Council Members Rafael Espinal, left, & Brad Lander (photo: City Council)

Two years ago, the New York City Council’s Freelance Isn’t Free Act went into effect, giving freelance workers legal protections against wage theft, delayed payments, employer retaliation, and lack of contracts for their work. The first-of-its-kind law has since allowed the city to recoup thousands of dollars in wages for hundreds of freelancers and was broadly praised as a laudable and necessary step in a changed and still-changing economy.

But as the City Council, with Mayor Bill de Blasio’s support, has taken additional steps to help independent contractors and freelance workers in the booming ‘gig economy,’ similar action has been glaringly lacking at the state level.

In December, when Governor Andrew Cuomo unveiled his “first 100 days agenda” for the start of his third term in 2019, with a speech at the Roosevelt Institute in Manhattan, he spoke of New York’s changing economy and the challenges that freelance workers face, seemingly putting down a marker that the state would pursue action on the topic.

“The so-called gig economy is a growing economic engine. Freelancers, independent contractors, consultants are replacing traditional employees,” he said. “And while many welcome the freedom and the flexibility of these arrangements, there are also pitfalls that go along with the positive. Gig jobs do not come with paid sick leave, they do not come with vacation days, or parental rights, or workers' compensation, or protection against work related discrimination, or protections against wage and hour violations. We want an economy that moves forward. We want an economy of tomorrow. But we want an economy that moves everyone forward, not just some forward.”

But Cuomo did not follow suit with any proposals either in his January State of the State speech or executive budget presentation. The final budget agreement reached with the Legislature at the end of March did not include new protections for gig economy workers. It appears to be the only issue Cuomo mentioned in his December speech where he did not then follow up with concrete proposals.

In January, Hazel Crampton-Hays, then a spokesperson for the governor, said in a statement to Gotham Gazette that the administration was “exploring whether we need new rules to help protect impacted workers or whether the Department of Labor can issue regulations.”

In a statement on Thursday, Cuomo spokesperson Caitlin Girouard said, “We are engaging with the legislature, interested stakeholders and relevant state agencies on ways to address this issue and come up with meaningful solutions.”

New York City, meanwhile, has been attempting to bring a semblance of order and accountability to the gig economy through local laws. Last year, the City Council passed a living wage requirement for drivers who work for app-based ride-hailing services like Uber and Lyft. The bill was challenged in court by Lyft and upheld by a state Supreme Court judge just this Wednesday.

Council Member Brad Lander, who spearheaded the Freelance Isn’t Free Act, says his legislation should be enacted statewide, rather than through regulation by the Labor Department, as just the first step in addressing the woes of a growing sector of workers.

“The vote was 51 to nothing here, the Republicans voted for it. Everyone agrees you should not be cheated out of getting paid for work you did and I would think it would be a no-brainer to pass it,” he said in an interview outside City Hall earlier this year.

The law has clearly been working. According to data from the city’s Department of Consumer Affairs, the agency tasked with enforcing the law, to date, the department has received 561 inquiries about the law and fielded 764 complaints from freelancers, and has helped them recover just under $1 million ($978,928.66) in lost wages.

The department is also set to hold a Freelance Isn’t Free Day on May 15, exactly two years since the law took effect, at the Freelancers Hub in Brooklyn.

“New York City knows the value of its many freelancer workers and the challenges they face, and we are proud to have implemented the Freelance Isn’t Free Act—the first and only law of its kind in the country,” DCA spokesperson Abigail Lootens said in a statement.

“Albany has just not gotten started yet,” said Lander, a Brooklyn Democrat. “I’m glad the governor spoke to it in his 100 day agenda, I’m sorry they haven’t yet moved forward with proposals. The Freelance Isn’t Free Act, taking it statewide, that’s a great place to start.”

Among the major challenges of creating new legislation, Lander said, is the lack of uniformity in who is considered a freelancer or independent contractor, and the myriad sectors where lax enforcement means workers are exploited. Day laborers and domestic workers, for instance, are viewed as independent workers but not officially considered so. (As an aside, Lander even said recently-passed laws to provide predictable schedules to fast food workers were necessary since they were increasingly being treated like independent workers.)

“As freelance and independent work have grown, a set of problems have grown in the economy because it wasn’t designed to provide protections and supports for those workers and there’s really some gaping holes,” Lander said. “Some of them are hard to fix. It’s not easy to figure out how to do portable benefits and retirement security. We should solve those problems and we’re gonna keep pushing forward here at the Council.”

At the state level, Assemblymember Harry Bronson, a Monroe County Democrat, has introduced a bill to ensure independent contractors are paid on time. In a statement, Bronson emphasized that the state’s workforce has dramatically changed but labor laws have not kept pace. “The modern economy has led to the rise of individual workers being classified - or intentionally misclassified - as “independent contractors” or “freelancers.” Many of these independent contractors do the same work as traditional employees, and in some cases participate in work alongside traditional employees, yet they are not afforded the same wage, hour, and benefit protections under the law as their traditionally employed counterparts,” he said. “This increases their vulnerability to wage theft and creates barriers to health, retirement and other benefits traditional employees receive.” Bronson also said he is working on similar legislation to protect workers in the gig economy.

New York City had more than half a million independent workers last year, according to a May 2018 report by freelance online platform Fiverr, which partnered with Rockbridge Associates to analyze Census Bureau statistics. The report found that independent workers brought in $103 billion in revenue for the state between 2011-2015.

“Governor Cuomo was absolutely right to mention the issues facing freelance and independent workers in his 2019 agenda but it’s really disappointing that the issues seem to have fallen off the radar since then,” said Eli Dvorkin, policy director of the Center for an Urban Future, a nonprofit think tank.

Dvorkin said the state’s social security net hasn’t kept up with the changing economy and that the state can’t “regulate our way out of this challenge” by solely focusing on issues such as protections against worker discrimination or how to classify an independent contractor. The state needs to take a proactive approach, he said, and could become “the leading state pioneering portable benefits, which would be a system of flexible benefits that are accessible to independent workers and that travel with workers as they move from job to job.”

No state across the country has passed legislation to establish portable benefits for independent workers, though a bill has twice been introduced in the Washington State legislature and Dvorkin speculated that it could soon pass. In New York, former Assemblymember Joe Morelle, who was elected to the U.S. House of Representatives last year, floated the idea of legislation on portable benefits but it seemed to fizzle away.

For legislators looking for inspiration, Dvorkin said a portable benefits program could feasibly be modelled after the Black Car Fund, which was created by the state Legislature in 1999 to provide workers compensation to livery car drivers.

“We developed this system 20 years ago. We just haven’t really updated it or done anything really focused on these issues since then,” Dvorkin said. The fund’s recently-exposed fiscal management issues notwithstanding, he said it provides the basic framework for mandating a surcharge, either in one sector or across different sectors, that would feed a fund for workers, giving them access to health insurance and workers compensation, among other benefits.

“Without being able to pool your needs with others in your situation, your costs are much higher,” Dvorkin said. “On a pretty basic level, we think the right approach would be one in which the clients, customers, are paying at least part of the cost of the benefits. That would make the system fair.”

He also urged the state to push the burgeoning tech sector to innovate solutions to providing benefits. He cited, for example, startups like Propel, which created an app to provide access to SNAP benefits, and Alia, designed by NDWA Labs, an arm of the National Domestic Workers Alliance, to give house cleaners access to benefits.

“Building out an architecture for the evolving economy that provides better worker supports and protection is a big task,” Council Member Lander said. “We’ve gotten started on it at the city level but we have a long way to go.”

(photo: governor's office)

Leaders in civic technology, including elected and appointed government officials, appeared at a forum Monday to discuss the necessary next steps to bridge New York’s gaps in internet access and digital literacy.

It is essential, they said, that New Yorkers not only have access to the web, for a variety of reasons including job and housing opportunities, but that they are skilled enough to use it. And both gaps must be bridged, they explained, not only in the state’s rural areas, but also in urban areas with high levels of internet isolation.

The forum, hosted by New York Law School, was addressed by Manhattan Borough President Gale Brewer; Josh Breitbart, the de Blasio administration’s Deputy Chief Technology Officer; and Karim Camara, the head of Governor Cuomo’s Office of Faith Based Community Development Services. All three officials addressed the critical need for universal, equitable access to the internet and digital technology, and to ensure that certain, often marginalized groups are not left behind.

The half-day event also included a panel discussion on similar topics, featuring former FCC Commissioner Mignon Clyburn; Nicol Turner Lee of the Brookings Institution; Tom Kamber of Older Adults Technology Services; and Justin Vélez-Hagan of the National Puerto Rican Chamber of Commerce.

Civic technology, and the way government can broaden access to and interest in the digital world as it becomes more and more essential to everyday life, is due to play a major role in upcoming public policy debates. The 2020 U.S. Census will be the first decennial federal census to be largely conducted online. In addition to the various controversies associated with the Trump administration’s handling of the census, most notably the proposed citizenship question, a mostly-online census threatens to undercount communities with limited access to the internet, such as the elderly or low-income people.

New York City and State governments are investing in census outreach programs for the coming year, with the city planning to fund an initiative to place help desks in libraries and public schools to assist those lacking tech access to complete the census. An incomplete count would put New York’s share of federal funding and its representation in Congress in jeopardy.

“We may have areas that are not counted because they don’t have the technology. And isn’t that ironic, because they’re gonna lose federal funds that could help their community because we’re not helping their community now,” Camara said in his closing address to the forum. “And so I think that’s so critical, and why this discussion is something that’s an urgent discussion.”

The recently passed state budget included $20 million in census outreach funding, half of what advocates called for, and the mayor’s executive budget plan includes $26 million for such funding, again less than the $40 million advocates said should be dedicated to working with nonprofit and other organizations to help ensure a full count.

“With the census coming, it’s gonna be a big challenge making sure that there is enough technology in the libraries and the non-profit community to end up supporting those who are not tech savvy,” Brewer said. In her speech, Brewer highlighted other initiatives her office has either worked on or is working on, such as equity in broadband access across public schools and assisting community boards in learning how to use the city’s open data portal.

The notion that certain communities are being left behind in the technologized world permeated throughout the conference. Breitbart discussed the challenges of both providing affordable, easy-to-use internet access to all communities while also preventing the proliferation of scams, hacks, racist abuse, and fake news from negatively affecting them.

“We can’t solve the digital divide having internet that exists that way,” Breitbart said, noting that the city is working on municipal wifi infrastructure beyond Link NYC kiosks, which replaced payphones, while also hosting workshops at libraries and other municipal spaces to assist seniors and others in the identification of threats and negative trends.

Several speakers highlighted that policymakers often neglect broadband coverage and usage gaps in urban areas in favor of proposing solutions for rural areas, having a disproportionately negative effect on residents of color. “Digital exclusion,” as some speakers described the phenomenon, not only prevents people from watching videos of cats, but also from searching for housing, applyong for jobs, and accessing social services, among other things.

“We need federal lawmakers, as well as state lawmakers, to understand that the digital divide still exists within urban communities,” Turner Lee said, noting that while rural communities should not be left out of the picture, focusing only on the lack of access in those communities ignores a vast swath of unconnected people.

“It’s disheartening when you go to a city like Hartford, Connecticut, and black girls still have to walk to McDonald’s to get wifi access to finish their homework,” Turner Lee said. “That’s disheartening. And so we have to work on lawmakers to understand that, even though there may be less market failure in urban areas, it does not mean that they’re not deserving of the same type of access.”

Rural residents were not left out of the conversation at the forum, though. Camara noted the state’s efforts in his remarks, citing the Cuomo administration’s $500 million commitment of state subsidies to expand high-speed broadband to rural regions lacking connectivity, with the state incentivizing the private sector to provide 100 mbps speeds to most underserved regions and 25 mbps to the most remote areas.

The program has apparently been successful, with Cuomo claiming that the state has cut the percentage of New Yorkers without high speed broadband access down from 30% in 2015 to 2% last year.

This puts New York ahead of the nation at large on broadband access. The FCC’s 2018 Broadband Progress Report found that 6% of Americans still lack access to fixed broadband service, and in rural areas that proportion is approaching a quarter of the population. And despite strides in ensuring access to broadband, “approximately 100 million Americans still do not subscribe.”

Nonetheless, the third and final phase of New York’s broadband project, which provides $210 million in awards to expand high speed broadband to 122,000 hard-to-reach households, has stalled. The administration did not meet its end-of-2018 deadline to achieve comprehensive high speed broadband access, owing largely to its dispute with Charter Communications over its own unmet obligations to expand its network in the state’s rural areas. And though broadband access is now nearly universal, a report by Microsoft found that high speed broadband usage in hard-to-reach areas is still relatively low.

“We’re certainly making progress,” Camara said, “but broadband development and rolling out at a cost point affordable to most people is still very challenging work, and we still have a lot of work to do.”

New York City Hall

What to watch for this week in New York politics:

This has to be the week that Mayor Bill de Blasio announces whether he's running for president -- right?

De Blasio begins the week leading a rally to call on the city Board of Elections (which he does not control) to put in place a robust plan to implement early voting later this year, and the mayor will also be on NY1 in his usual Monday evening slot.

Also on municipal matters, we'll continue this week to dissect de Blasio's recently-released $92.5 billion executive budget plan, which frustrated leaders at the City Council. And it's a busy week at the Council -- see the rundown of committee hearings below. Of particular note are hearings on implementation by the NYPD of the Right to Know Act; school segregation; and possible disciplinary measures against Council Member Barry Grodenchik of Queens for sexual harassment.

The state Legislature is back in session this week after a two-week break. Including the three this week there are 25 state legislative session days scheduled before the scheduled end of the session June 19. A lot of policy is on the table, but it is unclear which items other than rent regulations are certain to be dealt with.  

As always, there's a lot happening this week -- see our day-by-day rundown below.

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

The run of the week in detail:

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

At noon Monday, Governor Cuomo will make an announcement at Jones Beach Theater.

At 12:15 p.m., "Lieutenant Governor Kathy Hochul Delivers Remarks at the Center for Women in Government & Civil Society's Conference on Women Leaders" at University at Albany. At 1 p.m., "Hochul Announces Thruway Authority Skilled Trades Scholarship for New York Students Pursuing a Career in Trades."

At 2: 30 p.m. Monday the Pelham-Fritz Recreation Center in Manhattan, "Mayor de Blasio will host a rally to urge the Board of Elections to implement a robust early voting plan...In the evening, the Mayor will appear live on NY1’s Inside City Hall with Errol Louis."

At the City Council on Monday:
--The Committees on General Welfare and Housing & Buildings will meet jointly at 10 a.m. for an oversight hearing regarding “three-quarter housing,” as well as to discuss the proposed creation of a “three-quarter housing task force,” tasked with inspecting suspected three-quarter housing units, issue violations, offer assistance in finding permanent housing to those living in three-quarter units, and publish its findings in a quarterly report.
--The Committee on Small Business will meet at 10 a.m. to discuss the proposed creation of a “small business disaster recovery and resiliency advisory board.”
--The Committee on Cultural Affairs will meet at 10 a.m. for an oversight hearing regarding the Cultural After School Adventures Program.
--The Committees on Transportation, Finance, and Governmental Operations will meet jointly at 1 p.m. for an oversight hearing regarding “the Department of Finance’s Parking Violations Bureau,” as well as to discuss proposed laws including increasing the threshold for towing vehicles with outstanding parking fines from $350 to $500, and disallowing city agencies from reducing fines in exchange for waiving someone’s right to contest parking violations.
--The Committee on Public Safety will meet at 1 p.m. for an oversight hearing on the implementation of the Right to Know Act, as well as to discuss proposed laws requiring the CCRB to report on violations of the Right to Know Act and for the NYPD to report on instances when an individual denied an officer’s consent to be searched. Public Advocate Jumaane Williams will attend the hearing.
--The Committee on Standards and Ethics will meet at 3 p.m. for a hearing regarding disciplinary procedures and action against Council Member Barry Grodenchik.

At 9 a.m. Monday outside City Hall, ahead of the Council committee hearing on the subject, “legislators, three-quarter housing tenants, community organizations, and advocates will gather to demand  government action on three-quarter housing conditions.” Participants will include City Council Member Stephen Levin, members of the Council’s Progressive Caucus, Three-Quarter House Tenant Organizing Project, VOCAL-NY, and Neighbors Together.

At noon on Monday outside City Hall, ahead of the Council committee hearing on the subject, “members of Communities United for Police Reform and New York City Council Members [including Council Member Antonio Reynoso] will hold a press conference to condemn the NYPD for violating key provisions of the Right to Know Act, a package of two police reform laws that went into effect in October 2018. The Right to Know Act is designed to reduce unnecessary interactions with police and reduce harm in the most common police interactions that take place...Speakers will discuss recent instances of NYPD officers violating the Right to Know Act. Those violations include: failing to identify themselves to New Yorkers and explain the reason for an interaction; refusing to provide a business card, offering business cards with blank or missing information; and responding with threatening or intimidating responses when asked for identification.”

At 9:30 a.m. Monday at New York Law School, “Solving New York’s Digital Divide,” featuring remarks from the school’s dean, Anthony Crowell, Manhattan Borough President Gale Brewer, New York City Deputy Chief Technology Officer Josh Breitbart, and Karim Camara, Executive Director and Deputy Commissioner, Governor Cuomo’s Office of Faith-Based Community Development Services. There will also be a panel discussion including Mignon Clyburn, Open Society Foundations & FCC Commissioner Emeritus; Tom Kamber, Older Adults Technology Services; Nicol Turner Lee, Brookings Institution; Michael Santorelli (moderator), ACLP at New York Law School; and Justin Vélez-Hagan, National Puerto Rican Chamber of Commerce.

At 10 a.m. Monday, the Community Service Society will host a panel discussion on New York’s “health care affordability crisis,” discussing in particular the mayor’s new NYC Care program and community level solutions. Panelists will include Health + Hospitals CEO Mitchell Katz, Council Health Committee Chair Mark Levine, Rodrigo Sanchez-Camus of the Northern Manhattan Improvement Corporation, and Elisabeth Benjamin of the CSS.

At 10:30 a.m. Monday, Comptroller Scott Stringer will host a press conference with the Asian American Federation, at the Asian American Federation in Manhattan.

At noon Monday, the New York State Board of Elections will hold a commissioners’ meeting in Albany.

At 4:30 p.m. Monday at NYU, “Chancellor Carranza will participate in Pursuing Equity in NYC Schools, a panel discussion hosted by the Research Alliance for New York City Schools.”

At 6 p.m. Monday, the New York Public Interest Research Group will host “Beyond Plastic” at Pace University, discussing the movement against plastic in New York City and plastic’s role in climate change. Speakers will include City Council Member Brad Lander, former EPA Regional Administrator and Beyond Plastics founder Judith Enck, NYPIRG Civic Engagement Coordinator Tousif Ahsan, and Brooklyn non-profit Cafeteria Culture.

At 7 p.m. Monday, Public Advocate Jumaane Williams will speak at the 'Talking About Mary Jane' Community Engagement Forum, joining "Brooklyn District Attorney Eric Gonzalez, Dr. Kirk A. James, Mandia Glover and Noah Potter, Esq. for a conversation about marijuana legalization in New York State."

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

At 10 a.m. Tuesday, the Senate Standing Committee on Finance will meet in Albany to discuss the potential divestment of the state’s pension fund from fossil fuels.

At 10 a.m. Tuesday, the Joint Commission on Public Ethics will meet in Albany.

On Tuesday, Gotham Gazette and Citizens Budget Commission will publish the latest episode of the What’s The [Data] Point? podcast, discussing Mayor de Blasio’s recently-released $92.5 billion executive budget plan and what comes next. The episode will include guest Yoav Gonen, a reporter for THE CITY whose areas of expertise include the city budget. Look for the episode in podcast streams and at the GG and CBC websites on Tuesday afternoon.

At the City Council on Tuesday:
--The Committee on Sanitation will meet at 10 a.m. for an oversight hearing regarding the implementation of Local Law 145 of 2013, which requires waste haulers to operate fuel efficient, reduced-emissions trucks by 2020.
--The Committee on Governmental Operations will meet at 10 a.m. for an oversight hearing regarding “early voting implementation and poll site interpretation,” as well as a proposed law requiring the city to provide interpreters at poll sites “in the designated citywide languages, where appropriate.”
--The Committees on Higher Education, Women, and Education will meet jointly at 1 p.m. for an oversight hearing regarding Title IX, as well as to discuss a proposed law requiring the Commission on Gender Equity to include Title IX compliance in its annual report. The committees will also discuss resolutions calling on DOE to maintain “at least seven” Title IX coordinator positions and requiring “inclusion of Employee Protection Provisions in all current and future school bus contracts” in the city.

At 8 a.m. Tuesday, the Urban Land Institute will host “Affordable Housing: NIMBY or YIMBY” at K&L Gates in Midtown, discussing the conflict between the two approaches and the impacts of both. Panelists will include City Council Member Ydanis Rodriguez, City Planning Commissioner Michelle de la Uz, Rafael Cestero of the Community Preservation Corporation, and Jeffrey Levine of the Douglaston Companies.

At 6 p.m. Tuesday in Queens, the 2019 Charter Revision Commission will hold the first of its five (one in each borough) public hearings wherein New Yorkers can give the commission feedback on its recently-released preliminary staff report, which outlines areas for the commission to focus as it moves toward crafting its proposals to change city governance that will go before voters in November. This hearing will be at the Jamaica Performing Arts Center.

At 6:45 p.m. Tuesday, APA VOICE will host a forum for candidates for Queens District Attorney at Bellozino in Jackson Heights. The candidates in attendance will include Melinda Katz, Rory Lancman, Tiffany Caban, Mina Malik, Gregory Lasak, Jose Nieves, and Betty Lugo.

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

At the City Council on Wednesday:
--The Committee on Criminal Justice will meet at 10 a.m. for an oversight hearing regarding “the experience of transgender and gender non-conforming individuals in New York City jails,” as well as to discuss proposed laws requiring all correctional facilities to provide trans, gender non-conforming, and intersex people with comprehensive mental health care and substance abuse treatment. The committee will also discuss proposed resolutions calling on the state to pass the Humane Alternatives to Long-Term Solitary Confinement Act and to reform presumptive release, parole, conditional release, and post-release supervision.
--The Committees on Civil & Human Rights and Education will meet jointly at 10 a.m. for an oversight hearing regarding segregation in New York City schools, as well as to discuss several proposed laws. These include laws creating a task force charged with recommending new admissions procedures for specialized high schools, expanding school demographics reporting, establishing “district diversity working groups” in each school district, codifying the mayoral school diversity advisory group, and creating a “school diversity monitor” charged with monitoring segregation in the school system. The committees will also discuss resolutions calling on the state to change admissions criteria for the specialized high schools and for DOE to create more Gifted and Talented programs.
--The Committee on Justice System will meet at 1 p.m. for an oversight hearing regarding the implementation of state bail, speedy trial, and discovery reform.

Wednesday is International Workers’ Day, also known as May Day. Several advocacy groups and labor unions will host actions in recognition of worker solidarity:
--#blacklivesmatter, People Power Assemblies NYC, the Laundry Workers Center, and other groups will hold an action in support of TYS Laundromat in Harlem. The groups will rally at the Trump Building on Wall Street at 2 p.m. and will march at 5 p.m.
--The New York Immigration Coalition, NYCLU, DC37, 32BJ SEIU, PSC CUNY, and other groups will rally at Columbus Circle at 5:30 p.m., followed by a march to Trump Tower.

This week’s Max & Murphy show on WBAI radio, listen at 99.5FM or wbai.org, will air at 5 p.m. on Wednesday.

Thursday
At the City Council on Thursday:
--The Subcommittee on Zoning and Franchises will meet at 9:30 a.m.
--The Subcommittee on Landmarks, Public Siting, and Maritime Uses will meet at 1 p.m.

At 8 a.m. Thursday, State Senator Julia Salazar will join the Workmen’s Circle in the Garment District for a breakfast discussion regarding ‘driver’s licenses for all’ and her work on housing.

At 10 a.m. Thursday, the Senate Standing Committee on Transportation will meet in Albany for a public hearing regarding “limo and bus safety.”

At 11 a.m. Thursday, the Assembly Standing Committee on Housing will meet at 250 Broadway in Manhattan for a public hearing on rent-regulated housing and potential reforms of state rent laws.

At 1 p.m. Thursday, the Senate Standing Committees on Agriculture and Labor will meet jointly at SUNY Sullivan in Loch Sheldrake, Sullivan County to discuss the proposed Farmworkers Fair Labor Act.

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

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

***
by Ben Brachfeld and Ben Max
@GothamGazette

(photo: John McCarten/City Council)

A new statewide poll by the progressive think tank Data for Progress finds plurality support for a proposal to allow undocumented immigrants to obtain driver’s licenses, and majority support for legislation requiring “good cause” eviction of tenants and for legislation requiring schools to limit the use of student suspensions. The findings are likely to buoy Democrats in the Legislature as well as advocates attempting to pass those pieces of legislation, among other progressive priorities, before the end of the state legislative session in June.

The poll, conducted with 1,189 registered New York voters April 8-10, found that 42.4% of respondents indicated support for the “driver’s licenses for all” measure, compared to 37.6% opposed, with 16.1% not taking a position, and 4% unsure.

The percentage of respondents in support jumped slightly when the question was modified to include certain caveats: when told that driver’s licenses for all would improve road safety and bring in $50 million in annual revenue, the margin jumps to 47.4% support to 31% opposed; and when told that the measure would reduce the risk of deportation for immigrants, the margin increases to 46.9% support to 32.9% opposed.

The support numbers are a slight jump from those of a March Quinnipiac poll, which saw 37% support for the driver’s license measure, but the opposition is much lower than in that poll, which saw 57% opposition.

Among respondents, 40.3% are registered Democrats, 17.9% registered Republicans, 13.8% registered with a different party, and 22.7% not affiliated with any party; 71.1% of respondents self-identified as white, 12.9% as black, and 16% identified as a different race.

The poll was conducted using “online web panels in English,” according to Data for Progress. “Responses were weighted by gender, age, race, party registration, geography and education to targets derived from the most recent voter file available, ensuring that the poll reflects the current New York State electorate, without taking into consideration an individual’s probability of voting in any given election. A subset of responses were matched to the voter file to validate the findings of the poll."

Since the passage earlier this year of the DREAM Act, which allows undocumented students to qualify for state higher education aid programs, immigrants’ rights activists have shifted their focus to the driver’s licenses proposal as their foremost legislative priority.

“These data show what we’re seeing in communities across the state, including the suburbs and rural areas: there is broad support for restoring access to driver’s licenses to all qualified drivers, regardless of immigration status,” said Javier Valdes, co-Executive Director of Make the Road New York, in a statement. “A surging chorus of New Yorkers want legislators to take action to make our roads safer by enabling all drivers to be able to go through the same licensing process—which would also boost the state’s economy and keep families together.”

In January, the New York Immigration Coalition launched a $1 million campaign to promote the driver’s license measure, spending on TV, radio, social media, and billboard ads as well as on lobbying.

A 2017 study by the Fiscal Policy Institute, a liberal think tank, found that the measure would bring in about $26 million in one-time revenues, such as license application fees and license plate fees, and $57 million in annual recurring revenues such as car registration fees and gas taxes. These revenues would come from an estimated 265,000 new drivers who would obtain licenses in the state if the measure were to pass.

Like other proposals, the driver’s license measure is a longstanding policy goal for activists that has been given new life by the shift in Albany to full Democratic control. Assembly Speaker Carl Heastie tweeted in March that he would look to advance the measure post-budget, and Governor Andrew Cuomo publicly supports it, but Senate Majority Leader Andrea Stewart-Cousins has been noncommittal.

Good Cause Eviction
As for the good cause eviction measure, which would prohibit evictions for failure to pay an “unconscionable” rent increase, the polling margin is overwhelming, at 68.1% support compared to 17.4% opposed, with 11.3% not taking a position and 3.2% unsure.

Sponsored by State Senator Julia Salazar, a Brooklyn Democrat, and Assemblymember Pamela Hunter, a Syracuse Democrat, the legislation would prohibit landlords from evicting market-rate tenants for failure to pay an “unconscionable” rent increase, defined in the legislation as a percentage increase beyond 150% of the annual percentage change in the regional Consumer Price Index.

The measure would be a significant step toward “universal rent control,” which has become a rallying cry of the left and a source of serious concern for real estate interests.

The state’s rent regulations will expire on June 15 if legislators do not renew them beforehand. Housing affordability advocates have identified this session as an opportunity to get various long-sought reforms to the state’s regulations passed by the now-Democratic state government, such as repealing vacancy decontrol and vacancy bonuses, and scrapping or significantly modifying rent hikes associated with “major capital improvements.”

“New Yorkers across this state know that there’s an affordable housing crisis, and part of the way to address it is to ensure that all tenants have basic protections,” said Delsenia Glover, Executive Director of Tenants and Neighbors, in a statement responding to the poll. “This good cause eviction bill is wildly popular because it would address the gaping hole in our rent laws that currently leaves five million renters statewide out in the cold.”

Limiting School Suspensions
Meanwhile, 55.6% of respondents to the poll supported the idea of legislation to limit the use of student suspensions in school compared to 21.9% opposed, with 19% not taking a position and 3.6% unsure. Poll-takers were asked, “In New York State, students of color and students with disabilities are disproportionately suspended and disciplined for minor school infractions. There is currently a bill in the legislature that would ensure that school districts implement codes of conduct limiting the use of suspension as a disciplinary response to minor infractions, and encouraging the use of alternatives to suspension. Do you support or oppose this proposal?”

The Safe and Supportive Schools Act limiting school suspensions, sponsored by Brooklyn Democratic Senator Velmanette Montgomery and Queens Democratic Assemblymember Cathy Nolan, has also seen renewed interest this session, though it’s been a lower profile issue than driver’s licenses or rent reform. The measure would prohibit suspensions of longer than 20 days (currently suspensions can last an entire academic year), would ban suspensions of students in kindergarten through third grade, and would prohibit suspensions for minor offenses such as dress code violations or tardiness.

The bill would also require schools to establish a code of conduct to govern conduct and disciplinary responses tied to offenses, replacing more ad hoc dispersal of punishment. Data has shown that black students and students with disabilities are disproportionately likely to receive harsher punishments for the same infractions. John Jay College of Criminal Justice’s Data Collaborative for Justice released a report in March showing black students are three times more likely than white students to be suspended for the same offenses, while students with disabilities are twice as likely to be suspended as their non-disabled peers.

Similar changes as included the state bill have been advanced in New York City, leading to a sharp drop in the use of suspensions during Mayor Bill de Blasio’s tenure, though suspensions rose for this first time in his mayoralty last year.

Gov. Cuomo speaks at a 32BJ rally (photo: Fred Pollard/Governor's Office)

Governor Andrew Cuomo, a third-term Democrat, has in recent weeks repeatedly lashed out at state legislators from his own party and a long-time labor ally, 32BJ SEIU, as he points to the role of independent expenditures in state politics amid questions about his own fundraising habits and commitment to campaign finance reform.

The prominent building services workers union was in Cuomo’s corner when he was running for reelection in 2018 and also supported his attempt to push through the deal that would have brought a new Amazon campus to Queens, among other initiatives. But Cuomo seems to have soured on that relationship because of the union’s push for public financing of state elections and its ties with State Senator Alessandra Biaggi, a young progressive who has been a vocal critic of the governor’s fundraising tactics after unseating a long-time ally of the governor, Jeff Klein, the former senator and leader of the Independent Democratic Conference.

Last month, Biaggi was among three state legislators who criticized Cuomo for holding a big-dollar fundraiser as the state budget for the new fiscal year was being negotiated. As reported by the New York Times, several attendees of the fundraiser were seeking favorable state action in the budget and Cuomo even invited his budget director, Robert Mujica, to the Manhattan event. To Biaggi and others, it reeked of impropriety or at least the appearance of it.

Cuomo, in turn, lambasted Biaggi and the others, as well as the Senate Democratic conference at large, for holding its own fundraisers during budget season. In the backdrop were negotiations around campaign finance reform, including creating a new system of public financing, which eventually was not included in the adopted budget though the Legislature and governor created a commission that would issue recommendations to create such a system. 32BJ was one of the leading voices in a large statewide coalition called Fair Elections for New York, which made a major push for public financing, including protests outside the governor’s office.

On April 9, appearing on WAMC’s Roundtable with Alan Chartock, Cuomo made his displeasure clear. “The hypocrisy is, the members who have stood up and criticized the fundraising, they themselves are doing fundraising,” he said, pointedly calling out the Democratic Senate Campaign Committee. And taking a veiled shot at Biaggi, he continued, “Many of those members were funded with millions of dollars of dark money, from unions like 32BJ. Where is the public financing spirit, you know?”

He went on to repeatedly name 32BJ, and only 32BJ, as he talked of the corrosive effect of outside spending in elections.

There’s much more context behind Biaggi’s election, a former lawyer in the Cuomo administration who ascended by emerging victorious in a September 2018 primary election against then-Senator Klein, the powerful former leader of the breakaway Democrats who helped keep the Senate under Republican control for years. Klein’s conference reunited with the mainline Democrats in April last year, in a deal brokered by Cuomo, only for six of its eight members to be defeated in the primaries by challengers like Biaggi.

As part of the reunification deal, Cuomo and sitting Democratic senators agreed not to support primaries against fellow Democrats, meaning Cuomo and Klein supported each other’s reelection. Klein, running while under investigation for allegedly having forcibly kissed a former aide (he denies the accusation), used an image of himself and Cuomo on campaign literature, though the governor never offered a formal endorsement.

The IDC under Klein’s leadership played a moderating effect on legislation, which allowed Cuomo to pursue an agenda of compromise between Democrats and Republicans and push through many of his own priorities. Biaggi’s victory over Klein -- in which he spent nearly ten times the money her campaign did -- was boosted massively by 32BJ, whose endorsement was seen as a crack in the unity facade.

The union donated thousands of dollars to her campaign, sent volunteers to her district, and also supported her with a nearly $80,000 independent expenditure campaign through its Empire State 32BJ SEIU PAC. That political action committee, and its spending to help elect Biaggi, appears to have Cuomo perpetually bristling, especially given the union’s role in the Fair Elections campaign.

“Unions like 32BJ are fighting for fair wages and safe working conditions. Big businesses and real estate interests often act to protect profits over people,” Biaggi said in a statement to Gotham Gazette. “We all know the true political currency of our time is people. I'll stand with the hard-working people of 32BJ every time.”

Cuomo doesn’t seem as willing. At an unrelated news conference last Wednesday, according to a New York Daily News report, Cuomo’s ire again seemed to have been provoked as he addressed recent tweets by State Senator James Skoufis, the new chair of the committee on Investigations and Government Operations, who said that state contracts were regularly being handed out to firms that made large campaign contributions to the governor. Cuomo, in turn, implied that independent expenditures to state legislators’ campaigns were directly linked to legislation being introduced in Albany, which seemed to be directed at Skoufis’ support for a bill regarding home-rental services like AirBnB, which spent half a million dollars to help Skoufis get elected.

Cuomo said, “I don’t think there’s any difference between Airbnb and 32BJ and charter schools or REBNY or the teachers unions, but this is where the money is coming from and it’s coming for a very specific purpose.”

The governor’s repeated sling at 32BJ, which has more than 160,000 members across the country, mostly in New York, was again an odd inclusion among multi-million dollar firms and business interests, not to mention the teachers unions that he has often warred with during his tenure, finding something of a ceasefire in recent years.

32BJ was one of Cuomo’s most prominent backers in his reelection race last year, crediting him with “a long and strong record of progressive policies” including the passage of a $15 minimum wage, paid family leave, and a $19 minimum wage for airport workers. The union donated the maximum $65,000 to his reelection race, and has contributed almost $150,000 to his campaigns since 2007.

A week after the union endorsed him in early April 2018, it also withdrew from the Working Families Party, which was backing Cuomo’s primary opponent at the time, education activist and actor Cynthia Nixon. That same week, Cuomo spoke at a 32BJ rally in Manhattan.

“32BJ is one of the best unions in the United States of America,” Cuomo proclaimed on stage, praising its leaders for helping pass the policies that earned him their endorsement. “You have to deal with the real estate industry, which is one of the toughest industries in this country, and 32BJ is up to the fight...and what I love about 32BJ...they don’t just talk, they deliver.”

In February, Cuomo was championing New York’s winning bid to bring Amazon and its projected 25,000 jobs to the state by building a new campus in Long Island City. Despite the tech firm’s checkered history of opposing unionizing efforts by employees, 32BJ was behind him, seeing the promise of jobs for its union members through building service contracts and the potential for broader unionization gains. After Amazon cancelled its plans, 32BJ President Hector Figueroa called it “a missed opportunity to engage one of the largest companies in the world and to create a pathway to union representation for one of the largest groups of predominantly non-union workers in our country.”

The governor’s office denied any ulterior motives behind his more recent comments and declined to further explain the specific targeting of 32BJ. “I know you guys have trouble fathoming this, but not everything is some conspiracy. Sometimes the truth is the truth,” a Cuomo spokesperson said in an email, before not responding to additional inquiries.

Amity Paye, a 32BJ spokesperson, said the union was surprised by the governor’s remarks. “We weren’t clear what prompted him to do this,” she said in a phone interview. “We responded on social media to the comments but we haven’t had any direct conversations about this with the administration. We wouldn’t presume to guess why this happened.” She also pushed back against the union’s mention among groups like REBNY and AirBnB as independent spenders. “There’s not a comparison. We’re not a multimillion dollar corporation. The money we invest literally comes from thousands of members pooling their money. It’s entirely different,” she said.

As Paye noted, Alison Hirsh, political director of 32BJ, called the governor’s comments “perplexing” in a tweet on April 17, just after he railed against the union at the press conference, and Figueroa also responded that same day. “Any Dem leader should understand there’s a world of difference between worker organizations such as unions and corporations/employer associations & that it isn’t hypocritical to push for campaign finance reform while benefitting from IE. Both NY Senate Dems AND @NYGovCuomo have.”

Biaggi retweeted him.

Former Camp Georgetown Correctional Facility is expected to soon become Camp Brihat Yoga Retreat (photo: Madison County IDA)

As New York continues to drastically reduce its incarceration rate, many prisons have become surplus. The state prison population has fallen from its peak of approximately 72,600 in 1999 to 47,400 this year.

Governor Andrew Cuomo, under whom 24 prisons and juvenile detention centers have already been shuttered, introduced and passed legislation as part of the new state budget that would allow him to shut down two or three more prisons, depending on the number of beds in the prisons chosen. While the overall trend is a positive sign to many given the fight against mass incarceration and, according to executive chamber estimations, the additional closures could save state government tens of millions of dollars every year, prison closures can leave local economies vulnerable.

Some areas have historically relied on prisons for employment and as commerce centers. Local elected officials often fight prison closure plans, fearful of what a shuttered prison may mean for local jobs and economic activity. When prisons close, guards and administrators are often transferred to other facilities, meaning jobs remain but they change location. Local businesses lose customers and towns look for other means to boost their economies.

Repurposing prison facilities can cushion the loss of a ‘prison economy,’ and with the growing number of shuttered prisons around New York, the effort to spin prisons into new uses has become an enticing endeavor for both the public and private sectors.

Some former New York prison facilities have already found new life -- a film studio, an office park, a planned yoga retreat -- while others sit vacant, some for sale. One has been been converted into a venue where nonprofits serve formerly incarcerated people. Empire State Development (ESD), the state’s economic development wing, has been tasked with offloading the closed correctional facilities that have been shut down, as well as supporting the redevelopment of the communities they were located in. They have funded projects in all the regions where prisons were shut down.

While former downstate prisons are flourishing anew, the state faces challenges with many others. Most prisons successfully repurposed are within New York City, where there is more limited space and high demand for real estate, and a thriving economy. Repurposing prisons upstate is more often than not an uphill battle.

On the south shore of Staten Island, the former 900-bed Arthur Kill Correctional Facility was bought from the state for $7 million, with an additional $20 million also invested, by Broadway Stages, a film and television production company that has been part of Emmy winning shows like Master of None and The Marvelous Mrs. Maisel. The company has converted the facility into a studio to film shows set in prisons like Orange is the New Black, also an Emmy winner. Previously, Broadway Stages filmed prison scenes upstate.

The purchase of the prison has brought roughly 1,000 jobs to the facility itself thus far, with that number expected to triple once the second phase of the facility is refurbished, according to Samara Schaum, a spokesperson for Broadway Stages.

Other prisons in New York City have been taken over by not-for-profit companies.

In the Bronx the former Fulton Correctional Facility was handed over by the state to the Osborne Foundation, which repurposed it as a community re-entry center, providing temporary housing and job training to former prisoners. About $9.5 million was required to refurbish the old building, for which Bronx Borough President Ruben Diaz Jr.’s office and Empire State Development provided financial support.

The NoVo Foundation is also in the process of converting the closed Bayview Correctional Facility in Chelsea into “The Women’s Building.” which “will bring diverse organizations together, as they envision and build a better world for girls and women,” according to its website.

In a phone interview, a spokesperson for Empire State Development explained the two processes by which the state offloads prisons: through auction and requests for proposals.

Auctions are handled by the state’s Office of General Services, with prisons sold to private bidders. When a prison becomes private property through auction, it has to go through environmental review and the applicable municipal land use approval process.

ESD prefers to put out requests for proposals to ensure that the sites are repurposed in ways that benefit the surrounding communities the most, according to the ESD spokesperson. “We try and figure out a use that is compatible with the community and compatible in terms of creating jobs,” said the spokesperson, who requested anonymity.

Last year, ESD put out a request for proposal for the shuttered Mount McGregor Correctional Facility in Saratoga, for which there has been one proposal to turn the facility into a resort. The Camp Chateaugay Correctional Facility was up for auction last year too. It appeared as though a Canadian company bought it for $600,000 to turn it into a Jewish summer camp. However, the deal fell through. The state tried selling it again, but the last date to submit a bid was November 8, 2018.

Some prisons change ownership but don’t see new life particularly quickly.

Gilbert Rybicki, a Canadian business person, bought the Lyon Mountain Facility, in remote Dannemora, New York through a 2013 auction for $140,000. The prison continues to sit vacant today.

“He bought the prison to influence the town of Dannemora,” said Town Supervisor Bill Chase. According to Chase, Rybicki has been in business with Dannemora indirectly for one of the town’s resources, ore sand -- a byproduct of iron ore mining, used in construction. Chase believes that Rybicki was hoping to obtain a contract for Dannemora’s ore sand himself, and bought the prison to turn it into an ore sand processing center. However, he was outbid at an auction for the ore sand contract.

Chase believes that the facility has a lot of potential and can be turned into a variety of things, including a car repair center in the garage the prison left behind, a gym using the prison’s old gym facility, or a drug treatment center. “I’ve even had some people try and help him do something with the building, but all he has done is put a sign out there trying to rent it,” said Chase.

Contacted by Gotham Gazette, Rybicki said he is still not sure what he will do with the facility, and will likely wait for the summer before making a decision.

Another prison buyer has ideas, but has had trouble making his vision a reality because of state bureaucracy, he said. Also in 2013, Shekhar Patel bought the former Camp Georgetown facility located an hour from Syracuse. He originally intended to turn it into a technology summer camp for middle and high school students. However, he changed his mind and now hopes to turn the facility into a yoga retreat, called Camp Brihat. But in order to make it functional for his purposes, Patel said he had to modify a wastewater treatment plant.

In April 2017, Patel requested a permit from the Department of Environmental Conservation (DEC) to modify the wastewater treatment plant and has spent the past two years following up, trying to get the state to act on his permit, he said. Patel finally received a response from the DEC on March 25 of this year.

The email from a DEC representative, Tara Blum, said, “Unfortunately due to other priorities, I have not had time to work on your SPDES permit modification. However, today I was directed by my supervisor, Tom Vigneault (he is copied on this email) to work on your facility, the Camp Brihat draft permit immediately.”

Patel was given a tentative acceptance for his permit request on April 11. He must now advertise the modification of the wastewater treatment in the local paper for a month and allow the public to comment on the modifications. The DEC will grant him the permit within the next month based on community reaction.

Patel was apparently lucky to have completed his purchase. Other prison sales are hindered by bureaucracy and conflict. In Franklin County, the sale of the Camp Gabriels Correctional Facility has been stalled as the facility belongs to one government agency while the land belongs to another. Camp Pharsalia, in Chenango County, lies on Forest Preserve land.

Because some of these facilities have not been sold or repurposed, the state has attempted to provide a cushion to the towns in which they reside.

In 2012 and 2014, Governor Cuomo introduced tax incentives and capital funding as part of the Economic Transformation Program (ETP) to aid communities impacted by prison closures. Roughly $82 million was expected to go to 15 communities impacted by prison closures.

In the Mohawk Valley, funds are going towards the Mohawk Valley Regional Economic Development Council, Marcy Nanocenter, Griffiss International Airport, and a river walk in the city of Rome. So far, almost $60 million of the ETP funding has been committed while almost $40 million has already been disbursed.

There are some hopeful signs for prison refurbishment upstate. The former Mid-Orange Correctional Facility in the town of Warwick was closed in 2011 and transferred to the Warwick Valley Local Development Corporation. The site is perhaps the most successful prison rehabilitation upstate, as several innovative companies have decided to build and invest there.

The site’s previous main occupier, Yard Sports Village, filed for bankruptcy, but new investors have been swarming in, according to Warwick Town Supervisor Michael Sweeton. The new businesses include the Hudson Valley Sports Complex, Craftify, a craft brewer has a production facility with a tasting room on site, Eden Restorations, which provides custom building restorations, Transtech, a company that puts bodies on buses, and Citiva, a medical marijuana producer whose site is currently under construction.

“It’s taken a little bit, but it is really rolling now and we really believe we are going to have it built out in the next year or two and we are really excited about that,” said Sweeton. “People are employed in the town and people are coming to the area as well.”

Sen. Hoylman, middle, with his husband & daughter, & Gov. Cuomo, right  (photo: governor's office)

When Marisa Horowitz-Jaffe and her husband, Doug Jaffe, wanted to have a baby, they faced numerous obstacles before the birth of their twins via a surrogate in a Dallas hospital eight years ago.

Their twins were born in a Texas hospital because the couple was forced to travel out of state in order to use a surrogate. New York is one of only two states in the country to criminalize surrogacy, a fact Horowitz-Jaffe was unaware of when her fertility issues began.

“Finding out surrogacy was illegal where I live, I was like, ‘What?’ It was like New York state giving me a middle finger,” she said. Paying for airfare, hotels, and other incidentals on top of fertility treatments, as well as the logistics of shipping temperature-controlled medications and transporting their premature twins back to New York added to an already stressful experience, she said.

The couple was not able to conceive a baby through intercourse. Determined to have a child, Horowitz-Jaffe went through rounds of in vitro fertilization (IVF) and embryonic transfers, including using egg donors. She went through multiple failed procedures and a miscarriage of a 20-week-old fetus before she and her husband made the decision to use a surrogate through an agency, which matched them with a woman in Texas.

Five years later, with 12 total rounds of IVF, and $250,000 spent out of pocket, Horowitz-Jaffe and her husband finally had not one child, but two. It would have been far easier, she said, if their surrogate had lived in the next town over, instead of thousands of miles away.

Now, a four-year-old bill in Albany could soon become law and prevent New Yorkers from having a similar ordeal. The bill would not only legalize surrogacy but add protections for surrogates, including health insurance provided by the intended parents. Called the Child-Parent Security Act and sponsored by Senator Brad Hoylman, a Manhattan Democrat, and Assemblymember Amy Paulin, a Democrat from White Plains, the bill aims to repeal the state’s 1992 ban on surrogacy, which specifically prohibits parents from hiring or compensating a person for carrying a child to term for them.

Bans in New York and elsewhere, many since reversed, came soon after a famous 1980s case. In 1985, Mary Beth Whitehead of New Jersey agreed to be a surrogate for a male-female couple and do so using her own egg, as the wife in the couple was diagnosed with multiple sclerosis. Whitehead was paid $10,000 for her role in the pregnancy, but after the birth decided to keep the baby and return the money. Conflict ensued, turning the incident into the famous ‘Baby M’ case, in which New Jersey’s Supreme Court ruled that paying women to bear children was illegal. Since then, surrogacies across the country have been gestational, meaning both a donor egg and donor sperm were used.

Marc Solomon, an LGBT activist who spent 15 years working on marriage equality, is overseeing a campaign in support of the Child-Parent Security Act through the Family Equality Council, a nonprofit organization.

Solomon mentioned ways in which lesbian parents or single women are not protected under current New York law, such as non-biological parents having to go through a costly adoption process to be legal parents of their children. Single women, according to Solomon, have no legal recourse if they have a child with a known (non-anonymous) sperm donor, as the donor could sue for custody of the child. Both of these scenarios would be avoided with the passage of the bill.

If the bill passes, it would allow non-biological parents to go through the court to get a certificate stating their legal parentage of a child carried by a surrogate. “[The bill] would put New York in the caliber of states that it’s usually associated with, like California, Washington state, Connecticut, other progressive states where surrogacy is allowed under certain circumstances, where everyone is protected,” said Solomon.

The bill was originally introduced in 2015 and, according to Paulin, could not pass the state Senate due to the Republican majority, which acted as a counterweight and oppositional force to the Assembly Democratic majority for most of the past several decades, until this year. Senate Minority Leader John Flanagan’s office did not respond to multiple inquiries for comment for this story. With the Senate now controlled by Democrats after last year’s elections and Democratic Governor Andrew Cuomo showing support for the bill in his 2019 state of the state policy book, the chances of it passing are greatly improved as the spring legislative session moves ahead.

“It’s never had as much traction as it’s had this year,” said Paulin.

With a new state budget in place as of April 1, the legislative session will now deal with a variety of other policy matters until its scheduled conclusion in mid-June. It’s unclear which of a long list of issues – including surrogacy legalization, rent regulation reform, marijuana legalization, and more – will find resolution.

An attempt to pass the Child-Parent Security Act was made earlier in the year with its inclusion in Cuomo’s 2019-2020 budget proposal. It was ultimately excluded from the budget deal that emerged among Cuomo and the legislative majorities. Hoylman, whose two children were carried by a surrogate in California, said changes had been made to the bill’s text and there was not enough time in the budget process to address them before it was voted upon.

Those changes, according to Hoylman, include ensuring surrogates have legal counsel and health insurance provided by the intended parents and were implemented following some opposition from advocacy groups. Cuomo’s policy statement also stipulates surrogates be allowed to make their own health care decisions, which would include their right to an abortion. Surrogates and intended parents would enter into a legal contract, ensuring what the governor’s policy proposal called “fully-informed consent.”

“The Governor believes New York surrogacy laws are antiquated and discriminatory against same-sex couples and couples struggling with fertility,” a Cuomo spokesperson said in a statement to Gotham Gazette. “That’s why he proposed righting this wrong by creating a new and long-overdue path for these New Yorkers to have children that provides legal protections for the parents-to-be and the women who choose to become surrogates. We look forward to working with the Legislature to address this issue."

“Overall, we need to make certain that wellbeing of surrogates and donors is the centerpiece of any legislation,” said Hoylman. A revision of the bill is expected to be made available in the next week or two. Both Hoylman and Paulin said they expect the legislation to be voted on this spring.

Even if the legislation becomes law, the surrogacy process itself will remain expensive, as it is not covered by health insurance. To Solomon, that’s an additional reason to legalize surrogacy in New York. “The expense of having to go in and out of state, and have a surrogate fly in and go to doctor’s appointments, and go to the delivery and travel back, adds thousands of dollars to the process,” he said. “If you’re concerned about making the opportunity of having a child available to people of lower means, it’s a case for legalizing and having surrogacy in New York.”

Horowitz-Jaffe hopes the bill will pass sooner rather than later, so other families do not experience what she went through to have her twins. “I don’t know why [politicians] have to make things harder. Going through infertility itself sucks,” she said. “And when they throw this on top of it? It doesn’t have to be this way.”

Budget Director Mujica, Gov. Cuomo, Comptroller DiNapoli (photo: governor's office)

New York’s tax revenue fell by $3.7 billion, a 4.7% decline, in the 2019 fiscal year that ended March 31, according to the cash report released Friday by State Comptroller Tom DiNapoli. A drop was expected in projections made last year, but not to the degree it occured, setting off alarm bells earlier this year as the state started to see apparent effects of New York taxpayer behavior resulting from the new federal tax code. The state's latest projections from February did, however, more accurately account for the decrease in revenue as the fiscal year came to an end.

The drop in revenue largely stemmed from lower personal income tax receipts, though the comptroller said the year ended on “a positive note” because revenues came in higher than expected in March. Part of the decline was also related to the MTA payroll tax, which brought in $1.4 billion last year, being shifted out of the budget as a revenue source, and the new federal tax law led to many filers and employers moving their payments to the 2018 fiscal year, creating the appearance of a  drop in payments that doesn't reflect the larger economy, according to the state Division of Budget. But fiscal watchdogs are nonetheless concerned that the state could quickly face a cash crunch if revenue is lower than expected in April, the month that not only starts the new state fiscal year but is also home to the tax filing deadline.

The drop in personal income tax was first evident in data from December and January, raising a red flag for the state economy and creating uncertainty about future spending as Governor Andrew Cuomo and the state Legislature negotiated the budget for the 2020 fiscal year. In a February news conference called to discuss the startling numbers, Cuomo and DiNapoli pointed to the 2017 federal tax overhaul as the culprit, chiefly a provision that capped the deductibility of State and Local Taxes (SALT) at $10,000 and how New Yorkers may be responding to it. They said much more would become clear in the following months.

The governor and Legislature had to take that uncertainty into consideration when making revenue projections for the new fiscal year and that if those projections are significantly off they may need to restructure the state budget. 

The comptroller’s latest report noted that personal income tax revenue by the end of the fiscal year declined by $3.4 billion in total, or about 6.6% from the previous year, though other forms of tax revenue increased, including consumption tax, business tax, and miscellaneous revenue that included massive monetary settlements with financial and other corporations. March was a good month, with taxes coming in about $812 million higher than the state Division of Budget had projected in February.

“After months of concern over lower-than-expected tax collections, the state ended the fiscal year on a positive note,” DiNapoli said in a Friday statement. “The sharp revenue declines in December and January, however, remind us to take nothing for granted. With expectations of a slowing economy and ongoing concerns regarding federal fiscal policies, a strong commitment to building robust reserves in preparation for the next economic slump is essential.”

After a recent allocation of $250 million, the state’s current rainy day reserves stand at $2 billion, and are expected to increase to $2.5 billion by the end of the 2020 fiscal year. This sum pales in comparison to the recently-adopted $175.5 billion state budget for the fiscal year 2020.

The crucial period lies ahead as the state begins to take stock of tax returns that New Yorkers file in April. In February, the governor and state DOB projected that April would show an additional $1.4 billion in personal income taxes, and total collections of about $8.2 billion. In comparison, the state averaged between $5 and $7 billion in April tax revenues between 2016-2018. It’s not totally clear why the projection is so optimistic.

“When they made that adjustment in February, they said, we came in really low for January, but some of that money we think is gonna come in in April. And we don’t know if it’s going to or not,” said Dave Friedfel, director of state studies at Citizens Budget Commission, a nonprofit watchdog. “If it doesn’t, if they made a mistake in making that assumption, then suddenly the fiscal year 2020 budget could be in trouble only one month into the fiscal year.”

Should revenues come in below projections, the state could be in for tough times ahead.

“Depending on how that number comes in, if it’s significantly short, the state may need to tighten its belt a little bit further,” Friedfel said, noting that at minimum it would put a damper on conversations around increasing capital spending as the rest of the legislative session progresses. Cuomo and legislative leaders passed the new state budget without adding new capital expenditure plans, though many were carried over from prior plans.

E.J. McMahon, research director of the Empire Center for Public Policy, a think tank, agreed that if the April revenue doesn’t meet expectations, it would be “a sign of trouble.”

“However, even if it’s above the forecast, it’s not necessarily solid proof that things are much better because...the real number to watch this year, that has a bigger reflection of the economy, will be the quarterly estimated payments in June and especially September,” he said, pointing out that higher-earning New Yorkers have more complicated tax returns and may be filing for extensions.

The new budget does give the state Department of Budget, which is under the governor, the ability to make mid-year changes to spending in case of a $500 million deficit below projections, in which case the Legislature would have 30 days to respond or the DOB adjustment would take effect.

But a bigger issue is the state’s paltry reserves. CBC’s Friedfel said the state should at bare minimum have 10% of the operating budget in reserves, closer to about $10 billion. “That would be enough to really absorb the shock for one year and even more than that would be beneficial,” he said.

“The state has gotten about $12 billion in monetary settlements over the last six or seven years, certainly during the governor’s tenure, and they’ve put very little of that into reserves,” Friedfel continued. “They’ve actually used some of that for operations which sets up kind of a higher base of spending, which makes it harder to fill those gaps in the future.”

Note - This article has been updated to clarify that the state Division of Budget's latest projections did expect revenues to drop as much they did though they did not originally. Additional context was also added about the MTA payroll tax and early filing of payments in the 2018 fiscal year.  

Cuomo and Klein (photo: governor's office)

Few New York residents have probably heard of the State and Municipal Facilities Program, or SAM, but in recent years, it has been one of the top avenues by which state lawmakers “bring home the bacon,” providing many millions of dollars in funding for district projects. Otherwise known as “pork,” these projects include things like new or renovated parks, schools, libraries, and more, with far greater funding going to legislators based on their political power.

However, in this year’s recently-adopted state budget, there are no new appropriations for SAM. And SAM is also different because it is lump sum appropriation, with specific project funding decided outside the budget process by the governor and legislative leaders.

Started in 2013, SAM is a creation of Governor Andrew Cuomo and legislative leaders. It is controlled by the Dormitory Authority of the State of New York (DASNY), one of the state’s many public-benefit corporations, responsible for assisting state and local governments, as well as non-profits and colleges, with construction, financing, and other services. Currently-planned SAM projects include everything from renovations to the Brooklyn Public Library to creation of a skateboard park in Albany to new fire trucks and patrol vehicles in Poughkeepsie.

DASNY’s board consists of five gubernatorial appointees, an appointee from the President of the State Senate, another from the Assembly Speaker, and four ex-officio members: the State Comptroller, Education Commissioner, Health Commissioner, and the Budget Director.  The health commissioner and budget director are both appointed by the governor and the education commissioner is appointed by the state’s Board of Regents.

The program has long been criticized as an unnecessary discretionary fund -- in other words, a politically advantageous “slush fund.” SAM is one piece of the state’s larger capital budgeting, mainly for construction projects.

In his assessment of the 2018 state budget, Comptroller Tom DiNapoli criticized “the state's use of lump-sum appropriations that leave broad discretion for use of funds with limited disclosure.” He specifically cited SAM, which received a 25% increase in appropriations that year, saying “the need for additional discretionary spending authority was not made clear.”

Criticism has also come from good government and fiscal watchdog groups. E.J. McMahon, research director for the Empire Center for Public Policy, said last year that state lawmakers were “basically like teenagers with credit cards” when it comes to using SAM.

“It’s just pork. There is nobody even pretending that there is statewide importance to any of these,” McMahon told The Buffalo News. “There is no process. No airing. There’s complete discretion.”

David Friedfel, the director of state studies for the Citizens Budget Commission, told Gotham Gazette “these lump sum appropriations are not a wise investment of state resources. The allocations are a product of political expediency instead of a thorough analysis of the state’s needs. It’s nice for the communities that receive these grants, but the state taxpayers shouldn’t be footing the bill.”

Surprisingly, in this year’s state budget, there were no new appropriations for SAM. However, Friedfel notes that state lawmakers “have not allocated all of the money previously appropriated so they may have decided to just spend down existing appropriations this year.” There still remains over $1.9 billion in SAM appropriations that have gone unspent since the program’s creation in 2013, and that money is carried over into the new fiscal year 2019-2020 budget that took effect April 1 of this year.

As of April 8, 2019, there are over 1,800 grants currently administered by DASNY under SAM that amount to over $900 million in planned spending. This leaves a little over a $1 billion in discretionary funds for state lawmakers to access, which is more funding than SAM has ever spent in a single year.

Freeman Klopott, a spokesperson for the state’s Division of the Budget, which is under the governor, said in a statement “there were no capital additions to the Budget and, as we have said already, additional capital funding will be addressed in June at the end of legislative session when we have a better sense of the State’s fiscal picture.”

There has been little indication from Albany leaders if there will be additional SAM funding in the capital budget when it is decided. The state’s current fiscal outlook, the availability of reappropriated funds, and the demise of the Independent Democratic Conference (IDC) all appear to make additional SAM appropriations unnecessary or unlikely.

The program’s 2013 introduction coincided with the first state budget following the 2012 state legislative elections, in which Democrats won a majority of State Senate seats. However, the IDC partnered with Senate Republicans to maintain the Republican-led majority. The addition of a new discretionary spending program a few months after the deal was struck was suspicious to many. There has been reporting to indicate, as well as widespread belief, that Governor Cuomo, now a third-term Democrat, preferred and encouraged the creation of the IDC and its coalition with Republicans.

SAM was utilized over the years to benefit members of the IDC handsomely, while the funding also benefited Senate Republicans and Assembly Democrats.

Several years after its creation, in the 2018 budget, an additional $90 million was added to SAM’s annual appropriations. This was a few weeks before the IDC’s dissolution -- a deal Cuomo brokered -- and five months before that year’s primary elections, when six of the eight IDC members were defeated by Democratic challengers.

Former State Senator Jeff Klein, who had been the leader of the IDC, was one of the primary beneficiaries of SAM projects before his loss to Alessandra Biaggi in the 2018 state legislative elections. A 2015 article in Politico New York explained “Jeff Klein’s alliance with Republicans has paid off.” Klein received almost $12 million in earmarks, much of which came from SAM, over three years between 2013 and 2015, according to Politico. Klein’s earmarks were triple that of any other state senator at the time, though other members of the IDC also reaped significant benefits, as did other legislators.

In an April 1 interview with WAMC Northeast Public Radio, Cuomo acknowledged that the capital budget and capital projects were not “fully included” in the recently-passed state budget. He said that “we have to negotiate on the capital side and we’ll do that in the coming weeks.” He also reiterated that the state’s $150 billion infrastructure plan “is the most aggressive infrastructure plan in the United States of America.”

While Cuomo’s major infrastructure projects continue apace, it is unclear what the fate of the SAM program will be, whether the reallocated money will be spent down or whether new money will be added.

On April 12, Cuomo issued 123 line-item vetoes to cut $44 million in capital spending added by the Legislature, in order “to maintain a properly balanced budget,” the governor wrote, and for technical reasons, such as being duplicative or were unnecessarily held over from several years prior.

While SAM is among the largest sources of funding legislators can use for capital projects in their districts, it is not the only source. And according to Friedfel, the final state budget also took out a provision that would have given the state’s inspector general greater oversight of discretionary spending.

(photo: @RamosforStateSenate)

April 17, 2019 - Max & Murphy Podcast: State Senator Jessica Ramos on the Albany Agenda

State Senator Jessica Ramos of Queens joined the show to discuss her first budget season in the state Legislature -- accomplishments, disappointments, lessons learned -- and what lies ahead on issues including marijuana legalization, rent regulations, and her farmworkers' rights bill.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org