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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

City Council Ready to Act on Bail Reform, Alone if Necessary


Lancman MMV bail hearing

CM Lancman & Speaker Mark-Viverito at Wednesday's hearing (photo: William Alatriste) 


Wednesday’s oversight hearing made it clear— the question is not if the City Council will move to reform the city’s bail system, but how much reform will they be able to accomplish with their somewhat limited power.

Though the Council appears certain to move to create a $1.4 million city-wide bail fund as proposed by Council Speaker Melissa Mark-Viverito, many advocates called for an elimination of cash bail altogether, and many of the reforms suggested at Wednesday’s hearing would require an amendment to the state’s Criminal Procedure Law - an act that the state legislature would have to take up.

“Until we are able to directly change the broken system, we are going to work within it to limit its injustices,” Council Speaker Mark-Viverito promised Wednesday. The speaker gave opening remarks at the hearing, reiterating her call for major reforms to the justice system.

Over a dozen public defenders, advocates for bail reform, and representatives from the Mayor’s Office of Criminal Justice testified over the course of more than four hours, often giving the same arguments and statistics— that cash bail discriminates against the poor, the merits of supervised release programs, the cumbersome and unjust bureaucracy tangled in the process of paying bail— that boiled down to the same sentiment.

“Our bail system is broken,” said Council Member Rory Lancman, the chair of the Committee on Courts and Legal Services. “Too many people are detained on Rikers not because they have been convicted of a crime, but simply because they are too poor to make bail. This hurts defendants and it hurts taxpayers too, who pay $125 million each year to keep pretrial detainees on Rikers.”

Jerome McElroy, the executive director of the New York City Criminal Justice Agency, a private non-profit agency contracted by the city to provide pre-trial services, recommended that a commission be created to develop a new system that establishes a presumption of release for all non-violent cases, prevents anyone from being detained simply because of his or her inability to post a bond, and limits consideration of pretrial detention to “only the most serious cases.”

“Since each of these elements will provoke serious debate, as will reconciling any changes with due process and speedy trials rules, I expect that significant and much-needed reforms will not be accomplished quickly,” McElroy said.

While most of those testifying said they supported the total elimination of cash bail, many focused their testimony on targeting policies and practices that the city could adopt while continuing to discuss such a significant reform. They cited discouraging district attorneys from asking for bail in misdemeanor cases, reconfiguring the bail-paying process, ensuring that defendents’ financial circumstances are taken into account when setting bail, and expanding supervised release programs.  

The one notable exception was the testimony given by James Quinn, the senior executive assistant district attorney representing the Queens County District Attorney’s Office.

Though Quinn expressed support for making it easier to post bail in the counties where a crime is committed (currently family members of defendants in Queens must personally go to either Rikers Island or corrections facilities in the Bronx, Brooklyn, or Manhattan to post bail once the defendant has been transported to Rikers), he sharply criticized the proposal to set up the city-wide bail fund.

“Bail is designed to ensure that the defendant appears in court when required. It means that he has a financial stake in his appearance,” Quinn said. “If he does not show up, he loses his money. If the City posts the bail, and the defendant does not appear, he loses nothing.”

Quinn’s statement appeared to resonate with at least one New Yorker. Following the hearing on Twitter, one individual tweeted at Council Member Lancman: “When is this council up for election? Is [Mark-Viverito] for real? I should pay [defendents’] bail?"

Lancman tweeted back, “We can pay their $500 bail, or pay $170k/yr at Rikers. [Mark-Viverito] just saved you $169,500.”

The exchange gets at a key issue related to public bail funds: rate of return. One pilot program in the Bronx has noted a 98 percent success rate, thus allowing the fund to replenish itself as bail loans are returned when defendents appear for their court dates.

The Council appears likely to act on the bail fund even without the mayor’s approval, though it is an ongoing part of budget negotiations taking place this month. De Blasio has acknowledged the need for bail reform, but his representatives at Wednesday’s hearing did not commit to anything. Council Member Steven Matteo, one of three Republicans of the Council's 51 members, voiced his opposition on social media Wednesday afternoon, tweeting that a bail fund "is a complete nonstarter" for him, and that "Giving a 'Get Out of Jail Free' card courtesy of the taxpayer is wrong."

Paying mind to concerns during the hearing, Lancman advised Ann Jacobs, the Director of the Prisoner Reentry Institute at John Jay College to “be sensitive to the view of the public” who are concerned about re-arrest rates for defendants out on supervised release programs. Such programs serve to release eligible non-violent defendants who would otherwise be held on bail while requiring ongoing communication.

“I just wouldn’t be dismissive of the public’s concerns about people who are committing low-level misdemeanors,” Lancman said.

But some, like Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute, pushed harder, saying that such programs would not be necessary if cash bail were eliminated. “A strategy that employs filling potholes is not the same thing as doing what’s needed to repave the road,” Burdeen said.

“The reality that the mayor has to deal with is, we can’t change the statute,” Lancman said. “And the state legislature is not able to deal with this at the moment.” Lancman’s comment was a reference to the fact that state lawmakers are at the end of their legislative session in Albany and struggling to pass even extensions of existing regulations that almost all agree must be extended, especially related to rent regulations.

The Council could look to enforce many of the proposals outlined in Lancman’s preliminary recommendations on bail reform, which include expanding supervised release programs, requiring all actors in the justice system to undergo implicit bias training, requiring the Department of Corrections to create a website that would allow cash bail to be paid online, and requiring that courts inquire into defendants’ financial circumstances before setting bail, something already provided in the current statute but rarely done.

As for the $1.4 million city bail fund?

“We can get it done without the administration’s support,” Mark-Viverito told reporters after she delivered her statement.

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by Catie Edmondson, Gotham Gazette
@CatieEdmondson

Landlord Harassment, Neglect Continue Despite State Monitor, Tenants Say


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Tenants rally (photo: @TenantPowerNY)


Tenants celebrated when Gov. Andrew Cuomo's Tenant Protection Unit (TPU) appointed a monitor to oversee 51 apartment buildings owned by the notorious Castellan Real Estate Partners, but for the past two years those same tenants say the conditions in their buildings have deteriorated while the TPU has failed to take action.

The monitor was named as part of a larger settlement, reached in January 2014, and tasked with tracking the New York City landlord. The Cuomo administration hailed the agreement as "groundbreaking" and proof that the TPU was to be taken seriously. Cuomo boasts that the TPU, created in 2011, has returned 40,000 units to the rent-regulated rolls.

Maria Aguirre, a resident of an eight-unit Castellan building in the Bronx, says she and other tenants have lived a nightmare. Aguirre says tenants have had to go months without heat in the winter and without gas to cook with for a year; that they've faced harassment from building supers while holding public meetings; contended with unchecked rat and mold infestations and, in some cases, lead poisoning.

Tenants have refrained from criticizing the TPU over the eighteen months, but now they say they've had enough. "We believe after working with the TPU for two years we can grade them in terms of their role as a protector of tenants," Aguirre told Gotham Gazette. "From my perspective the governor and the TPU used us to promote themselves, yet we as tenants haven't seen any real changes. We were used for publicity purposes."

Tenants plan to hold a press conference Wednesday at which children of tenants will present the TPU with a report card. It is expected the grade will be an 'F.'

In announcing the settlement with Castellan, the Cuomo administration promised "a major settlement agreement that will help make communities more just and affordable by ending the reported harassment and intimidation of mainly Spanish-speaking immigrant tenants in nearly 1,800 apartments within 49 buildings in Harlem, Washington Heights, Brooklyn and the South Bronx."

The Cuomo administration did not return a request for comment for this story.

For some, the situation with Castellan isn't exactly surprising, the group has a reputation for being extremely effective at booting tenants from their apartments and jacking up the rent. Their cases against tenants dominate housing courts across the city. Juan Gonzalez of the Daily News has detailed tenant complaints extensively in a series of articles.

Castellan has celebrated its ability to achieve "value enhancement" in the rent-controlled buildings, allowing them to increase rents. When Castellan first purchased 50 buildings across the city with more than 1,700 rent-stabilized apartments many tenants reported a major uptick in harassment. They were called into meetings and interrogated by Castellan staff, who demanded proof of citizenship and income. Tenants who could not provide proof were told they would be evicted in 30 days. Later, tenants say they found unexplained fees added to their rent bills and many tenants were pressured to sign letters agreeing to vacate their apartments.

Things were supposed to change when the TPU got involved. Aguirre and other tenants organized and, after a very public protest in 2012, were contacted by the TPU. The TPU investigated for seven months, issuing its first subpoenas. It eventually settled with Castellan, announcing the deal in January 2014. The group agreed to reimburse Spanish-speaking residents it had improperly evicted and to submit to a monitor for a term of up to three years to to ensure that Castellan was not harassing tenants, provided equal treatment to Spanish-speaking renters, and that employees received improved training, including in not harassing tenants.

Instead, many tenants say the monitor, Peter Heuzey, acts more as an agent for Castellan, repeating the company line rather than independently verifying claims. They say he ignores their calls and only acts when faced with the spectre of public criticism. When tenants complained that a super had tried to prevent them from meeting and then crashed their gathering, screaming and making threats, the monitor reportedly told tenants his behavior was not "representative" of Castellan as a whole - despite that fact that the monitor had been appointed because of Castellan's history of harassment. Tenants claim the monitor's office looks to them to provide information on service interruptions and maintenance lapses, rather than investigate independently.

Aguirre says that the monitor ignored her calls last November when she tried to complain that the heat in her building had been out for days. When she finally reached Heuzey's office, he lectured her for not calling more persistently and then informed her the building would be without heat for weeks because the boiler was missing a part. Heuzey was hired by Castellan but approved by the TPU. Tenants are concerned his loyalties lie with Castellan because it pays him. Heuzey is a partner at O'Connor Davies LLP, a public accounting firm.

Aguirre says she argued that such a period without heat was unacceptable but the monitor insisted nothing else could be done. Tenants then entered a protracted battle to have Castellan provide heaters. "[The monitor's] response to the request for heaters was that it would be extremely difficult for Castellan to provide heaters for an eight-unit building," said Aguirre.

Castellan did eventually provide heaters but tenants were forced to use them over a period of two months which drove up their electricity bills and in some case made their financial situation untenable. Castellan, in turn, took a number of tenants to court for not paying their rent.

Rick Serrapica, chief operating officer for Castellan, denied that any of his buildings had been without heat for more than "a day or two, here or there." He said that a number of buildings have had and are undergoing boiler replacements but dismissed reports that any buildings had been without heat for months as "pure nonsense."

Sandra Cruz Morales, a resident of one property at 1469 5th Ave. in Harlem, was involved in the initial organizing that drew the attention of the TPU. "It has been very difficult for me," said the mother of one. "Three years years ago they wanted to aggressively displace us but we fought and organized, and were able to remain."

She says that things have just gotten worse in other areas since the TPU began to monitor the situation. She has been without gas for her stove for three months, while other Castellan tenants have faced the problem for over a year, she says. "It is very difficult to live without gas," said Morales through a translator. "For example, I get out of work at six, I have to run to get my daughter out of school. She's very hungry when she gets out, so I have to cook using a burner and that is very difficult and it costs a lot to buy food out."

Morales said that while Castellan has provided burners for tenants to cook on, the hot plates have spiked her electricity costs and she has yet to be reimbursed. She knows some tenants who waited a year for reimbursement. Castellan has taken some of those tenants to court for failure to pay their rent.

According to Morales the monitor has insisted that the problem is on Con Edison's shoulders, but she wants him to do an independent investigation as she was without gas for eight months before the monitor took over.

"I complained about it to the monitor and asked, 'When will it be taken care?' His office says, 'We Don't know who is responsible,'" said Morales. "He doesn't know anything so he can't help us."

Serrapica said that service interruptions came about because Con Edison has been on high alert following gas explosions in East Harlem and the East Village and that "someone called 311 and reported the smell of gas." He says the lines in some buildings have to be replaced and then inspected by multiple agencies. Most tenants impacted by the lack of service have received rent credits this month, he said, but tenants of two buildings where work recently began have yet to be reimbursed.

Tenants say other parts of the agreement between the TPU and Castellan go unenforced. For example, communications between Castellan and tenants are supposed to be provided in English and Spanish, but tenants complain they continue to receive notices exclusively in English.

Serrapica said the TPU has been helpful in helping him understand "grey areas" of the law. He encourages tenants to use Castellan's 24-hour help line if they have a problem but to feel free to contact the TPU if they feel it necessary.

Tenants say that they have contacted the TPU multiple times, over the phone and in writing, but have been ignored. "Since the monitor doesn't listen we've been forced to turn to the TPU, but they've ignored us," said Aguirre. "We've shared our grievances with them. We have no other recourse but go public. The TPU should intervene. They should be protecting us."

Morales said she isn't looking for a free ride, or even a pro-tenant monitor. "We were the ones who fought to get an independent monitor in place," said Morales. "All we want is someone who is impartial, I don't expect him to get my rent for free, I just want someone who will follow up, independently verify Castellan's claims, and not treat us like we are making up stories."

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

How We Got Here: City Creates New Office of Civil Justice


BdB Levine Gibson

At Tuesday's bill signing (photo: @NYCHRA)


"The Gideon versus Wainwright case paved the way for the right to legal counsel in criminal cases but, sadly, the right to counsel was not available in civil cases when the stakes were also very, very high for those involved. Civil cases affect some of the most important parts of a person's life, the ability to have and keep a home, to keep a family together, to escape from domestic violence, in fact, to be able to stay in this country. So on these areas there is a deep need and my administration is focused in an unprecedented manner on civil legal services including legal assistance to protect tenants and prevent homelessness. This bill is a step towards fixing the imbalance between those who can afford adequate civil counsel and those forced to face life altering legal issues without help of attorney."  -Mayor Bill de Blasio, June 16, 2015

On Tuesday, June 16 Mayor de Blasio signed Intro. 0736 into law, establishing an Office of Civil Justice and creating a new Civil Justice Coordinator position. This office is modeled after the Office of Criminal Justice, with the Office of Civil Justice set to provide coordination around city resources related to civil court proceedings, especially with regard to legal representation for low-income defendants in places like immigration and housing courts.

While defendants in criminal court do have a right to counsel, defendants in civil court do not. In cases of eviction, deportation, and child custody - among others - not having access to legal aid can be detrimental to a person's case. The bill creating the civil justice office was sponsored by Council Member Mark Levine and Council Speaker Melissa Mark-Viverito, and comes as the city has been increasing funding and efforts to ensure that more low-income New Yorkers have access to attorneys in civil matters. The Office of Civil Justice will coordinate efforts, assess needs, and make recommendations.

The following is an abridged history leading up to the signing of the bill:

December 2005: Study of Self-Represented Litigants in New York City Family Court and New York City Housing Court: The Office of the Deputy Chief Administrative Judge for Justice Initiatives released survey results covering 3,303 litigants appearing without a lawyer in the city’s family and housing courts in 2003. It was found that 83 percent of self-represented defendants reported a household income of under $30,000. Sixty percent of the people surveyed in housing and family court also reported that they felt they could not afford an attorney.

December 7, 2012: The New York Immigrant Representation (NYIR) Study Report Part II:  The NYIR Study was launched by Judge Robert A. Katzmann of the U.S. Court of Appeals and found that “people facing deportation in New York Immigration courts with a lawyer are 500 percent as likely to win their cases as those without representation.” It was also found that “nondetained immigrants with lawyers have successful outcomes 74 percent of the time, those on the other end, without counsel and who were detained, prevailed a mere 3 percent of the time.”

July 19, 2013: City Council Speaker Christine Quinn and Immigrants Rights Groups announce The New York Immigrant Family Unity Project (NYIFUP): The Council announced a one-year pilot program, NYIFUP, “the nation’s first government-funded system of universal representation for immigrants facing deportation.” Immigrants facing deportation have low rates of success when doing so without legal representation, especially given language barriers which often exist. NYIFUP creates a “network of legal counsel for New Yorkers who are detained and at risk of permanent exile.” No universal right to counsel exists, but more coverage is provided by the program, started with $500,000 in funding.

March 26, 2014: Council Member Mark Levine sponsors Intro. 0214: The legislation would require that legal counsel be provided to tenants and homeowners who are facing “eviction, ejectment or foreclosure proceedings” and create a Civil Justice Coordinator position. Civil courts do not guarantee a “right to counsel” as criminal courts do and this bill is an attempt to provide that counsel, to level the playing field for tenants who are unable to seek it on their own. The bill had 39 sponsors as of mid-June 2015, but has not been given a committee hearing.

June 2014: Right to Counsel NYC Coalition is formed: Created to build a citywide movement that works to establish New York City as first in the nation to establish a right to counsel for tenants in housing court. Coalition members include The Community Development Project at The Urban Justice Center, Bronx Defenders, Legal Services-NYC, and others.

June 11, 2014: Council Members and housing activists rally on City Council steps: “By no definition are tenants getting equal justice in housing court, where only 10 percent of tenants have legal representation and 90 percent of landlords have attorneys,” said Council Member Mark Levine at the rally with Public Advocate Letitia James, Council Member Vanessa Gibson, and others.

June 26, 2014: New York City Council includes $4.9 million funding for NYIFUP: “New York City will become the first jurisdiction in the nation to have a functioning public defender system for immigrants facing deportation. In New York City, no family will have a loved one locked up and deported simply because they cannot afford a lawyer,” said Council Member Carlos Menchaca, chair of the Council’s Committee on Immigration. NYIFUP is able to provide legal coverage to all eligible immigrants in New York immigration court, with over 1,300 immigrants served.

September 23, 2014: Council Speaker Melissa Mark-Viverito, the Robin Hood Foundation and New York Community Trust announce the Unaccompanied Minor Children Initiative: A $1.9 million public-private partnership that provides funding for legal organizations who are supporting “free legal representation and access to social, mental health, and medical services for more than a thousand unaccompanied minor children appearing on the Juvenile and Surge Dockets at the New York Immigration Court.” Funding is mostly focused on “increasing access to counsel” for children in the most urgent need.

December 16, 2014: The Times features former Justice Critical of Housing Court: “Emily Jane Goodman, a retired justice of the New York State Supreme Court, said Housing Court was her ‘worst’ experience on the bench. “Housing Court is the most unbalanced, unfair and unjust court in our system, and the biggest problem is lack of legal representation,” Ms. Goodman said. “Tenants do not know their rights, are frightened, intimidated, enter agreements they do not understand and cannot possibly fulfill,” she said. “Typically, they may consent to a judgment of eviction and agree to pay a sum of money they have no ability to raise.”” Goodman said in the Times’ “Push to Provide Lawyers in New York City Housing Court Gains Momentum.”

February 11, 2015: Council Speaker Melissa Mark-Viverito introduces “The people’s law firm” in 2015 State of the City: With more than 1.25 million low-income New York City residents without access to legal services, Mark-Viverito proposes “the people’s law firm” or “El Bufete del Pueblo” in the form of an Office of Civil Justice. The OCJ would prepare an “annual survey” to assess the “unmet civil legal services needs among low-income NYC residents”, develop a five-year plan based off of these surveys, make budget recommendations on the funding of civil legal service programs, explore free and low-cost civil legal service programs, and provide outreach and education about the programs.

April 15, 2015: Council Member Levine and Council Speaker Mark-Viverito submit Intro. 0736: The legislation outlines an office in charge “with assessing the need for civil legal services throughout New York City.” The bill will create an Office of Civil Justice and a Coordinator position which will review the budget of agencies with civil justice programs and make recommendations to the Mayor; prepare an annual report for the Mayor and Council of the civil legal service needs of low-income residents and the availability of that service, what those civil legal matters concern and concentrations of these matters by area or populations; ascertain the effectiveness of civil legal service programs; “serve as liaison between providers of low-cost or free legal services” and those residents in need of civil legal services; and also create a five-year plan.

The bill is aimed at helping prevent unnecessary and unjust evictions and deportations, and at ensuring that low-income New Yorkers have the legal representation they need in crucial life-changing situations. The coordinator will be tasked with making sure that already existing low-cost or free legal representation is available to the low-income residents who need it. The office will have an initial budget of $2 million and will be slotted under Steven Banks, commissioner of the Human Resources Administration (HRA), which runs public benefit programs for low-income New Yorkers.

May 26 & 27, 2015: City Council Committee on Courts and Legal Services, then full City Council pass Intro. 0736: The bill was unanimously passed in committee and then through the full City Council the next day. It is sent to the mayor’s desk for signature on June 16, 2015.

At the bill-signing on Tuesday, June 16, Council Member Levine said, "The truth is what's happening in housing court, immigration court, any civil arena today doesn't meet a reasonable standard of justice. It's a place where if you don't have money, you're on your own, you don't have an attorney," but "today we're taking a step forward by putting in place the infrastructure that we need now that we're growing the funding and hope to continue to grow it. The kind of infrastructure that we've had on the criminal side, which for years has had a criminal justice coordinator, we're now catching up on the civil side."

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by Erika Wang, Gotham Gazette
@GothamGazette

Council to Examine How City Schools Violate State Phys Ed Law


soccer NYC Parks

Soccer (photo: @NYCParks)


On May 5 City Comptroller Scott Stringer released “Dropping the Ball,” an analysis revealing that 28 percent of New York City public schools lack a designated physical education space and 32 percent of schools are without a full-time, certified physical education teacher. In total, there are over 400,000 students in New York City public schools that don’t have access to a “full-time, certified PE teacher,” “attend a school without a physical fitness space” or “attend a school that does not have access to an outdoor school yard or nearby yard,” according to Stringer’s report.

Current New York City physical education programming and the city Department of Education (DOE) are not in compliance with State Education Department regulations on physical education. This is often the case in terms of students’ time spent in physical education classes and whether they are taught by certified physical education teachers. On Wednesday, the New York City Council will hold an oversight hearing on the issue and consider a bill that would require the DOE to submit a report on the state of physical education in New York City public schools to the Council and also post the report on the DOE website.

The minimum requirement for students’ physical education in New York State varies by grade level. Instruction in grades K-6 requires classroom teachers be under the supervision of a certified physical education teacher and that students have at least 120 minutes per week of physical education. But from grades K-3 the students must participate in a physical education program daily while students from grades 4-6 can participate in a physical education program no less than three times a week. Students in grades 7-12 must have physical education three class periods per week in one semester and for two periods per week in the other semester with a certified physical education teacher supervising.

New York State law requires that students in middle school and high school have a certified physical education teacher, however, according to Stringer’s report, 230,000 students lack a certified physical education teacher.

While Stringer’s office requested information about certified physical education teachers, the number of minutes of physical education programming per week, class sizes, and access to indoor/outdoor space for physical education instruction, the DOE only provided “partial” data, keeping the Comptroller’s office from making a “complete analysis,” according to the findings. With the partial data the comptroller’s office was able to analyze whether schools have full-time certified physical education instructors and whether schools have indoor facilities or access to outdoor facilities where physical education programming can take place.

Stringer’s report is also not the first of its kind. Former Comptroller John Liu, Stringer’s predecessor, released an October 2011 management audit of New York City elementary schools, finding that of the 31 schools evaluated, every single one was not in full compliance with the State Education Department’s physical education regulations. During school visits, officials at 84 percent of the 31 schools were unable to tell the Comptroller’s office what the physical education requirements were and 65 percent of the officials didn’t know any of the physical education requirements.

Liu’s audit and Stringer’s recent report point to a persistent systemic issue wherein New York City schools are not meeting physical education requirements. Liu’s office made seven recommendations to the DOE, but while the agency agreed with five of the seven recommendations, it disagreed with two that are now at the root of the City Council bill. According to the audit, the DOE disagreed “with the recommendation to ensure that the DOE adequately monitors schools’ compliance with physical education requirements” and didn’t directly address the recommendation requiring principals to certify whether or not students are receiving the minimum physical education requirement.

In February, City Council Member Elizabeth Crowley introduced the bill, Intro. 0644, which will be the focus of Wednesday’s oversight hearing. A first hearing for the bill, no vote will be taken until the next committee meeting, if the bill is given a vote at all. If it is passed by committee, it would then move to a full Council vote before heading to the mayor’s desk for his signature into law.

With its reporting requirements, Crowley’s bill is similar to one passed by the Council in 2013. Intro 0925-2012, passed 49-0 (with two excused), requires the DOE to provide data on city arts education programs and, specifically, on if New York State instructional requirements are being met. The bill was signed into law by former Mayor Michael Bloomberg on December 17, 2013 and the first report on compliance with New York State regulations appeared in the DOE’s 2012-2013 Annual Arts in Schools report.

Some of the components the new phys-ed bill requires in the relevant report are the frequency and minutes of physical education at each school, whether or not the supervisors are certified to teach physical education, how many certified physical education teachers are providing instruction at the school, and all the designated on-site physical education spaces available and off-site spaces that can be used for physical education by the school. The report must also disaggregate the number of students who are receiving less physical education than the state minimum by race, ethnicity, gender, and whether or not they are English-language learners or receiving special education services.

Since its introduction in February the bill has gained 39 sponsors, including the Chair of the Health Committee, Corey Johnson, the Chair of the Education Committee, Daniel Dromm, and the Public Advocate, Letitia James.

In anticipation of Wednesday’s hearing, advocacy groups are already working on revisions of the bill in order to provide more clarity and specificity to what the report submitted by the DOE would be required to cover. Advocates and council members want to ensure that the bill meets its key purpose of making sure the DOE provides useful data about the state of physical education programs in city schools, which will help policy-makers and the general public to be more informed.

Following the bill’s February introduction, Comptroller Stringer’s May report only strengthened the evidence that there is need for more oversight and accountability regarding physical education programming. Significant shortcomings in terms of certified phys-ed teachers and designated phys-ed spaces at city schools is no shock to those familiar with physical education in New York City schools. Stringer’s report shows nearly one third of schools lacking a full-time certified physical education teacher and a third of schools lacking designated space.

Srecko Mavrek, a certified physical education teacher and the President of The New York State Association for Health, Physical Education, Recreation and Dance (NYS AHPERD), told Gotham Gazette that he was “not really surprised” by Stringer’s report. What Mr. Mavrek hadn’t expected was “such a detailed report and being so positive about [the importance of] physical education."

Mavrek was referencing that even though physical education has proven to have a number of benefits for students, it is often still marginalized in discussions about education, overshadowed by other academic subjects like math and reading. Phys-ed teachers are at times not evaluated in the same manner as other teachers, some evaluated relying on how students score on tests in other subjects for which there are standardized exams. Chalkbeat NY reports that “thousands of teachers will be rated in large part based on test scores of subjects and students that they do not teach” because there is no state system for measuring student’s physical education learning.

Studies have shown positive effects of physical education on academic success as well as health. A 2009 special report by the New York City Health Department and the Department of Education found a “strong association between fitness and academic success,” with students scoring in the top 5 percent on their NYC FITNESSGRAM outscoring those in the bottom 5 percent “by an average of 36 percentile points on standardized academic tests.”

The NYC FITNESSGRAM is a tool developed as part of physical education to assess citywide fitness as measured by muscular strength and endurance, aerobic capacity, flexibility, and body composition. On top of this, eleven of fourteen published studies from 1967-2011, analyzing about 58,000 students, found that “regular physical activity is associated with improved academic performance,” according to a 2009 research brief by Active Living Research, a children’s health advocacy organization.

The same special report by the NYC Health Department and Department of Education found that over 20 percent of New York City public school students were obese. Combined with a CDC report covering 2010-2011, which found that 5.7 percent of K-8 students in city public schools suffer from severe obesity, increasing regular physical activity appears essential - which is why there are state regulations.

But even with this kind of research physical education has not garnered enough funding and support to incentivize fully-fledged programs that meet state standards. The 2014 CDC State Indicator Report on Physical Activity shows how far New York State is lagging behind others. The estimate of students in grades 9-12 nationwide participating in daily physical education is almost 30 percent while the rate in New York State is just 18.9 percent. (Across the river, over 45 percent of New Jersey students were reported having daily physical education.)

With the recommendations from former Comptroller Liu’s 2011 audit still pertinent, many are pushing for more city accountability to follow state phys-ed regulations, including Kelly Moltzan, the Healthy Schools NY Program Coordinator for Bronx Health REACH.

“We see a really weak accountability system within the principal checklist system,” Moltzan told Gotham Gazette, referring to the Principal’s Compliance Checklist. The checklist does mention physical education requirements but there does not seem to be much follow up, pointing to a key issue in terms of the chain of command from principals to the city DOE to the state level.

“Even though principals might actually want to support more wellness they’re not sure how to do that because of the mandates they’re getting from the higher administration, just telling them to submit these testing scores, the academic outcomes,” says Moltzan. “There’s not enough integration, not enough support from the city administration in helping them structure their physical education and still meet their testing mandates.” Moltzan says there is a need for a protocols “requiring principals to certify that their physical education system meets the regulations.”

Like many bills the City Council passes, the idea behind phys-ed reporting requirements will be to lead to accountability and improved programming.

Former Comptroller Liu’s audit indicated that the State Education Department said the last time a physical education plan had been submitted by the city DOE was in 1982.

“Until we have that actual information it’s hard to really say what’s happening and what’s not happening,” Moltzan said. “We haven’t been able to get that information, we’re just speaking from our own experience.”

Research by Dr. Stephen Silverman, the chair of the Department of Biobehavioral Sciences at Columbia University’s Teachers College, points to the importance of early motor sill development, which can be aided by proper and regular physical education from a young age. Silverman says that a lack of sound physical education can lead to frustration when young people are asked to perform skills they have not developed and even negative attitudes toward physical fitness. He also acknowledges the connection between physical activity and academic performance.

“If the reports are correct, that kids who are more physically active do better in school, do better on tests, then we want our schools to help children learn the skills so they can feel efficacious to want to participate in the physical activity,” said Dr. Silverman, “and if we’re not providing the time, we’re not providing teachers, we’re not allowing them to learn, that’s not going to happen.”

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by Erika Wang, Gotham Gazette
@GothamGazette

With Negotiations Down to the Wire, Many Demand Assembly Hold Out For Stronger Rent Laws


Tish James rent regs

Public Advocate James at Friday's press conference (photo: Ben Max)


With rent laws set to expire on Monday city electeds including Public Advocate Letitia James, Assembly Housing Chair Keith Wright, and state Senator Adriano Espaillat are focused on providing tenants with legal help should landlords take advantage of a chaotic situation, while simultaneously pushing for Assembly Speaker Carl Heastie to hold out for the best deal for tenants as he negotiates with Gov. Andrew Cuomo and Senate Majority Leader John Flanagan.

"If the rent laws expire on Monday...we want tenants to know that they will have legal protections and recourses to stay in their apartments," said James at a press conference on Friday at City Hall where she announced her office would make housing lawyers available to tenants while calling on Albany leaders to "do their job."

"We know that there are too many landlords who are looking for any excuse to push out, to evict rent-regulated tenants and make a quick buck," James added. Espaillat and Wright are expected to hold events for tenants over the weekend. (Both men are also competing to replace Rep. Charles Rangel in Congress.)

Tenant advocates appreciate the help but many of them doubt anything horrible will happen to tenants should a deal not be reached by Monday. In fact many advocates celebrated on Thursday when Assembly Democrats rejected an offer from the Cuomo administration that they felt did not significantly address vacancy decontrol, the process by which landlords are allowed to increase rent until apartments are no longer rent regulated. Advocates stress that a strong bill that prevents more apartments from being removed from the affordable housing rolls trumps an on-time deal.

According to a number of sources the Cuomo administration floated a proposal that would have increased the decontrol threshold from $2,500 to $2,700 per month; increased fines for landlords who harass tenants; prevented landlords with outstanding fines from applying for rent increases based on improvements made to apartments; and made the governor's Tenant Protection Unit part of existing statute. The plan would extend the controversial 421-a tax credit for one year.

The Cuomo administration is also trying to link the rent law extension to the governor's prized education tax credit. Sources say the Assembly Majority flatly rejected Cuomo's plan after conferencing the matter. Many members left the capital on Thursday, but Assembly Democrats, at least, are due back on Sunday.

The horse trading is expected to play out all weekend. Senate Republicans are working on a compromise to renew 421-a that combines elements of Mayor Bill de Blasio's proposal and with the old bill.

Sen. Adriano Espaillat said he plans to issue a guide for tenants should the legislature fail to extend the rent laws on Monday but he favors a strong deal over any basic extension. "I'm not going to vote for a basic extension of any kind," said Espaillat. Asked about the floated deal he responded: "A two hundred dollar increase? That's a good meal at a city restaurant. That's how weak it is!" He urged tenants to check their leases so that they know when they actually expire.

On Friday afternoon, Espaillat joined James, Wright, Council Member Jumaane Williams, several of the borough presidents, and others for a brainstorming session about what to do in the case of expired regulations.

Mayor Bill de Blasio participated in a Friday phone conference will AARP members on the importance of renewing the rent laws. The mayor has been pressuring Albany to act, while Cuomo has continued to insist that time has run out for detailed debate over bills.

De Blasio acknowledged that with the lateness of the hour it is unclear whether Albany will renew the rent laws let alone strengthen them, but he also laid out his priorities for enhancing the laws. "We've got to end vacancy decontrol," the mayor said. "That is the way we've lost so many affordable apartments – landlords being able to take them out of rent regulation when they reach a certain rent level. We've got to end that practice. We've got to end the vacancy bonus. That's the way that landlords get a huge uptick in rent whenever an apartment turns over that's rent regulated...And we've got to stop the giveaways to landlords. When they do capital improvements, sure they have a right to make sure that those capital improvements are paid for in the rent, but that's all they should get," said de Blasio.

The mayor called on Albany to act and warned of chaos if the regulations are not renewed.

Many advocates are preparing for a fight over rent laws that could not only go past the Monday deadline but past the scheduled end of session on Wednesday. Senate Republicans have historically pushed negotiations on rent renewal until the last minute to strengthen their hand.

Sen. Espaillat said the Assembly Majority needs to resist any urge to agree to a simple extender to avoid going past the deadline. "We need to continue to push and ask the Assembly and the Governor to make this their priority," said Espaillat, who pointed to Cuomo's recent op-ed in the Daily News where he wrote the city stands to lose 100,000 units of affordable housing if nothing is done. Cuomo has threatened to call the legislature in for special session after Wednesday if no deal on rent regulations is reached.

Rent regulations "has to be the priority," Espaillat said. "It needs to get done first. If Senate Republicans want their [property] tax cap then they need to do this first. A one year extender won't work. If there is no political will to do it this year, there certainly won't be any next year during a political year when everyone is busy running for reelection."

Public Advocate James also called on legislators to stay in Albany until a deal is done. "We urge Albany to stay in Albany, all those legislators in Albany to not return home - to stay in Albany and to demand justice and not just to extend rent regulations but to expand them and strengthen them," said James. "We want some elected officials in Albany to stand up for the working people in the City of New York. And we want action and we want action now."

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

Amid Calls to Action, City Council to Examine Bail Reform


BdB Rikers

Mayor de Blasio at Rikers (photo: @NYCMayorsOffice)


The suicide of 22-year-old Kalief Browder has heightened scrutiny and intensified calls for reform of the city's bail system. Even prior to Browder's death, the New York City Council had been planning to consider new and proposed reforms at an oversight hearing set for Wednesday, June 17. Chief among those reform ideas is one introduced by Council Speaker Melissa Mark-Viverito to create a $1.4 million city-wide bail fund for nonviolent, low-level offenders.

Each year, tens of thousands of New Yorkers like Browder are detained at the Rikers Island jail facility when they are unable to post bail. According to the Department of Corrections, 53 percent of inmates taken into Rikers in 2014 were admitted only because they could not pay bail, which is often $1,000 or less. These detainees totaled about 38,000 last year. Those calling for reform say that these jailings are unnecessary and are proven to have dramatic, life-altering negative effects on those individuals, including loss of jobs and housing.

Accused of stealing a backpack, Browder was 16 when he was arrested in 2010. With his family unable to pay his $3,000 bail, he was sent to Rikers Island for pretrial detention. Browder spent the next three years there, including more than 400 days in solitary confinement, until charges against him were dismissed. Browder was released and struggling deeply with the legacies of his time in jail. Following the news of his death, elected officials including Mayor Bill de Blasio and Mark-Viverito cited Browder's story as a "call to action."

"I think his case was an eye-opener to New Yorkers across the board," de Blasio said on Monday. "There is no reason that someone should be held for a long period of time if they can't pay bail and we can help on a modest bail level like that."

De Blasio expressed support for "some type of bail reform" and said there'd be more news "in the coming weeks." Before this past Wednesday's full-body City Council meeting, Mark-Viverito invoked Browder and again emphasized the urgency of reform, noting the upcoming oversight hearing.

"We need comprehensive criminal justice reform and we need it now, here in New York City and across the nation. We cannot throw away any more time or any more lives," Mark-Viverito said. Afterward, she choked up speaking of Browder on the Council floor, where she again promised relevant reform.

In a statement to Gotham Gazette on Thursday, Mark-Viverito said, "Far too many New Yorkers suffer the long-term consequences of incarceration – though innocent in the eyes of the law – simply because they cannot afford to post a low bail while awaiting trial. A broken system that unfairly subjects our young people of color to senseless abuse and violence is unsustainable. The New York City Council proposal for a citywide bail fund would ensure that qualifying individuals can get home to their families, reducing the number of lives that would be forever marked by a needless stay in jail. I look forward to a productive hearing examining much-needed and long-overdue bail reform in New York City."

In her February State of the City address, Mark-Viverito unveiled her fund proposal, saying, "because the overwhelming majority of those in jail are there because they can't afford bail—often as little as $500 to $1000 dollars—we will work to create a citywide bail fund." On Wednesday, she, her Council colleagues, and others who testify will evaluate the current system and envision a new one.

"The central thing we're working on is the nightmare known as Rikers Island," Council Member Rory Lancman, chair of the Committee on Courts and Legal Services, which will hold the hearing along with the criminal justice committee, told Gotham Gazette. "And at the core of Rikers Island problems are these extraordinary numbers of people who are there because they can't make a small amount of bail. So we will be looking at the system for assigning people bail, what amounts of bail are spent for people, what defines a bail mechanism or offer to defendants, and what alternatives there might be to the bail system as we know it."

Representatives from the Mayor's Office of Criminal Justice and the New York City Criminal Justice Agency, a private non-profit agency contracted by the city to interview defendants before their bail is set, will testify at the hearing. Lancman also said that the city's district attorney offices may send people to testify.

The Council will also look to evaluate supervised release programs, which are "designed to provide the courts with an opportunity to release some defendants under community supervision as an alternative to bail setting," according to the Criminal Justice Agency's report on its supervised release program in Queens.

"We are very interested in getting their feedback as to how they believe those programs are working, what the completion rates are," Lancman said. "I'm very interested in what the re-arrest rates are...we want to make sure [those released are] not out there committing new crimes in the community and we've heard some statistics that give us pause."

Critics: System denies poor defendants justice
Under current New York criminal procedure law, judges must consider whether a defendant is a flight risk when setting bail. Defendants are asked to pay bail money to be released and to ensure that they appear at future court dates. If the defendant continues to show up to court, the money is returned at the end of their trial. If the defendant fails to appear, they lose their bail money.

To assess flight risk and determine bail, judges often use the recommendation made by the aforementioned Criminal Justice Agency (CJA), as well as those from both prosecutors and defense attorneys. CJA details defendants' past history, including prior convictions and missed court dates, ultimately making a recommendation as to whether or not the defendant should be released on their own recognizance - meaning the defendant does not have to pay bail but issues a written promise that they will return to court for their upcoming proceedings - issued a bail demand, or locked up without the opportunity for pretrial release.

In far too many cases, critics argue, setting even a fairly modest bail demand is tantamount to pretrial detainment because defendants are of such modest means. In a statement to Gotham Gazette, Council Speaker Mark-Viverito said, "We have already paid a high price, as a city and as a society, for policies that senselessly incarcerate and abuse a generation of young people who have not been found guilty of a crime."

In New York City, the median bail amount is $5,000 for felonies and $1,000 for non-felony cases, according to CJA's 2013 report. Bail amounts can vary widely from judge to judge and from day to day.

The CJA report shows that only 9 percent of defendants charged with felonies and 12 percent charged with non-felonies were able to make the required bail payment at their arraignment. Even in cases where the bail was $500 or less, only 23 percent of felony defendants and 15 percent of non-felony defendants were able to post bail. Defendants with smaller bail amounts are also less likely to be helped by bail bondsmen, professionals who collect a commission on the bail money that they pledge to the court on defendants' behalf.

Those unable to pay their bail are detained, entering a jail system and suffering at-times severe consequences, both at Rikers and on the outside.

Critics have billed the system as unfair to poor, low-level offenders - many of whom are often people of color. In 2013, New York State Chief Judge Jonathan Lippman submitted a proposal to the state legislature that created a "presumption of release" for non-violent offenders, putting the burden on prosecutors to prove that defendants should be detained because they will not return to court or because they pose a danger to public safety.

The proposal was not well-received by some Republicans in the state Senate, who control that chamber. "The last thing I would want to be doing is giving get out of jail free cards," State Sen. Martin Golden, a Brooklyn Republican, told the New York Daily News. The legislation has since stagnated.

According to Bronx Sen. Gustavo Rivera, a Democrat, the current system denies indigent individuals access to "a real system of justice." Rivera, who supports the creation of a city-wide bail fund, sponsored the 2012 Charitable Bail Law, which authorizes and regulates charitable bail organizations at the state level.

In a phone interview with Gotham Gazette, Rivera spoke of the unjust incarceration of individuals waiting for trial. A report by the Vera Institute of Justice determined that in 2013, half of the people jailed in New York City were being held on bail of $2,500 or less.

"These are individuals who are innocent until proven guilty, yet they're being held there as if they are criminals, many of them because they are poor, because they are unable to post bail," Rivera said.

In New York City, defendants unable to post bail before their trial are sent to Rikers Island, a complex currently consisting of nine operational jails. Rikers is also where prisoners serving sentences of up to a year are housed. For longer sentences, prisoners are sent to prisons elsewhere in the state.

In a recent New York Law Journal column, Council Member Lancman and his legislative counsel, Molly Cohen, write that "According to the Department of Corrections, on any given day about 78 percent of Rikers' approximately 10,000 inmates are pretrial detainees."

In opening the piece, Lancman and Cohen explain the thrust of renewed Council focus on the bail system, which will be taken up at Wednesday's hearing: "Our city deserves a bail system that not only ensures that defendants return for court appearances, but that does not punish people for their poverty, is not racially discriminatory, does not distort case outcomes and runs efficiently," they write.

A $1.4 Million City-wide Bail Fund
The city-wide bail fund would be modeled on the Bronx Freedom Fund, a non-profit revolving bail fund with a 98 percent success rate according to its one-year report released in November. (The Brooklyn Community Fund is a newer bail fund.)

The Bronx Fund was the first organization to be licensed under the Charitable Bail Law that permits organizations to post bail of $2,000 or less for defendants charged with misdemeanors. In New York, a misdemeanor is a crime for which an imprisonment of more than 15 days but not more than a year can be imposed - this includes offenses such as graffiti, endangering the welfare of a child, and third degree assault.

Alyssa Work of the Bronx Freedom Fund believes theirs is a model that can be scaled up. "I know that the need is very, very great and we're doing as much as we can with the resources that we have," she says. "And I do believe that with enough staff and with enough resources for bail itself, that it is a model that can work across the five boroughs."

Work also argues that a city-wide bail fund would save New York money as bail money revolves through; once a case is completed the recovered bail money returns to the fund to be used for future bail. "It's very expensive to incarcerate people at Rikers Island," she says. "Compared with that, the cost of implementing and running a bail fund is far lower."

The City Council points out that "taxpayers spend over $100,000 a year to maintain just one person on Rikers Island." As part of a new infographic, the Council also argues that only 12 percent of misdemeanor defendants post bail of any amount, costing the city "millions of dollars to unnecessarily house people who simply cannot pay their bail." Mark-Viverito and others seeking bail reform are often quick to point out that the changes they seek are not aimed at allowing violent offenders any additional leeway.

Work, of the Bronx Fund, cites both financial and other costs. "We're not even talking about the cost to people's lives which is a separate and serious issue," she said, pointing to the many cases where defendants have lost jobs, custody of their children, housing, or educational opportunities.

Creation of a city-wide bail fund will certainly take center stage at Wednesday's hearing - Mark-Viverito and others still want to see funds included in the fiscal year 2016 budget, the final details of which the Council and the de Blasio administration are still negotiating. A final deal is due on or before June 30.

Meanwhile, the heightened focus on the bail system is part of a larger discussion of the justice system. De Blasio and Mark-Viverito have both been focused - to varying degrees - on reducing unnecessary arrests, as they call them. De Blasio and NYPD Commissioner Bill Bratton changed enforcement of low-level marijuana possession and Mark-Viverito is looking to add civil penalties for certain nonviolent offenses that only have criminal penalties as of now.

Kalief Browder's case, and his death, have not only increased scrutiny on the bail system, but also on Rikers Island, the source of much criticism and ire of late, including from the US Attorney's Office, the de Blasio administration, and the Council.

Eliminate Bail Altogether?
Amid the talk of bail reform, there are also voices calling for deeper change, including the elimination of bail altogether. Among these voices are those from the Pretrial Justice Institute, which has started a petition calling on Governor Andrew Cuomo to eliminate the practice of cash bail in all of New York. Executive Director Cherise Fanno Burdeen believes that this would prevent future tragedies like the suicide of Browder. "He would have been assessed for release pending trial," she says. "He would have likely been released because, really, he was charged with theft of a backpack. And his case would have gone to trial."

Calling the idea of a city-wide bail fund a "noble band aid," Burdeen argues it is not a necessary use of taxpayer dollars. "I do find it curious that one part of the city would create a bail fund to pay another part of the city," she said, referring to the fact that it would be a city bail fund paying fees to the city courts.

State Senator Rivera also questioned whether the bail system needs to rely on monetary collateral, saying that he hopes Browder's death will galvanize lawmakers to engage in a larger discussion about bail.

"It's not a positive thing that we have to talk about this when there's a person that's taken their life, more than likely because of the abuse he suffered spending a few years behind bars for doing nothing," Rivera said. "But I do think that now we should have a conversation about whether the bail system needs to exist at all."

Short of even discussing eliminating bail altogether, Republican City Council members have been resistant to the idea of a bail fund. "As a taxpayer, I don't want to be paying people's bail," Council Member Vincent Ignizio told the Staten Island Advance after Mark-Viverito proposed the fund in her State of the City address. Council Member Eric Ulrich of Queens agreed, telling CBS New York, "I don't know that it's a wise use of city tax dollars to be used as a bail fund to get people off the hook."

There are currently three Republicans of the Council's 51 members. A bail fund bill, if proposed, would likely have more than enough support to pass through council committee and the full council. Right now, the Council is exploring the program and looking to set up a system without new legislation.

Mayor de Blasio did not include funding for the program in the executive budget he released in May. Still, Lancman remains optimistic that the city will allocate money to create the bail fund.

"I think it's one of the central pieces of the speaker's and the Council's budget agenda and we're in the heart of hammering out the budget right now," Lancman said. "So I absolutely expect it to be a part of the budget that we will agree to by June 30."

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by Catie Edmondson and Zehra Rehman, Gotham Gazette
@GothamGazette

Cuomo Tenant Protection Unit an Overlooked Part of Rent Regulation Debate


BdB Harlem rally

Mayor de Blasio addresses a tenants rally in Harlem (photo: Rob Bennett/Mayor's Office)


On Saturday, Gov. Andrew Cuomo attempted to reset his position on the state's rent laws. Facing pressure from tenant advocates and electeds Cuomo took a new position on strengthening rent regulations, saying in a Daily News op-ed that he wants to eliminate the process, known as vacancy decontrol, by which landlords increase rents until apartments are taken off the rent control rolls. In the article, Cuomo touted measures taken in 2011 to limit "vacancy bonuses" and "make sure landlords played by the rules."

Cuomo cited the 2011 creation of a new entity designed to prevent tenant harassment and illegal rent hikes. "[A]rguably our most important innovation," Cuomo writes, "was the creation of the first ever Tenant Protection Unit empowered with the authority to investigate, audit and bring legal action against landlords who gamed unsuspecting tenants."

Now, four years later and as an intense sense of urgency around renewing and strengthening expiring rent regulations has gripped tenant advocates, many are lukewarm on the program that Cuomo created as a stopgap to mollify legislators who were livid about the 2011 rent deal.

With a staff of about 25, the Tenant Protection Unit, or TPU, is charged with auditing, inspecting, and number-crunching in the effort to verify that landlords are making the repairs they claim to have made before raising tenants' rent. The TPU budget is unclear as Cuomo funds the agency through executive appropriations, though a number of advocates and legislative staffers who follow the issue closely estimate the unit operates on about $5 million a year.

The Cuomo administration touts the TPU, which is overseen by New York State Homes and Community, as revolutionary and credits it with putting 40,000 apartments back on the affordable housing rolls. Advocates say it is something that should have been in place a long time ago and worry it is currently understaffed and only funded at Cuomo's whim, as it was not created by legislation. They also point out that the agency was staffed by shifting employees from other departments.

The real estate industry and Senate Republicans appear to feel the unit is effective enough at protecting tenants as they both have made efforts to squash the TPU. Landlords and three landlord groups filed suit against the state in 2014 claiming that the TPU violates state law and its efforts "represent an agency's dramatic intrusion into the legislative and judicial areas, usurping powers specifically enumerated to the legislative and judiciary branches of government."

Senate Republicans tried to defund the program during budget negotiations this year. A number of Senate Republicans, including housing chair Catharine Young, have characterized the TPU as "executive overreach."

Frank Ricci of the Rent Stabilization Association, a landlord group, said his coalition is involved in the lawsuit because the TPU is treating landlords unfairly and is unwilling to provide them with basic information that would help communication and compliance.

The TPU asks landlords for detailed information regarding agreements with contractors to verify claimed renovations and repairs have indeed been done. "We've asked them to give us standards and they've refused," said Ricci. "Some of our landlords might get very detailed contracts while some of of the smaller owners don't deal with contractors that provide sophisticated contracts. So we've had some members get their rents rolled back because the TPU isn't satisfied with the documentation. It would be better for us all if we knew what the standard was."

A state judge dismissed the Cuomo administration's request to dismiss the suit in November of last year and the case is currently in discovery. A spokesperson for the Cuomo administration declined to comment because the lawsuit is pending.

The real estate community's frustration with the TPU is evidence to some that it is extremely effective. "They are doing such good work that the Republicans are trying to kill it and the real estate industry is opposing it in court" said state Sen. Adriano Espaillat, a Manhattan Democrat who added that he would like to see dedicated budget funding created for the agency.

Michael McKee of Tenants PAC isn't so convinced. He says the TPU has refused to assist tenants whose apartments were already taken off of the rent control rolls due to vacancy decontrol. He worries that the complaint-based nature of the TPU means that tenants who don't know to complain are just out of luck. "It is a good thing in principle and it is fair to say they've done good things, but it's not a substitute for strengthening the laws, or doing away with vacancy decontrol, or regulating the [units] that we've lost."

Members of the Cuomo administration say that the TPU's scope is not as narrow as McKee might think, as a single complaint allows them to investigate all of a particular landlord's housing stock. They also employ data-mining along with audits to make sure rent increases actually add up to the heightened rent.

Landlords are currently allowed to remove apartments from rent regulation when they reach a rent of $2,500 per month, able to increase rent along the way when repairs are made. Landlords can also raise rent on a regulated apartment by 20 percent after a tenant leaves without making repairs. Advocates say these rules provides landlords an incentive to push tenants out.

Cuomo administration officials also note that the TPU has expanded its reach by partnering with the Attorney General's Office and city agencies to form The Tenant Harassment Protection Taskforce to investigate deregulation, destruction of apartments, and tenant harassment.

The TPU has also been involved in large settlements with major landlords who were caught receiving tax abatements for making improvements to affordable housing stock when no actual improvements had taken place, and who received tax breaks for providing affordable housing when they weren't actually meeting rent regulation guidelines.

Perhaps the most famous TPU achievement thus far was working with the Brooklyn district attorney's office in a case that saw the criminal indictments of Joel and Aaron Israel, landlords who were found to be destroying their apartments to drive tenants out in four Brooklyn apartment buildings. The TPU served a subpoena to the Israel's real estate firm last year for records on their practices regarding 10 apartment buildings in Brooklyn. The TPU's findings were so damning that they handed them over to the Brooklyn DA.

The TPU also assists the state Homes and Community Renewal office in vetting landlords and developers in their applications for tax breaks, state loans, and grants. Administration officials say the TPU helps identify predatory landlords by investigating their holdings, tenant turnover rates, and previous tenant complaints.

One legislator, who requested anonymity for fear of angering the Cuomo administration, said that the ease with which the TPU has been effective in only three years and on a small budget should be a tremendous warning to lawmakers that the current regulations aren't actually working. "They simply went and contacted landlords who had just taken themselves off the rolls because no one was paying attention and restored thousands of apartments," said the legislator of the TPU's work. "That is the kind of enforcement environment we were dealing with - no one was paying attention and now someone is, but it should never have gotten to that point in the first place and we have to make sure the law prevents that."

Tenant advocates see the TPU as being born out of Cuomo's failure to go to the mat to end vacancy decontrol in 2011. Negotiations over the rent laws spilled over the deadline and in the end Cuomo and the Legislature made minor tweaks to the laws that he touted as revolutionary. City-based legislators, stunned by the deal, met with Cuomo privately to express their anger and he promised the state would do more to enforce current laws. Thus the TPU was born.

With less than a week left in this legislative session Cuomo finds himself in an even tighter spot on rent laws than he faced in 2011.

US Attorney Preet Bharara's investigation into corruption in state government has been galvanized by cooperating witnesses connected to Glenwood Management, a real estate group that has given Cuomo over a million dollars; tenant groups have seized on the connection and with the help of activists, legislators, and New York City Council members staged headline-grabbing protests against the Governor on the issue - one such protest led to over 50 arrests on the 2nd floor of the capitol. Meanwhile, Senate Republicans are more loathe than ever to deliver any tweaks to the laws that govern rent control, in part because Bharara's probe has scared them away from making legislative trades.

Since March, Cuomo has been downplaying the ability of the Legislature to accomplish complicated negotiations on the rent laws this session, but in his op-ed he suddenly announced a new position: that he wants to see vacancy decontrol done away with altogether. At this point in the game many legislators doubt it is possible while advocates doubt Cuomo's sincerity. Cuomo does say in the piece that if it is not done away with, decontrol rules should be strengthened so that more units remain regulated.

In a speech this past weekend at First Corinthian Church Baptist Church in Harlem, Mayor Bill de Blasio warned what would happen if Albany failed to act. "In Albany, they will decide whether to continue or eliminate rent regulation for over 2 million New Yorkers," de Blasio said. "If you live in a rent-controlled or rent-stabilized apartment, I hope you feel the magnitude of this moment, because if Albany doesn't act, rent control and rent stabilization go away. All those protections go away. All those guarantees go away. The market takes over – and we have seen what the market has done to so many hardworking families, haven't we? We've seen people displaced too many times, haven't we? And Albany not only has a choice to keep rent regulation or to eliminate it, they could do the right thing and strengthen rent regulation so more and more people are protected."

McKee of Tenants PAC said his experience with Albany worries him. "We've been asking Albany to adopt proactive enforcement for 40 years," said McKee. "I had the conversation with Mario Cuomo. They can't wait that long to act on vacancy decontrol or their won't be any affordable housing left."

Espaillat said the timing this year is frightening despite the fact that Albany has a history of waiting until the last minute to move on renewing the rent laws. "They push it up against the cliff so there is no negotiating room. They wait until we are on the precipice and that is why we've lost so many units of affordable housing over the years."

***
by David King, Albany editor, Gotham Gazette
@DavidHowardKing

De Blasio Stresses Mayoral 'Urgency' at World Cities Summit


BdB mayors forum

De Blasio addresses the mayors forum (photo: Rob Bennett/Mayoral Photography Office)


Addressing about 80 of his fellow mayors at the 2015 World Cities Summit Mayors Forum in midtown, New York's Bill de Blasio stressed that it is mayors who are on the front lines of crisis response and innovation. Praising his colleagues, de Blasio said that it is mayors who have no choice but to act, to govern everyday, and that their "urgency represents the highest form of public service."

Read more: De Blasio Stresses Mayoral 'Urgency' at World Cities Summit



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