Gotham Gazette http://www.gothamgazette.com/component/tags/tag/1895 Thu, 19 Oct 2017 22:07:28 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) The Hole in the Mayor's Money-Into-Pockets Defense http://www.gothamgazette.com/?id=6797:the-big-hole-in-the-mayor-s-money-into-pockets-defense http://www.gothamgazette.com/?id=6797:the-big-hole-in-the-mayor-s-money-into-pockets-defense de blasio town hall sunlight

Mayor de Blasio (photo: Ed Reed/Mayor's Office)


Mayor Bill de Blasio’s recent meeting with federal prosecutors signalled that the investigation into his fundraising for his 2013 campaign and his now-defunct nonprofit, the Campaign for One New York, are winding down. There’s no indication yet whether the mayor or any of his associates will face charges, and the mayor’s office has stated that de Blasio himself is not the target of the probe. The administration is confident that “at all times the Mayor and his staff acted appropriately and well within the law,” according to a statement from the mayor’s press secretary, Eric Phillips, after the meeting.

For much of a year, de Blasio has been dogged by a trickle of news about the federal investigation and others being conducted, including that by the Manhattan District Attorney into his involvement in 2014 state Senate races, and relentless media questions. The mayor has fielded question after question about whether he encouraged a pay-to-play culture at City Hall by fundraising vast amounts from entities with city business.

Federal investigators and prosecutors are said to be looking at whether donors to the Campaign for One New York or de Blasio’s 2013 campaign were promised or given special treatment by de Blasio’s administration.

Along with arguing generally that he and his associates did nothing illegal, on multiple occasions the mayor has sought to defend himself by pointing out that the Campaign for One New York served a worthy cause, centrally the effort to establish universal pre-kindergarten, and was not meant as an instrument to enrich him or anyone else involved.

“What we were trying to do in those efforts was about things that would help everyday New Yorkers,” de Blasio said of the Campaign for One New York at a December 13 news conference. “You know there’s lots of other situations out there in the world, where people tried to line their pockets, you know work for their personal advantage. This was about trying to pass policies that would help everyday New Yorkers.”

What de Blasio’s rationale doesn’t account for, however, is that the consultants who worked on the Campaign for One New York -- the same consultants who worked on his 2013 mayoral campaign and are also employed in his 2017 reelection effort -- received hundreds of thousands of dollars in fees as they pushed its agenda. This, while at the same time some had clients with business before the city and some were also members of de Blasio’s inner circle, crafting government policy while not on the city payroll.

At a news conference on May 3, 2016, de Blasio first used the defense, when asked by a reporter if his actions were comparable to those of Sheldon Silver, the disgraced former speaker of the New York State Assembly who was convicted on federal corruption charges that same day. “I think these are entirely different matters,” the mayor said. “First of all, to the credit of everyone involved in this discourse, no one is talking about anyone lining their pockets, which unfortunately has happened in way too many instances.”

The Campaign for One New York (CONY) effort did push progressive policies, including universal pre-kindergarten and affordable housing policy, both core components of the mayor’s first-term agenda. The accomplishments in those areas also form the core of the mayor’s reelection message. The investigation into CONY does not appear to focus on whether people in the mayor’s orbit personally profited from the work, but whether government favors were offered or given to donors.

The CONY disclosures, voluntarily provided by the mayor’s team, show that his top consultants earned significant monetary compensation for their efforts running the nonprofit. These include BerlinRosen, which spearheaded the mayor’s 2013 campaign communications and continues to helm his reelection efforts. The company made nearly $550,000 for its work on CONY, out of about $4 million that the nonprofit raised in total over about two years.

Jonathan Rosen, who heads BerlinRosen, is also one of five consultants termed “agents of the city” by the mayor’s legal team in order to shield their communications with the administration from the public when those communications don’t involve their clients. Rosen and others have been intricately involved in helping de Blasio craft strategy and policy, though under fire for such arrangements and entering his reelection year, the mayor has removed those advisors from meetings. (De Blasio’s campaign spokesperson, of BerlinRosen, was also the CONY spokesperson, and declined to comment for this article.)

AKPD Message and Media received the most compensation from CONY, about $1.35 million, for promoting pre-kindergarten and affordable housing. John Del Cecato, a partner at AKPD, is also one of the “agents of the city” and was integral in de Blasio’s 2013 campaign.  

Another two “agents of the city,” Nicholas Baldick and Bill Hyers of Hilltop Public Solutions, were also involved in CONY, earning just over $400,000 for their work. Hyers was de Blasio’s campaign manager in 2013 and his firm is also involved in the 2017 campaign. On Twitter, Hyers has repeatedly criticized the investigations into de Blasio, calling the federal probe "a pointless investigation" and the group "pointless inquiries."

Much of the money raised by the Campaign for One New York came from labor unions and real estate interests with city business. That money then went to the same consultants that helped de Blasio get elected -- his 2013 campaign, though, was limited by city election law both in how much it could raise from entities with city business and how much it could spend. CONY had no such restrictions.

The mayor’s defense hedges between what is legal and what is ethical, with the former up to prosecutors and grand jury members, and the latter a matter of some debate. “What he should’ve said was no one was lining their pockets illegally,” said Douglas Muzzio, professor of political science at Baruch College, calling it a “critical distinction.”

Muzzio noted that, if the investigations were to establish a quid pro quo among the administration, the nonprofit, and the donors, then the mayor’s defense “doesn’t fly.”

“It does raise questions about the role of consultants and the nebulous role of working for the campaign and turning around and lobbying the mayor,” he said. “De Blasio’s relying on a very fine distinction between what is ethically suspect and what is legal.”

Many have questioned whether the mayor, even if he was within the law, was right to do what he did. Comptroller Scott Stringer, a potential challenger to the mayor in the upcoming Democratic primary, called CONY a “slush fund” in July 2016, saying it should never have been created. “I think it does not work for this city and I think we need to enact strong rules," Stringer said the day the city’s Campaign Finance Board ruled that the mayor had not violated any laws in fundraising for the group.

The CFB nonetheless criticized de Blasio for bending the rules to the point of breaking. “New York City’s system depends on reasonable contribution limits that reduce the appearance that influence can be bought or sold through campaign contributions,” said then-CFB chair Rose Gill Hearn. “It defies common sense that limits that work so well during the campaign should be set aside once the candidate has assumed elected office.”

Since then, the city has adopted new laws -- originated and passed the City Council, then signed by de Blasio -- to limit groups like Campaign for One New York.

Jennifer Rodgers, executive director at Columbia Law School’s Center for the Advancement of Public Integrity and a former federal prosecutor, said that the mayor's money-into-pockets defense is understandable. “I think that when he says no one is lining their pockets, he means himself and people in his administration in their personal capacities,” she said. “It’s not that money wasn't being contributed.”

The significant sums of money that CONY paid to consultants appears to be beside the point of the investigation, Rodgers noted.

“You are not allowed to give political favors in exchange for money going anywhere,” Rodgers said. “I understand his point that no one is lining their pockets personally, but that doesn’t really matter and also is not what the public cares about. The reason for bribery laws is not to stop businessmen giving money, it’s to stop politicians from giving favors.”

Shortly after the news broke in December that two grand juries were hearing testimony on the federal and state investigations, de Blasio made his weekly appearance on WNYC’s The Brian Lehrer Show. “What matters here is we did everything by the law for good causes...The work we did was by the law, appropriate, above board to win pre-K, affordable housing, a Democratic State Senate,” de Blasio said. “And those were the right things to work for. Everything disclosed. No, no influence given to anyone in exchange.”

Amid accusations of doing favors for donors, the mayor in May promised that his administration will make public a list of donors who asked favors of the administration but were denied -- proof that his administration was not influenced by CONY or other donations. He has yet to produce that list and recently said he still plans to, but that the investigations must run their course first.

“It’s a whole conundrum, Brian, facing our entire campaign finance system,” de Blasio said on December 16 on WNYC. “What we should have is full public financing of elections. We should have a whole host of reforms that take money out of the equation in general. But since Citizens United, what we’re really living in is a world where a lot of people want unilateral disarmament. They want the wealthy and folks who, for example, have done huge amounts of advertising against me such as some of the hedge fund folks, to have all the freedom in the world to not disclose and spend anything they want. When the rest of us try to fight back and do it above board and with disclosure and with no inappropriate activity, it becomes such a major issue.”

[Related: The Risks of De Blasio's Interview with Federal Prosecutors]

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by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

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The Hole in the Mayor's Money-Into-Pockets Defense Wed, 08 Mar 2017 05:00:00 +0000
Should De Blasio’s ‘Agents of the City’ Be Required to File Disclosure Forms? http://www.gothamgazette.com/?id=6372:should-de-blasio-s-agents-of-the-city-be-required-to-file-disclosure-forms http://www.gothamgazette.com/?id=6372:should-de-blasio-s-agents-of-the-city-be-required-to-file-disclosure-forms de blasio speaking lecturn

Mayor de Blasio (photo: Ed Reed/Mayor's Office)


Two weeks ago, Mayor Bill de Blasio and his government legal counsel, Maya Wiley, declared that a new classification had been granted to five outside advisers of the mayor, shielding communication between de Blasio and those advisers - three of whom represent clients with city business - from certain public disclosure requirements. In doing so, de Blasio provoked heightened scrutiny, even some ridicule, of his relationships with these “agents of the city,” as Wiley called them, including the question of whether they should be subject to the same conflict of interest and financial disclosures required of top city officials.

Facing media inquiries about blocking access to communications with one of those close political advisers, the mayor’s legal team presented a tenuous, novel defense. The city had designated five individuals who work outside city government but regularly advise the mayor as “agents of the city” and declared certain communications between the mayor and those individuals exempt from transparency through the state’s Freedom of Information Law (FOIL).

The revelation and ensuing public controversy over the new classification were prompted by the denial of an initial FOIL request, made by NY1 for emails exchanged between the mayor and Jonathan Rosen of BerlinRosen, a consulting firm, and follow up questions about the justification behind it. Wiley, the mayor’s top government lawyer, explained that the request for those communications had been rejected on the premise that Rosen was acting as an “agent of the city” and explained that the protection extended to four others: Nicholas Baldick and Bill Hyers of Hilltop Public Solutions, another consulting firm; John Del Cecato from AKPD Message and Media; and U.S. Ambassador to South Africa Patrick Gaspard. Rosen and Gaspard are longtime friends of the mayor. Hyers, Baldick, Del Cecato, and Rosen were instrumental in de Blasio’s 2013 election - other than Del Cecato, they also represent clients with city business.

Likely intended as something of a throw-away phrase of legalese, the “agents of the city” moniker used by Wiley stuck and put the mayor further on the defensive. “It’s a fictitious phrase,” said Robert Freeman, executive director of the State Committee on Open Government and FOIL expert. “It’s an attempt to stretch an exception beyond what the Freedom of Information law, in my opinion, permits.” Freeman believes the mayor is outright wrong in his contention and that the exemption from FOIL only applies for consultants who have been “retained” by the city.

The five advisers are unpaid, volunteer consultants, not city employees. While they are not officially affiliated with the administration, they have a very public history with the mayor and his political career. “I think it’s appropriate I call them advisers,” de Blasio said, avoiding the “agents of the city” moniker when pressed by Brian Lehrer on WNYC last week, “I think that’s the right phrase.”

De Blasio has repeatedly said that these advisers do not discuss their clients with him and that if they did, the conversations would be disclosed as lobbying. What he is shielding from FOIL is the informal advice they give him, he says, asserting that “these are folks who are advisers, and in some cases advisers for decades.” There are questions not only about the legal validity of this claim, but also about whether these advisers should provide a full public accounting of their conflicts and finances, as deputy mayors, agency heads, and others must.

“The state’s highest court has held that exceptions to the right to access must be construed narrowly in order to foster public access,” Freeman added. “The mayor’s interpretation is exactly the reverse.”

The administration hasn’t explained the legal underpinnings for the exemptions in this case.

Multiple requests for clarification and further comment sent to the administration went unanswered. But, if the mayor can claim these exemptions using in-house legal determination that treats these individuals as de facto employees of the city, it stands to reason that their status extends to other obligations required of officials in the administration.

“By creating this special designation for unofficial advisers whose opinion carry weight, they’ve opened up a can of worms that prompts some very necessary questions,” said Dick Dadey, executive director of Citizens Union, a government reform group.

“They cannot be protected by being called “agents of the city” without bearing the responsibility to comply fully with the ethics laws governing senior employees and not also be required to file financial disclosure forms,” Dadey said.

As Dadey pointed out, there are a number of legal provisions at play. There is FOIL, which states which agency records are subject to disclosure and which are exempt. There is the Public Officers Law, within which FOIL is contained, which regulates the business and professional activities of state employees and officers of city agencies. There is the City Charter’s Conflicts of Interest section, which lays out the different rules and regulations that public servants are required to abide by and the responsibilities of the Conflicts of Interest Board. And, there is the city’s Administrative Code, which establishes financial disclosure rules for various categories of employees and public officials.

“The concept of an agency with a private person is not something I recognize or remember,” said Michael Hess, former corporation counsel under Mayor Rudolph Giuliani. “Therefore, the concept of an outside adviser whose communications are privileged is not something I’m familiar with.”

There is no specific statute in FOIL that applies to unpaid consultants. To claim an exemption from disclosing communications, as the mayor can with employees of the administration, they must necessarily fall under a city agency, presumably the Mayor’s Office in this case. FOIL defines agency as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”

Perhaps Wiley and the administration see the mayor’s “kitchen cabinet,” as he called them, as fitting that “other governmental entity” label. But, the administration has declined to explain its rationale.

FOIL lays out a number of instances where the city can deny access to records, including avoiding an invasion of privacy; protecting trade secrets; protecting the integrity of contract negotiations and awards; preventing interference in law enforcement procedures and investigations; ensuring information security; and in the case of “inter-agency or intra-agency materials” that aren’t statistical data, instructions to staff that affect the public, final policy determinations, and external audits.

The last category seems the most likely one applicable to the mayor’s consultations with the five outside advisers.

By virtue of claiming such an exemption to FOIL, de Blasio is implicitly treating these advisers as employees of the city. And if they are considered employees for the sake of FOIL exemptions, then they may be considered employees under the Administrative Code Section 12-110 that deals with annual financial disclosure for local party officials, candidates for public office, and various city employees.

Information that is required to be disclosed includes name of employer; marital status; spouse’s information; offices held by individual and spouse (trusteeship, directorship, partnership and even honorary positions); information on any additional business, trade or occupation; membership of political organizations; details of agreements and contracts; nature and amount of income above $1,000; reimbursements for expenditure; value of gifts received; assets and property owned; details of creditors, among other requirements.

The disclosure requirements generally apply to employees in a significant “policymaking position” and being a direct adviser to the mayor seems to fit that description. If de Blasio’s advisers were to fill out these disclosure forms, their clients and income would be public information, making completely evident their business before the city.

If the mayor were to contend that these individuals are not eligible for disclosure under the conflicts of interest law, it would logically follow that he cannot claim the exemption under FOIL either.

Conflicts of Interest law falls under Chapter 68 of the City Charter. “The Conflicts of Interest laws have limited jurisdiction,” said Carolyn Miller, executive director of the Conflicts of Interest Board, stressing that they only apply to current and former public servants. “It’s a narrow law,” she said. When asked if COIB could make a legal determination on the “agents of the city” and whether they would be required to file disclosure forms, Miller said she couldn’t discuss either subject.

Last week, Common Cause New York, a good government group, called on COIB to review the emails in question between the mayor and these “agents” of the city, citing their concerns that these consultants may be lobbying the mayor or using insider information to benefit their clients.

“The proliferation of the city's shadow government remains a matter of public interest, especially given this protected class of individuals who operate without oversight or accountability,” said Susan Lerner, executive director of Common Cause New York, in a statement. “Common Cause New York believes that this vague category demands explanation, and that the COIB has an obligation to review the emails withheld.”

The mayor has always maintained that the consultants do not discuss their clients with him. “[I]f any of them were ever to attempt to talk about a business matter related to a client – first of all, I wouldn’t allow it,” de Blasio said on WNYC. “Second of all, that would be something – of course that is discloseable – but what I’ve said from the beginning is they don’t talk to me about their clients and business matters with clients, they just don’t.”

At a recent unrelated press conference, Gotham Gazette asked the mayor if the public should not be allowed some insights into the conversations he is having with what he described as “a kitchen cabinet” like other mayors have had, even if portions of the discussions were redacted, as emails obtained through FOIL often are. “I understand the question,” de Blasio said, “but I believe that their role as advisers was appropriate, and the way it’s being handled based on legal guidance is appropriate.”

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by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

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

Note: this article has been corrected to reflect that John Del Cecato does not represent clients with city business.

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Should De Blasio’s ‘Agents of the City’ Be Required to File Disclosure Forms? Wed, 01 Jun 2016 04:00:00 +0000