Gotham Gazette http://www.gothamgazette.com/component/tags/tag/244 Sat, 21 Oct 2017 23:08:13 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) Reform Will Only Happen Through a State Constitutional Convention http://www.gothamgazette.com/?id=7025:reform-will-only-happen-through-a-state-constitutional-convention http://www.gothamgazette.com/?id=7025:reform-will-only-happen-through-a-state-constitutional-convention Cuomo Silver Skelos ethics reform

(photo: The Governor's Office)


Albany ended the legislative session without any government ethics reform and without any voting reform. Although there have been fewer arrests for corruption this session than last, no legislator should take this as a sign of improvement. And New York State voters should accept the truth that the Legislature itself will never seriously vote against its members’ self-interest to make progress on ethics or electoral reform.

The only opportunity for New Yorkers for real reform is on the ballot on November 7, 2017, where we will be able to vote “yes” for a State Constitutional Convention.

This year, some state legislators talked about passing voting reforms in our archaic, closed system, such as early voting, reducing the time required to switch parties, and same-day registration, but none happened. This legislative session we heard calls for closing the LLC loophole, fixing pay-to-play allowances, and eliminating “lulus” -- stipends that go to legislators, sometimes for work they don’t actually do.

The response to the news that almost all State Senators receive these lulus, or extra committee or conference leadership stipends, regardless of whether they are actually leading any committee, has been lackluster. The State Senate, for the first time in eight years, convened its ethics committee on June 15, less than a week before the end of the legislative session. It decided to table the lulu issue, who knows until when.

There will be a chance to make constitutional reform on the ballot this year aside from the Con Con. The one reform voters have the opportunity to enact is to revoke the pensions of legislators convicted of a crime, and that’s only because it was the singular outcome of legislators responding to the anger of voters over the corruption scandals that took down two legislative leaders in one year and have plagued the capital for decades.

One worthwhile result with a slew of problems brewing should not be taken as sufficient for voters in the state. Voters should enact the pension-stripping measure and also vote for a Constitutional Convention.

To be sure, a Constitutional Convention should not be a second way to legislate. Many different interest groups will try to use the Constitutional Convention to effect their legislative goals, such as the legalization of recreational marijuana, banning abortion, or creating a road to upstate secession. However, the one problem that a majority of constitutional delegates and eventually New York voters can agree on is that the years of legislative sclerosis are a systemic problem that the State Constitution could fix. Moreover, legislators themselves will not legislate their way into solving those problems, even if there is a switch in partisan power.

Saying yes to a Constitutional Convention is worth the fight. The delegates could draft a new and improved version of the state’s democratic system, which would then be put to the voters. New York voters are smart enough to reject changes that merely reinforce the status quo or do damage to our civil rights. The opportunity to vote yes for a Constitutional Convention every 20 years is a deliberate acknowledgment from the state Constitutional framers that politics will sometimes overwhelm the legislative process. The lawmakers will not fix the problems on their own, the people must do it.

On November 7, vote “yes” for a Constitutional Convention.

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Richard Semegram is tenant lawyer based in Brooklyn. On Twitter at @richagram.

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Reform Will Only Happen Through a State Constitutional Convention Mon, 26 Jun 2017 04:00:00 +0000
For Cuomo, Ethics Reform Forgotten as Budget Lurches http://www.gothamgazette.com/?id=6859:for-cuomo-ethics-reform-forgotten-as-budget-lurches http://www.gothamgazette.com/?id=6859:for-cuomo-ethics-reform-forgotten-as-budget-lurches Cuomo Mujica David budget

Gov. Cuomo, middle, with two top aides (photo: Philip Kamrass/Governor's Office)


Governor Andrew Cuomo forgot about government ethics reform. At a press conference Wednesday, the governor explained to reporters that state budget talks had fallen apart over a few core issues. He pointed out with pride, though, that virtually everything he had proposed earlier this year he had gotten the Legislature to agree on, other than two major sticking points related to criminal justice and affordable housing. Cuomo had to be reminded by his budget director, sitting to the governor’s right, that Cuomo’s ethics reform agenda was another item without agreement.

In fact, it appears that Cuomo’s government ethics, campaign finance, and voting reform platform, which he unveiled in January along with the rest of his 2017 policy agenda and budget outline, is the only entire category of proposals completely off the table as budget negotiations continue.

It is not surprising that government ethics was not top of mind for Cuomo, who is trying to negotiate a $160 billion state budget under challenging conditions. The state is already a week into its new fiscal year, operating under a budget “extender” in order to keep state government functioning. That extender was passed Monday and is good through May 31, but Cuomo and legislative leaders had continued to negotiate in hopes of passing a full fiscal year budget before legislators left the capital for their customary two-week April break. Cuomo announced Wednesday evening that there was no deal, speaking to reporters during a press conference in the Capitol’s Red Room and flanked by his budget director and lead counsel.

The governor gave a nearly 20-minute explanation of budget negotiations and his take on where things should head, then took questions from reporters, repeatedly stressing all that he had gotten legislators to come to terms on. Virtually all of his proposals, the governor said, had been accepted in some form, other than raising the age of adult criminal responsibility and a new property tax abatement program meant to spur affordable housing development in New York City. Cuomo then asked his budget director for confirmation. “Ethics reform,” Robert Mujica reminded him; “and ethics reform,” Cuomo repeated, adding it as a footnote to the conversation.

Through his omission and then recognition that ethics reform was nowhere to be found, Cuomo acknowledged that even with negotiations set to continue, his lengthy set of “good government and ethics reform” proposals would not pass the Legislature any time soon. The agenda includes closing the infamous LLC loophole, creating a public campaign financing system, instituting early voting, and more.

The lack of movement on these reform measures comes despite the fact that a recent public opinion poll by Quinnipiac showed that 80 percent of New York voters said state government corruption is a "very serious" or "somewhat serious" problem. And, after major corruption scandals brought down both recent leaders of the two houses of the state Legislature and several close associates of and donors to Governor Andrew Cuomo were indicted on corruption charges. On Thursday, a federal court judge set a trial date of October 30 in the case against former Cuomo aides and donors for bid-rigging, bribes, and kickbacks related to the governor’s signature economic development programs.

The lack of movement also comes after New York ranked 41st in voter turnout among states in the 2016 presidential election.

As Cuomo highlighted Wednesday night, many compromises have been reached through negotiation, including billions more funding for the governor’s economic development programs. “We have an agreement on many items,” Cuomo said. “We have agreement on the Millionaire’s Tax, on the middle-class tax cut, on the water program that’s actually passed, on ride sharing, on college affordability, on workers’ comp, on property tax reform and citizen empowerment to get people involved in their state and local taxes...we have agreed on a prescription drug program, which is the first-in-the-nation, on a opioid program, which is a very aggressive program – so, we’ve done a lot of good work.”

But, there has been no movement on the 14-plank reform agenda that Cuomo included in his executive budget, which was released in January just after he concluded his six-stop State of the State speaking tour in Albany with reform measures as a key piece of his final speech.

“State government must do more to restore the public trust because as public servants we earn the trust of the people we serve. Unfortunately, in Albany there have been a series of breaches of that trust,” Cuomo said in January. “We must take action to show the people of this state that we get it, and that when someone does something wrong, they are punished to the full extent of the law and we have a system that is going to catch them.”

Nor has there been any movement on adding new oversight measures to Cuomo’s economic development spending, such as renewed contract vetting powers for the state Comptroller.

“[I]t doesn't look like the issue of procurement reform or much of the other reforms that people have been pushing for seem to be included [in the budget],” Comptroller Thomas DiNapoli told Capitol Pressroom host Susan Arbetter on her show Wednesday morning, “so let's hope that that means that those issues will be dealt with post-budget. They're very important issues.”

“We need to tighten up our procurement procedures,” DiNapoli continued, adding that while economic development is important, “more checks and balance, more oversight, is appropriate.”

Those who watch state government closely see that in many cases, Senate Republicans, who control that chamber, form the blockade to proposed reforms. But, it is also evident that Cuomo appears to put little priority in seeing major reforms through. Known for his ability to get passed what he prioritizes, including controversial measures like same-sex marriage to gun control to minimum wage hikes, Cuomo has been notably silent on ethics and voting reform since his January State of the State.

One exception being when Cuomo was asked by a WNYC radio reporter about moving voting reforms through the budget and he replied that he was going to try, but they weren’t really budget matters and could be taken up in the legislative session to follow a budget agreement.

On Tuesday, Cuomo told reporters that raising the age of adult criminal responsibility should be done in the budget because it has financial aspects to it. The same could be said for early voting, which would require polling places to be open leading up to Election Day.

In the Quinnipiac poll from late March, voters were split on whether the governor and Legislature would address government corruption: 44 percent said they would, 43 said they won’t. Meanwhile, 43 percent of those polled said Cuomo is "part of the problem of ethics in government" and 44 percent said he's "part of the solution."

Cuomo’s office did not respond to two requests for comment about the governor’s “good government and ethics reform” agenda being fully absent from the budget.

It is important to note that some of that agenda called for more power for Cuomo, including governor-appointed inspectors general for the Port Authority and the State Education Department, as well as expanded power for already existing, governor-appointed inspectors general of the CUNY and SUNY systems.

While the Legislature did not go along with these proposals, it also failed to adopt measures Cuomo included that would apply more broadly, like closing the LLC loophole -- which the governor has benefited the most from -- and instituting public campaign financing, and a measure that would expand the state’s freedom of information law to include the Legislature.

On the other hand, the Legislature was seeking more transparency from the members of Cuomo’s Regional Economic Development Councils through financial disclosures, in part to examine if REDC members had any business stakes in projects related to their volunteer work on the councils, which help dole out millions of state grants. Cuomo strongly objected to this proposal and it also appears to be out of the budget.

New Yorkers won’t know final details until a full 2017-2018 fiscal year state budget deal is reached.

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by Ben Max, Gotham Gazette
     

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For Cuomo, Ethics Reform Forgotten as Budget Lurches Thu, 06 Apr 2017 04:00:00 +0000
Largely Inactive Senate Ethics Committee Restructures http://www.gothamgazette.com/?id=6718:largely-inactive-senate-ethics-committee-restructures http://www.gothamgazette.com/?id=6718:largely-inactive-senate-ethics-committee-restructures gianaris state senate site

Sen. Gianaris (photo: State Senate)


New York state government has had no shortage of ethics scandals, but has had a deficiency in active, effective bodies to prevent, punish, and root out bad behavior among elected and appointed officials.

When the new legislative session began in Albany earlier this month, there was an immediate shake-up of the long-dormant state Senate ethics committee, throwing the always-simmering chamber to a quick boil.

The Senate ethics committee, as well as a parallel committee in the New York State Assembly, in theory, are places where lawmakers review and make recommendations on Senate policies, including travel expenses, time and attendance, sexual harassment, and other aspects of workplace ethics. Like other issue committees, the ethics committee should consider ways within its purview to improve governance, such as limiting legislators’ outside income or requiring greater disclosure of potential conflicts of interest.

Yet, even with much to do, the committees’ actual function is unclear: despite the fact that committee chairs in both chambers earn an additional $12,500 stipend per year, legislative ethics committees have rarely met over the last two decades, allowing misdeeds to go unaddressed in-house.

As the rules were being adopted for the new Senate class that will govern for 2017 and 2018, the majority coalition of Republicans and the Independent Democratic Conference -- a seven-member group of breakaway Democrats -- included changes to the ethics committee.

After a brouhaha over how the committee would be structured, how the political parties and conferences would be represented on it, and, essentially, what it means to be a Democrat in the New York State Senate, the committee’s new shape was established. It will grow by one member, to nine, and will give the IDC significant power to determine what business, if any, the committee takes up.

Initially, Senator Thomas Croci, a Long Island Republican and the previous ethics committee chair, proposed that, at eight members, the committee be split evenly by representatives of the two major political parties, rather than by majority and minority conference, as was previously the case. Ostensibly, this would have meant that the committee could feature four Republicans and four IDC members.

The motion was challenged by Democratic Senator Michael Gianaris of Queens, who, on the first day of the session, January 4, pushed for the body’s continued split between the two major conferences, or three ways among mainline Democrats, Republicans, and the IDC.

Croci argued that an equal split by political party would create parity with a similar body in the New York State Assembly, while Gianaris questioned how committee members would be selected and whether such a makeup would equate to a GOP/IDC power-grab.

“Ethics committees have always been treated differently, regardless of makeup of bodies, because of their very sensitive nature and the possibility of using an ethics overview committee for political reasons,” Gianaris said on the Senate floor.

Though Croci’s resolution passed at that January 4 session, last week Senate Republicans agreed to revisit the issue. They hammered out an agreement with Democrats that satisfied members of all three conferences. The new committee will include nine members — three Republicans, three mainline Democrats, and three IDC members.

Committee members are to be appointed by leaders of the three conferences. While the new structure disproportionately represents members of the Republican-IDC coalition, any investigation proposed by the body must have the approval of one member from each conference to move forward, according to the new rules. Effectively, it remains easy for a conference to kill an internal ethics investigation into one of its members.

The full list of ethics committee members were revealed during legislative session on Tuesday, with Elaine Phillips, a freshman Republican from Long Island, replacing Croci as chair, while former chairs Croci and Andrew Lanza, of Staten Island, remained on the body as Republican committee members. Senators David Valesky, Staten Island’s Diane Savino, and David Carlucci of the IDC also joined the committee, and three mainline Democratic seats will be filled by Gianaris, Brooklyn’s Roxanne Persaud, and Gustavo Rivera of the Bronx.

An aide to Croci said the senator never intended to politicize the committee’s structure, but that he believed strongly that the body should mirror the Assembly’s structure. A spokesperson for Senate Democrats said that Republicans were eager to find a solution at this Tuesday’s session that is satisfactory to all parties.

“We are pleased with the final composition of the Senate Ethics Committee and thank the Senate Republicans for working with us to achieve equal representation for all Senate Conferences,” said Mike Murphy, communications director for Senate Democrats, who are led by Minority Leader Andrea Stewart-Cousins.

IDC Leader Jeff Klein, who has been mostly silent on the issue so far, issued a statement through spokesperson Candice Giove: "The original intention of the Ethics Committee makeup was never to be unfair to any Senate conference, but in its new configuration I expect all appointees from each of the Senate's three conferences will carry out their work just the same -- in a fair and ethical manner."

Political affiliations aside, the ethics committees in both legislative chambers have been repeatedly criticized for failing to police their own houses or put forward any ethics reforms. Instead, critics say, they have been focused on protecting lawmakers from scrutiny, despite pervasive corruption and major ethical lapses. There has been a long parade of state legislators who have left office due to corruption scandal, including, recently, the two legislative leaders, Sheldon Silver and Dean Skelos.

Blair Horner, executive director at NYPIRG, a government reform group, said this move sets an unusual precedent for legislative standing committees, but said ultimately internal ethics committees are no substitute for meaningful independent oversight.

“It’s understandable where they are going, if that’s how they want to enforce their own rules, but what New York needs is independent oversight, and no one -- except [United State Attorney] Preet Bharara -- is talking about that,” he said.

The Senate ethics committee has not met since 2009, when Senator John Sampson was chair, according to the Senate website. Sampson, ironically, was convicted in 2016 on charges of obstructing justice and lying in relation to a federal investigation into whether he had embezzled state funds, and is expected to be sentenced shortly.

U. S. Attorney Preet Bharara, who has overseen the convictions of more than a dozen state lawmakers, including former Senate Majority Leader Skelos and former Assembly Speaker Silver, told the New York Times that the ethics committee’s blank calendar reveals how ineffectual these bodies are.

“The idea that the chair of the ethics committee has never had the opportunity to mark up a bill, has never had the opportunity to hold a hearing tells you everything you need to know about the enabling nature of all the people in the State Legislature who may not have been convicted of crimes, but seem not to care that they’re going on,” he said.

Senator Tony Avella, a Queens Democrat and former committee chair, testified at Skelos’ 2015 corruption trial, that he was surprised to learn that Senate had never referred a bill to the committee and no bill has ever been produced by the committee for a vote.

“You’d think the standing committee would have the ability to have bills referred to it,” Avella told the Times last year. “I think it would be important, for anything that has to do with ethics reform, that it should go to the Ethics Committee.”

But when Avella tried to call a meeting to try to address some ethical issues plaguing the legislature, he told outlets the meeting was canceled over budget negotiations and was never recalled.

Whether this latest restructuring indicates a sign of life from the defunct committee, or results in yet another year of inaction -- one absent of hearings, bills, or proposed reforms  -- remains to be seen.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

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Largely Inactive Senate Ethics Committee Restructures Wed, 18 Jan 2017 05:00:00 +0000
Now a Lobbyist, Democratic Power Broker Faces Restrictions in New Job http://www.gothamgazette.com/?id=6702:now-a-lobbyist-democratic-power-broker-faces-restrictions-in-new-job http://www.gothamgazette.com/?id=6702:now-a-lobbyist-democratic-power-broker-faces-restrictions-in-new-job Keith Wright Governor Cuomo

Keith Wright, left, & Gov. Cuomo photo: (Kevin P. Coughlin/Governor's Office)


A Democratic power broker from Harlem has been hired by a prominent lobbying firm to join its efforts to influence city and state government. Formerly state Democratic Party chair and a member of the state Assembly, Keith Wright is joining Davidoff Hutcher & Citron LLP, but under state law he must avoid matters before both chambers of the state Legislature for two years after leaving office.

Wright, who has been involved in New York politics for several decades, is currently chair of the Manhattan Democratic Party. He had been rumored as a City Council or state Senate candidate after he lost in a June Congressional primary and subsequently vacated his Assembly seat after declining to seek reelection. Wright’s move to Davidoff Hutcher & Citron LLP was first reported by Politico New York on Wednesday morning.

The former legislator will “immediately take on a leadership role” in the firm’s lobbying at the state and city levels, according to a press release posted on the DHC website. A partner told Gotham Gazette that Wright's exact role is still being defined.

Under New York State’s Public Officers Law, however, Wright would be barred from lobbying before the state Legislature for two years. Without commenting specifically on Wright’s case, Walter McClure, director of communications for the state Joint Commission on Public Ethics, said in an email that restrictions under Section 8(a)(iii) apply to former legislators. That section of the law prohibits a former member of the Senate or Assembly from receiving compensation for “any services on behalf of any person, firm, corporation or association to promote or oppose, directly or indirectly, the passage of bills or resolutions by either house of the legislature.”

McClure clarified though that a former legislator “could appear before other local, state (such as agencies and/or the Executive Chamber), or federal bodies.”   

Wright has been figuring out his next step since his unsuccessful attempt for retiring Congressional Rep. Charles Rangel’s seat. Wright lost to fellow Democrat Adriano Espaillat in that June primary.

“Keith Wright’s only career has been in government and he’s a valuable commodity because of his public service as an elected official,” said Dick Dadey, executive director of Citizens Union, a government reform group. “He needs to do what he knows and he knows how government functions very well so he is doing what I think anyone would do in his position.”

Dadey said Wright is “an honorable guy” and he should be careful not to come in contact with the state Legislature, but, “everything else is fair game” if he follows the law.

Wright’s move comes as budget negotiations will soon begin in Albany. The former Assembly member and Democratic leader has a close relationship with Governor Andrew Cuomo -- as chair of the state party, Wright strongly advocated for the governor’s reelection in 2014. He’s also held crucial positions in the Assembly majority, chairing key committees like housing, and heads the New York County Democratic Party Committee.

“We’ve known Keith for a lot of years,” said Charles Capetanakis, partner at DHC and member of the firm’s management committee. Capetanakis said Wright would be part of the government relations team but could not specify in what capacity. “His role and involvement is yet to be determined,” he said, noting the prohibitions that Wright will face under state law. Wright was not made available for comment.

In the announcement of his hire, Wright said, “While I will always cherish my time as a New York State Assemblyman, I am ready for a new challenge."

DHC's "team of lobbyists" is "led by Sid Davidoff in New York City and Steve Malito in Albany," according to the firm, and "DHC Government Relations clients have included Fortune 500 companies, major cultural institutions, land developers, government contractors, educational institutions, municipalities, public authorities, community interest groups, labor and professional organizations, non-profit corporations, and charities. We have seen success in local, state, and federal advocacy efforts in all of these areas."

Government watchdogs do warn that Wright must tread carefully in his new role on the other side of the fence. “[Wright] has to be very careful in the ethically charged political environment in Albany,” said Blair Horner, executive director of the New York Public Interest Research Group. “My advice to the assemblyman is to follow the spirit, not just the letter of the law in terms of how he deals with government.”

Although Horner acknowledged that Wright’s new employment opportunity is “perfectly allowed” under state law and is “a well-tried path” for many lawmakers, he said his organization would instead like to see a more comprehensive ban on lobbying across the state Legislature and the Executive.

Citizens Union’s Dadey said, “There is a bright line there that can be followed and [Wright] needs to make sure he follows it, between the Executive and the Legislature. He can influence what the Executive branch presents and decides on the budget but he can’t come anywhere near any legislative activity. There are two halves to this budget process and he needs to make sure he stays in only one half.”

[Read: Special Election for Harlem City Council Seat Kicks Off]

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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. ]]>
Now a Lobbyist, Democratic Power Broker Faces Restrictions in New Job Thu, 05 Jan 2017 05:00:00 +0000
Use of Abstentions Varies Widely Among City Council Members http://www.gothamgazette.com/?id=6410:use-of-abstentions-varies-widely-among-city-council-members http://www.gothamgazette.com/?id=6410:use-of-abstentions-varies-widely-among-city-council-members 27083071523 4affcb6e87 z
City Council chambers (Sofie Hecht for Gotham Gazette)


Hundreds of times a year, City Council members vote on pieces of legislation, including the city’s budget, land use matters, and a wide variety of bills and resolutions. Members almost always vote “yes” or “no.” But sometimes, Council members choose to abstain, actively deciding not to declare they are for or against what is in front of them, and in the 51-seat City Council, abstentions are used by members to widely varying degrees.

In the New York State Assembly, lawmakers may only abstain from a vote when doing so would constitute a conflict of interest. In the New York City Council, however, lawmakers must abstain from a vote if there is a legitimate conflict of interest, but may abstain for other personal or political reasons as well. This leeway has led to some interesting voting patterns. Of the Council’s current 51 members, 34 did not abstain from a vote during this iteration of the Council, which began in January of 2014, through May 12, 2016. The other 17 Council members have abstained between one and 103 times.

At Gotham Gazette’s request, data on all votes from the current Council session -- January 2014 to May 12, 2016 -- was scraped from the City Council website by NYC Councilmatic and DataMade, a civic technology company.

City Council Member Ruben Wills, who has been indicted on corruption charges and also dealing with health issues, has abstained 103 times. Wills, who has also been declared absent for many votes, which is different from abstaining, declined to comment when contacted. The second most abstentions over the two year-plus period was by Council Member Jumaane Williams, who abstained 36 times. Council Members Andy King and Inez Barron abstained 21 times each, and Council Member Rosie Mendez abstained 14 times.

The other 13 Council members who abstained during the tabulated time period did so between one and four times.

(Note: some Council members abstained on the same bill or issue brought up at different times, like in committee and at the full Council. Bills must pass through committee, then the full Council to go to the Mayor’s desk.)

Two-thirds of Council members did not abstain from a single vote during the period studied. Two of those Council members who spoke with Gotham Gazette expressed similar opinions about the importance of voting, citing conflict-of-interest as the lone justifiable exception for abstaining. Council members who have abstained gave a variety of explanations when asked.

“I have one job. That job is to vote,” said City Council Member Ben Kallos, who has not abstained on a vote since joining the Council in 2014. “It is the one power, the one privilege that I have that no one else has and I take it seriously, and come to a decision every time. I was elected by the people to vote and for constituents to know where I stand on these issues.”

Nine Council members who have abstained on at least one vote gave reasons to Gotham Gazette, including: being supportive of part of but not the whole bill, and believing the bill needs more work, but not opposed to the concept enough to warrant a “no” vote; concern about the unintended consequences of a bill; needing additional time to review the legislation and/or gather feedback from constituents; deference to colleagues; and avoiding making a politically unwise move.

“I imagine there are three reasons for abstaining,” said Council Member Ritchie Torres, who has not abstained since joining the Council in 2014. “You might abstain out of ethics: you have a conflict of interest. Or you might abstain out of politics: you wish to avoid making a politically inexpedient vote. Or you might abstain out of ambivalence about the merits of the vote in question.”

Of those three, Torres continued, “the only sensible justification is ethics,” the other two are “insufficient justifications for abstaining.”

UNINTENDED CONSEQUENCES
Council Members Mark Treyger and Alan Maisel have both abstained only once, on a 2014 bill that eventually resulted in the creation of the city’s IDNYC municipal identification card program. Treyger and Maisel, both former educators, were supportive of the policy, but had concerns about the way the data gathered to create ID cards for potentially undocumented immigrants would be stored, and who might have access to that data.

During a hearing on the bill, “Maisel and I asked about the security and the storage of the names of the applicants when they apply for the card, who holds it, who stores it, and is this information accessible by the Department of Homeland Security,” Treyger told Gotham Gazette. “The answer was ‘yes,’ we were told they have to store the information for a number of years, and it can get turned over to the [federal] government.”

“I quite frankly did not feel comfortable with these answers, so I abstained as a sign of a lack of confidence with the security and protection of the names, but I didn’t reject it as a whole, because I did advocate for resident discount cards for New Yorkers,” Treyger added.

Both Maisel and Treyger said that their previous experience as educators had shown them that some immigrant parents were deeply concerned about sharing information, and the two Council members were worried that information gathered for IDNYC cards could end up in the wrong hands.

“For example,” Maisel said, they would essentially end up creating a list for “a certain presidential candidate who could possibly become elected president, and we know where he stands on people who are undocumented,” in obvious reference to Donald Trump, the presumptive Republican presidential nominee who has talked about rounding up undocumented immigrants for deportation.

POLITICAL MOTIVATIONS
Five Council Members abstained on a recent bill to limit the space in which costumed characters and other performers can operate in Times Square. The five members who abstained on the bill are all members of the Black, Latino, and Asian Caucus: Andy King, Rosie Mendez, Inez Barron, Vanessa Gibson, and Antonio Reynoso (Robert Cornegy Jr., also a member of the BLAC, was the lone “no” vote on the bill).

Mendez and King said that they chose not to vote “yes” or “no” on the bill because King had introduced a similar bill back in 2014, yet neither King nor his bill were included in the drafting and passage of the new bill, introduced by Council Member Corey Johnson.

“When multiple Council members have ideas for the same or similar legislation, they will combine the Council members,” Mendez said. King had proposed the legislation years ago, Mendez said, but “King was never asked, never told anything, and his bill was disregarded.”

“When I didn’t see Andy’s name on it, I decided to abstain,” Mendez continued, adding that she did not have a chance to compare Johnson’s bill against King’s bill to see how similar or dissimilar they were. “At the end of the day I had real concern about..the role of community boards not being included in the legislation.”

“It got a little personal, so I chose not to vote on it, because I believed still more work needed to be done,” King said of Intro-1109, the pedestrian plaza bill, which is now law.

“As you know, I started this conversation in 2014,” King continued, “and I thought it didn’t play well in the Council for other Council members to pass something without inclusion of legislation that was already in the queue to address that…I chose not to participate rather than saying “no” to this one, I wanted to work to put more teeth in it.”

A spokesperson for Council Member Antonio Reynoso said that he abstained (his only abstention over the two-plus year period examined for this article) due to concern about “potential unintended consequences of the bill. However, many members and advocates that we work with regularly and whose judgment we trust were for it, so he didn’t want to go against it either. Instead he opted not to take a formal position.”

Council Members Gibson and Barron were not made available for comment, despite numerous requests.

NOT THE WHOLE PACKAGE
Occasionally, Council members will abstain from voting on a bill because they do not entirely approve of it (whether it is due to what they see as potential unintended consequences or simply falling short of what would be ideal for their constituents).

For example, Mendez abstained on one of two controversial changes to city land use rules (Zoning for Quality and Affordability, or ZQA) in committee because she felt that “recent contextual rezoning that happened in the last ten years should've been kept intact.”

Yet, Council members “made changes, so I didn't feel it merited a “no” vote,” she said. “But they didn't make enough changes to get me to a “yes.” So I abstained….it wasn’t completely wrong, it wasn’t completely right, so I felt like that was the appropriate vote.”

To Doug Muzzio, professor of political science at Baruch College, occasionally abstaining on a vote because some elements of the bill warrant a positive vote, but some warrant a negative vote “makes a great deal of sense.”

“But,” Muzzio continued, “Ruben Wills abstaining 103 times indicates that he’s a very confused Council member, and a very conflicted Council member.”

“An excessive amount of abstentions,” Muzzio said, suggests “that he doesn’t have very clear ideas in his mind of how to asses a policy so he takes the easy way out, which is abstaining.”

DEFERENCE/LAND USE
At other times, Council members may choose to abstain, as King puts it, “as a professional courtesy to my colleagues, as opposed to saying that we’re not all on the same page.” “Unless it’s something that has a really, really devastating impact on my constituents,” King added.

Abstaining out of deference seems to occur more often in the context of a vote on land use items, where the Council is known to defer to the local member whose district is directly involved. “I have abstained usually land use items that are in a particular member's’ district,” Mendez said. “I would have otherwise voted “no,” but in deference to the Council member of that district I will abstain.”

This is because, as Mendez puts it, “I really feel like I know my district better than anyone else…Likewise, I’m not sitting in on all the minutiae of what [another Council member is] trying to negotiate for their district.”

But as Torres sees it, “land use is the only context which a rank-and-file Council member can emerge as a counterweight to the Mayor’s Office,” and abstaining in land use out of deference to another Council member means those members who abstain “are enjoying the benefits of local deference themselves while denying the benefit to everyone else. There’s a word for this - parasitic.”

“As far as I’m concerned, it’s parasitic,” Torres continued. “It’s not inaction, you are actively undermining the Council as an institution and…reaping the benefit of local deference to yourself while denying it to your colleagues.” For Torres, the only valid reason for choosing not to vote “should be ethics.”

NOT ENOUGH TIME
On April 14, Council Member Jumaane Williams abstained on a vote on the East New York rezoning plan in subcommittee, only to change his vote to a “yes” when the same bill was heard in the Land Use committee less than an hour later.

“I just got the final plan this morning. I want to make sure to review it properly,” Williams said at the time when asked by Gotham Gazette. “At first glance, it looks good. I’m still a little concerned about MIH [Mandatory Inclusionary Housing, the companion land use change to ZQA], but there wasn’t much more you could ask him [Council Member Rafael Espinal] to do. That’s why I changed my vote to a “yes” in Land Use.”

“I will vote “yes” on the floor,” Williams said, and did. “There’s obviously people left out of the plan. We have to figure out how to address that. But with the tools at his disposal, I think [Espinal] did the best that he could.”

According to Travis Lamprecht, a spokesperson for Council Member Vincent Gentile (who has abstained four times), the Council Member “will choose to do so when he needs additional time to gather feedback from his district in order to make an educated decision for his constituents.” Gentile has abstained twice on land use matters; once on Williams’ 2014 bill to prohibit discrimination when hiring based on a person’s arrest record; and once on Council Member Helen Rosenthal’s 2014 bill in relation to traffic violations and serious crashes and license suspension.

EXPLAINING ON THE FLOOR
Council Members Brad Lander and Helen Rosenthal, both of whom have not abstained in the aggregated period, declined to comment for this story. Council Members Vanessa Gibson (four abstentions), Inez Barron (21), Robert Cornegy (four), Andrew Cohen (four), I. Daneek Miller (two), Eric Ulrich (two), Chaim Deutsch (two), Darlene Mealy (one), and Paul Vallone (one) all were not made available for comment, despite numerous attempts.

It should be noted that abstaining is different from “non-voting,” which can occur when a Council member is not present for the vote. Council members may also be marked as “excused” from voting for medical reasons, or for jury duty, parental leave, and bereavement.

Vallone’s only abstention was on legislation prohibiting Council members from earning most forms of outside income and making the position of Council member full-time (one of Deutsch’s two abstentions was also for this legislation).

Ulrich's two abstentions were on bills introduced by Brad Lander requiring the NYC Commission on Human rights to perform an employment discrimination investigation and a housing discrimination investigation.

Three of Gibson's four abstentions occurred on April 7, 2016 (on the pedestrian plaza bill, on a bill to increase penalties for illegal street hails at the city's airports and other designated areas, and on a bill to create a universal license for taxicab and for-hire vehicle drivers and require that English language proficiency not be assessed through a written exam).

“Abstaining can mean several things,” as Muzzio said, but “one should always explain an abstention, because in a sense, it’s a chicken[expletive] vote, meaning it’s a way to evade a hard choice.”

“Ultimately,” says Blair Horner, legislative director of the New York Public Interest Research Group, “the voters are the judge, because their interest is what is supposed to be represented.”

“City Council members are accountable to the people who elect them, and it’s important for the public to know if a Council member chooses not to vote on an issue that a constituent thinks is important,” Horner said. “The Council member should have to explain it.”

When abstaining, Council members occasionally give a brief explanation for their vote.

“We are giving Department of Transportation the authority to justify the complete removal of costumed characters from Times Square,” Reynoso said during an April vote on the pedestrian plaza bill. “Should it lead to unintended consequences...we would be left with little recourse outside of legislation to undo any action,” he added, expressing concern over the potential tension and competition that could arise should the costumed characters in Times Square be “corralled” into the proposed spaces, and he abstained.

“This has been a very important process, not perfect, but better than when it started,” Mendez said during the March vote on rezoning plans. “I think some of the Voluntary Inclusionary Zones could have been made mandatory…And I'm not happy with the fact that we are getting some height increases in the non-contextual zones,” but, Mendez continued, “since some work was done on this, and I feel that it is important to have a mandate inclusionary housing, I will be voting “yes”” on two pieces of legislation and “abstaining on LU 335 and the accompanying Reso 1023.”

ABSTENTION DATA, provided by Councilmatic and DataMade
Council members and number of abstentions from the current session, January 2014 to May 12, 2016

Ruben Wills 103
Jumaane Williams 36
Inez Barron 21
Andy King 21
Rosie Mendez 14
Andrew Cohen 4
Vincent Gentile 4
Robert Cornegy 4
Vanessa Gibson 4
Chaim Deutsch 2
Eric Ulrich 2
I. Daneek Miller 2
Mark Treyger 1
Paul Vallone 1
Alan Maisel 1
Darlene Mealy 1
Antonio Reynoso 1

Ben Kallos 0
Ritchie Torres 0
Brad Lander 0
Helen Rosenthal 0
Steven Matteo 0
Margaret Chin 0
Peter Koo 0
Fernando Cabrera 0
Costa Constantinides 0
Elizabeth Crowley 0
Laurie Cumbo 0
Inez Dickens 0
Daniel Dromm 0
Rafael Espinal 0
Mathieu Eugene 0
Julissa Ferreras-Copeland 0
Dan Garodnick 0
Barry Grodenchik 0
Karen Koslowitz 0
Stephen Levin 0
Mark Levine 0
Melissa Mark-Viverito 0
Carlos Menchaca 0
Annabel Palma 0
Ydanis Rodriguez 0
Donovan Richards 0
Deborah Rose 0
James Vacca 0
Jimmy Van Bramer 0
Joe Borelli 0
Rafael Salamanca - 0

*Maria Carmen del Arroyo, Vincent Ignizio, and Mark Weprin also served as Council Members during this session before resigning and being replaced by Salamanca, Borelli, and Grodenchik, respectively, though none of the three abstained on any vote during the aggregated period.

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by Meg O'Connor, Gotham Gazette
     

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Use of Abstentions Varies Widely Among City Council Members Wed, 22 Jun 2016 04:00:00 +0000
Cuomo Appears to Give Up on Legislature Closing LLC Loophole http://www.gothamgazette.com/?id=6409:cuomo-appears-to-give-up-on-legislature-closing-llc-loophole http://www.gothamgazette.com/?id=6409:cuomo-appears-to-give-up-on-legislature-closing-llc-loophole cuomo budget mujica

Gov. Cuomo & his budget director, Robert Mujica (photo: The Governor's Office)


Gov. Andrew Cuomo appears to have given up on the state Legislature taking action to close the notorious LLC loophole, which allows wealthy donors to subvert campaign finance laws by creating multiple limited liability corporations that can each give more than $60,000 to a candidate’s campaign.

According to The New York Times, Cuomo said this weekend that it would be up to the public to close the loophole through a constitutional convention.

In January, the governor made closing the LLC loophole a key plank of his government ethics reform package. He and his representatives have said repeatedly that Cuomo wants the loophole closed. In late May, after months without mentioning the loophole unless prompted by reporters, the governor unveiled “a menu” of eight bills that would partially close the loophole for various combinations of campaigns for elected positions -- all of the bills would have impacted gubernatorial candidates, including the incumbent governor, who has been the biggest beneficiary of LLC giving.

“The people of New York are demanding change and it’s time we took action to restore the public trust by closing the LLC loophole and bringing fairness to our campaign finance system,” Cuomo said in the May 24 statement announcing his bill menu aimed at closing the loophole that has allowed tens of millions of dollars into campaign accounts. “For years, I have proposed closing the LLC loophole – one of the most egregious flaws in our campaign finance system – and every year the bill has stalled.”

According to Cuomo, Senate Republicans are unwilling to act on the loophole because they rely on corporate money. The legislative session ended with what many reform advocates see as minimal ethics reforms, highlighted by a move toward stripping pensions from officials convicted of corruption. In his first post-session remarks, the governor told The Times that there is no path to closing the LLC loophole through the Legislature and that it must be done through a constitutional convention.

“There has to be a dose of reality in the assessment,” Cuomo told The Times. “It is tantamount to political suicide for the Republican Party in this state because they believe it ends corporate money, and only union money would come into the system, which would help the Democrats.”

He added: “The people are going to have to do it,” referring, according to The Times, to a constitutional convention.

A number of reform advocates and legislators who support closing the loophole were taken aback by Cuomo’s comments and their meaning in terms of his pursuit of reform. Cuomo made little public effort to move the multi-faceted reform agenda he proposed in January and instead appeared to move the goalposts for reform toward the end of session when he announced he wanted to tackle independent expenditure campaigns, something Senate Republicans found much more appealing than restricting legislators’ outside income or closing the LLC loophole.

“It sounds like the governor is saying he can't get it done,” said Democratic Sen. Liz Krueger of Manhattan, who is party to a lawsuit brought by reform groups and current and former legislators against the State Board of Elections to close the loophole. “It sounds like the governor is saying ‘I'm incapable of reforming Albany and we have to leave it up to a constitutional convention,’ and I don't know that he is wrong.”

Dick Dadey, executive director of government reform group Citizens Union, said he is unwilling to wait for a convention to address the loophole. “His comments personify his frustration not being able close the loophole and point to a goal too far in the future to accept,” said Dadey. “We can’t rely on a convention that we don’t know will be called.”

Voters have the ability to approve a constitutional convention every 20 years. The next vote is scheduled for November 2017. If voters were to approve it, they would vote again the following November to select delegates to represent them at the convention, which would actually get underway in April 2019. Delegates would meet to debate reforms to the constitution that could focus on anything from money in politics to the state’s civil rights mandates. Voters wouldn’t get to vote on proposed changes from the convention until November 2019.

There is no guarantee that closing the LLC loophole would come up during a constitutional convention or make it to a final vote.

“The Board of Elections created this loophole and they can fix it,” said Blair Horner of the New York Public Interest Research Group, referring to the state BOE’s 1996 ruling that opened the loophole. “These LLCs have been at the center of major corruption scandals so it isn't like this is an academic problem,” said Horner. “It’s a real problem.”

Not only does Cuomo’s suggestion that a constitutional convention is the only way to close the loophole discount the lawsuit Krueger is involved in and mean that change couldn’t possibly occur until November of 2019, but it also appears to fail to factor in the possibility of Democrats winning the Senate majority from Republicans this fall. Democrats in the Senate and Assembly both claim to support closing the LLC loophole. The Assembly, which is controlled by Democrats, has voted a number of times to close the loophole while some Senate Democrats have tried to force a vote on closing the loophole in their chamber to no avail.

“I guess seeing the Senate Democrats take control of the Senate isn't a way he sees to get things done,” said Krueger. Cuomo, a Democrat, has been criticized over several years for not doing enough to help Democrats take the chamber and for being too close to Republicans. Cuomo has touted his ability to productively work across the aisle.

Mike Murphy, spokesperson for Senate Democrats, said closing the LLC loophole is at the top of their agenda. “Senate Democrats have been fighting to close this loophole for years only to be rebuffed by our Republican colleagues. When we take the majority this will be one of the first things we pass. The people of New York deserve a government that they can trust.”

John Kaehny of Reinvent Albany said at the most basic levels he sees Cuomo’s comments as the governor giving up on reform, but he also sees it as Cuomo letting Senate Republicans off the hook on an issue that could be used to help Senate Democrats win control of the chamber.

“It means the governor is not going to use the LLC loophole as a campaign issue against Senate Republicans. He could beat the Republicans over the head with the LLC loophole because the Democratic-controlled Assembly and Senate Democrats support closing the loophole, as do all of the watchdog groups and independent experts and editorial boards,” said Kaehny.

Cuomo’s office did not respond to requests for comment around whether Cuomo did indeed mean that closing the LLC loophole would require a constitutional convention and whether he was discounting the possibility of Democratic control of the Senate.

Many believe Cuomo prefers governing, as his father did, with a Democratic Assembly and Republican Senate, allowing him to pass more conservative fiscal measures when necessary.

Dadey agreed that Cuomo’s comments appear to ignore the possibility of change in the Legislature. “The Governor’s position does not take into account Senate control,” said Dadey. “This lets the Legislature off the hook.”

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by David King, Albany editor, Gotham Gazette
     

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

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Cuomo Appears to Give Up on Legislature Closing LLC Loophole Tue, 21 Jun 2016 04:00:00 +0000
Mayor Pledges to Re-Examine Conflicts of Interest Board Funding http://www.gothamgazette.com/?id=6343:mayor-pledges-to-re-examine-conflicts-of-interest-board-funding http://www.gothamgazette.com/?id=6343:mayor-pledges-to-re-examine-conflicts-of-interest-board-funding de blasio prek visit green

Mayor de Blasio (photo: Michael Appleton/Mayor's Office)


Mayor Bill de Blasio on Wednesday said he would take another look at funding of the city’s Conflicts of Interest Board (COIB) for the fiscal year 2017 budget. At its March City Council preliminary budget hearing, COIB representatives explained underfunding of the agency resulting in its inability to carry out its mandated training of city employees around conflict of interest rules and its inability to retain employees. They also said that the city’s budget office had denied repeated requests for increased funding.

At a press conference on Wednesday where the mayor again referenced the work of the Conflicts of Interest Board in ensuring ethical government, Gotham Gazette outlined the underfunding of COIB and the agency’s budget testimony. The mayor replied, “That’s news to me, but your timing’s impeccable. There’s still more time ahead in the budget process and we will now put this on the agenda and see if something more needs to be done.”

De Blasio recently presented his $82.2 billion executive budget and the City Council is holding another round of hearings. However, there is no executive budget hearing scheduled for the Committee on Standards and Ethics, which has oversight of COIB. This and the mayor's lack of awareness about COIB funding issues may be because COIB wrote a letter to the city budget office requesting about $26,000 in additional funds for its most "critical budgetary needs," mostly staff raises, which was met. A copy of the letter, sent by COIB Executive Director Carolyn Lisa Miller, was provided to Gotham Gazette by the mayor's office on Thursday.

At the start of the March 10 letter, COIB writes, "At the Preliminary Budget and Annual Oversight Hearing held at the City Council on March 8, 2016, the Committee on Standards and Ethics and the Committee on Finance recognized that the Conflicts of Interest Board was impeded in fulfilling its mission due to budgetary limitations and requested that the Board memorialize in writing those specific issues. While the Board continues to believe that its overall salary structure needs to be evaluated, below reflects the most significant budgetary issues currently facing the Board."

After prior requests for additional funding were denied, COIB appears to have requested what it saw as the minimum in additional funding. COIB representatives did not return a request for comment. At its preliminary budget hearing, COIB representatives explained that the agency had had three 2015 requests for additional funding denied by the Office of Management and Budget (OMB).

The mayor’s executive budget, released April 26, includes $2.32 million for COIB, about $30,000 more than what was included in this year's preliminary budget and $90,000 more than last year’s adopted budget. The agency is small, with 22 employees (and a five-member board) and is tasked with training city employees and providing guidance about potential conflicts of interest. City employees can call COIB for advice about possible ethical concerns.

In recent weeks, the mayor has consistently touted the COIB as one of the robust pillars of ethics and legality in city government and his administration. With several investigations into the actions of him and his allies, including around fundraising for an aligned political nonprofit, de Blasio has repeatedly said that he sought and followed COIB guidance. It was a point he reiterated several times on Wednesday as reporters asked him many questions about his fundraising for the Campaign for One New York, now shuttered, which accepted large donations from entities with city business.

The mayor also uses outside consultants who advise him while they also represent clients who have business with the city. The mayor insists that these advisers do not bring up their clients when giving the mayor advice and that if they do talk with him about their clients’ business, the conversations are disclosed.

Asked by Gotham Gazette if he should have known about COIB’s budget issues, de Blasio said not necessarily. “It’s a very large government and it’s a very detailed budget process,” he said. “Every single agency says they don’t have enough resources. Every agency at preliminary and executive always says they need more money. So that doesn’t get reported to me. That’s not breaking news but what should be reported is when OMB comes to the conclusion that there is a valid need...or, if it’s a jump ball, OMB says, ‘look this is a debatable point, we have questions but we still think it’s important that you hear this perspective.’ I would never be told generically that an agency wants more money.”

At its preliminary budget hearing in March, COIB officials testified that they were struggling to retain staff because of low salaries and limited resources to give raises, and that they were unable to fully carry out mandated ethics trainings for city employees. Three separate requests made to the Office of Management and Budget, totaling $200,000 in additional funding, had been rejected in 2015, they said. City Council members said they wanted to see funding increase, but it has not been a significant priority.

A budget deal between the Mayor and the Council is due by the July 1 start of the new fiscal year.

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by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

Note: this article has been updated with further detail from the mayor's office, including details about COIB's March budget letter.

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Mayor Pledges to Re-Examine Conflicts of Interest Board Funding Wed, 18 May 2016 04:00:00 +0000
Buffalo Billion Probe: Bad Apples or Broken System? http://www.gothamgazette.com/?id=6331:buffalo-billion-probe-bad-apples-or-broken-system http://www.gothamgazette.com/?id=6331:buffalo-billion-probe-bad-apples-or-broken-system cuomo buffalo billion

Gov. Cuomo in Buffalo (photo via The Governor's Office)


As U.S. Attorney Preet Bharara’s office issues a storm of subpoenas to the administration of Governor Andrew Cuomo and his close associates in relation to the state’s Buffalo Billion economic development program, the governor and his aides have delivered a consistent message: the investigation targets the dealings of a few bad apples, the governor wasn’t aware of any wrongdoing and he wants to get to the bottom of the situation as quickly as possible.

“I’ve said to all my people, and I’ve said to the U.S. attorney, any way we can find out and be helpful and be cooperative, we will be,” Cuomo told reporters during a press conference in the Adirondacks on Tuesday. “Nobody wants the facts more than us. That’s why we started our own private investigation. We know the questions: did two people act improperly? Did they represent companies they shouldn’t have? Was there undue influence for those companies? Those are the questions, we now need the answers and we don’t have the answers.”

The message rings as spin to a number of expert observers who insist Cuomo has long overseen a system that allows, at the very least, for the appearance of pay-to-play to flourish as mini-economies have popped up around the state where connected consultants work with both state government entities and those looking to win state contracts, and where the state funnels money through non-profits, allowing them to avoid scrutiny and standard state contracting procedures.

Bharara’s probe appears to have also spurred inquiries into surrounding issues by Attorney General Eric Schneiderman and Comptroller Thomas DiNapoli - all of whom, like Cuomo, are Democrats.

It is unclear whether the two men who have been reported to be at the center of the probe - longtime Cuomo aide Joe Percoco and Cuomo family associate and lobbyist Todd Howe - violated the law or how Bharara’s many subpoenas that have targeted the executive chamber, former Cuomo aides, consultants, and businesses involved in the Buffalo Billion all fit together. However, the scope of the investigation and the deep layers of connections between and among some of the players involved makes it fairly clear that the target of Bharara’s investigation is not simply two Cuomo associates.

Unlike New York City, New York State has no restrictions on what is referred to as “pay-to-play.” Donors with business before the state are allowed to contribute the same amount as anyone else to a candidate campaign.

Meanwhile, the checks that exist on how the state awards contracts have been subverted by the use of non-profit entities that aren’t subject to the same regulations. State Comptroller Tom DiNapoli and other government and budget watchdogs have criticized the proliferation of these entities and called for reform.

When acknowledging that investigators are looking into actions by individual actors and decisions that were made by state entities, Cuomo also announced “our own investigation with a private investigator who was from the U.S. attorney’s office originally, Mr. Bart Schwartz.” Though it is being explained differently, the move is seen by some watchdogs as designed only to target specific contracts and not intended to address what they say is a flawed system plagued by the appearance and risk of corruption, if not worse.

“The governor is trying to get in front of this issue and is saying a couple of people did something wrong, but the reality is that the entire system is ripe for corruption,” said Ron Deutsch, executive director of The Fiscal Policy Institute, an independent group that analyzes New York fiscal issues.

Cuomo spokesperson Dani Lever declined comment, but pointed Gotham Gazette to a statement issued by Cuomo counsel Alphonso David. (Another Cuomo aide emailed a sarcastic comment to Gotham Gazette.)

Alphonso David issued a statement just as the New York Daily News broke a story April 29 revealing that Percoco is a target of Bharara’s probe, acknowledging allegations and announcing the independent investigation.

“This [federal] investigation has recently raised questions of improper lobbying and undisclosed conflicts of interest by some individuals which may have deceived state employees involved in the respective programs and may have defrauded the state,” David wrote. “We take violations of the public trust seriously and we believe these issues must be resolved by further investigation by the U.S. Attorney. In the meantime, and as the [Buffalo Billion] program operates on a daily basis, the Governor has ordered an immediate full review of the program. Any grants made by this program will be thoroughly scrutinized – past, current or future.”

David went on to say: “Ensuring the integrity of the contracting process for this program is paramount, so that the Buffalo Billion and Nano program can continue creating new jobs and revitalizing Upstate’s economy.”

The statement wasn’t reassuring for many watchdogs, especially those who have long-criticized the Buffalo Billion program.

“The governor is looking at it in terms of the mistakes, or poor behavior of a couple aides that he seems to be disassociating himself with,” said John Kaehny, executive director of Reinvent Albany. “But what the subpoenas are targeting seems to be the corruption risk and bid-rigging favoring the governor’s campaign contributors. No one cares Todd Howe did something dumb. This is not what this is about - the governor sidestepped the larger issues.”

At least six current or former members of the Cuomo administration have been targeted by subpoenas. The administration has defended some of them.

A review of a number of businesses targeted by Bharara’s subpoenas shows that most of them are regular contributors to Cuomo’s campaigns. That leads some observers, including Kaehny, to believe that Bharara is interested in the state’s economic development subsidy programs as a whole.

“The Buffalo Billion is just a microcosm of the pay-to-play racket that has engulfed economic development under Governor Cuomo,” said Kaehny. “It is just a giant machine that takes in donations and doles out grants to donors. It is remarkable in its scope, consistency, and is dramatic in how it all leads back to the same people. What caught Bharara's interest in this is a system - not a rogue agent, not a bad apple, it's a system.”

Jennifer Rodgers, formerly of the U.S. Attorney’s office and current executive director of Columbia’s Center for the Advancement of Public Integrity, said she does not believe that is the case.

“I wouldn't say the fact that the U.S. Attorney is involved means it is systemic,” said Rodgers. “This is important enough even if it is just two guys who took bribes for grants with their position, and importance makes it a very worthy case to pursue. If I learned two guys were taking all this money and were involved in these subsidies, I would think they were good targets,” said Rodgers.

However, Rodgers said she understands why there is suspicion about the overall system. “I think it is a disaster of a system that everyone in good government sees as asking for trouble - there is no oversight. At the same time, it is not the U.S. Attorney's job to change the system. Their job is to charge guys with criminality. I could see issuing a grand jury report that says ‘by the way this system is asking for trouble,’ but it is not the crux of what he does.”

Blair Horner, executive director of the New York Public Interest Research Group, said without knowing what Bharara knows, it is impossible to judge what he is really after. “But I would say opacity in government increases the risk for corruption. What is so notable about how the Cuomo administration operates is they keep their decision-making process behind closed doors and he only shows the public what he wants them to see. This is the governor who ordered agencies to delete their emails and who still hasn’t told us how the Tappan Zee Bridge will be funded and it’s half completed.”

Gerald Benjamin, a professor of political science at SUNY New Paltz noted that the fact SUNY Polytechnic President Alain Kaloyeros has been subpoenaed and appears to have been a target of the probe since the fall, “makes it a much bigger matter that could be focused on systemic practices.”

Kaloyeros has overseen much of the Buffalo Billion contracting and has become a major figure in the Cuomo administration as the governor has ramped up his economic development programs.

“The issue we have is confidentiality,” Kaloyeros told Gotham Gazette by Facebook messenger last fall when being asked about the Buffalo Billion investigation. “We were instructed in no uncertain terms not to comment on the inquiry from down South with the threat of jail which is being interpreted as we are the target of an investigation. So that part we cannot comment on beyond what we were authorized to say publicly."

Gov. Cuomo has distanced himself from Percoco and Howe. Percoco, who has been characterized as a third son to Mario Cuomo, worked at Andrew Cuomo’s side since his days at HUD. Percoco left the administration for part of 2014 to run the governor’s reelection campaign. He later filed income disclosure forms with the Joint Commission on Public Ethics (JCOPE) revealing he received income from two developers with business before the state while managing the governor’s campaign.

Todd Howe, the Washington lobbyist who had a relationship with Mario Cuomo and worked for Andrew Cuomo’s 2014 campaign under Percoco, has been involved in steering donations from contractors to Cuomo and attended a fundraiser with Cuomo as recently as December, according to Politico New York, which reported that Howe steered donations from “several development and energy companies” to Cuomo’s reelection campaign.

Cuomo has said he allowed Percoco to take on outside work because he was strapped for cash. The governor has denied he had much of a relationship with Howe. Cuomo rejected the idea that he should have questioned Percoco on whether his outside clients had business with the state, telling reporters on Tuesday, “No. The state has tens of thousands of employees; they’re not supposed to be cross-examined to make sure they’re following the rules, right?”

Horner rejected Cuomo’s assertion that he shouldn’t have kept himself apprised of Percoco’s outside work. “It is the governor’s responsibility. He allowed Percoco to take outside work in the first place. This guy is not a hands-off administrator. That being said, he can’t know everything.”

Aside from the red flags sent up by donations and dealings with the air of conflict of interest, watchdog groups say they believe Bharara may be examining the Buffalo Billion because it is clear that up until now on one on the state level has been.

Cuomo and the Legislature crippled the Comptroller’s ability to audit deals made regarding the Buffalo Billion in 2011, DiNapoli and others say, by passing legislation that prevented auditing of SUNY, CUNY, hospital or construction funds. That is important to the Buffalo Billion because the state funnels cash for Buffalo Billion contracts through two non-profits controlled by SUNY.

On Wednesday, DiNapoli unveiled a series of proposals to bring more transparency to state spending - a few which would likely impact how the state funds the Buffalo Billion. His plan would ban lump sum appropriations, create a council to plan capital spending, and require economic development program proposals to be scored and ranked in a public database.

“Public authorities are not subject to the same checks and balances that apply to state agencies, resulting in hundreds of millions of dollars being spent annually with limited oversight,” reads the release from DiNapoli’s office. “DiNapoli’s proposal would require state-funded public authority projects to be scored and ranked using measurable and objective criteria. His proposal also requires more disclosure of public authorities’ spending and financing activities.”

Deutsch has been advocating for such a database for years. “My entire career I've been calling the efficacy of these programs into question,” said Deutsch. “We saw Empire Zones move to cater to where businesses wanted to be rather than have them come to economically disadvantaged areas,” Deutsch said of an economic development program that was a hallmark of Republican Governor George Pataki. “Every once in awhile there's a bad deal, or someone breaks the law and people pay attention for a little while.”

While calling for his own investigation of the Buffalo Billion, Cuomo has simultaneously downplayed the role of the state’s existing ethics body in preventing possible conflicts of interest. Asked whether JCOPE should have flagged Percoco’s filing that showed him taking income from groups with business before the state, Cuomo told reporters on Tuesday: “JCOPE has proven effective. Can an agency always be more effective? But I don’t think this is about JCOPE. We’re looking at two individuals to see if they’ve done anything improper. The first responsibility lies with that individual.” Cuomo also told reporters that you have to engage in criminality to be a target of JCOPE.

JCOPE is able to give administration officials guidance in taking outside work. It is unclear if JCOPE issued such an opinion in the case of Percoco. The commission has been headed by a succession of three Cuomo aides since its inception. Seth Agata, the new and third head of the commission, once served as Cuomo’s counsel, where he wrote to JCOPE to ask for clearance for Cuomo to earn hundreds of thousands of dollars to write a memoir for a company that has business before the state. Permission was granted.

The Legislature has shown little interest in reforming how the state doles out subsidies. Senate Majority Leader John Flanagan, a Republican from Long Island, told State of Politics on Wednesday that the state should be “forging ahead” with current economic development programs. “The executive has an inherent responsibility to be overseeing these projects from start to finish,” Flanagan said. “I don’t think we should be scaling back anything. Can we take a closer look, put it under a microscope, fine. But people need jobs. This is a great way to create economic development.”

Cuomo’s creation of an independent investigation is worrying to some because of the governor’s history with independent commissions.

“Bart Schwartz is not independent, Alphonso David is not independent, Seth Agata is not independent,” said Kaehny. “The public will not get the truth unless the facts are independently accessed and the governor is incapable of investigating himself. We’ve seen what happens when the governor says ‘Follow the money wherever it may lead’ - as soon as the money brought [the] Moreland [Commission to Investigate Public Corruption] back to the governor and his real estate contributors at REBNY, Cuomo pulled the plug...No one is good at investigating themselves,” said Kaehny.

Rodgers, of CAPI, said that she has faith in Cuomo’s independent investigation. “The U.S. Attorney's Office will proceed with their work regardless of what internal investigation is going on,” said Rodgers. “And Bart Schwartz being chosen to head the internal investigation is a good sign for the credibility and independence of whatever findings he makes. If the governor's office had chosen someone with less credibility, you could see that there might be suggestions about tampering with witnesses and other evidence (i.e. that the governor's investigation might try to taint the government investigation during their own evidence collection), but I don't think you'll see any of that here with Bart in charge.”

Asked if voters should have faith in Schwartz’s investigation, Horner replied, “They should have faith in Preet Bharara.”

On Thursday, following the sentencing of former Republican Senate Majority Leader Dean Skelos, Bharara issued a statement trumpeting the conviction and sentencing of Skelos and former Democratic Assembly Speaker Sheldon Silver. The statement included a reference to Cuomo-controlled investigations. “These cases show--and history teaches--that the most effective corruption investigations are those that are truly independent and not in danger of either interference of premature shutdown.”

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by David King, Albany editor, Gotham Gazette
     

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Buffalo Billion Probe: Bad Apples or Broken System? Thu, 12 May 2016 04:00:00 +0000
Vance Has Ties to Several in De Blasio Probe http://www.gothamgazette.com/?id=6310:vance-has-ties-to-several-in-de-blasio-probe http://www.gothamgazette.com/?id=6310:vance-has-ties-to-several-in-de-blasio-probe vance de blasio bratton presser

Cy Vance (front) and Bill de Blasio (photo via The Mayor's Office on flickr)


Manhattan District Attorney Cy Vance finds himself in a unique situation as he takes on the investigation of efforts led by Mayor Bill de Blasio to win control of the state Senate for Democrats in 2014.

Vance has a longstanding political relationship with de Blasio and both share a number of donors. Like de Blasio, Vance is an elected Democrat. They’ve stood together for several policy announcements over the past two-plus years since de Blasio took office as Mayor.

Perhaps the most notable and concerning connection to some is that Vance has also employed two of the political strategy groups subpoenaed in the investigation spurred by the state Board of Elections enforcement counsel, Risa Sugarman, who found problems with the unsuccessful 2014 efforts by de Blasio and his allies to win key swing Senate seats. Specifically, Sugarman pointed to ways in which de Blasio’s allies attempted to evade state campaign donation limits.

City officials confirmed on Wednesday that “City Hall” had been subpoenaed, but said that the mayor himself had not been named. The subpoenas, de Blasio’s counsel said, were from both Vance and U.S. Attorney Preet Bharara. De Blasio has repeatedly insisted that neither he nor his team broke any laws.

As New Yorkers await more information from Vance’s investigation, his political relationship with de Blasio is part of a complicated picture. The two have given support for each other or issued joint statements in at least eight announcements over the past three years. They’ve held at least three joint press conferences and Vance’s office works closely on a day-to-day basis with de Blasio’s police department. Topics Vance and de Blasio have worked on together include prosecutions of bankers, funding to examine rape kits, an overhaul of the city’s summons system, and efforts to get illegal guns off the street.

“The Manhattan District Attorney's Office is an independent agency from the Mayor’s Office, and has frequently conducted investigations and prosecuted cases involving city agencies or employees. We cannot comment on what private firm may or may not have received subpoenas,” Joan Vollero, Vance’s director of communications, told Gotham Gazette in a statement.

People who know the two well stress that Vance and de Blasio are not particularly close personally and note that the mayor has also made joint announcements with Bharara. The U.S. Attorney, who has made rooting out public corruption a mission, made waves earlier this month, telling a crowd, “We will keep looking hard at corruption in our legislative branch, as we have been. But not just there: in the executive branch too, both in city and in state government.”

Meanwhile, state Board of Elections records show Vance’s connection to two firms included in the BOE referral to law enforcement. Filings show Vance’s campaign paid Mark Guma Communications $1,327,351 from 2009 to 2013 for television and radio advertising, political mailers, and consulting.

Mark Guma Communications was subpoenaed by Sugarman in her investigation into what she described as de Blasio’s team’s efforts to intentionally evade campaign finance laws by funnelling donor cash into county committees, which have larger contribution limits, and out to candidate campaigns, which have much lower limits. A subpoena does not indicate charges or guilt.

Vance’s campaign also did business with Red Horse Strategies, which was also subpoenaed in Sugarman’s investigation, to the amount of $25,000 in 2009.

Both firms assisted Democratic Senate candidates in the 2014 election cycle.

To some, these connections simply show the close-knit nature of New York politics, but to others they present reason for Vance to recuse himself in the de Blasio-related investigation.

“Cy Vance seems to be a very straightforward guy,” said Jennifer Rodgers, former assistant U.S. Attorney and current executive director of the Center For The Advancement of Public Integrity (CAPI) at Columbia University. “In the case of any personal involvement I believe he’d be the first to recuse himself. In the absence any personal involvement the fact that New York City politics turns out to be this weird incestuous pool with everyone working with the same consultants says nothing of the independence of Cy Vance.”

John Kaehny, executive director of Reinvent Albany, said he believes the connections are a good reason for Vance to disassociate himself from the case. “Given the sweeping breadth of the investigation into areas touching DA Vance's own political activity - at least two of his own political consultants were subpoenaed - Vance should welcome a complete takeover of the investigation by Preet Bharara,” Kaehny told Gotham Gazette.

Dick Dadey, executive director of Citizens Union, said it was “unsurprising” that de Blasio and Vance used the same political strategists but said it is important Vance proceed “appropriately” and with “integrity.”

Sugarman’s report states:

“Documents were obtained via subpoena from five political consultants involved in these campaigns: Berlin Rosen, LTD., Mark Guma Communications, The Parkside Group LLC, AKPD Message and Media LLC, and Red Horse Strategies LLC. We sought information about work these consultants performed in connection with campaigns for the state senate races of Justin Wagner, Terry Gipson and Cecilia Tkaczyk. Thousands of documents were produced. Review of the documents revealed evidence of campaigns that were coordinated at every level and down to minute details.”

Long-time Board of Elections commissioner Douglas Kellner, a Democrat, said that it was Sugarman who suggested referring the de Blasio case to Vance and that he and other commissioners concurred. “I think he’s very capable and I think he will evaluate this independently,” Kellner said of Vance. Kellner said he thought Vance was appropriate because “his office had two prior cases where he was having to argue that you have to look at the whole transaction, not just the parts.”

Multiple sources tell Gotham Gazette the vote to refer the case was unanimous among the board’s four commissioners, two of whom are Democrats, two of whom are Republicans.

One of Vance’s previous campaign finance cases was against Manhattan Surrogate Case Judge Nora Anderson. Anderson was charged with campaign finance fraud for reporting donations had come from herself when they had actually come her boss at the law firm that employed her. A jury acquitted her.

The other Vance case was that of Queens political consultant John Haggerty who was accused of bilking Mayor Michael Bloomberg’s campaign fund for hundreds of thousands of dollars to buy his family a house. Haggerty was convicted.

“One or two cases can make or break the career of a Manhattan District Attorney,” said Dadey. “It is integral that Cy Vance move forward with this case with the independence and fair mindedness he is known for. These charges against the mayor are serious. It’s clear that his team skated close to the line of the law, if not over it. It will be up to the prosecutor and judicial system to decide whether a law was broken.”

Vance is treading in fairly new territory as thousands of past referrals from the BOE were ignored by other district attorneys from around the state due to what they have said was a dearth of detailed information or a lack of resources to pursue them.

“There is a big difference between the Manhattan DA and the Albany DA,” Rodgers, of CAPI, told Gotham Gazette. “There are a lot more resources going to the public corruption unit in Manhattan. The lack of cases is a shame, but it is partially due to resources and partially due to the quality of investigations. If Sugarman is doing more referrals that are wrapped in a bow and the DA just has to bring it, it may become easier for any DA to act.”

A New York Daily News report from August 2013 detailed how the Albany County District Attorney failed to act on around 1,300 referrals from the Board of Elections. At that time the board referred campaign finance violations to district attorneys with jurisdiction, but with little to no prior investigation.

“I can see a DA saying ‘Thanks for the complaint but we don't have two detectives to put on this,” said Rodgers. “In Albany, violent crime has to be a priority. Public corruption cases are usually hard cases that take a long time, a lot of expertise and are fairly complicated.”

However, since Sugarman was confirmed in 2014 to fill the newly created enforcement counsel position, it appears she has abandoned the previous process of fining candidates that don’t file and instead dug into violations of the law she thinks will make good cases. Sugarman did not return request for comment.

“Risa Sugarman dismantled the process by which committees who didn’t do filings were routinely fined,” said Kellner. “She doesn't agree it’s appropriate for her do that, but my concern is that campaigns will catch on and realize there is no consequence for failing to file.”

As for Vance, Dadey said he believes all of New York City will be looking to the DA to deliver a fair and strong investigation, and if necessary a case. “The spotlight will be on this DA like it hasn’t been since the Dominique Strauss-Kahn case, which was not handled well,” Dadey said. “Perhaps even more so because of the high profile of the Mayor of New York City...Hopefully the DA has learned from his early mistakes and will proceed with the independence and competence he is known for.”

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by David King, Albany editor, Gotham Gazette
     

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

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Vance Has Ties to Several in De Blasio Probe Fri, 29 Apr 2016 04:00:00 +0000
Conflict of Interest, Leaked Memo Cloud De Blasio Accusations http://www.gothamgazette.com/?id=6307:conflict-of-interest-leaked-memo-cloud-de-blasio-accusations http://www.gothamgazette.com/?id=6307:conflict-of-interest-leaked-memo-cloud-de-blasio-accusations de blasio podium

De Blasio (photo: Demetrius Freeman/Mayoral Photography Office)


The revelation that it was Gov. Andrew Cuomo’s chosen enforcement counsel at the Board of Elections who sparked an investigation into Mayor BIll de Blasio’s fundraising activities, in the mayor’s 2014 effort to flip control of the state Senate, has raised a number of questions about motivation and independence.

De Blasio has asserted his innocence, saying that he and his associates followed the letter of the law. He and his lawyer have used Risa Sugarman, the BOE enforcement counsel who used to work for Cuomo, and the leak of her referral to investigators to discredit allegations that the fundraising he spearheaded broke election laws. Analysts say these arguments, in which de Blasio has repeatedly questioned Sugarman’s “motivations,” are at least somewhat effective because the governor has a long history of stacking state watchdog organizations, boards, and agencies with his friends, long-time employees, and political donors.

“There is pervasive conflict of interest under Governor Cuomo, including in the areas of ethics enforcement he has a hand in,” said John Kaehny, executive director of Reinvent Albany. “Risa Sugarman should not be the enforcement counsel at BOE, just as Seth Agata should not be executive director of JCOPE. They are seen by many as Cuomo loyalists, not independent actors. Their relationship to Cuomo colors everything they do, including investigating the governor's political foes.”

Headlines featuring Cuomo and de Blasio’s ongoing political feud have dominated newspapers for nearly two years now. Cuomo has come to routinely undermine de Blasio through the many levers he controls as the head of state government. He has stymied de Blasio at many turns, holding back funding for affordable housing, homelessness prevention, the MTA, and more, while holding hostage issues of rent regulations, the 421-a tax abatement, and extension of mayoral control of schools.

If there is one thing Cuomo is famous for in Albany, beside his precise and prodigious understanding of the mechanics of governing, it is his taste for political vengeance and Machiavellian political vendettas. De Blasio’s very public pointing out of the latter in June took their feud to another level.

By many accounts Sugarman’s report on de Blasio’s fundraising highlights major and valid questions about the state’s campaign finance system and the legality of de Blasio’s methods. Jennifer Rodgers, former assistant U.S. Attorney and current executive director of the Center For The Advancement of Public Integrity at Columbia University, told Gotham Gazette that after reviewing the state statutes and Sugarman’s report, she thinks there is good reason to believe the law was violated, but admitted there is enough discretion that a district attorney may decide there is not enough hard proof of intent.

On Wednesday evening, de Blasio’s administration said that “City Hall” had been subpoenaed by the offices of District Attorney Cy Vance - who the BOE referral went to three months ago - and U.S. Attorney Preet Bharara. “The Mayor has not been personally served,” the statement from de Blasio counsel Maya Wiley reads.

There are multiple investigations of de Blasio and his associations occurring at once - another has to do with donations to a non-profit established by the mayor’s allies and whether city action was offered or given in return. The Wall Street Journal has reported that mayoral aides and consultants have been subpoenaed.

The questions raised by Sugarman’s connections to Cuomo and the leak of her referral to Vance have been key to de Blasio’s defense of himself, along with saying that he broke no laws and that others have used similar tactics that he and his team used in moving money to state Senate candidates.

Asked about the BOE-referred investigation on Monday, de Blasio relied on a letter from Laurence Laufer, a lawyer who represents the mayor and a number of de Blasio’s fundraisers. Laufer raised questions about Sugarman’s “motivations” and said that the fact that the memo was leaked to the press increases the impression the investigation was politically motivated. De Blasio said similarly.

"I am quite certain that all of you will get to the truth about that,” de Blasio said to reporters of the leak on Monday. “I am quite certain that you will be able to uncover whatever motivations may have existed. But we can say this: a government officer is supposed to honor their responsibilities, and first of all that should never have been put into the public domain, and second of all, when you look at how inconsistent it is with state law, it begs the question 'what was the underlying motivation,' but I have confidence that all of you will get to the bottom of it."

De Blasio has said that he believes his fundraising tactics were legal and that all of his plans were “vetted” by lawyers. The leak and Sugarman’s connections to Cuomo have offered him a public defense to what many say is a fairly damning report.

Sugarman detailed how de Blasio and his allies planned and executed a program to subvert campaign finance limits by funneling major donations through county political committees and having the cash sent directly to candidates in heated races. The donation limits to county committees are far higher than to candidate committees and there are no limits on donations from the former to the latter.

The referral spurred by Sugarman, and voted onward by the four-member Board of Elections, is now in the hands of District Attorney Vance, a Democrat like Cuomo and de Blasio.

Other concerns about Sugarman’s actions include that her report appears to ignore not only the past use of similar tactics by former Mayor Michael Bloomberg and both major political parties, but also the fact that members of the governor’s office were kept informed of the de Blasio-led plan to flip the Senate, including the ways in which money was being moved, if not involved in it outright.

These question marks add to the skepticism of some observers who think that Sugarman was acting in Cuomo’s interest. Cuomo administration officials stress that Sugarman was nominated by Cuomo, but had to be approved by the Legislature and acts independently.

The Daily News and the New York Times reported that Sugarman took up her investigation after complaints were filed by Republican voters in Senate districts targeted by de Blasio’s efforts. Sugarman then carried out an investigation, presented her findings to the four Board of Elections commissioners, two of whom are Republicans and two of whom are Democrats. They approved her referral to the Manhattan DA.

Cuomo’s office has denied it was aware of Sugarman’s investigation.

The impression that Albany’s ethics watchdogs are not actually independent has been festering for years as Cuomo has seen to it that three of his former longtime employees have headed the Joint Commission on Public Ethics (JCOPE). Cuomo nominated Sugarman to the BOE after the position was created in a 2014 deal with the Legislature that killed the Moreland Commission on Public Corruption, another entity with many questions around independence from the governor. Cuomo has said conflicting things about whether Moreland was his commission or independent.

Sugarman came to the BOE counsel position from the Department of Taxation of Finance, where she was a deputy commissioner. Before that she worked as a deputy commissioner of The Division of Criminal Justice Services and for four years at the Attorney General’s office under Cuomo.

Members of the Board of Elections, who are political appointees, have complained since Sugarman took charge that they are kept in the dark about enforcement actions and are concerned Sugarman is free to act out of political expediency. Doug Kellner, a Democratic BOE commissioner since 2005, said that any attempt to ascertain Sugarman’s method of enforcement has been rebuffed. “She has made it clear she won't answer those questions because she feels she is independent,” Kellner told Gotham Gazette.

Kellner agreed with concerns raised by Laurence Laufer, a lawyer who represents some of the fundraisers involved in the case, including de Blasio, that the leaking of the memo could be politically motivated. "In any event, the leak is certainly a highly prejudicial and perhaps politically-motivated act, which is contrary to both your non-partisan, independent function and to the bi-partisan charge of the agency by which you are employed – that is, if you or your office was responsible, directly or indirectly," Laufer wrote to Sugarman in a letter made public.

Republican BOE commissioner Gregory Peterson told Gotham Gazette that he was concerned about “selective enforcement” and thought that it was possible that it occurred with this referral. “This case may have been selective enforcement, but I think she was right on,” Peterson said.

Rodgers said that “independence” is key for any oversight board. “It is concerning that she has this history, it's also concerning that she isn’t being transparent with her commissioners. If you are doing everything by the facts, independently and following the law then you should have no problem explaining how you pursue enforcement.”

She noted that there are checks on Sugarman - she has to present her referral to the commissioners for approval, which they provided in the de Blasio case, though she can break a tie, and then the District Attorney has decide whether to investigate and whether criminal charges are warranted. Sugarman is also bound to investigate complaints but cannot investigate when none is made.

Blair Horner of the New York Public Interest Research Group, who has repeatedly criticized what he sees as a lack of independence for JCOPE, said that Sugarman’s BOE work will inevitably be judged by her connections to the governor, whether those connections motivate her or not. “The fact that she is connected to the governor is trouble for her even if she’s on the up-and-up.”

Cuomo has addressed the importance of rooting out the appearance of bias and conflict of interest when speaking on the topic of criminal justice reform. In 2015, during his State of the State address, Cuomo spoke about a crisis in faith in the criminal justice system. “And that’s not just New York, it’s a problem all across the country and it’s a problem in reality and it’s a problem in perception and if it’s a problem only in perception, it is still a real problem because people have to trust the justice system and the trust has to go both ways,” Cuomo said, speaking about police and community, but also referring to the oft-cited conflict of interest around police and prosecutors who regularly work together but can then be at odds when an officer is suspected of a crime.

Sugarman did not return requests for comment, but she did defend her independence in an interview with the New York Times this week. “The work that I do here has nothing to do with where I came from,” Sugarman said, adding, “It just makes me chuckle when people say those kinds of things.” She refused to answer any questions about her investigation into de Blasio’s fundraising, which includes several de Blasio aides and groups that either donated large sums or helped run the operation.

JCOPE, another Albany ethics agency created by Cuomo and the Legislature, has been headed by someone from the Cuomo camp since its inception. Seth Agata, a former Cuomo counsel, was recently named JCOPE executive director, to criticism for his ties to the governor. The commission met with Agata as its chair for the first time this week. Less than ten minutes of the proceedings took place in public. JCOPE is not subject to public meeting laws and most of what it does is done in secret - a necessity, some say, due to its sensitive business. It’s members have complained in the past that Cuomo has too much influence over the agency and pushed for a national search for its leadership. That search resulted in Agata’s hiring.

Previous JCOPE heads include Letizia Tagliafierro, who worked for Cuomo during his time as attorney general and later as his director of governmental operations. She left JCOPE and took a position as deputy commissioner of the state's Department of Taxation and Finance in 2015. Her appointment in 2013 drew the ire of legislative members of JCOPE, including one who quit in protest.

Tagliafierro replaced Ellen Biben, who worked as the governor's inspector general and in the attorney general's office when Cuomo held that position. Biben now is now a Court of Claims Judge - she was nominated for the position by Cuomo.

“Notwithstanding the unique and extensive qualifications of these nominees, all three were approved by a bipartisan group of commissioners and to suggest otherwise ignores not only the facts but the process,” said Cuomo spokesperson Dani Lever.

“It’s a real closed game with Andrew,” said Doug Muzzio, professor of political science at Baruch College. “It’s striking that he talks reform but he plays this real insider game with friends and immediate associates.”

Sugarman’s statements haven’t been reassuring for watchdogs, who say they’ve seen little real independent action from JCOPE or Sugarman; they find it worrying that the first major criminal referral to come out of Sugarman’s office targets an individual, de Blasio, that Cuomo has been warring with.

“Mayor de Blasio's team has raised legitimate questions about Sugarman being biased and whether her criminal complaint amounts to selective, politically-motivated enforcement,” said Kaehny. “By appointing these loyalists, the governor has badly undermined whatever credibility JCOPE and the state BOE have as fair and impartial ethics enforcers. Maybe that is his goal, or maybe he is so immersed in conflict of interest that he can't see what the problem is. Either way, it's another setback for clean government.”

Whether de Blasio’s coordinated fundraising warrants criminal prosecution is now up to Vance. A number of observers say they think it would be hard not to take into account who appointed Sugarman, the fact that coordinated fundraising through party committees has been commonplace for years, and that the leak may have tainted public perception.

“The leak raises some pretty serious concerns,” said Richard Briffault, a professor at Columbia Law School. “No serious law enforcement agency should be leaking findings. It can lead to a trial by the public. I don’t know if the leak was illegal, but it sure should be.”

Rodgers says she doubts the leak will be a major influence on Vance, but notes that it could taint his view of it as being politically motivated.

Kaehny said it would be concerning if de Blasio were suddenly to be held to different standards after this particular fundraising technique has gone unchecked for decades.

“It sure seems wrong and unfair, but it may be legally valid,” said Kaehny of Sugarman's referral. “Prosecutors have lots of discretion, and it will be up to them to weigh this. I do not have the expertise to judge the legal case, but as a prosecutor, I would probably not indict if I learned this was a customary practice of the previous mayor. If I was enforcement counsel, I would have sent a letter to the mayor and written a public advisory notice that said, going forward, we are interpreting the law like this. The idea is to change overall behavior, not selectively persecute.”

Others see the tactics used by de Blasio’s team as a more egregious coordinated effort than has been used before - with an understanding of specific amounts on specific dates that candidates’ committees were expecting to see moved through county committees.

Rodgers said she will be extremely interested to see how Vance decides to proceed. “He may look at this and say ‘We are going to pursue this case but we don’t want to be selective, we don’t want to get involved in a political hit, so we are going to open up investigations into everybody who uses this technique.’ This isn’t a matter of public safety, if he looks at it and decides this is a political hit job and an example of selective prosecution, he could just drop it.”

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by David King, Albany editor, Gotham Gazette
     

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Conflict of Interest, Leaked Memo Cloud De Blasio Accusations Wed, 27 Apr 2016 04:00:00 +0000