do It Legislatively?
In the face of the likely failure to implement the limits, good government groups last October sent a letter to Governor Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins, and Assembly Speaker Carl Heastie, all Democrats, urging them to codify the commission’s outside income recommendations. The groups, which included Citizens Union, Common Cause NY, League of Women Voters of New York State, NYPIRG, and Reinvent Albany, wrote, “It is therefore incumbent on you as the state’s leaders to act to curtail outside income by lawmakers to address the corruption problem in Albany and restore the public trust.”

Bills to limit outside income have been floated in the past, but it is unclear whether legislators will reintroduce them in 2020.

Assembly Member Charles Lavine, a Democrat representing parts of Nassau County, introduced a bill in 2017 that would raise government compensation and place a cap on non-government income. Asked whether he would pursue similar legislation now that the compensation commission’s recommendations have been limited by the courts, Lavine told Gotham Gazette in December, “[the pay increase] is a matter that I will discuss with my colleagues and based on the consensus among the members of the Assembly, I will be in a better position to determine in which direction to go. On the question, however, of outside income, it’s always been my position that there has to be some measurable constraint on outside income.”

“If members of the Legislature are working and earning hundreds of thousands of dollars per year then it seems to me the obligation to represent the people we represent becomes secondary to the economic concern,” he added.

The issue is somewhat of a perennial one for reform-minded legislators like Senator Brad Hoylman, a Manhattan Democrat, who carried the Senate companion to Lavine’s bill. But that doesn’t mean it will gain traction in the next legislative session, despite momentum from the commission.

Asked whether he planned to reintroduce his bill, Hoylman told Gotham Gazette: “Yes I hope to. Discussions are ongoing. If a bill is to be meaningful it needs to have the support of both houses.”

“I think that’s where the work remains: convincing our colleagues in both houses of the merit of this approach. I think the public is already there but it is difficult at times to unwind a longstanding tradition in New York,” Hoylman added, referring to fact that the job of legislators is technically part-time.

He noted that often the legislators who do earn outside income do so through private law practice, which he thinks is especially conducive to obscuring conflicts of interest. “Essentially as it stands now the attorney-client privilege allows you to keep your dealings masked and if not a conflict, which I think my colleagues don’t have, the appearance [to the public] is poor to say the least,” he said.

A spokesperson for State Senator Liz Krueger, another Manhattan Democrat who chairs the Senate finance committee and often takes on government ethics issues, said in a statement to Gotham Gazette that Krueger “supports adopting the same rules that Congress has relating to outside income, but the issue has not been discussed by the conference yet.” Members of Congress are limited to the 15% of government salary outside income cap that the state commission had imposed. (When the New York City Council approved a pay raise signed by Mayor Bill de Blasio in 2016, it coupled the increase with a near total ban on outside income for Council members.)

“Just as Congress responded to Watergate with passing these types of restrictions limiting outside income, Albany should do the same,” Hoylman told Gotham Gazette.

Neither the office of Assembly Speaker Carl Heastie nor the office of Senate Majority Leader Andrea Stewart-Cousins responded to multiple requests for comment for this article. It's unclear if either majority chamber has any appetite for taking on additional legislative pay increases and/or a cap on outside income.

Process Problems
Meanwhile, Government Justice Center is appealing Justice Ryba’s decision to leave in place the first phase of pay raises, which went into effect January 1, 2019, on the grounds that a commission whose members were not elected by the public cannot create new law that supersedes existing law. The group is appealing to the Third Department Appellate Division. If it prevails, the group believes the case may have implications for future commissions, as well as the practice of elected representatives delegating their lawmaking power to unelected bodies with little accountability to the public.

“Our hope is to put a stop to the practice,” Cameron Macdonald, executive director of Government Justice Center, told Gotham Gazette. A similar commission just created binding campaign finance laws and changes to political party ballot access. Its work is also the subject of litigation.

“Can the Legislature and the governor punt on policy to an unelected body,” asked Horner of NYPIRG. “We don’t like that process...We think the governor and lawmakers should make these decisions. But if they’re going to do it, they should do it right, and independence is key.”

That was not the case for the pay commission, Horner said, which was appointed by the governor and legislative leaders. “They’re appointed by individuals who would directly benefit from their decisions. So that’s not independent...It’s a bad process and a real process would be with someone who has no skin in the game picking the members of the commission, and that’s not what happened,” he said. New York City law requires the mayor to appoint a commission every four years to examine and make recommendations on elected official pay.

Government Justice Center is also bringing the latest suit filed in December, which argues the state constitution prohibits changing the governor’s and lieutenant governor’s salaries in the middle of a term. In that case, the comptroller has been served and has a January 27 response date, Macdonald said. A spokesperson for DiNapoli said they could not comment on the ongoing case.

Note: this article has been updated to reflect that neither Heastie's nor Stewart-Cousins' office responded to requests for comment.

(photo: Don Pollard/Office of the Governor)

This year, more than 40% of New Yorkers will be employed in the so-called gig economy, Governor Andrew Cuomo said in his State of the State speech earlier this month. It was an acknowledgement that the nature of work is changing, or rather has changed, and also a concession that labor rules have not evolved to keep up. Gig economy workers lack the same benefits that full-time workers enjoy, which has helped billion-dollar companies make substantial profit on the backs of unprotected and often underpaid workers. And Cuomo said New York would no longer allow that to happen. 

“Large corporations have dominated and taken advantage of workers for too long,” said the governor, a third-term Democrat. “Today's economy works brilliantly for innovators, shareholders and billionaires, but it too often abuses workers. As FDR, Al Smith and Francis Perkins protected workers after the Triangle Shirtwaist Factory fire, we too must protect workers from today's threat, which is economic exploitation.”

He went on, getting at the heart of what he appears to be eyeing for new regulations: “Too many corporations are increasing their profits at the expense of the employee and the taxpayer, and that must end. A driver is not an independent contractor simply because she drives her own car on the job. A newspaper carrier is not an independent contractor because they ride their own bicycle. A domestic worker is not an independent contractor because she brings her own broom and mop to the job. It is exploitive, abusive, it's a scam, it's fraud. It must stop and it has to stop here and now!”

On Tuesday, January 21, Cuomo released his executive budget proposal for the 2021 fiscal year, which included proposed legislation to create the Digital Marketplace Worker Classification Task Force, charged with recommending measures to regulate the gig economy. It would cover everything regarding “wages, classification, employment criteria, safety and health regulations, collective bargaining, and anti-discrimination protections for on-demand workers.” The task force would be comprised of nine members, seven appointed by the governor and one each by Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie.

The governor’s words were encouraging news for state legislators, activists, and labor groups who have long sought to regulate the freelance and gig economy to protect workers. After California passed first-in-the-nation legislation that established a framework for doing that, New York may soon follow suite.

California’s Assembly Bill 5, or AB5 measure, uses an ABC Test to establish how a worker is classified, limiting the ability of companies to avoid paying benefits by claiming someone is an independent contractor rather than an employee. While Cuomo has not released the specifics of his proposals, some New York lawmakers intend to enact a similar measure having learned lessons from the successes, and failures, of the California model. 

There is of course opposition to these efforts from business groups and the companies that any potential bill would seek to regulate, and they have employed armies of lobbyists to represent their interests before the state. 

California isn’t the only model for gig economy legislation. New York City has already forged several other measures affecting the gig economy that could serve to inform the state’s efforts. The City Council passed the Freelance Isn’t Free Act in 2017, to ensure that freelance workers are paid on time and to protect them from wage theft. In late 2018, the Council established the first-ever minimum wage for drivers that work for ride-hailing services like Uber and Lyft. Just last week, a law went into effect that extends protections against workplace harassment and discrimination to freelancers and independent contractors. 

Brooklyn City Council Member Brad Lander was the sponsor of all three city laws – he’s working on more legislation currently – and he welcomed the governor’s words on the need for new regulation. “Obviously, in the past, the governor embraced Uber and the gig economy and he has come to understand that it can be a site of real exploitation, and that new rules are needed,” Lander said in a phone interview. In 2017, Cuomo pushed through legislation that authorized ride-hailing services like Uber and Lyft to operate across the state.

The classification of workers, as Cuomo outlined in his State of the State, remains a state question. Lander and others are hoping New York creates its own ABC test for workers, which would have a broad effect across different gig economy segments.

“What I hope will be at the heart of New York state legislation is that there are a set of people for whom the terms and conditions of their employment are set by the platform or by the hiring party, and they really should have been treated as employees all along,” he said. “[California’s] law helps clarify that requirement and close the loop.”

Though Cuomo has not yet introduced any legislative proposals (he mentioned the need for gig economy regulation in his 2019 agenda but did not follow through), he appears more committed this year. And, there have already been attempts by Democratic state legislators.

State Senator Diane Savino, a Democrat from Staten Island, has been working on gig economy regulation for years and has been leading public hearings on the issue in recent months as chair of the Senate Standing Committee on Internet and Technology. Along with Bronx Assemblymember Marcos Crespo, she introduced a bill last year, the Dependent Worker Act, to reclassify certain gig economy workers and provide them with labor protections, including the ability to unionize and collectively bargain for benefits. But the bill was unpopular, both to business and labor groups. 

A subsequent bill introduced by Assemblymember Deborah Glick and State Senator Robert Jackson, both Manhattan Democrats, heeds more closely to California’s law, and would have established an ABC test for workers in New York. That too was unsuccessful, but Glick says she’ll pursue the bill again this year. She was encouraged by the governor’s speech.

“I'm glad that he made reference to the fact that there are companies that should live up to their responsibilities to treat the people working for them as employees and provide them with the appropriate benefits that reflect the dignity of their work,” Glick said in an interview. “And it certainly should not fall to government to pick up the slack while these companies are generating very large profits.”

Glick is aware of the challenges and has conceded that the bill may require exemptions. California’s law is currently going before the courts and major companies have promised to spend millions of dollars to defeat it in through a ballot referendum this year. There’s also been criticism from those the bill was supposed to benefit. It mandates that companies would need to hire a freelance writer who publishes more than 35 pieces of writing in their publication. Freelancers say that would effectively harm, rather than help them, by requiring them to work for more companies and publish more broadly. 

“I think Senator Jackson and I are confident that we will be able to make technical changes that will address concerns from specific industries and at the same time cover most employees who have, up until now, been very disadvantaged by being considered independent contractors,” Glick said. 

Since last year, Savino has similarly recalculated her effort and is hoping to recraft legislation and avoid the pitfalls of California’s law. “We have the benefit of having watched California go first,” she said. “What we have to figure out is how do we write a piece of legislation that creates clear rules for everybody, everyone understands it, maintains the flexibility that people seem to like, and doesn't ensnare people unnecessarily the way the California law did. So you don't wind up with 30 exemptions and multiple court cases.”

The legislators are speaking with stakeholders on all sides of the issue, including the companies that will be most affected by legislation and have been fighting against it. The Flexible Work for New York coalition, comprised of business groups, trade associations and several app-based services including Uber, Lyft, and Postmates, has pushed back against efforts to regulate the gig economy, arguing that it would reduce workers capacities to supplement their income and would also increase costs for consumers.

“Flexibility has allowed tens of thousands of New Yorkers to earn income around their own lives,” said Christina Fisher, spokesperson for Flexible Work for New York (FWNY), in a statement to Gotham Gazette. “These are single parents trying to juggle childcare, retirees trying to supplement their retirement income, and college students who need a way to earn money around their class schedules. As lawmakers explore ways to better protect workers, it’s vital they do so in a way that balances those protections with the flexibility that workers overwhelmingly value and need. Already, multiple industries in California – from freelance writers to truck drivers and more – have suffered the negative impacts of overly broad legislation that ignored the voices of workers, and we can’t let that happen here in New. York.”

An FWNY spokesperson put Gotham Gazette in touch with Mastro Young, 65, who has been driving for Uber in Albany for about two years. Young said he was concerned about how any new laws may affect his ability to earn extra income. The flexibility he has from working with Uber allows him more time with his family, he said, and as a veteran, the time to go to the doctor without having to request time off from an employer. “Financially, Uber helps me a whole lot, paying my bills and having a little extra money,” he said in a phone interview. “Without Uber, it  can be tiring, you know, trying to make ends meet.”

Young isn’t opposed entirely to new regulations that could potentially increase benefits for those who don’t work the equivalent of full-time hours, but he was adamant that the governor and Legislature shouldn’t take away the flexibility that drivers like him enjoy. “If I need money, if I know my bills are coming, I drive more at the end of the month so I can pay my bills,” he said. “If I want to take my wife on a vacation, I can up my hours, so I can do these things. So I'm just hoping that is not taken away from us.”

Overall, it’s not clear how gig economy workers are thinking about possible regulations that would drastically impact their lives.

Legislators seeking new regulations have powerful labor allies on their side. The New York Do It Right Employment Classification Test (DIRECT) coalition has been advocating for an ABC Test in state labor law, taking direct aim at app-based ride-hailing services, which currently help provide work to somewhere around 100,000 drivers, if not more, across the state on a somewhat consistent basis. The coalition’s members include the likes of labor heavyweight 32BJSEIU, immigrant advocacy group Make the Road New York, the New York Taxi Workers Alliance, The Legal Aid Society and the New York Nail Salon Workers Association, among others. 

“I think It's important to recognize as we're talking about the issue of misclassification that this is not strictly an Uber problem,” said Brian Chen, staff attorney at the National Employment Law Project, another coalition member. “It's not strictly a gig economy problem. This is a misclassification problem and misclassification extends to virtually every industry in New York, particularly those industries that are very low wage, often immigrant dominated where there is typically a lot of exploitation.”

Chen said his coalition is working with the National Writers Union and other writers groups to craft a carveout that would prevent what happened in California. 

“The ABC test is the gold standard that reaffirms the rights and protections of misclassified workers,” he added. “It holds employers accountable to their workers. And most importantly, it does not jettison any rights or protections that that people are entitled to under the law.”

While classification is a central issue, it’s by far not the only one that some advocates and experts want to see addressed this year.

Eli Dvorkin, editorial and policy director at the Center for An Urban Future, a nonprofit thinktank, said the missing piece of the puzzle is a comprehensive system of universal, portable benefits for those workers who truly do count as independent contractors. “I think the opportunity for New York is to tackle an even greater challenge, which is how to provide financial security and other benefits to independent workers,” Dvorkin said. 

He pointed to the Black Car Fund as an existing model that could be emulated, or mandated, in other industries, emphasizing that any new legislation should “thread that needle” between protecting workers that are closer to employees as well as benefiting those who continue to want to work as truly independent contractors. “That's a two-pronged approach that would be much more powerful in total, and I think we've yet to see what that second prong would look like at the state level,” he said. 

In the absence of the universal provision of benefits like healthcare, Dvorkin said companies should be setting up benefits funds for independent contractors to give them access to affordable health care, workers compensation insurance and unemployment insurance. “I think there's a huge opportunity to set up a system where companies pay into a set of flexible benefits, portable benefits that's prorated to the amount of work that that any one person has performed for that company or on their platform. and the technology already exists to be able to do that,” he said. 

Savino admitted that portable benefits are  “not a foreign concept” for New York, pointing to other models including ones created by the Freelancers Union and Domestic Workers United for their members. But she said the focus first needs to be on creating a standardized classification system for those denied basic statutory rights such as workers compensation, unemployment insurance, human rights law protections, and the right to organize and collectively bargain.

NELP’s Chen echoed the sentiment. “I think our position is, let's start with the benefits that people are due under the labor laws already and that's minimum wage, anti discrimination, workers compensation, unemployment insurance.”

Note - this article has been updated with details from Governor Cuomo's executive budget proposal, which includes a task force on gig economy regulations. 

New York City Hall

What to watch for this week in New York politics:

A very busy week in New York politics will begin with a variety of tributes to Dr. Martin Luther King, Jr., and be highlighted by Governor Andrew Cuomo's executive budget presentation, which he will give on Tuesday in Albany, showing how he proposes the state closes a $6.1 billion projected deficit for the fiscal year beginning April 1. Cuomo has recently received some good news related to state tax receipts and has been adept at closing budget gaps in the past, though this is the largest deficit he's faced since his first budget.

The week will also feature Public Advocate Jumaane Williams giving his inaugural "State of the People" address; remarks by Brooklyn Borough President Eric Adams in a high-profile Manhattan forum; the MTA's monthly Board meetings; a variety of City Council hearings; and much more -- 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?
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The run of the week in detail:

Monday, January 20
Monday is Martin Luther King Jr. Day. There will be celebrations and remembrances throughout the city.

State Comptroller DiNapoli is Washington, D.C. and New York City on Monday. At 8:30 a.m. he’ll attend the National Action Network Washington Bureau’s Dr. Martin Luther King, Jr. Day Breakfast. At 5 p.m. he’ll participate in the MLK Day of Service at NYC Rescue Mission on Lafayette Street in Manhattan.

At 9 a.m. Monday, Lieutenant Governor Kathy Hochul will deliver remarks at the New Hope Baptist Church Martin Luther King Jr. Scholarship Breakfast in Buffalo. At 12:30 p.m., Hochul  will address Lackawanna's Second Annual Martin Luther King Jr. Celebration.

Governor Andrew Cuomo will hold a conference call with reporters at 11:30 a.m. Monday to make an announcement.

At 10 a.m. Monday, Public Advocate Jumaane Williams will speak at the Staten Island Justice Center Martin Luther King, Jr. Day 'Committed to Census' Day of Service. At 12:30 p.m., Williams will speak at the 122nd Baptist Ministers Conference Annual Commemoration and Celebration of Rev. Dr. Martin Luther King, Jr. in Manhattan. And at 2:45 p.m., Williams will perform 'Drum Major Instinct' with Theater of War, in Brooklyn.

At 10:30 a.m. Monday, the Brooklyn Academy of Music will host its 34th annual tribute to Martin Luther King Jr., bringing together activists, public figures, and civic leaders to honor King’s legacy, and featuring performances from musical guests Son Little and the Brooklyn Interdenominational Choir. Mayor de Blasio and First Lady McCray will deliver remarks at BAM at 12:15 p.m. Among those also speaking will be City Comptroller Scott Stringer, Public Advocate Jumaane Williams, and City Council Speaker Corey Johnson.

De Blasio will also be among those who speak at the National Action Network’s celebration of Dr. King, with the mayor set to deliver remarks at 1:30 p.m. Other speakers will include Comptroller Stringer, Public Advocate Williams, Speaker Johnson, and Manhattan Borough President Gale Brewer.

Stringer will also deliver remarks on Monday at the Union Grove Missionary Baptist Church Dr. Martin Luther King, Jr. Celebration in the Bronx and at Baptist Ministers Conference of New York and Vicinity Annual Dr. Martin Luther King, Jr. Celebration in Manhattan.

Johnson will also deliver remarks at the Dr. Martin Luther King Jr. Celebration at Convent Avenue Baptist Church in Manhattan and at Dr. Martin Luther King Jr. Celebration with Council Member I. Daneek Miller at Jamaica Performing Arts Center in Queens.

Manhattan Borough President Brewer will also on Monday attend Habitat for Humanity Brush with Kindness event; Food Bank for NYC's ‘Done in a Day for MLK’ Day of Service; and The Baptist Ministers Conference of Greater NY Commemoration of Rev. Dr. Martin Luther King Jr.

At 10 a.m. Monday, “Bronx Borough President Ruben Diaz Jr. will be hosting an interfaith service honoring the legacy of the Reverend Dr. Martin Luther King, Jr…Borough President Diaz's office is hosting this event in conjunction with the Trinity Baptist Church.”

In the 7 and 11 p.m. hours, de Blasio will appear on NY1’s Inside City Hall with host Errol Louis for his weekly interview.

At 8 p.m. Monday at the Thomas Jefferson Democratic Club in Brooklyn, “Rodneyse Bichotte, the New York State Assembly Member and Democratic State Committeewoman for the 42nd District is expected to make history on Martin Luther King Jr. Day as the first-ever woman elected to lead the Kings County Democratic Party. Brooklyn's diverse leaders will convene on Monday for the historic vote in an uncontested election.”

Tuesday, January 21
At 1 p.m. Tuesday in Albany, Governor Andrew Cuomo will present his 2021 Fiscal Year Executive Budget.

The state Legislature is in session Tuesday in Albany.

Mayor de Blasio has no public events on his schedule Tuesday. In the evening, he'll "travel to Washington, D.C. for the United States Conference of Mayors' 88th Winter Meeting. The Mayor will return to New York City on Thursday evening."

Beginning at 8:30 a.m. Tuesday, the MTA will hold its monthly committee meetings.

At the City Council on Tuesday:
--At 10 a.m., the Committee on Finance will conduct a joint hearing with the Committee on Aging “examining the New York City Department of Finance's administration of the Rent Freeze Program.”
--At 10 a.m., the Committee on Governmental Operations will hear a bill sponsored by committee Chair Fernando Cabrera that will “authorize the Office of Administrative Trials and Hearings (“OATH”) to dismiss taxi and limousine commission-related violations pertaining to vehicle lights upon proof of correction.”
--At 10 a.m., the Committee on Hospitals will hold an oversight hearing on prenatal care in hospitals.
--At 1 p.m., the Committee on General Welfare will meet jointly with the Committee on Public Safety to discuss the NYPD Subway Diversion Program.
--At 1 p.m., the Committee on Veterans will hold an oversight hearing on the future of the Department of Veteran Services.

At 11 a.m. Tuesday, the Rockland County Legislature will recognize NYPD Officers Russell Mattera and David Radziwon "for their work in apprehending the person who allegedly carried out the machete attack on Hanukkah celebrants in Monsey."

At 11 a.m. Tuesday in front of the Manhattan District Attorney's office, "Reverend Kirsten John Foy of The Arc of Justice, NYC Public Advocate Jumanne Williams, Tamika Mallory of Until Freedom, The Justice League and G.M.A.C.C will hold a press conference to demand the resignation of Manhattan District Attorney Cy Vance...based on his latest abdication of his duties to protect women from violent predators."

At 11:30 a.m. Tuesday in Albany, activists, advocates, and elected officials will host "a performative press conference themed CASH: THE MUSICAL. The call will be for BUDGET JUSTICE: a platform of proposals to tax the vast, under-assessed extreme wealth in New York to raise an estimated $35 billion -- and to invest those funds to make New York a better, fairer, safer home for us all." The focus will be on inequality in New York, "due to inaction in the legislature and opposition to progressive budget proposals in the Governor's mansion. This Tuesday, when Governor Cuomo is expected to unveil his budget for the upcoming fiscal year, Indivisible activists and advocacy allies from across New York will be meeting with legislators and hosting." Participants will include the True Blue New York Coalition and Empire State Indivisible as well as allies from community, labor and faith organizations including Fiscal Policy Institute, Alliance for Quality Education, VOCAL-NY, Patriotic Millionaires, Housing Justice For All, the Strong Economy For All Coalition, the New York State Council of Churches and many more, as well as elected officials.

On Tuesday at noon in Albany, Assemblymember Harvey Epstein and Senator Julia Salazar, joined by representatives from the Fiscal Policy Institute and Housing Justice for All coalition, will unveil their legislation to raise millions of dollars for public housing by expanding the mortgage recording tax to include private equity financed real estate transactions.

On Tuesday at noon at City Hall, “Ahead of a City Council hearing on the NYPD's “Subway Diversion Program,” homeless New Yorkers, along with other advocates and supporters, will rally outside City Hall to condemn the program and the increased policing and surveillance of homeless New Yorkers. Homeless New Yorkers will share their firsthand experiences with the program, which -- contrary to the administration’s claims -- increases police interactions with people sleeping on the subways without offering them the housing they want and need. Advocates argue that by emphasizing policing of homeless New Yorkers instead of devoting more resources to the housing and services people actually need, Mayor de Blasio has once again missed an opportunity to truly and humanely address homelessness and is driving our most vulnerable neighbors deeper into the shadows.” Participants will include Legal Aid Society, Coalition for the Homeless, Vocal-NY, and others.

At 4 p.m. Tuesday, the Prospect Park Alliance will hold the 2020 Census Fair at the LeFrak Center in Prospect Park. Visitors can apply for a job with the census, volunteer with their Neighborhood Organizing Census Committee, and get important information to share with their friends and neighbors.

At 6 p.m. Tuesday at his Dinkins Municipal Building offices, Comptroller Stringer will host a "roundtable discussion with young African community stakeholders."

Wednesday, January 22
The State Legislature is in session in Albany on Wednesday.

At 8 a.m. Wednesday, the Association for a Better New York hosts a Power Breakfast with Brooklyn Borough President Eric Adams at the New York Hilton Midtown. Adams “will discuss his perspective on the dysfunctional management of cities and how to resolve through real-time governance.”

Beginning at 8 a.m. Wednesday, the Urban Land Institute New York (ULI NY) will host its annual Real Estate Outlook event at The Times Center in midtown Manhattan. The event provides real estate professionals from across New York the opportunity to hear from industry veterans and visionaries about the forces that are shaping the real estate business in the New York metro area. The event will showcase ULI/PwC’s Emerging Trends in Real Estate 2020 Report (attached) with a presentation of key findings and a response panel with top industry professionals.”

At 10 a.m. Wednesday in Albany, the New York State Legislature will conduct a public hearing on “the economic impact on the three unused downstate casino licenses.”

At 10 a.m. Wednesday in Albany, the State Senate Standing Committee on Racing, Gaming and Wagering will hold a public hearing on the “economic impact on the three unused downstate casino licenses.”

At the City Council on Wednesday:
--At 10.a.m., the Committee on Technology will meet to consider two bills on the “annual inventory of agency data” and “reporting on automated decision systems used by city agencies."
--At 10 a.m., the Committee on Civil and Human Rights will meet to consider two bills, including one that would designate January 27th, 2020 as Holocaust Remembrance Day and kick off a week of citywide Holocaust education in New York City.
--At 10 a.m. the Committee on Transportation will meet to consider three bills sponsored by committee Chair Ydanis Rodriguez, including one that would “establish a short-term task force that would study challenges to the viability of the black car and livery industries.”

At 12:30 p.m. Wednesday, Public Advocate Jumaane D. Williams will “deliver his inaugural State of the People Address...before an audience of elected officials, organizers, activists and the people of New York. Immediately following the address, attendees will have the opportunity to join five separate breakout sessions led by Deputy Public Advocates to discuss and organize around key issues facing the people of New York which had been raised in the speech.”

This week’s Max & Murphy show will air on WBAI radio, 99.5FM and wbai.org, at 5 p.m. Wednesday. This week’s show will feature a discussion of the recent spike in hate crimes, especially anti-Semitic crimes, and what can be done to reverse the trend. Guests will include Orthodox Jewish community leader and former City Council Member David Greenfield, followed by Deborah Lauter, the executive director of the city’s new Mayor’s Office to Prevent Hate Crimes.

Thursday, January 23
The State Legislature is in session in Albany on Thursday.

At 9 a.m. Thursday, this month’s MTA Board meeting will occur.

At 11.a.m. Thursday in Albany, SUNY Chancellor Kristina Johnson will present her 2020 State of the University System Address. Chancellor Johnson invites guests to listen “as she expands on her vision that will continue to elevate the SUNY system and shares her insights from campus visits and events across the State and the nation.”

At 1:30 p.m. Thursday, the City Council At 1:30 p.m. the Council will hold a Stated Meeting to pass and introduce legislation. Speaker Corey Johnson will host the usual pre-Stated press conference at 12:30 p.m.

At 6:30 p.m. Thursday at the Museum of the City of New York, “Getting Out the Census: Counting New Yorkers in 2020,” will include panelists Julie Menin, director of the Census for New York City; Melva M. Miller, executive vice president at the Association for a Better New York; Assemblymember Robert J. Rodriguez; Steven Romalewski, director of the CUNY Graduate Center’s Mapping Service; and moderator Juan Manuel Benítez of NY1. The program accompanies the museum’s “exhibition Who We Are: Visualizing New York by the Numbers (through Summer 2020) as well as the Museum's Future City Lab, the interactive third gallery in our New York at Its Core exhibition.”

At 6:30 p.m. Thursday, the Brooklyn Historical Society will host “An Urban Amble: Exploring NYC’s Streetscape with Michael Sorkin and Stanley Greenberg,” with “photographer Stanley Greenberg, [who] walked every block of Manhattan capturing images of the overlooked, underseen elements that we take for granted every day; Architect Michael Sorkin, one of the great urbanists of our time,” in a conversation moderated by “Karrie Jacobs, founding editor-in-chief of Dwell and a professional observer of the manmade environment herself.” The “two city observers [will] reflect on the humble city spaces that most of us look past, look through, but rarely look at.”

Friday, January 24, and the weekend
Mayor de Blasio may make his weekly appearance on WNYC’s The Brian Lehrer Show at 10 a.m. Friday.

On Saturday, Comptroller Tom DiNapoli will be among those attending the Flushing Chinese Business Association’s 2020 Lunar New Year Parade in Flushing, Queens.

At 12:30 p.m. Sunday, Reconstructing Judaism will host the 2020 Day of Learning, “Jewish Response to Homelessness in the New York Area,” featuring various remarks and breakout sessions, and a political panel including Manhattan Borough President Gale Brewer and City Council Members Chaim Deutsch, Mark Levine, and Helen Rosenthal.

At 1 p.m. Sunday, the Staten Island Borough President James Oddo will host “Direct Connect 2020,” his annual open house and public event to meet with constituents, and discuss present, past, and upcoming projects.

***
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 Max & Claire Del Sorbo
@GothamGazette

Cuomo & DiNapoli (photo: Governor's Office)

A resolution has finally been reached around how to deal with a thorny issue involving Governor Andrew Cuomo, contracting oversight, and the corruption that plagued some of the governor’s biggest economic development initiatives.

As of December 31, all relevant parties have agreed to comply with an August agreement between Cuomo and state Comptroller Thomas DiNapoli restoring the comptroller’s oversight of some large contracts entered into by SUNY and CUNY and their affiliates, and by the Office of General Services. The agreement is now expected to become operational in February, according to a spokesperson for the comptroller.

The memorandum of understanding was partially signed in August, but as recently as mid-December DiNapoli said SUNY Research Foundation, one of the entities coming under the comptroller’s purview, had not given the go-ahead to bring it from a “conceptual agreement,” as DiNapoli put it, to an actualized program. As of December 31, however, all parties had approved the new system, the spokesperson told Gotham Gazette.

“We have an agreement with the Executive, and we will start reviewing contracts in February 2020. All parties have acted (OGS/SUNY/CUNY/SUNY Construction/CUNY Construction/SUNY RF/SUNY Fuller Road & Fort Schuyler) and agreed to allow OSC to review their contracts,” the spokesperson wrote in a statement.

While representatives for several of the parties signed the memorandum in August, it still required approval by the boards of CUNY and SUNY affiliates, and for their policies to be updated in compliance. CUNY’s approval came on October 28, and two other SUNY-affiliated entities agreed on December 18. SUNY Research Foundation approved the agreement on December 31, just before the January deadline. No part of the deal could go into effect until all the parties had all agreed, DiNapoli said on the Capitol Pressroom in mid-December, calling the Research Foundation approval “the biggest sticking point.”

“As expected, all parties have signed the MOU and will be ready to enforce it this February,” wrote Jason Conwall, a spokesperson for the governor, in an email this week.

The agreement gives the state comptroller the authority to conduct “pre-audit” reviews of contracts procured by SUNY and CUNY and their affiliated construction funds, when they exceed $250,000. It also extends that authority over Office of General Services (OGS) centralized contracts over $85,000.

The memorandum also provides for the comptroller to send all executed contracts of $250,000 or more, with the exception of Common Retirement Fund contracts, to the state inspector general responsible for investigating fraud, corruption, and conflicts of interest in the executive branch and affiliated entities.

The new powers allow the comptroller to review contracts before they are executed to affirm that they are ethically and economically sound. During contract reviews, the comptroller’s office typically conducts due diligence to prevent fraud and waste, and promote competition. It looks at whether vendors have been found to engage in previous wrongdoing, prices for comparable goods and services elsewhere, and whether there are contract provisions that could increase an  agency’s liability.

The comptroller once had those powers for SUNY, CUNY, and OGS centralized contracts, but they were stripped with little public attention during budget negotiations in 2011, Governor Andrew Cuomo’s first year, as he sought to expand and expedite economic development.

In the mid-2010s when the Buffalo Billion scandal, in which bribes were exchanged for plum state construction contracts, implicated some of Cuomo’s closest allies and donors, good government advocates and DiNapoli himself called for the authority to be restored. Cuomo resisted. Lawmakers threatened legislative action, but nothing moved.

Then, during his 2019 State of the State speech, Cuomo surprised many by announcing that he and DiNapoli had agreed to pursue an agreement.

“Comptroller review may have prevented the $1 billion bid-rigging scandal involving upstate development projects resulting in the convictions of high-ranking state officials and major real estate and construction executives,” said John Kaehny, executive director of the good government group Reinvent Albany, in a statement commending the initial agreement in August.

The memorandum of understanding stipulates that SUNY will work with its Research Foundation to give the comptroller pre-audit review of contracts of $1 million or more. The Research Foundation includes SUNY-affiliated nonprofits Fort Schuyler and Fuller Road Management Corporation, which put out the rigged requests for proposals to build SolarCity, the $750 million solar panel plant at the center of the Buffalo Billion controversy and a key element in Cuomo’s signature upstate economic development agenda.

On the Capitol Pressroom in December, DiNapoli said, “I think the biggest piece that still has to be resolved is the SUNY Research Foundation has not taken the action to sign on...but I am very hopeful that once we get that SUNY piece closed down that we will actually be able to implement that more robust oversight that many people have called for and I think is overdue for us to have back.”

With the Research Foundation agreeing to the memorandum of understanding on December 31, it is now set to go into effect in February. While Ft. Schuyler and Fuller Road have been mired in controversy, the entity recently created to subsume and replace them, NY CREATES, is also covered under the agreement, according to DiNapoli’s office.

Unlike other powers that were restored in the deal, the state comptroller has never had pre-audit review authority over SUNY Research Foundation, the spokesperson said.

Cuomo has previously said that part of the reason for not restoring the comptroller’s power is the potential for delays in adding new bureaucratic hoops to jump through. The new agreement sets a time limit of 30 days for the comptroller’s pre-audit review, after which they become “valid and enforceable.” A report released by DiNapoli’s office last May, showed that the average contract review took between six and seven days.

In response to the Buffalo Billion scandal, state lawmakers introduced the Procurement Integrity Act to restore most of the comptroller’s pre-2011 authority, among other things. Year after year, it failed to gain enough traction to pass, but amid an ongoing drumbeat of criticism, especially after the convictions on corruption charges of two of his top former aides, Cuomo made the 2019 State the State announcement.

The agreement is voluntary and contains language stating it can be terminated within ten days by either the governor or comptroller. Good government advocates still want to see it codified into law.

“We hope momentum from completing this voluntary agreement continues and the Governor and Comptroller work together to pass a law in the 2020 session making the agreement permanent,” wrote Kaehny.

Neither codifying the agreement nor passing the Procurement Integrity Act were part of Cuomo’s very limited State of the State government ethics agenda, announced last week.

(photo: Governor's Office)

When Governor Andrew Cuomo took office in 2011, the state faced a $10 billion budget gap that necessitated massive cuts in spending for the next fiscal year. The state’s Medicaid program was redesigned to cut $2.7 billion in spending. School aid was also cut by about $2.7 billion. There were cuts to state agency spending and redesigns that reduced another $1.5 billion. The rest was covered with new resources, revenue enhancements (though, no new taxes, the governor emphasized at the time), and one-time funding streams including debt management and reestimates of spending.

The governor received widespread praise at the time, including from leaders of both major political parties, for that budget and for leading the state through particularly challenging fiscal times.

Fast forward to 2020 and the state is yet again grappling with a huge projected gap for the coming fiscal year -- $6.1 billion -- and the governor has indicated he believes state education aid and Medicaid spending need to be revisited, and that he will not support raising taxes or creating new ones. It’s the largest gap the governor has had to deal with since his first budget and, to the particular concern of fiscal watchdogs, comes amid a period of sustained economic growth rather than in the tumultuous years after a global recession like the last time around.

In other words, the state currently faces more of a spending problem than a revenue problem. And it also bodes ill that state reserves are far from robust, particularly relative to the $177 billion annual budget (of which, $102 billion is state operating funds), and that the governor continues to push spending down the line rather than dealing with it immediately.

Next week, Cuomo will present his executive budget for fiscal year 2021, which begins April 1, and he’s expected to rely on some tried and true methods, some of which have been questioned as fiscal gimmickry, but he’ll likely have to expand the toolkit given the size of the projected deficit.

Most of the gaps in past years have been far lower than $6.1 billion, requiring minimal maneuvering by the state. In fiscal year 2013, the gap was $3.5 billion; in FY 2014, it fell to $1.35 billion; in FY 2015, it was $1.7 billion; in FY 2016, $1.8 billion; in FY 2017, $1.78 billion; in FY 2018, however, it jumped to $3.5 billion; and in FY 2019, it hit $4.44 billion.

Cuomo Restrains Spending and Closes Budget Gaps, with Risks
After the 2011-2012 budget, the governor was successful in passing eight on-time, or nearly on-time, budgets that kept within, or close to within, his self-imposed cap of 2% annual growth in state spending. But he’s used various maneuvers for which the governor has become infamous and which in part led to the budget problem the state must now contend with.

Year after year, the state has managed gaps through, among other measures, cutting hundreds of millions in projected costs of agency operations and reduced spending on aid to localities (including cuts to education, social services and housing, public health and mental hygiene services). That approach would have likely worked again for the 2021 fiscal year, for which the projected gap was expected to be about $3.9 billion when the current year’s budget was enacted.

But, in the mid-year financial update published by the state Division of Budget in November, that number was modified to $6.1 billion, taking into account an additional $3 billion in increased Medicaid costs, driven by several factors, and setting off a flurry of concern and finger-pointing about the state’s fiscal picture. The out-year budget gaps are projected to be even larger, given current trends, with a $9 billion gap in 2023 if nothing significant changes.

The state has taken at least one step to rein in the Medicaid cost uptick, cutting payments by 1% starting earlier this month – affecting hospitals, doctors, nursing homes, home care providers, and others – while also looking to find $1.8 billion in savings in the program.

Cuomo’s budget director, Robert Mujica, has also stressed that the budget gap is nothing to worry about. “There is no doubt it will be a challenge, but it is a challenge that is manageable. The Governor has closed gaps much larger than this,” he wrote in a Medium post in December.

The governor contended in his January 8 State of the State speech that the overall increase came from the state covering the costs of Medicaid that is capped for localities, which to some sounded as if he may call on municipalities to pay more. In a gaggle with reporters on Monday, however, he sought to provide reassurances that such a proposal was not forthcoming. “I’ve not yet proposed how we believe we should resolve it,” he said of the budget gap. He added, “Nobody should worry. Life is good. Be optimistic.”

That may be a stretch for budget monitors, who say that the budget gap is manageable but also preventable. They warn that the governor’s budget tactics, though restrained, may be unsustainable and prove disastrous if a recession hits and urge him to look elsewhere for long-term savings and budget cuts, particularly areas such as economic development spending where the governor has been reluctant to pull back.

Closing the Gap: Dos and Don’ts and Surprises
“It’s a gap that’s closeable. Revenues are coming in at or above projections,” said Dave Friedfel, director of state studies at nonprofit watchdog Citizens Budget Commission, in a phone interview. But he emphasized that the gap was one that the state should have expected and prepared for, particularly owing to deferred Medicaid payments.

The 2019 fiscal year pushed $1.7 billion in Medicaid payments to the 2020 fiscal year, and the current budget pushed another $2.2 billion in Medicaid payments to next fiscal year. The governor’s mid-year budget update says that the Department of Budget plans to make such deferred payments “permanent,” setting up what some watchdogs call a dangerous practice.

“Deferring that payment was really damaging because it pushed the costs from last year into this year, and it also undermined this year's financial plan because they didn't account for that,” Friedfel said. Though in the short term, it may not affect the state’s fiscal health, it would complicate the state’s choices in a recession, where, according to CBC estimates, the state would face as much as a $35 billion shortfall over three years.

“It's never a good fiscal practice, but it's even worse when the revenues are coming in and the economy is doing well,” Friedfel said. “This was completely preventable and it wasn't the result of any type of an outside shock. The federal government didn't suddenly change reimbursement rates. There was no surge in Medicaid enrollment...So this was definitely a preventable budget gap.” (New York does have a significant population enrolled in Medicaid, about 6.27 million individuals, and the Cuomo-driven minimum wage increase to $15 has significantly increased costs for health care providers).

Friedfel has several prescriptions for state officials: cut economic development spending and find long-term savings in retiree health insurance benefits. He also said the state could save $800 million with a more focused approach to Foundation Aid, the supplemental funding given to schools to provide a “sound basic education” under a State Supreme Court ruling. He cautioned against any effort to force localities to absorb Medicaid costs.

“It really is a progressive thing that the state did, that Governor Cuomo did by capping out the local share [of Medicaid],” he said. “If you reverse that, you're saying to localities because you have a lot of poor people, people on Medicaid, that you therefore have to contribute more to the state which is the opposite of progressive. That would be regressive.”

E.J. McMahon, founder and research director of the Empire Center for Public Policy, a nonprofit fiscal watchdog, is hoping against but expecting that the governor will use “cash flow timing maneuvers” again to balance the budget. “He's rescheduling a hunk of the payments to [Medicaid] providers and basically making his cash flow issue their cash flow issue,” he said in a phone interview. “It's not the most prudent approach because it is basically meant to hide the problem rather than deal with it.”

Based on past experience, McMahon said the governor may also tap reserve funds on a one-shot basis. “He can't possibly actually save $2 billion in what's left of the fiscal year so there will be a lot of gimmickry related to timing and reserve funds that will, I think, largely paper over the problem,” he said.

The most striking part of the problem, he said, echoing Friedfel, is that the state has not seen in more than 40 years a budget deficit of this size at a time when the economy is expanding and revenues are on target. “Usually our problems occur when there's an economic downturn and our revenues fall short. This is purely, totally due to excess spending in a category [Cuomo] manages and has more control over than any previous governor has had,” he said.

McMahon noted in a blog post on Wednesday, based on state tax receipts through December, there’s an additional $1.3 billion above revenue projections at the state’s disposal. But that does not solve what is an over-spending problem, he said.

He did give the governor some credit for his fiscal moderation in earlier years, however.

“If you adjust for the bookkeeping tricks that he's used to make it appear like 2% [annual growth rate]...still adjusting for inflation, his nine years as governor have been on the whole the most restrained nine years of any governor in modern history,” McMahon said.

“Cuomo showed considerable fiscal discipline during his first years in office, especially in his first budget in 2011, and he still has considerable power to shape a budget that basically reboots his first-term approach and lowers the spending trend going forward,” McMahon also said. He noted that the Legislature has little power to add spending other than separate line items which the governor could veto. To override those vetoes, the Legislature would need votes from the entire Senate Republican conference and from eight upstate Assembly Democrats, he said.

“Now, as recently as Pataki’s last term, gubernatorial vetoes were repeatedly overridden by a Republican-controlled Senate in partnership with the Assembly’s Democratic super-majority,” he wrote. “But that could only happen now if Cuomo goes (further) out of his way to alienate Senate [Republicans], assuming he also can’t retain the loyalty of suburban Senate Dems. In short, it’s unlikely.”

Both McMahon and Friedfel pointed to the pitiful amount of reserve funding the state has put aside, barely $2 billion relative to the more than $102 billion in state operating funds budgeted for this year. Cuomo has, McMahon pointed out, relied on $12 billion in monetary settlements from financial institutions following the recession as a stand in for reserves, of which about $6 to 8 billion has already gone out the door.

“His whole attitude with the now $12 billion windfall settlement is a classic have your cake and eat it too,” he said. “The actual statutory reserves are puny by national standards...but he also gets the cite that money as part of his reserves...I'm not gonna be too speculative [but] he'll tap some of it and help solve his budget problem for next year in some fashion,” McMahon said.

“Without wanting it to happen, I anticipate gimmicks,” he said, “but we'll see.”

Cuomo in 2013 (photo: Governor's Office)

The government ethics agenda put forth by Governor Andrew Cuomo in his 2020 State of the State is much shorter than those he’s proposed in years passed.

In fact, it contains just one proposal: legislation mandating some state officials publish their tax returns. Meanwhile, it leaves out several of Cuomo’s past proposals that have yet to be accomplished, including major campaign finance reforms supported by one of his top allies.

The heavily-truncated list comes after more than a year of controversy surrounding the state’s Campaign Finance Reform Commission, which was created by the governor and Legislature to tackle some of his oldest evergreen proposals to get money out of politics. That commission put forth binding recommendations, now law, to institute a new public matching campaign finance system, with much lower individual contribution limits and other reforms.

But following the end of the commission’s work, many observers and one of Cuomo’s own appointees to the body, have said that a number of key campaign finance reforms are yet to be resolved and should be taken up by state lawmakers.

Yet in his most recent State of the State address, and the 318-page policy book that accompanied it, Cuomo outlined just one initiative that would address potential government corruption. The sole item related to ethics or campaign finance is passing the “Nothing to Hide” Act, a bill that would require the state’s most powerful and highly-paid officials to disclose their tax returns to the public. It is a proposal that resonates with national calls for President Donald Trump to release his tax returns, but touches only one edge of the state’s most endemic corruption problems.

Left aside by the campaign finance commission, and also by Cuomo, are proposals to limit donations to party committees and from people doing business with the state, two areas of the campaign finance system that the governor has said enables dark money in the political process.

After years of Cuomo calling for reforms to address perennial corruption and the influence of big money on state government -- strengthening financial disclosure requirements for government officials, expanding state procurement oversight, limiting the income of legislators outside their government salaries, to name a few -- only some of the most highly anticipated proposals have been accomplished, with others only partially or nominally addressed, and a number completely unfulfilled.

Paring down his ethics agenda comes after repeated pledges to clean up state government since his winning 2010 campaign for governor and amid a long series of corruption scandals, including those involving members of Cuomo’s inner circle and state legislative leaders; and amid the governor’s ongoing practice of raising huge sums of money from powerful entities with state business.

“We would have liked to see the governor propose more good government legislation in his State of the State address. In years past he put forth many proposals and this year it appears there’s only one,” said Alex Camarda, senior policy analyst at the good government group Reinvent Albany.

Campaign Finance
High on the list of accomplished reforms are the recent Campaign Finance Reform Commission results, including establishing a voluntary system with lower contribution limits for individuals and public matching funds to multiply the impact of smaller donations. While the details of the new system are still being debated, litigated, and widely critiqued (though not negotiated by state lawmakers), the commissioners left untouched two long-sought changes: contribution limits on donors to political party accounts and on people doing business with the state.

Ethics watchdogs have identified both issues as avenues for circumventing the state’s existing campaign contribution limits and promoting the influence of large political donors. And Cuomo has over the years called for restrictions on both fronts, though he included neither in his 2020 agenda.

Cuomo’s chosen chair of the state Democratic Party, Jay Jacobs, was also one of the governor’s appointees to the campaign finance commission, and while the commission didn’t touch political party donation or doing-business donation limits, Jacobs said that lawmakers should tackle both.

Asked in December why the commission hadn’t, Jacobs said on the Max and Murphy podcast that the panel’s legal counsel believed them to be outside the commission’s jurisdiction. “That’s not to say that I don’t believe, and I do believe, that the legislature should take it up and address both those issues,” he said, adding there should be limits on “party accounts and certainly those doing business with the state.”

Cuomo has for almost his entire term in the executive chamber called for limits to party “housekeeping” accounts, including it in his first State of the State in 2011, and in every other policy book between 2013 and 2018. Housekeeping accounts, as opposed to party committees, are meant to support party activities outside of campaigns, but are frequently used to channel large contributions into elections operations like get out the vote efforts, which can be used to benefit preferred candidates outside of the state’s oversight apparatus.

The governor has also publicly supported campaign contribution limits on people with or seeking state contracts throughout his tenure, at least as far back as his 2012 State of the State. In his speech that year, he raised alarms about the “undue influence over elected officials” of contractors and lobbyists who have donated to the campaigns of key decision-makers and may later expect the favor to be returned. (In 2016, as the Buffalo Billion bid-rigging and bribery scandal was unfolding, Cuomo pledged to restrict contributions to his own campaign coffers from companies when the government was seeking contractors. His office later confirmed to Gotham Gazette that this promise had not been followed through on.)

Cuomo has benefited immensely from contributions from people and businesses with state contracts. The New York Times reported in July that Cuomo had raised over $3 million just from contractors with the Metropolitan Transportation Authority (MTA) since he took office in 2011, according to campaign finance filings. That is more than 3 percent of his total campaign donations over the same period of time coming from contractors with just one, albeit massive, state authority.

Jacobs admitted in the interview that restricting contributions to party accounts goes against the interests of the state party he chairs, of which Cuomo is one of the biggest beneficiaries. “As state party chair I would advocate maybe something different but that’s not my role at this moment,” he said.

Party committees are able to garner a virtually unlimited amount of money and unlike housekeeping accounts can be used on electoral spending to benefit a particular candidate. Campaign finance filings for the weeks ahead of the 2018 primary, in which a number of incumbent Democratic legislators had competitive challenges from the left, show the New York State Democratic Committee received hundreds of thousands of dollars from a handful of unions and political action committees -- the largest donation that filing was $109,000 from the United Federation of Teachers (UFT). Ahead of the general election in 2019, the committee received a single donation of $95,000 from an individual, Lucy R. Waletzky (a Rockefeller), of Pleasantville.

Also left on the cutting room floor was Cuomo’s 2019 proposal to ban all campaign donations from corporations, which accompanied a similar plan to ban contributions by limited liability corporations, or LLCs.

“That’s something that could be done, that could go further than what’s been proposed, but I will say that I think the other items I mentioned -- the doing business restrictions, lower contribution limits, limits on party and housekeeping accounts -- are more important,” Camarda said, noting that LLCs were partially addressed last year when the Legislature and Cuomo imposed contribution limits and new disclosure requirements on them.

Asked why Cuomo had not included some of his past ethics and campaign finance proposals in his 2020 agenda, and specifically why he did not include limits on political party and doing-business contributions, a spokesperson for Cuomo said he still supports past proposals.

"We're proud to say that closing the LLC loophole was among the first bills the governor signed last year and of course we continue to support these further reforms. I'm sure these will be among the issues we’ll be discussing with the legislature this session," wrote Caitlin Girouard, the administration spokesperson, in an email.

What remains in 2020 is the proposed tax return disclosure requirement, which would make high-earning officials, including the governor, attorney general, comptroller, state legislators, and agency commissioners, as well as any elected official earning more than $100,000 annually, to publish their tax returns. The measure is similar to a 2019 proposal in Cuomo’s State of the State that would require candidates for statewide office and the Legislature to submit tax returns to the Board of Elections.

“We think the public financing system still needs to be improved significantly by limiting party contributions, contributions from individuals doing business with the state, for example,” Camarda said.

“And we think there is a real need to reform JCOPE and ethics laws, which nobody believes are working effectively, as evidenced by all the situations that have arisen over the last year,” he added referring to the state’s maligned ethics watchdog.

More Past Cuomo Ethics Proposals
A number of other ethics proposals from previous years remain active in the minds of good government advocates, if no longer in the governor’s. Among them are requiring local elected officials and municipal employees to file financial disclosure statements with JCOPE. Another initiative would have enacted a “first-in-the-nation” code of conduct for lobbyists, as Cuomo put it last year, a measure that several good government groups opposed saying it was too nebulous.

Other past priorities of the governor were pursued in previous years but failed to achieve the full scope of what was advocated. High on that list was a limit on legislators’ income outside their government salary, which was imposed by a commission but later struck down in New York State Supreme Court. Good government groups now want to see the measure, which is intended to limit conflicts of interest and opportunities for corruption, created through statute by the Legislature and governor.

At the start of 2019, Cuomo was calling for expanded oversight powers of the state comptroller and inspector general to review certain large state contracts for SUNY, CUNY, and affiliated organizations, as well as Office of General Services centralized contracts. This was partially achieved through an agreement between Cuomo and Comptroller Thomas DiNapoli in August, but good government groups want to see it codified.

In his 2019 State of the State, and clarified in his executive budget proposals that year, Cuomo called for multiple changes to the state’s Freedom of Information Law, from making the state Legislature subject to open records provisions and allowing public access to union contracts before they’re approved to limiting the length of time during which trade secrets are exempt from FOIL. None of his five proposals passed, but three other legislative amendments were made: exempting mugshots from FOIL, requiring Industrial Development Agencies to livestream and record public meetings, and requiring state agencies with websites to create a webpage for requesting records. In December, Cuomo signed a FOIL bill and vetoed another, both relating to access to court records (the vetoed measure would have limited certain law enforcement-related exemptions to FOIL).

Note: this story has been updated to reflect that Comptroller DiNapoli's office said the aforementioned agreement with Gov. Cuomo has been finalized, so mention of it not being so has been removed.

Gov. Cuomo with Assemblymember Seawright, center, & others (photo: Governor's Office)

Governor Andrew Cuomo is promoting a more expansive version of a New York State equal rights amendment than he did last year, tipping the balance between the discrepant Assembly and Senate bills in the direction of inclusivity, favored by the Senate.

Despite Cuomo’s new support for a broader set of protections, the Assembly on Monday passed a narrower expansion for the second year in a row, renewing uncertainty about the amendment’s future.

In 1938, New York adopted language to prohibit discrimination based on race, color, creed, and religion, a measure the governor now says “reflects an outdated conception of equality” and is in need of updating. In his State of the State policy book outlining his agenda for the 2020 legislative session, Cuomo calls for amending New York’s constitution to include civil rights protections against not only sex-based discrimination, as some other states have done, but discrimination on the basis of a host of other categories from gender identity to national origin.

"In New York, we believe in full equality for every person—period," Cuomo said in a statement announcing the proposal. "But our federal and state constitutions don't protect against discrimination on the basis of sex, ethnicity, gender identity and other characteristics that make us so unique and our diversity so great. That ends this year.”

Under the governor’s proposal, the state’s bill of rights would be amended to add to the list of protected categories sex, ethnicity, national origin, age, disability, sexual orientation, and gender identity. While state law in many areas addresses some of these forms of discrimination, supporters of the ERA say statutes are often context-specific and tend not to be as broadly applicable as a constitutionally protected right.

“Having a constitutional amendment will cover all of those groups, all of these protected categories, and you don’t have to pass and change every law. It will apply to all the laws of the state,” said Beverly Cooper Neufeld, president of the advocacy organization PowHer NY and a member of the city’s Commission on Gender Equality.

This is not the first time Cuomo has proposed an ERA, and the governor is not the only lawmaker in Albany pushing for its adoption. Last year, Cuomo supported a narrower proposal that would have added sex as the only new protected category. That was the form that passed the Assembly in February 2019 and again Monday, but which was put aside in the Senate for a broader set of protections.

Cuomo’s renewed proposal now more closely aligns with the equal rights amendment that passed the State Senate last June, which Neufeld says reflects a changing wind in Albany’s progressive corridors. It is unclear why the Assembly did not pass an expanded version when it became evident that was the direction the Senate was moving in, or why it passed the narrower version again at the start of the 2020 legislative session.

“We’ve been taking a piecemeal approach to addressing equality, and even our concept of equality has changed and our concept of fairness and who should be covered,” Neufeld said. Much of the changing attitudes towards civil rights protections has been reflected in statute like the New York State Human Rights Law, which she said “has step-by-step created stronger protections and looks and adds new categories.”

“But really you can’t go statute by statute. That process will take hundreds of years,” she added.

Adopting an ERA will not be an overnight process either. Because it requires amending the state’s constitution, it will need to be passed by two consecutive legislatures and then must to be approved by voters. The current session ends this year, meaning the earliest an ERA can be adopted is in late 2021. That timeline assumes the amendment passes both houses of the legislature this year and again next year, and then is ratified in a November 2021 statewide referendum.

But with multiple versions of the bill -- the narrow and the expansive -- floating in the legislature, and the recent history of dissonance between the legislative chambers, it is unclear what form conversations around the measure will take.

“It’s not too soon to be talking about this. It’s going to be at least a three-year campaign I would say, if not longer,” Neufeld said.

Assembly Member Rebecca Seawright, a Manhattan Democrat, sponsors both versions of the ERA in her chamber. "I’m committed to an Equal Rights Amendment with language that is more inclusive. I will continue to work diligently with my colleagues in the Assembly and the Senate to pass ERA  legislation in 2020,” she wrote in an email this past Thursday.

Following the passage of the narrow ERA Monday, a spokesperson for Seawright told Gotham Gazette by email, "Assembly Member Seawright is committed to an Equal Rights Amendment that provides for the widest inclusion possible. Today's passage helps to build momentum as we continue to listen and work toward a successful outcome." The narrow amendment’s sponsor in the Senate is Julia Salazar, a Brooklyn Democrat who often stakes out more progressive territory than other legislators.

A legislative staffer with knowledge of the bills and the legislative process told Gotham Gazette last week that it was too soon in the session to know which way the Assembly Democratic conference was leaning. Assembly Speaker Carl Heastie’s office did not respond to multiple requests for comment. Likewise, Senate Majority Leader Andrea Stewart-Cousins’ office did not respond to requests for comment on the ERA.

“Governor Cuomo is committed to having the most inclusive ERA in the nation and we are working closely with the legislature and coalition stakeholders to get it passed this year,” said Caitlin Girouard, a spokesperson for the governor.

Both versions of the amendment are a step ahead of federal constitutional protections. Congress in 1972 passed a federal equal rights amendment that would have extended protections to women, but it was never ratified by the states. Eleven states have passed state-level ERAs that bar discrimination based on sex, but none go further in protecting LGBTQ rights or the rights of people with disabilities, according to Senator Liz Krueger, who sponsors the Senate’s expansive ERA bill.

“Many New Yorkers are surprised when they discover that women or LGBTQ people, for example, are not protected by the equal rights language in our state constitution,” Krueger, also a Manhattan Democrat, wrote in an email to Gotham Gazette.

While, in the final days of session last year, Cuomo urged the Senate to pass the narrower version of the bill rather than leaving Albany with no amendment at all, the governor is now resetting this year with the more aspirational call. Part of that thrust is in the face of the more limited progress nationwide. “We will pass an expanded, nation-leading Equal Rights Amendment so that no matter what happens at the federal level, all New Yorkers will be afforded the complete and unequivocal protections they deserve," Cuomo said in the statement.

“Last year we passed a real, inclusive ERA in the Senate. This year, with the Governor as a partner in the fight, there is no reason we can’t have first passage of a fully inclusive ERA in both houses of the Legislature, and take our state one step closer to having a constitution that reflects and protects all New Yorkers," Krueger wrote.

“It will be meaningful to individuals but I think it will be meaningful in the statement that it makes. The governor bringing it up at this moment in time is very important,” said Neufeld.

Note: This article has been updated with comment from a spokesperson for Assembly Member Seawright following the passage of an ERA bill in the Assembly Monday.