Gotham Gazette http://www.gothamgazette.com/component/tags/tag/2045 Sun, 21 Apr 2019 08:54:10 +0000 en-gb webmaster@gothamgazette.com (Webmaster) Charter Revision Commission Hears Expert Testimony on Public Advocate's Office, Law Department, Ranked-Choice Voting http://www.gothamgazette.com/city/8372-charter-commission-hears-expert-testimony-on-public-advocate-s-office-law-department-ranked-choice-voting http://www.gothamgazette.com/city/8372-charter-commission-hears-expert-testimony-on-public-advocate-s-office-law-department-ranked-choice-voting charter2019nyc pub adv

(photo: @Charter2019NYC)


Three former New York City Public Advocates argued for strengthening the powers of the office. Former and current Law Department officials defended the agency’s independence. Experts on city government argued for and against expanding the powers of non-mayoral elected officials. And a Board of Elections official detailed the logistics of implementing ranked-choice voting in New York City.

Those were the broad themes of a Monday night hearing held at the City Council chambers by the 2019 Charter Revision Commission, which is tasked with examining the powers and functions of city government with the aim of improving them. The commission, whose members are appointed by a variety of the city’s elected officials, will put forth proposals to change the city’s constitution that will go before voters this November.

Monday’s was one in a series of “expert hearings” being held by the commission as it considers specifics within its previously outlined focus areas. Before Monday, expert hearings had been held on police accountability, election reforms, city budgeting and contracting, and conflicts of interest and a proposal to create a chief diversity officer across city government.

Strengthening the Public Advocate
Among the ideas the commission is considering is giving more authority to the public advocate -- or to eliminate the office entirely if not -- and three of the four former officeholders were at the hearing to defend the role of the city’s ombudsperson. They included Mark Green, Betsy Gotbaum and Letitia James, who held the position before being elected attorney general last year. James was also one of the original sponsors, along with Borough President Gale Brewer, of the legislation that created the charter commission.

The only former public advocate not in attendance was Mayor Bill de Blasio. City Council Member Jumaane Williams is currently public advocate-elect after winning the February special election. He’ll take office soon. The public advocate is the city’s watchdog and ombudsperson, one of just three citywide elected officials and first in line to the mayor if the city’s chief executive is unable to finish his or her term.

James, Gotbaum, and Green all defended the responsibilities of the office they once held, and called for giving the public advocate greater authority. James pushed for subpoena power for the office and for the statutory ability to bring lawsuits against city agencies on behalf of New Yorkers, an issue she pursued after using litigation to mixed effect against the de Blasio administration. She called on the commission to “finally fulfill the promise of a fully empowered people’s watchdog.”

All three also argued for an independent budget for the public advocate, where it would receive a certain percentage of the city’s overall budget or financing based on some other statistical model, removing its reliance on the mayor’s whims. The office receives about $3.6 million in funding for the current fiscal year. Though de Blasio, a former public advocate himself, has increased the office’s budget and is proposed another small increase for next fiscal year, previous mayors have not been so generous. “It was this constant dance and constant fight,” said Gotbaum, now the executive director of government reform organization Citizens Union, of her fight for greater funding under former Mayor Michael Bloomberg. “That’s just unnecessary.”

Green was the only one to suggest a number: at least $6 million to carry out the office’s duties. “It is wrong and foolish that if an office does its job, it loses its job because of a mayor who is politically or personally antagonistic,” he said.

He also urged the commission to finally put to rest the idea that the public advocate should be eliminated, a suggestion that was even put into legislation by a few City Council members earlier this year.

Though the commission seemed open to the former public advocates’ ideas, Commissioner Sal Albanese, a former City Council member and three-time mayoral candidate, repeatedly asked them to justify the office’s existence, citing anecdotal evidence that people believe it is a wasteful use of taxpayer money. He insisted that City Council members can perform the same duties and that the public advocate was a “vestigial” institution in the city’s political system.

Naturally, the three former public advocates pushed back. James cited the thousands of complaints she fielded and resolved for New Yorkers, and the bills she introduced that were passed into law -- more than all public advocates before her combined, as she is fond of noting. Green cited the office’s push for the creation of the city’s 311 helpline, among other successes, saying it was “spurious and silly” to consider scrapping the office altogether.

James and Gotbaum also advocated for giving the public advocate the power to appoint members to other watchdog agencies such as the Civilian Complaint Review Board, the Conflicts of Interest Board, and the Human Rights Commission. “Putting more public officials on those committees would at least get a better balance of interests on those committees so that the mayor isn’t so, so powerful,” Gotbaum said.

Doug Muzzio, a professor at Baruch College who has worked with previous charter commissions, did later agree with Albanese that the public advocate’s office has been ill-defined since it was created by a 1989 charter revision commission that drastically changed the structure of city government -- the last major overhaul to the city’s governing document and structure. “It derives from the ambiguity of the position,” Muzzio said during his testimony. “It was never decided what the purpose of the body was...All the reforms are random decorations on the christmas tree. They’re not integrated into a purpose that is coherent, logical, and adequately funded.”

Conflicts at the Law Department
In its recommendations to the charter commission, the City Council raised questions about the corporation counsel, the city’s top lawyer and a mayoral appointee, and the Law Department, specifically wondering who the agency represents if there are internecine disagreements in city government. The Council has in the last year sued the city to block a development project on the East River waterfront and even filed a lawsuit against the corporation counsel, arguing for the ability to file amicus briefs in court.

At the hearing, former corporation counsel Victor Kovner and Karen Griffin, senior counsel at the Law Department, defended how the department functions and attempted to clarify how legal decisions are made. Both urged caution and insisted that any attempts to interfere in the powers of the corporation counsel, including imposing term limits as some have suggested, would undermine the office’s independence.

“It would undermine the independence of that office at great cost to the city,” Kovner said.

“Ultimately, the charter gives the corp counsel the authority to make final decisions about what’s in the best interest of city,” Griffin said.

Though Griffin did not take a position on whether the City Council should be given “advise and consent” authority in the selection of the corporation counsel, as the Council has called for, Kovner rejected the proposal, again citing the office’s independent reputation. “I think it’s a great mistake...Leave it. It’s working well,” he said.

Griffin also explained that when conflicts arise in the Law Department’s representation of a city official against another, the agency would “independently decide which position is legally correct.” And, in cases involving the mayor facing off against the City Council, the department sides with the mayor as the appointing authority, which could change if advise and consent is approved as a policy. Otherwise, in those circumstances, the Council has called on the charter commission to consider mandating that the Law Department provide funding for outside counsel for all other non-mayoral elected officials.

Muzzio later suggested that the city do away with the corporation counsel and create the position of city attorney, similar to Los Angeles and San Francisco.

Balance of Power
The commissioners questioned the third panel of experts -- Muzzio and Stanley Brezenoff, a veteran of decades of city government service who recently retired after holding several positions under de Blasio -- on improving the balance of power in city government, which heavily favors the mayor.

“Is there anything that either of you envision that a body like this could do to provide for a meaningful voice…to the borough executives without disrupting [the] strong mayoral formula?” asked Commissioner Stephen Fiala.

Muzzio suggested that the power of borough presidents could be enhanced through independent budgeting and by giving them a greater voice in the city’s land use approval process.

“We don’t have a government, fortunately, that is simply a top government and a bottom government. We have an intermediate government that can recognize the needs and desires of boroughs and at the same time work within a citywide paradigm,” he said. “This is a supplemental power, it’s not revolutionary. It’s not going to change the basic strong mayor structure of city government.”

He similarly argued that the City Council’s authority could be strengthened in various ways without undermining the mayor.

But Brezenoff warned of diluting the power of the mayor or the Office of Management and Budget, which sets funding levels for the borough presidents. “This surgical approach to governmental structure is hard stuff,” he said. Brezenoff also did not seem to agree with the idea that the Uniform Land Use Review Procedure (ULURP) should have set timelines under the charter. “This is a very difficult balancing act. I would just urge care,” he said. (ULURP will be one focus of Thursday’s expert hearing.)

Ranked Choice Voting and Special Elections
Michael Ryan, executive director of the New York City Board of Elections, was the final panellist to testify before the commission on Monday. Ryan primarily urged the commission to consider a change in the charter’s provisions on special elections, pointing to the recent one held for public advocate in February.

Currently, the charter requires that the mayor declare a special election, after a vacancy, to be held within 45 days. That short timeline, he said, precludes the BOE from being able to send out ballots in time, particularly military ballots, and also prevents candidates or voters from successfully challenging ballot petition decisions in court. It will also mean that once Council Member Jumaane Williams, now the public advocate-elect, resigns his Council seat, another special election will have to be held within just six weeks, instead of waiting for the already-scheduled election days this year, which are for a June primary and November general election.

Ryan said the commission should consider bringing the “glaring inconsistency” in the city’s special elections in line with timelines set for state special elections -- elections take place between 70 and 80 days after the governor’s proclamation. That would also be particularly necessary once the city begins to implement early voting for elections under a new state law, he said. “The more predictability that people have in the conduct of elections, the better off we’re all gonna be,” he said.

Asked about ranked-choice voting, also known as instant-runoff voting, Ryan said the BOE did not have an official position. A charter commission convened by the mayor last year declined to formally take up the issue, citing a lack of sufficient time to explore its pros and cons.

At the hearing. Ryan did lay out the prerequisites for implementing ranked-choice voting from his perspective. He said the BOE’s vendor of election systems would be able to implement it with its current mechanisms, though with duplicative counting required by the agency, and that a more automatic process would require more time to upgrade software. “Until we know what the rules are and what the expectation is, the algorithm can’t be determined,” he said of the ranked-choice formula that voting machines would have to use. [Read more about ranked-choice voting]

He did point out that the state BOE would have to approve any changes passed by the city, though he doubted it would face any opposition since it would be limited to New York City alone. “I can’t imagine a scenario where the state would say no,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
Charter Revision Commission Hears Expert Testimony on Public Advocate's Office, Law Department, Ranked-Choice Voting Tue, 19 Mar 2019 04:00:00 +0000
James Wins Battle in Long War Over Public Advocate's Legal Standing http://www.gothamgazette.com/city/6518-james-wins-battle-in-long-war-over-public-advocate-s-legal-standing http://www.gothamgazette.com/city/6518-james-wins-battle-in-long-war-over-public-advocate-s-legal-standing Tish James presser vets

Public Advocate Letitia James (photo via @TishJames)


The Public Advocate’s office was created in 1993 to give a voice to everyday New Yorkers and act as checks on the authority of the Mayor and the function of city agencies. Letitia James, the fourth New York City Public Advocate, has made litigation a major tool in her attempt to fulfill the office’s mandates. James, who has a background as an attorney and has hired several lawyers to her staff since taking office in 2014, has fought the city and its agencies in the courts with mixed success. James’ aggressive use of litigation has raised the question of what legal standing the Public Advocate has on behalf of all New Yorkers.

After multiple occasions where she was either bumped from lawsuits for lack of standing or she withdrew, within the last few weeks James declared victory in two cases where judges recognized her capacity to sue the city. The decisions have served to embolden James in her commitment to legal action and also possibly set a precedent for the powers of her office.

The debate and the proceedings over the legal powers of the Public Advocate are far from over, though, as the de Blasio administration plans its appeals and is likely to move to dismiss legal action from James in the future. Mayor Bill de Blasio, a political ally of James and James’ predecessor as Public Advocate, is also not ready to accept the Public Advocate’s blanket ability to sue the city.

“I think it’s case by case, that’s my understanding,” de Blasio said Sept. 6 when asked by Gotham Gazette at a news conference about the most recent decision. “That was not a blanket assessment, that was about that case,” he added.

James doesn’t agree with de Blasio though. "By its very nature, a judge's ruling sets precedent for the future and this most recent decision affirms the Public Advocate's capacity to sue to protect the rights of New Yorkers,” the public advocate said in a statement to Gotham Gazette.

Future cases will either cement the litigious powers of the office or not. Meanwhile, former office holders and legal experts are mixed on the extent to which the Public Advocate can litigate against the City.

The two court rulings that have bolstered James, though, were delivered in August in separate lawsuits initiated by James against the New York City Department of Education and the City of New York. They affirmed and reinforced the legal capacity of the Public Advocate to sue the city.

The most recent decision came on August 30 when a New York County Supreme Court judge issued a ruling on the viability of a lawsuit brought by James against the Department of Education over the lack of air-conditioning on school buses for students with disabilities. The court found that the Public Advocate’s mandate “would include an obligation to explore a serious health problem affecting disabled children of the City and attempt, with the help of the Court, to remedy that problem.” It held that the case could move forward since James had the legal capacity to sue, which the de Blasio administration had argued against in seeking to dismiss the case.

A Law Department spokesperson confirmed that the City will appeal the court’s decision that favored the Public Advocate’s right to sue on behalf of New Yorkers and in conducting the office’s duties. “The DOE is committed to ensuring air-conditioned buses to all students who require them and that any concerns are immediately addressed," the spokesperson said in a statement.

Earlier, on August 11, James hailed another court decision that found her office could compel the DOE to respond to her concerns over its failure to effectively track the needs of students with disabilities in the city’s school system.

These are only the latest in a number of judicial decisions over the years that have in turns enhanced the powers of the Public Advocate and also defined the limits of the office’s jurisdiction in certain cases. James’ litigation, largely aimed at the de Blasio administration, puts the mayor and former public advocate in the unique position of regularly opposing his successor’s claims and even right to sue. The current dynamic is also the first time in the history of the Public Advocate office that the Mayor and Public Advocate are of the same party -- de Blasio and James are both Democrats.

Public Advocates have often used litigation as a tool to take the city and its many agencies to task, and in doing so have managed to expand the jurisdiction of the office, which remains unchanged in the City Charter. The charter does not expressly give the public advocate the right to bring a lawsuit, but it does not forbid it either.

Mark Green, the city’s first Public Advocate, depended on his experience as a lawyer to bring suits against the City. During his tenure, he won two major victories that established precedent for the Public Advocate’s capacity to bring legal action. James has cited these rulings in court to push back against the City’s attempts to dismiss her cases.

The first was Green v. Safir in 1997, in which Green sued then-NYPD Commissioner Howard Safir for access to the police department’s disciplinary case files for officers with substantiated complaints against them. An appellate court that ruled in Green’s favor held that he had standing to do so to further an investigation.

In the second case, Green v. Giuliani in 2000, the public advocate sought a judicial inquiry into then-Mayor Rudolph Giuliani for disclosing information from the sealed juvenile record of an unarmed African-American man who was shot dead by an NYPD officer. The New York County Supreme court stated in that case that the Public Advocate is an independently elected official with the capacity to sue.

“Those two cases, especially, confirmed that the Public Advocate could bring lawsuits in order to exercise its power as the city’s ombudsman,” said Green, in a phone interview with Gotham Gazette. “That doesn’t mean the Public Advocate can sue anybody for anything, but can, as we did in the Green v. Safir case, compel the city government to disclose information that should be in the public arena.”

In a later case involving Long Island College Hospital, which was initiated by de Blasio when he was Public Advocate, the Kings County Supreme Court ruled that the Public Advocate had the right to intervene and help choose the next operator of the facility since it was in the community’s interest. The case was inherited by James. 

Over the course of several public advocates, the office has, however, hit walls in certain instances, showing the limits of its power. When former Public Advocate Betsy Gotbaum sought to intervene in a legal dispute involving the Metropolitan Transportation Authority (MTA), a court ruled that she did not have the capacity to challenge decisions made by a state entity. And when Public Advocate James tried to compel the release of grand jury transcripts in the Eric Garner case by suing then-Staten Island District Attorney Daniel Donovan, she was denied on the grounds that her charter duties do not extend to criminal investigations. There have been other lawsuits that James has been involved in that were also unsuccessful, wherein she either withdrew or was dismissed.

The Public Advocate office over the years has been defined by its holder and each has opted to use litigation as a tool, to varying degrees. The office has a relatively small budget, which was actually cut under Mayor Michael Bloomberg and partially restored since de Blasio has been Mayor. Some have called for the office to receive so-called independent budgeting wherein it receives a set percentage of the overall city budget and is therefore not susceptible to an unfriendly mayor or City Council.

“The office of the public advocate almost always reflects the personality and priorities of the incumbent,” said Green. “So I did turn it into a sort of Nader’s Raiders public interest organization reflecting my history,” he said, referring to his role in a volunteer activist group of law students created by former independent presidential candidate Ralph Nader. But Green insisted that litigation was not necessarily the “major tool” of the office. “The ability to bring lawsuits is important but not the core function of the Public Advocate’s office, which is monitoring city agencies, answering complaints on city government and proposing new laws and ideas to make city government more accountable.”

James has been more active in her use of litigation. Now in the third year of her first term, she has been a plaintiff in 11 lawsuits so far and filed numerous amicus briefs in other cases. In contrast, de Blasio initiated only three suits while he held the post for one term, according to a spokesperson for the public advocate.

James has brought to bear her experience as an assistant attorney general and public interest litigator, initiating action on the behalf of members of the public to challenge the performance of city agencies. She said she has redesigned the office of the Public Advocate, raising awareness of its role and capacity in advocating for New Yorkers through a three-pronged approach.

“When I was elected, my vision was advocacy work, litigation and investigatory work,” James told Gotham Gazette. Feeling good about the advocacy and litigation efforts thus far, she said, “In my next term, I want to advance the investigative power of the office including forensic audits to determine the effective of city agencies and programs.” James is up for reelection in 2017.

She points to the victories won by Green and de Blasio as affirmation of her office’s broader ambit, and is bolstered by the recent decisions in her favor as evidence of the effectiveness of litigation. Following the August 11 decision, she told Gotham Gazette, her office is better placed to bring legal action that could also be recognized by higher courts. “I would imagine that a lot of judges will look to that as paramount to our ability to bring lawsuits,” she said.

The de Blasio administration has attempted to stymie many of James’ lawsuits by arguing that cases be dismissed because they are out of the Public Advocate’s purview. It was the same tactic that de Blasio was on the other side of in the Long Island College Hospital case.

Judicial decisions show that the office’s charter-mandated authority is open to interpretation even if its architects did not intend for it to be so. The City Charter establishes the role of the public advocate in monitoring city agencies and their response to complaints from the public; proposing means of improving response to complaints; and fielding, investigating, and redressing individual complaints as well.

One expert on the City Charter said the language in the section that states the Public Advocate’s duties could construe broader authority for the office and that legal standing for lawsuits would exist in cases involving those core powers. “Tish James has been very structured in her approach,” said the expert, who requested anonymity to remain out of public legal and political disputes. “Her view and interpretation of her office’s role includes legal advocacy and impact litigation.” (This legal expert also noted a peculiar conflict in the way the Public Advocate’s office relates to the city’s Corporation Counsel, the head of the Law Department, pointing out that the Corporation Counsel is the attorney on record for both the City of New York and the Public Advocate, and is often on the opposing side of litigation brought by the Public Advocate.)

But Eric Lane, dean of Hofstra Law School, doesn’t believe the Public Advocate’s duties can be interpreted broadly. Lane was executive director and counsel to the New York City Charter Revision Commission between 1986 and 1989 and oversaw the very provisions that established the powers of the public advocate.

Lane said the Public Advocate’s job should be to oversee and report on the system, to be the “public critic” who should only use legal action to further the completion of his or her duties. “I agree that [James] has the right to sue to gain access to information to allow her to fulfill her oversight obligations under the Charter, but I don't believe that Charter provides the Public Advocate with the authority to sue ‘to protect the rights of all New Yorkers,’” Lane told Gotham Gazette, referring to a statement put out by the public advocate’s office after the August 30 ruling. “I think this is inconsistent with the Charter scope of her job and problematic,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

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James Wins Battle in Long War Over Public Advocate's Legal Standing Thu, 08 Sep 2016 04:00:00 +0000