Gotham Gazette http://www.gothamgazette.com/component/tags/tag/510 Wed, 24 Apr 2019 04:16:02 +0000 en-gb webmaster@gothamgazette.com (Webmaster) New York May Soon Reverse 1992 Ban on Having Children Through Surrogacy http://www.gothamgazette.com/state/8464-new-york-could-reverse-ban-having-children-surrogacy http://www.gothamgazette.com/state/8464-new-york-could-reverse-ban-having-children-surrogacy andrew cuomo gov photos albany

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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New York May Soon Reverse 1992 Ban on Having Children Through Surrogacy Mon, 22 Apr 2019 04:00:00 +0000
Uncertain Future for Secretive State Pork Program Tied to Renegade Democrats http://www.gothamgazette.com/state/8461-uncertain-future-for-secretive-state-pork-program-tied-to-renegade-democrats http://www.gothamgazette.com/state/8461-uncertain-future-for-secretive-state-pork-program-tied-to-renegade-democrats cuomo klein via gov

Cuomo and Klein (photo: governor's office)


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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by Andrew Millman, Gotham Gazette

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Uncertain Future for Secretive State Pork Program Tied to Renegade Democrats Thu, 18 Apr 2019 04:00:00 +0000
Max & Murphy Podcast: Senator Jessica Ramos on the Adopted State Budget & Upcoming Albany Agenda http://www.gothamgazette.com/state/8459-max-murphy-podcast-state-senator-jessica-ramos-albany http://www.gothamgazette.com/state/8459-max-murphy-podcast-state-senator-jessica-ramos-albany jessica ramos 600a

(photo: @RamosforStateSenate)


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

jessica ramos 150State Senator Jessica Ramos of Queens joined the show to discuss her first budget season in the state Legislature -- accomplishments, disappointments, lessons learned -- and what lies ahead on issues including marijuana legalization, rent regulations, and her farmworkers' rights bill.

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

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: Senator Jessica Ramos on the Adopted State Budget & Upcoming Albany Agenda Wed, 17 Apr 2019 04:00:00 +0000
2010 Change to How New York Prisoners are Counted is Part of Upcoming Census and Redistricting Puzzle http://www.gothamgazette.com/state/8451-how-new-york-prisoners-are-counted-in-the-census-changed-in-2010 http://www.gothamgazette.com/state/8451-how-new-york-prisoners-are-counted-in-the-census-changed-in-2010 govcuomo meadow

(photo: Mike Groll/Office of Governor Andrew M. Cuomo)


As focus on the 2020 Census intensifies, one key aspect of the discussion is how the population count will impact legislative representation and redistricting. Along with new congressional districts -- New York stands to lose at least one if not two seats in the House of Representatives -- the state will also redraw its legislative districts for the State Senate and State Assembly, along with local legislative bodies.

One important and controversial element in both the population count and the subsequent redistricting in the 2010-2012 cycle was the location of state prisons and how prisoners were counted in the Census; specifically, whether prisoners are counted as residents of the location of the prison they are held in or of their prior home address.

Prison populations had significant impact on local counts and therefore district lines, particularly in some of the more rural areas where most state prisons are located. At the same time, state prison population in New York has been on the decline since 1999, when it was at a peak of 71,649 prisoners. Now, that number has fallen to 46,973 prisoners, according to a press release from Governor Andrew Cuomo.

Up until 2010, the Census counted prisoners in the districts they were incarcerated in, despite most of them coming from New York City and Long Island, according to data from the New York State Legislative Task Force on Demographic Research on Reapportionment (LATFOR), which has oversight of the redistricting process.

The prison count has had a significant impact on redistricting within New York, adding to the population of certain regions of particular importance for State Senate seats. While the Assembly has been dominated by Democrats for decades now, the Senate has largely seen a very close split between Republicans and Democrats. Republicans controlled the Senate for most of the past decade, including during the 2012 redistricting, until this year -- Democrats won a fairly large majority in last year’s elections.

When Democrats last had control of the Senate, briefly in 2009-2010, a controversial bill was passed amid the 2010 Census mandating that prisoners are counted based on their last known home addresses.

While counting prisoners at their prior addresses is likely to remain the case going forward, some redistricting experts are concerned that this method of counting prisoners may not be deployed because newer legislation does not address it. In 2014 and after much criticism of the 2012 redistricting process as overly political, New York voters approved a ballot measure creating a new, more independent redistricting process for 2022 and beyond.

The 2020 Census count will begin in April of next year, without full clarity on the prison count question. Prison populations can have significant impacts on how district lines are drawn, and those lines can greatly influence legislative balances of power.

How did prisons impact redistricting?
For State Senate and Assembly redistricting, the Census is taken, then the total number of people in the state is divided by the total number of districts -- 150 Assembly districts and 63 Senate districts. District lines are then drawn necessitating that a similar number of people are counted within each district.

In 2010, many State Senate districts in upstate New York were underpopulated relative to other districts, giving upstate voters more influence over their representatives than voters in overpopulated districts downstate, including in New York City, where voter power was deflated. When taking away the prison population of seven of those upstate districts, they became severely underpopulated, further inflating upstate voters’ power, according to the Prison Policy Initiative.

Senate District 45, which includes Clinton, Essex, Franklin, Hamilton, Warren and Washington Counties, had one of the highest prison populations, 14,161, as of 2007, according to the Prison Policy Initiative. Taking away that prison population, the district had almost 30,000 fewer residents than the 2010 average population per district of 312,550, according to the Center for Urban Research at the CUNY Graduate Center.

Prison population counting also affected redistricting on a local level in places like Rome, New York. According to information from the Prison Policy Initiative, in Rome’s second ward, half the population counted in the census was incarcerated, inflating the local non-incarcerated population to double its actual size. Thus voters in Rome’s second ward had roughly twice the influence they would otherwise demand; prisoners are not allowed to vote in New York.

Some upstate populations inflated by prisoners meant that more funding and political attention was allocated to predominantly Republican communities, in part through districting, helping the party hold a firmer grasp over the State Senate.

New York changes how the census counts prisoners
In 2010, several non-profit groups including The Brennan Center, The Prison Policy Initiative, and Demos rallied against the way prisoners were being counted, calling it “prison-based gerrymandering.”

They strongly advocated for a bill (S6725A) sponsored by then-State Senator Eric Schneiderman, a Manhattan Democrat (who went on to become New York Attorney General, a position he resigned from in 2018 amid a domestic abuse scandal). The bill required incarcerated people to be counted based on their home residence and not based on the address of the prison where they are incarcerated.

This legislation was passed, along with a provision postponing the deadline for prisons to report inmates’ home addresses from July 1 to September 1. It was introduced as an amendment to the New York State revenue budget bill in August 2010 -- four months after the 2010 Census count had begun in April.

Almost 80 percent of the state’s prison population was then successfully recounted based on inmates’ last known addresses. The state prisoners whose addresses were not identifiable, as well as all federal prisoners, were not taken into account when determining legislative districts.

The legislation mostly stopped upstate communities from gaining additional political influence and resources based on housing prisons. At the time, the move was hotly contested, but it has not been discussed much since.

Justin Levitt, currently a law professor at Loyola Law School, who then served as counsel at The Brennan Center for Justice, believes redistricting was made fairer as a result of the legislation. “In the districts where there are prisons, the surrounding communities are represented by their representatives, but the people who are artificially stuck in that neighborhood are represented by legislators in the areas where they are from,” he said in a phone interview.  

Opponents of the change
The legislation faced fierce opponents, many of whom were legislators in districts home to prisons. Senator Betty Little, a Republican representing counties including as Clinton, Franklin, Essex and Washington Counties in Northern New York, was one of the senators most strongly against the legislation.

Senator Little’s district housed 13 state and federal prisons in 2009, although three of those have now been shut down based on New York Department of Corrections’ prison maps. The new method of counting prisoners meant that her district would have to be redrawn to accommodate more people so that it was not severely underpopulated.

Little filed a lawsuit in April 2011 against the Legislative Task Force for Research and Reapportionment (LATFOR), a task force set up by minority and majority leaders of the Senate and Assembly to determine district lines. The lawsuit aimed to strike down the prisoner counting legislation. She lost in Little vs LATFOR.

The plaintiffs argued that the legislation was unconstitutional, did not correctly count inhabitants, and that the method of counting inmates did not line up with what was recommended by the U.S. Census Bureau. The New York Supreme Court ruled that the legislation did not obstruct the constitution beyond a reasonable doubt. It also determined that prisoners’ addresses at the prisons should not be viewed as permanent. The ruling also quoted Census Bureau Director Robert M. Groves, who said that states may count prisoners however they please.

Today, Senator Little still argues her case. “My contention has been that incarcerated individuals should be counted where they are serving their sentence, their 'usual residence,' not where they are from and may or may never return," Little told Gotham Gazette via email. "Where they utilize services is where they should be counted because the allocation of resources for these services is often apportioned based on representation and population."

Efforts Since 2012 Redistricting
Jeffrey Wice, who has served as counsel to Democrats during state legislative redistricting, and is currently a fellow at SUNY Rockefeller School of Government, is concerned that New York may go back to counting prisoners in the districts where they are incarcerated as 2022’s redistricting process approaches.

Wice points to the redistricting amendment made to the New York State constitution in 2014, based on popular vote after passage by the Legislature. It stated that a ten-person redistricting commission would be appointed to determine district lines in the redistricting cycle of 2020-2022, and refined the criteria for commissioners and that the commission would take into account when determining district lines.

“The constitutional amendment is silent on that,” Wice said of how prisoners are counted. “And several of the commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent.”

However, a spokesperson from Governor Andrew Cuomo's office sounded definitive, saying of prisoners: “They will be counted as part of their home districts.”

What next?
The impact of counting prisoners in the census, wherever they are located or tallied, is decreasing as the prison population is decreasing.  In the new state budget, the Legislature agreed to allow Cuomo to shutter up to three more prisons, the number will depend on which prison beds are identified for elimination given the declining inmate populations. It’s unclear how the closure of two or three prisons may impact the populations in other prisons, where some inmates may be transferred.

Meanwhile, the budget also included new criminal justice reforms that promise to significantly reduce jail and prison populations, including bail, speedy trial, and discovery reforms.

The likely continuing reduction in prison population across the state, plus the prison population-counting legislation passed to apply to the 2010 Census and beyond, and the new redistricting process set to take hold based on the constitutional amendment that was passed in 2014, may ultimately ensure counting of prison populations will play less of a role in determining legislative district lines in the 2020-2022 redistricting cycle.

[READ: New York's New, Untested Redistricting Process Set to Unfold After 2020 Census]

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by Ashad Hajela, Gotham Gazette

Read more by this writer.

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2010 Change to How New York Prisoners are Counted is Part of Upcoming Census and Redistricting Puzzle Mon, 15 Apr 2019 04:00:00 +0000
The Devilish Details of Albany’s MTA Budget Package http://www.gothamgazette.com/130-opinion/8448-the-devilish-details-of-albany-s-mta-budget-package http://www.gothamgazette.com/130-opinion/8448-the-devilish-details-of-albany-s-mta-budget-package govcuomo photos

(photo: governor's office)


My organization, Reinvent Albany, applauds Governor Cuomo and the legislature for passing congestion pricing in the state budget. Yet we are concerned about it being undermined by boundless exemptions for politically powerful interest groups, and a proliferation of other new structures and requirements for the Metropolitan Transportation Authority (MTA) that passed along with the tolling program.

Paradoxically, the MTA legislative “reform” package also included a deal for the Legislature to approve new CEO/Chair Pat Foye without the extensive confirmation hearings and scrutiny expected for the head of the MTA—a behemoth that is the biggest unit of state government, with a $17 billion operating budget and 75,000 staff.

We believe the net effect of the changes made to the MTA further confuse decision-making and aggravate the lack of public accountability.

We will be living with the details of the “MTA Reform and Traffic Mobility Act” for years, so it is worth taking a detailed look. Below is a summary of the various provisions and our brief analysis. (Those interested in reading the 30+ pages of law that makes up the package can read Part ZZZ -- yes, ZZZ -- of the state budget's Revenue Bill).

1. Congestion Pricing
Congestion pricing is officially known in law as the “Central Business District Tolling Program.” The program will be designed and implemented by the Triborough Bridge and Tunnel Authority (known as MTA Bridges and Tunnels or informally as B&T), with a Memorandum of Understanding (MOU) laying out the details of how B&T will coordinate with the New York City Department of Transportation to get the program up and running. The law also gives B&T enforcement officers the power to issue notices of violations for transit infractions around B&T facilities, including the new tolling infrastructure.

The Central Business District is defined as 60th Street and south in Manhattan, but for FDR Drive, the West Side Highway, and the underpass to the Hugh L. Carey Tunnel (formerly the Brooklyn Battery Tunnel).

Tolls will be charged to vehicles entering the Central Business District by the B&T, with the amount of the tolls to be determined and approved by a majority of the MTA Board, as well as any exemptions. This will be informed by a new Traffic Mobility Review Board (TMRB). The CEO/Chair gets an additional vote if there is a tie.

The TMRB is to be appointed by the MTA Board. The TMRB’s plans must ensure that the recommendation would at a minimum raise $15 billion for the 2020-2024 capital plan, including costs of operating the program. The TMRB also is given the authority to “review” MTA capital plans, though what this will entail is unclear. It will have six members total, including a chair, with one member recommended by the Mayor of New York City, one member residing in the Metro North Railroad (MNR) region, and one residing in the Long Island Rail Road (LIRR) region.

Some exemptions to the toll are listed in the law, such as for emergency vehicles and  “qualifying vehicles transporting a person with disabilities.” The TMRB will make additional recommendations for credits, discounts, or exemptions. This will include consideration of credits or discounts for the current fee imposed on for-hire vehicles that was passed as part of last year’s state budget. A separate tax credit was created for residents in the congestion pricing zone earning less than $60,000 annually, provided they aren’t using their vehicle for business purposes.

Revenue from the tolls will go into a “central business district tolling capital lockbox.” Funds are to only be used for the costs of implementing the program and for the MTA’s 2020-2024 capital plan. Funds will be split 80-10-10: 80% of funds are to be for capital costs for New York City Transit (NYCT), with priority to the subways, accessibility, buses, and expanding transit in outer boroughs; and 10% of funds for both LIRR and MNR, with priority given to parking, rolling stock, capacity enhancement, accessibility and expanding transit in areas with limited transit.

Annual reports are due from B&T to state and city government officials as well as the public on receipts and expenditures, to be posted on the MTA website. Another report is due from B&T due on success of program in terms of traffic congestion, air quality, transit ridership, and bus speeds after one year, and then every two years. NYC DOT is to conduct a separate study on parking around the central business district 18 months after congestion tolls go into effect.

The TMRB will make its recommendation to the MTA Board on exemptions no earlier than November 15, 2020, or no later than 30 days before a tolling program is initiated. The program will be in operation no earlier than Dec 31, 2020. There will be a 30-day testing period where no tolls are collected, and then another 60 days where only tolls are collected, but not other charges and fines.

2. MTA Reorganization
The budget requires the MTA to develop a reorganization plan by June 30, 2019. This will be informed by a separate “independent forensic audit.” The plan will require approval of the MTA Board by majority vote; Chair gets 2 votes in event of tie. The reorganization cannot result in dissolution or merger of the authority and its subsidiaries. The legislation also allows the MTA and its subsidiaries and affiliates to share employees within and between entities, provided the employee will be doing a similar function. The law states that employee sharing will not impede or infringe upon collective bargaining agreements currently in place.

3. Design-Build
The budget adds to the mission and purpose of the MTA, stating that design-build is to be used in all projects over $25 million; however, it allows for a waiver from this streamlined bidding-design-construction requirement to be issued by the Director of the New York State Division of the Budget (currently Robert Mujica), who is appointed by the Governor.

4. MTA Board Appointments
The budget makes the terms of appointees to the MTA Board coterminous with their appointers. It also limits the amount of time that MTA Board members can serve in “holdover” status to 60 days (several MTA Board members were ousted as a result of this change, with new nominations made by the Governor during the budget weekend). The law also puts in place a process for an acting CEO/Chair to be in place not more than six months unless the Senate has not acted on a nomination from the Governor to fill the position. Any candidate filling the vacancy requires advice and consent of the Senate, as for regular appointments.

5. Independent Forensic Audit and “Reviews” of Waste, Fraud and Abuse
A provision retained from the Senate’s one-house bill requires the MTA to hire a certified public accounting firm to conduct an “independent forensic audit” that will review the MTA capital program, among other items. The firm cannot have done business with MTA in the last five years, or employ a former MTA employee who moved over in the past three years. The forensic audit is to be completed by January 1, 2020, and will be posted on the MTA website 30 days after submission to the MTA Board.

It also requires the MTA to hire a financial advisory firm with a national practice to review waste, fraud, abuse, and conflicts of interest; duplication of functions; cost efficiencies; the 2015-2019 capital plan; the MTA’s performance metrics; and cash flow and accounting of expenditures. The firm will submit its “reviews” by July 31, 2019 to the MTA Board, which will be posted on the MTA’s website.

6. Major Construction Review Unit
The MTA is now required to create a Construction Review Unit within the authority, which will consist of a panel of “internal and external experts” appointed by the MTA Board. It will review all “large scale projects” (this is not defined). It is given specific authority to review plans involving signal upgrades, including Communications Based Train Control (CBTC), the current industry standard, and ultra-wideband technology before they are implemented. Ultra-wideband is one component of CBTC, the radio technology for potential use as the “communications” part of CBTC. Its review of any project must be completed within 30 days of submission by MTA staff.

7. Capital Program Review Board
Members of the Capital Program Review Board, which is made up of four voting members, one each from the Governor, Senate and Assembly majorities, and New York City Mayor, are now required to provide a written explanation if a member rejects the MTA’s capital plan or any amendments the Board is considering. The written explanation must include specific areas of concerns and steps to address these concerns. The MTA may provide a response to the rejection, and after 10 days the disapproving member can withdraw the disapproval.

8. Debarment of Contractors
The budget authorizes the MTA to develop a debarment process for contractors to prevent bidding on future contracts for a five-year period. Any regulations developed must ensure notice and an opportunity to be heard. Debarment is to only be provided for situations involving: failure to substantially complete work within time frame of contract, or in a subsequent change order by more than 10% of the contract term; or where disputed work exceeds 10% of the contract cost and claimed costs are deemed invalid.

9. Fare Evasion Plan
The MTA is required to establish a plan to combat fare evasion, in consultation with the Governor, Mayor, and District Attorneys within New York City by June 30, 2019. The details of this consultation are not defined, and presumably will be dependent on the interest of the official identified as being participants.

10. East Side Access
The budget requires that the “L Train independent review team” (the Deans of Columbia and Cornell University who provided an alternate plan for the L Train shutdown), will evaluate the East Side Access project, and make recommendations to accelerate its completion. The project is currently at $11.3 billion in total costs, up from a projected $4.3 billion in 2006, where it was projected to be finished in 2009. It now expected that service will start running in December 2022.

11. Capital Plan Legislative Funds
The budget gives the Legislature a pot of funding that is set aside from the 2020-2024 capital plan for transportation improvements for the subways, buses and commuter railroads, subject to a Memorandum of Understanding (MOU). These types of agreements have been used in the past for other pots of funds, and are not required to be made public. They have not been voted on publicly by the members of the Legislature, so the public in the past has not known which members are requesting individual projects.

This MOU is to be entered into by the Senate Finance Committee Chair (currently Senator Liz Krueger), Assembly Ways and Means Chair (currently Helene Weinstein) and Director of the Budget (the Director of the Division of the Budget - currently Robert Mujica). The MOU is to be approved not more than 90 days after approval of the capital plan by the Capital Plan Review Board.  It should be noted that last year’s budget created a separate $50 million outerborough transit fund, to be used annually by the Legislature for individual projects.

12. Procurement
The budget legislation made a number of changes to procurement at the MTA, relating to both how it selects contractors and who reviews any contracts before they are executed. It extends until 2023 requirements regarding the selection of lowest possible bidder, where possible. It also raises the threshold for requiring use of lowest possible bidder to contracts of $1 million or more from $100,000, and raises the threshold for MTA Board approval of contracts not awarded to the lowest possible bidder or conducted under formal competitive process to $1 million or more.

Where the State Comptroller has existing pre-audit authority for NYCT and MTA contracts (the ability to review noncompetitive contracts over $1 million or those involving state funds, and not making them enforceable until approved), the Comptroller must provide a determination within 30 days receiving the contract from the MTA.

13. Performance Metrics
Another component remaining from the Senate’s one-house bill is a requirement for the MTA to use specific performance metrics, largely borrowed from Transport for London, which are defined in law, including:

-Additional platform time
-Additional train time
-Customer journey time and excess journey time
-Elevator and escalator availability
-Major incidents metrics
-Staff hours lost to accidents
-Terminal on time-performance

On-time performance is defined as arriving within two minutes of scheduled time. Note that two minutes for the subway is very different than for Metro North and Long Island Rail Road, which are required to use the same standard though the frequency and length in terms of mileage of service are very different.

The new law also requires the MTA to publish weekly performance reports for NYCT, LIRR, and MNR, as well as release of an annual report with international benchmarking on costs per mile for operating and maintenance, as well as staff and contractor hours for passenger journeys, and staff hours lost to accidents. Lastly, the law requires release of an annual implementation report for the Legislature and Governor by December 31 every year, which will be posted on the MTA website.

14. Twenty-Year Capital Needs Assessment
The last component remaining from the Senate’s one-house bill requires for the next capital plan (2025-2029) that the MTA submit to the Legislature a 20-year capital needs assessment before October 1, 2023, and every five years after for future plans. Its last 20-year capital needs assessment was released in 2013 prior to the finalization of the current 2015-2019 capital plan.

The 20-year needs assessment will include broad long-term capital investments to be made, and establish a non-binding basis for planning of strategic investments involving capital elements of five-year capital plans. The assessment does not require the MTA Board or CPRB approval, and is for information purposes only, though it is required to be certified by the MTA CEO/Chair and entered into the formal records of the minutes of the CPRB.

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Rachael Fauss is Senior Policy Analyst at Reinvent Albany. On Twitter @RachaelFauss & @ReinventAlbany.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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The Devilish Details of Albany’s MTA Budget Package Sun, 14 Apr 2019 04:00:00 +0000
Federal Tax Reform is Shaking Up New York’s Finances But Flow of Bank Settlement Money is Bailing Out the State Budget http://www.gothamgazette.com/130-opinion/8444-federal-tax-reform-shaking-up-new-york-bank-settlement-bailing-out-state-budget http://www.gothamgazette.com/130-opinion/8444-federal-tax-reform-shaking-up-new-york-bank-settlement-bailing-out-state-budget cuomo salt weather

(photo: governor's office)


The federal tax law overhaul enacted at the end of 2017 capped state and local income and property tax deductions on federal income tax returns at $10,000, damaging millions of New Yorkers’(and tens of millions of other Americans’) ability to itemize deductions on their federal tax returns. The change also resulted in sudden shifts in New Yorkers’ behavior toward their own New York tax payments. Over the past two budget cycles the changes have destabilized New York State’s tax revenue collection patterns and caused considerable uncertainty in the state’s budget and funding for the services New Yorkers rely upon.

A recent report by Moody’s Investors Service indicates the fears of Governor Cuomo and other New York leaders that the federal tax deductions cap will cause New Yorkers to flee the State may be exaggerated. But that report only reviewed New York outmigration patterns through 2017 -- this analysis focuses on immediate changes in New Yorkers’ behavior as New York taxpayers and how those changes have affected the past two budgets and the one just adopted. How many New Yorkers will leave the state remains unknown.

In December 2017, following Congress and Trump’s tax reform, the state government experienced a sudden spike in tax payments as New Yorkers chose to make tax payments in 2017 rather than 2018 so they could still deduct in excess of $10,000 in New York taxes from their federal returns, and avoid, at least briefly, the coming limits on deductions to the extent that they could.

According to a 2018 State Comptroller report, the State Division of the Budget estimated that $1.9 billion came into the New York treasury that represented an acceleration of 2018 tax payments into 2017 to take final advantage of full state and local tax (SALT) deductibility. As a result, New York’s tax revenue rose more than 6% in 2017-18 over 2016-17. But, of course, it was anticipated that these 2017 payments would affect 2018 payments and that tax collections would correspondingly fall in 2018. At the time of budget adoption in 2018, the state predicted tax revenue would fall 2% in 2018.

In December 2018 and January 2019, however, tax collections fell precipitously, resulting in a $3 billion drop below estimates made at the time of the April 2018 budget enactment, for a total drop of $ 4.4 billion, or 6.4% below the 2017-2018 budget, not 2%.

Many wealthier taxpayers, with large incomes from capital gains, pay significant portions of their New York State taxes in quarterly estimated payments, including a regular January quarterly payment, rather than in withholding taxes, which are usually related to wages and salaries. Before the federal tax overhaul, New York taxpayers had an incentive to make their January estimated payment in December to assure they could take their tax deductions for that year on their next federal return. But with itemization nearly wiped out, the incentive to make the estimated tax quarterly payment early disappeared. The loss of this incentive is believed to be the main factor in the dramatic revenue declines this past December and January.

The State Division of the Budget believes that some of the money might be recouped in estimated payments in the first quarter of this year following January, but since the state adopted its budget for the April 1 start of the fiscal year, there was no way to know yet how much of the money might be recouped. So the governor and the Legislature chose caution and limited spending increases this year.

New York is not going broke, and the economy and tax revenue are still anticipated to grow, but the shock from the billions in lower revenue informed a cautious approach. The 2018 stock market decline also affected New York’s tax revenue from capital gains. For the first time in many years the governor and the Legislature added to the rainy-day reserve funds rather than add a lot of new spending.

Shoring up the state’s financial situation has been an extraordinarily fortunate additional development over the past few years. Litigation against the financial industry for wrongdoing that occurred during the Great Recession has resulted in many banks and financial companies agreeing to settle lawsuits for fraud and other problems with New York State for almost $12 billion(!) since 2015. New York spent much of the first of these settlement dollars on economic development to help the stagnant economy in Upstate New York , but in 2017 and 2018 $2 billion more has come in from new financial settlements, and the state has simply used the money to bail out the state budget and fund the MTA.

In the 2018 fiscal year the state put $461 million from over $800 million in new settlement funds that year into the state budget, and set aside $155 million to cover future labor contract increases. In the adopted fiscal year 2019 budget (for the fiscal year beginning April 1, 2018), the state put another $383 million from financial settlement into the budget, and took $194 million of additional settlement funds to help pay for the one-time 2018 cost of the MTA Subway Action Plan (2019 and beyond was covered from a tax).

But as 2018 progressed, an extra $1.2 billion more in financial settlement funds came into the state treasury that had not been booked by the state in the April budget adoption! In the budget just adopted a week ago, Governor Cuomo and the Legislature took $336 million of the new money to cover the early 2019 winter shortfalls related to apparent taxpayer behavior changes, and have set aside more than $600 million from the financial settlement funds in reserves to reduce future risks in the case of economic downturn, federal cutbacks, or other problems.

The combination of rainy-day funds and financial settlement reserves now totals $5 billion for the 2019-2020 fiscal year, which began April 1 and has a total state budget of $175.5 billion.

In an important revenue action, the state again renewed the higher rate for taxpayers with incomes over $2.2 million at 8.82%, yielding $770 million this year and an extra $4 billion next year, for five full years.

School aid was increased 3.7% (New York City got 3.4% more). The Legislature restored $550 million for the Medicaid program that the governor tried to cut after the shortfalls appeared.

The minimum wage increase that took place on December 31 to $15 per hour for New York City necessitated $700 million in additional Medicaid spending to cover the cost of raising the pay of workers in hospitals, nursing homes, and home care agencies who made less than $15 an hour in the city, as well as somewhat lower raises outside the city.

The state anticipates tax revenue will recover from the decline this past December and January, although overall it will be lower than had been hoped last year.

The challenges to fund the MTA will continue, since the tax and fee increases to assure $25 billion for its 2020-24 Capital Plan don’t approach the $40 billion estimated to be needed for that plan or the $7 billion for the current 2-15-2019 plan that remains unfunded. But don’t expect more tax increases for the MTA in an election year in 2020.

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Jim Brennan was a member of the New York State Assembly for 32 years, where he chaired four committees. On Twitter @JimBrennanNY.

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Federal Tax Reform is Shaking Up New York’s Finances But Flow of Bank Settlement Money is Bailing Out the State Budget Thu, 11 Apr 2019 04:00:00 +0000
New York’s New, Untested Redistricting Process Set to Unfold After 2020 Census http://www.gothamgazette.com/state/8445-new-york-s-new-untested-redistricting-process-set-to-unfold-after-2020-census http://www.gothamgazette.com/state/8445-new-york-s-new-untested-redistricting-process-set-to-unfold-after-2020-census state map

NY State Senate Districts (image via Google Maps)


Following the 2020 Census, New York will kick off the decennial redrawing of its state legislative and congressional districts to ensure equitable representation based on population. But the next redistricting process is untested so far, having been approved after the 2010 Census when New York saw a severe undercount, contributing to the loss of one congressional seat, followed by a redistricting that many observers and elected officials criticized for creating overly complicated state legislative districts on partisan lines.

Looking ahead to the upcoming process, experts are hopeful, though uncertain, that the new redistricting method -- approved by voters via 2014 ballot referendum -- will lead to cleaner, more representative districts that improve the state’s democratic process once they take effect in 2022.

New York currently has 150 Assembly districts, 63 Senate districts, and 27 for the U.S. House of Representatives, all of which could change with the next redistricting when a new advisory commission of mostly legislative appointees will recommend the new boundaries for districts. That commission is meant to reduce political influence, though its proposed maps will not be binding.

Democrats now control the entire state Legislature, though they will have to keep control, especially of the Senate, through the 2020 elections. Republicans held the state Senate when the last round of redistricting took place, with a split Legislature in part leading to heavily gerrymandered district lines. At least in theory, legislative leaders will be less able, and therefore likely less inclined, to manipulate the next redistricting process, which offers a degree of parity and safeguards against partisan politics.

The census is the first big next step, and with the subsequent redistricting it determines representation of a state’s population in Congress and, for New York, the state Senate and Assembly. Besides the threat of billions in lost federal funding, an inaccurate census count can set the stage for a skewed drawing of legislative and congressional districts. New York has seen a net out-migration of more than a million residents since 2010 and stands to lose at least one seat in Congress, if not two, if the state’s population is not adequately counted.  

Following the last census, in 2010, the state’s redistricting process came under heavy scrutiny for lacking transparency and for creating state Senate districts that seemed designed to advantage Republicans and upstate and suburban districts, diluting the power of New York City residents who tend to lean Democratic. The process also strengthened Democrats’ control over the Assembly, though that chamber has traditionally been dominated by the party.

Governor Andrew Cuomo approved of the redistricting plan, which was put forward by the state’s Legislative Task Force on Demographic Research and Reapportionment (LATFOR) after 23 hearings across the state. At the last LATFOR hearing, one member, then-state Senator Martin Dilan, a Democrat, said he had considered boycotting the meeting because “the entire process has been a farce, a sham, has been a waste of money, and I believe that we have not listened to the citizens of the state of New York, and the plan that's being presented today to the Legislature is something that's putting the cart before the horse.” The redistricting plan, he said, was presented to the public and to the Legislature without LATFOR voting on it first.

But as the Legislature adopted the redistricting plan, it moved forward with an amendment to the state constitution, approved through voter referendum, which mandated the creation of a new “independent redistricting commission” to redraw district lines.

In 2021, that commission will be created for the first time, composed of ten members -- two each appointed by the Assembly Speaker, Senate majority leader, and minority leaders in both houses; and two chosen by a majority of those eight appointed members. The legislation set restrictions on who can be members, prohibiting anyone who has been in the previous three years a state legislator, congressional representative, statewide elected official, legislative or state employee, lobbyist, or political party chair. It also restricts the spouses of legislators, representatives, and statewide officials from serving. The commission will have two co-executive directors, representing the Democratic and Republican parties. LATFOR, chaired by Assemblymember Marcos Crespo, a Bronx Democrat, is meant to provide assistance to the commission. Crespo’s office did not respond to repeated requests for comment for this story.

The new commission will be guided by clearer safeguards and criteria than its predecessor as it spends months holding public hearings across the state. The authorizing legislation requires the commission to hold at least one hearing in the cities of Albany, Buffalo, Syracuse, Rochester, and White Plains, and in counties including the Bronx, Brooklyn, Queens, Staten Island, Manhattan, Nassau, and Suffolk.

The law mandates that districts should not be drawn in a way that could lead to “the denial or abridgement of racial or language minority voting rights.” It requires the commission to create equally populated districts as far as possible and to provide explanations in case of deviations.

The law also protects against the party in power from exploiting its position. If the leaders of the two legislative chambers represent different parties, the newly drawn maps recommended by the commission must be approved by a majority vote of each house. But, if both chambers are controlled by the same party, approval would require a two-thirds majority vote.  

“What we have this time around is the largest amount of uncertainty that we’ve ever had in redistricting in the last 40 years,” said Esmeralda Simmons, founder and executive director of the Center for Law and Social Justice, at Medgar Evers College, CUNY. “There’s a big question mark about what exactly is going to happen and how in this precedent-setting year, how this commission and the state Legislature will actually behave under these circumstances. It’s a test of whether or not elected officials, when their self interest collides with democracy, will choose democracy.”

Experts agree that an effective redistricting can only take place if the state carries out a thorough census effort and counts each and every resident of New York, and that the process is as free of politics as possible.

The 2020 Census is expected to be particularly challenging for several reasons -- the federal government is underfunding the Census Bureau; the count will be carried out largely through digital methodology for the first time; the Trump administration is attempting to add a citizenship question (which is being challenged in court) amid already rising concerns among immigrant communities, particularly undocumented immigrants, that they could fall under the federal government’s scrutiny; and the state has only allocated $20 million for community outreach though advocates called for twice that amount.

“Right now, the focus has got to be on the census because a bad census is going to result in a lack of fair representation,” said Jeff Wice, Fellow at the SUNY Rockefeller Institute of Government, who is a veteran of four cycles of legislative redistricting in New York City and State. “The state commission won’t be created until 2021 so it is not going to be a frontburner issue now, but people do need to learn about the process.”

As Wice and the others noted, an inadequate census would raise questions about the equitable reapportionment of districts. Undercounts, particularly of hard-to-count communities, can lead to redrawing district boundaries in ways that would create overpopulated districts, effectively watering down their representation, while over-representing others.

“Given there are communities that tend to not appear on the population count combined with the fact that there are districts that are disappearing, is potentially worrisome in terms of the reality of representation on the congressional level,” said Yurij Rudensky, counsel with the Democracy Program at the Brennan Center for Justice, “particularly for parts of the city like Queens and Brooklyn and the Bronx where lower-income communities, communities of color tend to live.”

There also remain several other open questions about the process, including how independent the redistricting commission will really be and whether the districts it draws will ultimately be approved by the Legislature and Governor. In the last round of redistricting, the Legislature deadlocked on congressional maps and a judicially appointed special master ended up drawing the maps that were later adopted. 

“Maps that are drawn by courts perform well from a partisan fairness standpoint,” said Rudensky, “and of course courts are also sensitive to racial implications and have for a long time considered Voting Rights Act challenges.”

The independent commission’s recommendations will not be binding and the Legislature can, after rejecting the commission’s plans twice, adopt its own plan. “There’s no guarantee that this is how things will play out but it is possible as the proposal is written right now,” Rudensky said. “That is a reality, that is a shortcoming. It doesn’t mean it will happen, it doesn’t even mean that it’s likely because I think the way that it was designed, it will make it harder. Because the public has this increased role, it would look bad at the very least. That’s not to say that that will stop any sort of funny business.”

The 2021 redistricting process will be the first to be carried out without certain protections of the Voting Rights Act, which were struck down by the United States Supreme Court in 2013. Those protections required certain states and counties -- including the Bronx, Brooklyn and Manhattan -- to get approval from the federal Department of Justice to make changes to election laws, including the drawing of districts. Without those protections, “the only way to challenge something that hurts racial minority voters would be to go to court after the fact, not stop it before it goes into effect, and that’s a real major difference,” Simmons said, “the fact that they don’t have the hammer of the Justice Department hanging over their heads to reject racially discriminatory voting lines.”

Simmons is eagerly awaiting the Supreme Court’s decision, expected this summer, in a separate case that could bring an end to extreme partisan gerrymandering, which she is hoping will strengthen the state redistricting process as well.

The state Legislature passed a law in 2010 requiring that prison populations be counted based on inmates’ previous residence, but the constitutional amendment creating the redistricting commission does not address the issue. Prison populations can especially bolster upstate area population counts if prisoners are counted based on their prison location.

“The commissioners could question whether the state is still required to reallocate prisoners because the constitutional amendment is silent on that,” Wice said. “It is an open question because they could argue that the constitutional amendment preempts a chapter law that was enacted prior to the constitutional amendment...That could be a major debate.”

Nonetheless, there’s hope that the state can set a better standard with the new process. “I believe that elected officials can redistrict responsibly if they have a fair, transparent, objective process, and that’s very doable,” Wice said. “You don’t want to have plans…that are enacted through backroom machinations….[The commission’s] got to do things more in the open that will lend itself to more credibility and trust.”

Simmons admits that she has a “deep-seated fear” that the Legislature could exploit the loophole in the law that allows it to draw districts and reject the commission’s proposal. But, she said, “I do have hope that this process will be real and not just subterfuge, wasting taxpayer dollars by giving some people some busy work while the Legislature draws its own districts and simply rejects out of hand anything suggested by the commission.”

Rudensky said the public eye will keep the Legislature honest. “There’s gonna be a lot of attention on it, focus on it and hopefully that will help make sure that the reform is a success,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note - this article has been updated to clarify that congressional maps were drawn by a court-appointed special master in only the previous round of redistricting, not the previous two rounds. 

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New York’s New, Untested Redistricting Process Set to Unfold After 2020 Census Thu, 11 Apr 2019 04:00:00 +0000
It’s Time to Get Big Money Out of the Climate Change Fight http://www.gothamgazette.com/130-opinion/8435-it-s-time-to-get-big-money-out-of-the-climate-change-fight http://www.gothamgazette.com/130-opinion/8435-it-s-time-to-get-big-money-out-of-the-climate-change-fight gnd4ny divestny

(photo: John McCarten/NY City Council)


The window for meaningful action on climate change is narrowing. Every year, as more climate impacts become “locked-in,” changes we have to make to save the planet become even harder to implement. Right now, fossil fuel industry campaign contributions to politicians are holding back the solutions we need.  

If we want to pass climate policies that could actually help reverse the climate crisis, then we also need to fix our democratic system that gives too much power to wealthy donors and big polluters. In New York, a state where wealthy donors contribute an outsized proportion of funds to campaigns, we have the opportunity to build a public campaign financing system that can address this imbalance. These two crises are interconnected.

Nationally, the fossil fuel industry has tightened its stranglehold on American politics. In the 2018 election cycle alone, $89 million in campaign contributions came from the oil, gas, and coal industry with the vast majority going to Republicans. Contributions from the fossil fuels sector put a stop to ballot initiatives that would have created landmark state climate and energy legislation here in New York—and across the nation.

In the battle over fracked gas development in New York, oil, gas, and fracking support industries spent $10.7 million on contributions and $33.5 million on lobbying from 2007 to 2013, stalling several fracking restriction measures. While grassroots activists eventually succeeded in pushing Governor Cuomo to take executive action to ban fracking, this influx of pro-fracking cash signals potentially bigger battles ahead as the state considers a 100% renewable energy target.

In 2018 in Washington state, $31.5 million was pumped mostly from mostly out-of-state oil and gas industry into a campaign that ultimately defeated a carbon tax measure that would create revenue for renewable energy and vulnerable communities. And a proposition that would have set restrictions on gas fracking in Colorado was defeated after oil and gas spent over $26 million in the state.

That is why a growing chorus of environmental advocates is calling for public financing of elections — which expands the contributions of small donors through public matching programs. With a fair elections system, elected officials would be more responsive to the electorate, an overwhelming majority of which believes we need bold policies to address climate change.

One of our best hopes today is here in New York, where lawmakers are on the cusp of passing groundbreaking climate policy and the state budget has just included a commission mandated to develop a public financing system for the state.

Public financing of elections would fundamentally change how Albany works, and amplify the power of working people and people of color. In the long term, fair elections mean that our elected officials will be more engaged with constituents in their districts and responsive to public concerns and needs.

To implement an effective fair elections program, legislators and Governor Cuomo must appoint commissioners committed to expanding access to our democracy. A robust program would also include a 6-to-1 contribution match for low-dollar sums, lower contribution limits, and an independent agency to administer the program. In order to limit the influence of big donors who seek to block effective climate policy and other urgent reforms, the commission must act quickly and decisively. Kicking the can down the road is not an option.

Simultaneously we can pass the Climate and Community Protection Act (CCPA) to put New York on a path to 100% renewable energy economy-wide. The CCPA is ground-up policy, with a coalition of over 160 groups from across the state backing the proposal. The bill puts in place requirements for energy investments to go to disadvantaged communities, and working groups that include community group representatives to oversee implementation of state energy plans. This means more people could be part of shaping an equitable energy transition for New York.

The impacts of climate change are not felt equally by all. We need to ensure a more inclusive political process to address everyone’s needs, especially those most vulnerable to climate impacts and pollution, and communities that have been historically excluded from political decision-making.

We have the technology we need to begin a rapid transition to a renewable energy economy. Our ability to implement climate solutions is, therefore, a political question. With the majority of New Yorkers in support of government action to curb climate change, a legislature that is more responsive to the electorate could usher the ambitious climate policies we need. Public financing and bold climate measures like the CCPA can reorient our politics to expand who is heard and who is at the table.

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Bill Lipton is the New York State Director of the Working Families Party. Adrien Salazar is a Campaign Strategist with Dēmos and one of the 2019 Grist 50 Fixers. On Twitter @BillLipton of @NYWFP & @adrien4ej of @Demos_Org.

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Have an op-ed idea or submission for Gotham Gazette? Email opinion@gothamgazette.com

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It’s Time to Get Big Money Out of the Climate Change Fight Mon, 08 Apr 2019 04:00:00 +0000
A Closer Look at Albany Democrats’ Compromise on Bail Reform http://www.gothamgazette.com/state/8420-a-closer-look-at-albany-democrats-compromise-on-bail-reform http://www.gothamgazette.com/state/8420-a-closer-look-at-albany-democrats-compromise-on-bail-reform bail sign via zellnor

(photo: @zellnor4ny)


At a Sunday press conference, following his overnight announcement of a $175.5 billion budget deal, Governor Andrew Cuomo heralded a criminal justice reform agreement with the Legislature, and thanked one member of the Assembly in particular. “I want to applaud Assemblymember Latrice Walker who really was very helpful and very constructive, and understood the tensions,” he said of the Brooklyn representative.

Cuomo was referring to the especially contentious issue of bail reform. For weeks he and legislators had debated how far to go in amending a system intended to secure defendants return to court, but which in reality has catalyzed the disproportionate pretrial incarceration of poor black and Hispanic New Yorkers.

Queens Senator and Majority Leader Michael Gianaris managed to collect 25 co-sponsors for his advocate-backed bill to eliminate cash bail entirely, with the option of pretrial detention only for certain violent felonies. Governor Cuomo and Assembly Speaker Carl Heastie also previously pledged to eliminate cash bail this session.

But prosecutors and a faction of Democrats insisted that judges would still need discretion to remand defendants deemed dangerous. What they viewed as crucial for public safety was, to Gianaris and his allies, tantamount to replacing cash bail with a system just as susceptible to racial bias.  

The ultimate compromise -- accompanying reforms intended to speed up trials and boost early defendant access to evidence -- resembles a Walker bill that passed the Assembly last session. It eliminates cash bail for most misdemeanors and nonviolent felonies, ensuring pretrial freedom for what amounted to about 90 percent of 2018 arrests statewide. Conditions on that freedom could include mandatory check-ins or electronic monitoring.

“The consensus among people who care about reform,” Gianaris told Gotham Gazette, “was, let’s take a solution that covers the vast majority of people, rather than risk making it worse for the remainder.”

‘Challenging’ Process
Recent pressure from Cuomo, Long Island Senate Democrats, and the District Attorneys Association of New York (DAASNY) ultimately shifted negotiations towards the Assembly framework, according to legislators and advocates who observed these developments. All three parties -- with Democratic Senator Todd Kaminsky negotiating on behalf of the so-called “Long Island Six” -- called for some amount of judicial discretion to remand people deemed dangerous to a specific person or persons (language that appeared in Cuomo’s original budget proposal).

Fearful that this discretion would encourage more pretrial incarceration -- not less -- Gianaris says that he and Senate co-sponsors began discussing alternatives with Assembly Democrats, led by Walker. Her 2017 legislation had appeased Assembly Democrats who saw bail as an important tool to separate defendants from survivors of domestic violence. At least with bail, she’s argued, defendants still have an avenue -- if they can afford it -- to pretrial release.

“It was challenging,” Walker said in a phone interview, of the negotiations. “Because it has a wonderful ring to be able to say, ‘We eliminated cash bail in NYC.’ And that’s the ultimate goal, but at what price would we have claimed that accomplishment?”

Kaminsky’s office did not respond to multiple requests for comment, but the senator and former federal prosecutor told the New York Law Journal in the midst of negotiations last month that he was “trying to make sure we’re reforming the system while keeping the public safe.”

Cuomo Counsel Alphonso David did not elaborate on the governor’s role in negotiations, telling Gotham Gazette that, ultimately, the dangerousness question “did not have to be addressed at this time.”

“The perfect would've been the whole elimination of bail, but I don't believe in making the perfect the enemy of the good,” Cuomo told WNYC’s Brian Lehrer on Monday, calling the final agreement, “the most historic criminal justice reform in modern history in the state."

Mayor Bill de Blasio, who has endorsed dangerousness considerations in the past, told anchor Errol Louis on Monday’s “Inside City Hall” that he is “obviously thrilled” about the bail agreement, which he predicts will “supercharge” efforts to decrease New York City’s jail population. Numbers have been dropping precipitously for decades -- essential to a city plan to close the Rikers Island jail complex.

Advocates with the FREEnewyork campaign, a coalition of more than 150 grassroots groups that backed the Gianaris bill (carried by Danny O’Donnell in the Assembly), say they are very pleased that this compromise will greatly decrease pre-trial detention. As of September, more than a third of the 8,200 people in New York City jails were held pre-trial on misdemeanors or nonviolent felonies.

The state budget outcome “dodged a lot of bullets,” said JustLeadershipUSA organizer Katie Schaffer, because “there is not any sort of generalized consideration of dangerousness or risk to public safety that could exacerbate racial disparities.”

But there is lingering frustration. With Democratic control in both houses of the Legislature, advocates had been hopeful criminal justice reform would be handled outside of the harried budget process where horse-trading often happens. “It seems obvious that passing significant policy at 3 a.m. on a Sunday morning is not good process,” said VOCAL-NY organizer Nick Encalada-Malinowski.

Lingering Concerns
For defendants charged with sexual assault misdemeanors and most violent felonies, judges will still have the option to set bail, putting poor defendants at a disadvantage. Certain felonies in this category will also be eligible for remand, including witness intimidation and terrorism-related charges.

Last year’s Walker bill would have required an evidentiary hearing for anyone eligible for pretrial detention. Judges would have had to review evidence within days of arrest and “explain themselves a bit” before sending defendants to jail pre-trial, Schaffer explained. Advocates saw this as a useful check, considering many convictions stemming from violent felony arrests -- 31% statewide in 2017 -- are misdemeanors. But these hearings were negotiated out of the budget agreement.

“Given the history of criminal justice reform, it is not a surprise that they chose this middle path that greatly benefits some and excludes others,” said Nicole Triplett, policy counsel at the New York Civil Liberties Union. This split, she said, fails to “fully realize the constitutional promise that every person be treated as innocent until proven guilty.”

The budget bill also requires desk appearance tickets for most misdemeanors and Class E felonies -- including promoting gambling and criminal contempt -- a measure Gianaris says he is proud of (though advocates say they’ll be watching how police officers use their discretion to arrest in some cases).

Gianaris’ bill did not address the question of electronic monitoring, while the adopted budget states that only certain defendants are eligible -- those charged with a felony, domestic violence or sexual assault misdemeanor, or with a recent violent felony conviction. Anyone ordered to wear an ankle monitor cannot bear the cost of that device.

These guidelines, which extend to charges that are not eligible for pretrial detention, are concerning for JoAnne Page, president of the Fortune Society, a nonprofit that offers reentry services. “The fear is electronic monitoring will be utilized excessively and indiscriminately on people – mostly people of color who come from the same low-income neighborhoods in New York City that are disproportionately impacted by the criminal justice system – who never would have been held on bail in the first place,” she warned.

The budget reforms drew sharp criticism from DAASNY President David Soares. “The New York State Legislature, along with Governor Cuomo, has passed the most reckless bail reform statute in the country,” Soares told Gotham Gazette, arguing that prosecutors have lost a key mechanism for removing dangerous defendants from the general public. “Our greatest concern first and foremost is for victims of crime.”

Cuomo, who ultimately insisted that criminal justice reform be addressed in the budget, told reporters this weekend that he plans to return to the bail question -- and outcomes for people charged with violent felonies, specifically. “That's something we're going to continue to work on,” he said Sunday.

Assembly Speaker Carl Heastie also told the New York Law Journal Monday that “we are going to get to the finish line to make it a completely cashless bail system.” Gianaris says that he is still committed to this outcome, as well.

“I think advocates will have to keep these issues very present,” Schaffer predicted. “Because it is very easy for legislators to feel done with an issue, to move on to other issues.”

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by Emma Whitford, Gotham Gazette
@emma_a_whitford

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A Closer Look at Albany Democrats’ Compromise on Bail Reform Thu, 04 Apr 2019 04:00:00 +0000
Max & Murphy Podcast: State Budget Takeaways http://www.gothamgazette.com/state/8423-max-murphy-podcast-10-state-budget-takeaways http://www.gothamgazette.com/state/8423-max-murphy-podcast-10-state-budget-takeaways mxm logo

Ben Max, left, of Gotham Gazette, and Jarrett Murphy, right, of City Limits


April 3, 2019 - Max & Murphy Podcast: 10 State Budget Takeaways

38813932055 a4cf29902e zThere's a new state budget, with $175.5 billion in spending and a lot of policy included. We break down some of the key takeaways.

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

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: State Budget Takeaways Wed, 03 Apr 2019 04:00:00 +0000