Gotham Gazette http://www.gothamgazette.com/component/tags/tag/1535 Sun, 22 Oct 2017 20:48:29 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) Should Everything Silver and Skelos Touched Be Reviewed? http://www.gothamgazette.com/?id=6339:should-everything-silver-and-skelos-touched-be-reviewed http://www.gothamgazette.com/?id=6339:should-everything-silver-and-skelos-touched-be-reviewed skelos cuomo silver

Skelos, Cuomo, Silver (l-r) (photo via The Governor's Office, Jan. 2015)


Former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos were each told by their judge during recent prison sentencing that their corrupt actions have increased public cynicism around state government. Their corrupt actions, they were told, make people question what might have been different in the budgets and policy deals they negotiated, government decision-making that impacted millions. Judge Kimba Wood told Skelos we “can’t know” how his budget advocacy would have differed had he not been corrupt.

In fact, everything that has come through the state Legislature during Silver’s or Skelos’ tenure is open to questioning based on the facts that we now know they were illegally using their public positions for private gain and that nothing goes through either chamber without its majority leader signing off. In the wake of their convictions, every decision either was involved in could be worth reviewing, not that such an investigation is necessarily warranted or welcome.

For years, SIlver and Skelos were two of the “three men in a room” negotiating budget and other deals, approving what legislation came to a vote in their houses and directing policy initiatives. The third man in that equation, Governor Andrew Cuomo, currently faces a vast probe into his administration’s signature economic development program.

As Albany grapples with a wave of corruption convictions highlighted by those of Silver and Skelos, it does so with ethics laws negotiated by two men who have now been sentenced in major federal corruption cases and under the watch of an ethics body they not only helped create but appointed members to. The latest convictions also follow the shutdown of The Moreland Commission on Public Corruption, which was ended prematurely in a deal among Cuomo, Skelos, and Silver.

A Siena poll released on the day of Silver’s early May sentencing found 93 percent of New Yorkers think corruption is a major problem for the state and 97 percent want new laws to combat corruption.

With 16 lawmakers forced from office due to misconduct in the last six years, the nearly simultaneous downfall of the two legislative leaders, and U.S. Attorney Preet Bharara’s continued insistence that everyone “stay tuned,” the questions arise: How tainted were the budget- and law-making processes? Should decisions engineered and shepherded by corrupt officials stand?

Those are questions, according to former Assemblymember Richard Brodsky, currently a Demos scholar, that are in the hands of Governor Cuomo and the Legislature.

“If the governor or Legislature has concerns about the integrity of a law, it can be repealed, re-enacted, etcetera,” said Brodsky. He added, though, “Remember, the motive of a bill's author is what it is. It takes 76 Assembly votes to pass a bill no matter who the sponsor is.”

It is nearly impossible to imagine the governor or lawmakers wanted to revisit decisions made during the tenure of Silver or Skelos to investigate whether certain decisions were made in relation to their scandals.

Gerald Benjamin, professor of political science at SUNY New Paltz, concurred that no matter how powerful Skelos or Silver was, laws passed by the Legislature are the action of “an institution,” not “one legislator.”

Benjamin said he knows of no case where a law was later “examined due to a general charge of corruption.”

Jennifer Rodgers, a former U.S assistant attorney and current head of Columbia Law School’s Center for the Advancement of Public Integrity, said that the Silver and Skelos convictions don’t prove that either of them manipulated legislation. “And the opacity of the proceedings leaves us in the dark as to what they actually did,” she said, referring to Albany’s “three men in a room” decision-making culture. Because of that, Rodgers said repealing a law due to corruption does not seem to be “a realistic avenue to pursue -- you couldn't prove that the bribe caused the legislation to pass or fail.”

Silver, the long-time Democratic Assembly Speaker known for getting his way in budget deals by holding out longer than anyone else, was convicted of sending government money to a doctor who researched cures for mesothelioma in return for the researcher referring patients to a law firm that in turn paid fees to Silver. Able to tap into opaque pots of discretionary money called State and Municipal Facilities Program funding, Silver quietly funded the doctor’s work.

Silver had a similar deal with two real estate firms that moved their business to a law firm that paid Silver in exchange for supporting rent legislation that they backed.

At the time of his misdeeds, Silver was considered by some to be tenants’ best hope in negotiations over rent laws as Senate Republicans favored real estate. Tenant advocates now see many of the actions taken by Silver, including renewing controversial tax breaks for developers and his back-room dealings on the extension of rent regulations, as tainted.

Skelos, meanwhile was accused of extorting three firms with business before the state to employ his son Adam, who rarely showed up to work and often made problems when he did. Those businesses were real estate firm Glenwood Management; an environmental technologies firm, AbTech Industry, which wanted to earn lucrative state contracts having to do with Hurricane Sandy and hydraulic fracturing; and Physicians Reciprocal Insurers, which gave Adam Skelos a $78,000-a-year job. PRI was hoping for favorable action from Dean Skelos on legislation having to do with medical malpractice.

Skelos also benefited from State and Municipal Facilities Program, or SAM, funds. He was able to secure hundreds of millions of dollars in discretionary funding for projects at universities and colleges all over Long Island.

In Albany it is rare for major legislation to move independently. Legislative leaders and the Governor generally have two major sets of negotiations a year: early in the year around the budget, especially in the days leading up to the April 1 deadline, and during the post-budget legislative session, especially the days nearing its June end.

Budget negotiations are notorious for being sorted out in intense, closed-door meetings by the three leaders while rank-and-file legislators remain mostly in the dark. Items included in negotiations rarely adhere to generally accepted budget issues and allow the governor to trade spending increases or threaten cuts for other policies.

In post-budget session, lawmakers usually jam through a “big ugly” deal at the end, again with much secrecy and little time for many legislators or the public to review.

With so much opportunity for behind-the-scenes horse-trading it is impossible to know what exactly was influenced by Silver or Skelos, but it is also impossible to rule out that the corrupt practices they were convicted of didn’t color the major deals they oversaw.

Laws have been challenged in court due to what plaintiffs charge were improper procedures. The gun control package Cuomo pushed in the wake of the Sandy Hook Elementary School shooting faced a lawsuit over the use of a message of necessity. State law requires bills to age three days before coming to a vote. Cuomo issued a message of necessity, saying that introducing the bills and allowing them to age would lead to a rush on gun stores. Courts withheld Cuomo’s use of the message and have generally deferred to the governors on such matters. The governor has repeatedly used messages of necessity to move budget deals through, giving legislators minimal time to review thousands of pages of bill language before having to vote.

“Concerns of disruption and consequences of undoing laws weigh heavily on all of this,” said Professor Benjamin, indicating how unwieldy a review process could be.

Rodgers said that “unwinding legislation is not one of the remedies available in a criminal case.”

Even if it were, she said she sees “A huge problem to this notion of trying to undo legislation (even if it is procedurally possible, which I don't know enough to offer an opinion on), which is proving causation."

Rodgers said “given the lack of transparency of how things are actually passed in Albany,” even if there was a lawsuit brought seeking an injunction on behalf of an impacted company that wanted to undo legislation, “It seems to me that even in a civil court it would be impossible to prove that a bribe, even if the bribe itself was proved beyond a reasonable doubt in criminal court, was the proximate cause of the plaintiff's harm, assuming a plaintiff could even prove harm.”

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by David King, Albany editor, Gotham Gazette
     

Read more by this writer.

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Should Everything Silver and Skelos Touched Be Reviewed? Mon, 16 May 2016 04:00:00 +0000
Albany Lawmakers Putter Past Deadlines, Surprising No One http://www.gothamgazette.com/?id=5776:albany-lawmakers-putter-past-deadlines-surprising-no-one http://www.gothamgazette.com/?id=5776:albany-lawmakers-putter-past-deadlines-surprising-no-one Cuomo Heastie

Two of the 'three men' (photo: The Governor's Office via flickr)


Albany has a reputation for procrastination. Gov. Andrew Cuomo and the Legislature seem to meet no sunsetting regulation that impacts millions of people, mandated federal action with millions of dollars at stake, or other serious deadline that is too important for them to skirt. State government loves to push issues right to the edge, pause, and then shove them over the cliff just when everyone is looking.

It is a habit so ingrained in capital culture that long-time observers simply expect it. "When they announced the last day of session was a Wednesday I just assumed the actual end would be Friday," said Blair Horner, of the New York Public Interest Research Group, who has witnessed decades of Albany dysfunction.

With both houses and the governor having failed to prevent the city's rent laws that govern affordable housing for millions of New Yorkers from expiring, they remain in Albany locked in a more-than familiar routine. Leaders meetings are punctuated by declarations to the press of "No deal yet!" or "See you tomorrow!" The governor's office issues press release after press release about funding grants to various projects and there is an occasional deal announced on an important issue while a host of legislative debates over bills bordering on the absurd take place in chambers - as happened Wednesday in the Senate on a bill that would make the wood frog the state amphibian or with a bill naming an official state dog that was on the Senate's active list on Thursday.

Lawmakers expect to continue this routine on Friday and Monday after that, if no deal materializes on rent regulations and a couple of other high profile issues like mayoral control of city schools. Legislators have special incentive to stay and negotiate, not only because of public opinion, but because if they fail to negotiate major policy now, Gov. Cuomo will be able to hammer his preferred policy positions through more easily in the next budget.

In Albany, where passing a state budget on time is seen as a work of wonders - and a late budget is labeled on-time because the clocks in the chamber are stopped during voting - many see the current situation as par for the course and think it may the best the state can hope for, especially given current realities. "In many ways this is a really typical end of session," said Horner. "Everyone is waiting while deals are rolled out slowly, negotiations are covered in a shroud of secrecy, and this is an odd numbered year so they are focused on delivering for the political elite rather than the voters."

Things could be worse given that the legislative hierarchy was upended by US Attorney Preet Bharara and Cuomo's negotiating team consists of second-term rookies. New conference leaders Assembly Speaker Carl Heastie, a Democrat, and Senate Majority Leader John Flanagan, a Republican, have yet to storm away from the negotiating table and taken their conferences home. Cuomo hasn't begun making public threats, beyond saying he would keep the Legislature in town for as long as it takes to reach a deal on the rent laws. But history shows that there isn't much anyone can do to force the sides into a deal and as long as discussions are ongoing, there is still hope issues can be resolved.

The Legislature wrapped session fairly neatly over the last 3 years without a big ticket deal - often known as a "big ugly." But in 2011 Cuomo and legislators found themselves in a somewhat similar situation. Rent laws expired while negotiations over hot-button issues like marriage equality were actually resolved. The Legislature stayed in session a few days past the scheduled conclusion, passing simple extenders of the rent laws until they allowed the law to expire for 48 hours. Eventually a deal was struck.

Horner and others say it is when both sides stop talking that people really need to worry, because there is no effective recourse. "At the moment, cooler heads are prevailing and they continue to talk," said Horner. Cuomo could call a special session which allows him to force the Legislature to return to Albany to consider a legislative agenda of his choosing, but there is nothing he can do to make them pass bills. "The governor can call them back but it is largely an ineffective executive tool that is mainly used as a torture device rather than a deal-maker. It is used as a weapon to force them to schlep to Albany," said Horner.

Former Assembly Member and Senior Demos Fellow Richard Brodsky says that special sessions are "just silly," because "the Legislature can just gavel out of special session and into regular session," without even considering the governor's agenda.

Brodsky said it is actually in Cuomo's best interest if end-of-session negotiations fail. He said the governor's considerable budget powers have actually led to this end-of-session stalemate. "Last minute negotiation is a basic tenet of any democracy, from London to Jerusalem," said Brodsky. "What is really going on here is the governor has no incentive to negotiate because he can get whatever he wants in the budget thanks to Silver v. Pataki."

The decision in that case prevents the Legislature from altering Cuomo's budget proposals, allowing the branch to only agree or disagree with each entry. This year the result was the adoption of Cuomo's hyper-controversial education plan, free of legislative tinkering. There was, of course, much that the governor attempted to include in the budget that legislators would not agree to and was thus bumped out completely.

Brodsky says he expects Cuomo and the Legislature to agree to basic extenders so that Cuomo can put more long-term deals on mayoral control and rent regulations in his budget.

Meanwhile, for further head-scratching consider that both houses of the Legislature maintain a technical defense against any gubernatorial special session by staying in regular session even when members aren't actually in Albany to vote on anything. When leadership announces the end of a session week they will unfailingly announce their return date along with the phrase "intervening days being legislative days." The move is designed so that they never technically go out of session and leave themselves open to an official special session called by the governor. Horner says he isn't exactly clear whether the mechanism actually works. If Cuomo were to call the Legislature back it would carry with it the weight of public opinion, regardless of the technicalities.

The Legislature has returned outside of normal session voluntarily in the past to address pressing issues. They've reached deals on tax reform under Gov. Cuomo and on anti-terrorism measures after 9/11 under Gov. George Pataki.

One reason the current situation may not seem so bad to veterans like Horner is that there was a time when having the Legislature in Albany through the summer was basically the norm. Under Pataki and Gov. David Paterson budgets, due by March 1, were routinely months late.

Paterson put his executive power to the test during the 2009 Senate coup where Republicans attempted to seize control of the chamber by aligning with Sens. Pedro Espada and Hiram Monserrate. Both Democrats and Republicans insisted they controlled the chamber, the stalemate continued for weeks as legal challenges mounted. Paterson issued a special session to address outstanding issues like mayoral control of schools.

Legislators returned to Albany facing the threat of having the State Police force them there but Democrats and Republicans refused to enter the Senate chamber at the same time. Nothing got done.

Paterson later pressed Comptroller Thomas DiNapoli to withhold senators' pay until they got to work. DiNapoli initially resisted but in early July 2009 he began withholding payments despite the lack of any clear legality. The situation was eventually resolved when Paterson filled the vacant lieutenant governor position, which stripped the Senate of some of its power.

Horner stresses that the current situation isn't anywhere near the dysfunction of 2009 but that with all the pressure the Legislature faces and tension in the chamber due to Bharara's indictments, things could change for the worse. The situation is already at a point where many policy issues have been swept off the table as almost only the most basic items that have or will soon sunset are being dealt with.

"I really couldn't give odds on whether things get settled," said Horner. "This is a unique session. normally muscle memory is that there is radio silence from the governor and leaders as agreements roll out and I think that is what the expectation is now. But there is a giant question mark over whether Albany has the capacity to deal with all the changes it has been through this year."

Brodsky, however, said he knows how this movie ends. "I've been saying for months we will get extenders and the governor will put what he wants on these issues in his budget in March. I don't fault the governor, why would he negotiate when he doesn't have to?"

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

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Albany Lawmakers Putter Past Deadlines, Surprising No One Thu, 18 Jun 2015 23:54:41 +0000
Does 2015 Offer Return of the Albany Big Ugly? http://www.gothamgazette.com/?id=5742:does-2015-offer-return-of-the-albany-big-ugly-cuomo http://www.gothamgazette.com/?id=5742:does-2015-offer-return-of-the-albany-big-ugly-cuomo Cuomo

Cuomo had linked the EITC & DREAM Act (photo: Kevin P. Coughlin/Office of the Governor)


Pop quiz: what do the DNA of felons, casinos, teacher performance, the drawing of legislative district lines, and pension reform have to do with one another? This isn't a trick question - in Albany all of these issues were crammed together by Gov. Andrew Cuomo and legislative leaders in 2012 to form the traditional Albany deal that has come to be known as "The Big Ugly." The only thing that stood out about it was that the 2012 big ugly was achieved in March, three months earlier than the traditional end-of-legislative-session deal.

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Does 2015 Offer Return of the Albany Big Ugly? Wed, 27 May 2015 00:41:35 +0000