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5 Reasons Mayoral Control is on the Verge of Lapsing

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

Mayor Bill de Blasio’s control of the New York City school system is only good for the rest of this week. The state Legislature ended its scheduled legislative session last Wednesday without a deal on an extension, something Governor Andrew Cuomo called “dereliction of duty,” and de Blasio has said puts the futures of 1.1 million schoolchildren at risk.

The New York Times reported Monday night that Cuomo is calling the Legislature back into special session "as early as Wednesday" in order to pass a one-year extension of mayoral control, perhaps offering state Senate majority Republicans a pension sweetening bill they had previously sought but not the expansion of charter schools in New York City that had held up negotiations with the Assembly, which is controlled by Democrats allied with the teachers unions, which see charter schools as an existential threat.

If the state Legislature does not reconvene and vote through an extension by Friday, June 30, the law will lapse and governance of the city’s schools will revert back to the old Board of Education system that was in place until 2002, when Mayor Michael Bloomberg won mayoral control through Albany.

Perhaps instructive for the coming months, there was a brief period in the summer of 2009 when mayoral control lapsed due to chaos in state government, but it was restored before the start of the next school year. While Bloomberg received seven and six years of mayoral control in 2002 and 2009, de Blasio has received back-to-back one-year extensions leading into this year, in large part because of tensions with Cuomo, a fellow Democrat, and the Senate majority.

De Blasio is largely allied with the Assembly majority, though not all members of that conference are fully supportive of mayoral control and it walked away from the bargaining table because it does not want to approve more charter schools for the city.

The situation has become a test of Cuomo’s leadership and reputation for getting things done.

According to the mayor and many others, circumstances are dire.

“I could not express the urgency more,” de Blasio said on Friday during an interview with Politico New York from the U.S. Conference of Mayors in Miami, Florida. “1.1 million children's lives and education and future depends on it,” the mayor said. “There are still differences clearly...there are things that need to be worked out, but my message to everyone is we've got to get this done by June 30, and that the results of not getting it done by June 30 are that we start back down a road of a system that failed our children.”

De Blasio has pointed to successes of the past 15 years overall, like much higher graduation rates, and of his three-plus years in office, like the implementation of universal pre-kindergarten, as evidence that mayoral control works. He’s also repeatedly pointed to dysfunction, corruption, and a lack of clear accountability under the old Board of Education system, which also involves 32 locally elected school boards.

De Blasio said Friday that “the action will begin in earnest again on Monday and I'm going to be talking to all of the key leaders on trying to settle all of the differences and getting this done.”

On Monday evening, de Blasio told NY1’s Errol Louis that his message to state lawmakers is “come back and get to work and finish this...get back to Albany and get this done.”

A spokesperson for the mayor told Gotham Gazette that “Our team has been in constant contact with the governor's team and the legislative leader teams. We are optimistic a deal can get done. We're working around the clock to help that process with whatever we can.”

De Blasio said Monday night that he had spoken to Gov. Cuomo earlier in the day and that the governor was “optimistic” a deal would get done. The mayor said he wouldn’t be confident until legislators were headed back to Albany to vote on a deal. Cuomo may be making that happen.

On Sunday, Cuomo said he was hopeful that a deal will be reached this week. Yet, the governor has repeatedly voiced an understanding that some think de Blasio is not an effective steward of the city’s schools. Cuomo said last week that he is a supporter of mayoral control under de Blasio, but added, “I understand the opposition, the questioning of the mayor's management and competence and record, I get it, but, what's the alternative, right?”

Though there is a home rule discussion to be had, at this moment it is prudent to put aside the questionable fact that state legislators, especially those from outside New York City who dominate the Republican-controlled state Senate, get to determine the city’s school governance structure. It may be a discussion worth resuming after a mayoral control extension is reached.

Whether a deal is reached this week or not, this summer or not, mayoral control is currently on the verge of lapsing for a wide variety of reasons and fingers are rightfully being pointed in several directions -- just about everyone involved is due some blame.

Though Cuomo and legislative leaders could announce a deal this week, if not the city may have to at least go through the motions, as in 2009, of reconstituting the more decentralized Board of Education (two appointees by the Mayor, one each by the five Borough Presidents) and beginning to eye elections for 32 community school boards. As the mayor has warned, there could very well be a chaotic period, with a lot of time, energy, and money dedicated to reestablishing a system that would likely be temporary.

While the chorus is mostly singing another tune, there are some who say that mayoral control should be done away with, and that the Board of Education system, perhaps with a few tweaks, is more apt to respond to community concerns and that local school boards give communities more control over their schools. The most powerful people in the room, however, do argue that mayoral control is a stronger governance system for the city’s 1,700 schools and 1.1 million students.

As Cuomo has pointed out, there are very real disagreements over charter schools, de Blasio’s management, and even the overall system itself. It’s apparent that the always politically potent issue of charter schools has been the main sticking point in negotiations over mayoral control: Cuomo and the Senate majority want room for more charters in New York City in exchange for an extension of mayoral control, whereas the Assembly majority is against expanding charter schools further. (Cuomo and Senate Republicans are heavily funded by charter school supporters, while Assembly Democrats and de Blasio are heavily funded by the teachers unions, who oppose charters.)

According to the New York Times, the bill Cuomo is seeking to move during Wednesday’s special session would not include raising the cap on charter schools in New York City, despite the fact that Cuomo supports such a move. There is still room under the current cap for about two dozen more charters to be authorized.

The five key reasons that mayoral control is on the verge of lapsing:

1. Governor Cuomo has not negotiated a deal.
This could all change Wednesday. But, perhaps because he is no ally of Mayor de Blasio or because he is a strong supporter of charter schools, Cuomo did not get a deal done before the end of the scheduled legislative session. The governor said he was in regular contact with de Blasio over several days, but that a fundamental difference between the Assembly and Senate majorities led to a stalemate. “Mayoral Control is a fundamentally controversial topic,” the governor said at a news conference last week in Albany.

“I was very involved with the mayor, I spoke to him multiple times a day for multiple days, I spoke to people on his team, I spoke to the Senate, I spoke to the Assembly, worked very hard until late in the night to try to get it done, and there's fundamentally no agreement between the two houses,” Cuomo said.

2. Mayor de Blasio is unliked in Albany and does little to improve the situation.
The mayor has few allies in state government, and his closest allies -- Assembly Speaker Carl Heastie and his majority members -- have mixed feelings about mayoral control. De Blasio is loathed, though, by Senate Republicans, especially given that he got very involved in 2014 efforts to oust them from power. As is well-documented, Cuomo and de Blasio do not get along, and the governor is never in a rush to help the mayor. But, Cuomo and Senate Republicans do believe in mayoral control of city schools, which may be the only reason de Blasio has held on to control.

All told, it’s not a great situation for the mayor, but he has done little over the past three years to improve it. He is hesitant to contact Senate Majority Leader John Flanagan, he makes few trips to the capital (three this year in the first six months), and he often does not put the effort into building and maintaining relationships with members of his own party, including Assembly members. The Cuomo situation is well-documented, but the mayor and the city continue to suffer due to the poor relationship. While it may be more Cuomo’s fault than de Blasio’s, the mayor has still not figured out to get more of what he wants with the governor’s help.

3. Assembly Democrats oppose charter schools more than they like mayoral control.
Assembly Speaker Carl Heastie decided not to give in on an expansion of the cap on charter schools in New York City, so mayoral control is on the verge of lapsing. Assembly Democrats are extremely close with the teachers unions, who see largely non-unionized charter schools as an existential threat.

Heastie was steadfast in saying he refused to link charters to mayoral control, but his brinkmanship may soon see a compromise. There are still 23 slots under the current charter cap for New York City, which charter advocates including Cuomo have been calling for a total elimination of for years, so it may not be that Heastie has to agree to a higher cap. Politico New York recently reported that Heastie may have to just sign off on new rules around charter teacher regulations. However, it’s unclear if his sign-off is even needed for them to go into effect.

As Cuomo recently said, de Blasio is also no fan of charter schools, though he has reached something of a detente with the sector after major battles in 2014. “[I]t's a different equation, supporting it with Mayor de Blasio who’s an avowed opponent of charter schools,” Cuomo said last week when discussing why the Senate GOP was less enthusiastic about mayoral control under this mayor, as opposed to Mayor Bloomberg, who was a major charter school supporter.

4. Senate Republicans are playing with house money.
The Senate majority has little reason to give in on mayoral control without getting something in return. Only three of the conference’s 32 members are from New York City, with Majority Leader Flanagan hailing from Long Island. If there is disarray in city school governance it doesn’t matter much to the conference and they get the bonus of watching de Blasio suffer. Republican senators are in excellent bargaining position given that there is room under the charter cap and mayoral control is on the verge of ending.

Still, there is some pressure on the Senate majority since it does need a good working relationship with the governor and, to some extent, the Assembly majority. Flanagan and Cuomo have had a very solid working relationship, including Flanagan signing off on Cuomo’s signature issues each of the last two years (a minimum wage hike and paid family leave in 2016; a college affordability program and raising the age of adult criminal responsibility this year), and Flanagan introducing the governor’s bill late on the last night of session that would name the new Tappan Zee Bridge after late Governor Mario Cuomo. Assembly Democrats did not pass the naming bill, but could agree to do so as part of a future deal.

5. The IDC has not helped make a deal.
The Independent Democratic Conference, or IDC, is a group of eight breakaway Democrats led by Senator Jeff Klein of the Bronx that has a power-sharing agreement with the Senate GOP, helping the majority to bolster its razor thin hold on the chamber. While the IDC supports mayoral control, it does not appear it has been able to influence its Republican colleagues to move on a bill. The IDC may not have tried given that it is also supportive of charter schools. Charter backers have been generous donors not just to the Senate GOP, but to the IDC, which helps keep charter-friendly Republicans in control of the chamber, which is seen as essential to charter survival and growth.

Part of how the IDC rationalizes its existence is by saying that it can help moderate the Senate GOP and move legislation that may otherwise be bottled up, like the minimum wage increase of last year or the Raise the Age bill this year. But, mayoral control does not appear to have made that list.

by Ben Max, Gotham Gazette

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New Jersey is About to Elect a New Governor. Why It Matters to New York

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Governors Cuomo and Christie (photo: Governor Cuomo's Office)

After competitive primaries, the New Jersey gubernatorial race is now between Republican Kim Guadagno and Democrat Phil Murphy. As the candidates head toward November's Election Day, New Yorkers may want to pay attention to the race and how each major party candidate might affect New York if elected.

Given the proximity and relationship between the two states, particularly in relation to the Port Authority of New York and New Jersey and the fact that New York's workforce includes many New Jersey commuters, the next governor of New Jersey will have significant sway over key infrastructure, transportation, economic, public safety, public health, and other decisions that affect New Yorkers.

The Port Authority emcompases the Newark, JFK, Stewart, and LaGuardia Airports as well as the PATH train, bus terminals, bridges and tunnels, and the ports themselves, and gives the governors of both New York and New Jersey shared responsibility over interstate transportation. Both governors have the ability to select individuals for the Board of Commissioners, and reject any actions by them.

A variety of matters have led transportation to become a key part of the discussion in the New Jersey gubernatorial race, and it is one that has essential ties to New York.

"It's good that transit is such a big issue in this race, and it's a big difference from when [New Jersey Governor Chris] Christie first won," said Nicole Gelinas of the Manhattan Institute. "First of all, no one talked about transit issues in the gubernatorial race when Christie was running against [Jon] Corzine - no one quite appreciated the crisis that was looming, even though it was pretty predictable."

Christie canceled the ARC (Access to the Region's Core) project in 2010 in an effort to save taxpayers the weight of paying for it, after projections by the Federal Transit Administration found that the nearly $10 billion needed to complete it could have gone up almost 50% by the time the project was finished. The precursor to the Gateway Program, ARC would have built a new tunnel under the Hudson River and a new station near Penn Station, after it was decided that connecting the new tunnel to Penn's failing infrastructure was impossible.

"Whoever is the new governor is coming into a state with serious, serious problems," said Gelinas, whose focus areas include infrastructure, transportation, and fiscal policy. "[New Jersey] never recovered from the recession, the pension funds are really insolvent, and transit is one of these big problems."

"People are aware of this, but they're still not being told they are going to have to pay a lot more in taxes to fix this huge infrastructure backlog," Gelinas said.

Many New Jerseyans help strengthen the New York economy; those who work in New York pay income taxes here, and New York businesses depend on area transportation to deliver consumers from a wide area. New Jerseyans take advantage of New York attractions, including sports, parks, landmarks, arts, and culture.

Along with shared control of the Port Authority, the two governors must be able to cooperate during a crisis, such as in the case of Hurricane Sandy in October 2012. In the aftermath, New York Governor Andrew Cuomo, a Democrat, and Christie, a Republican, came together to issue a joint statement on the "inexcusable" "continued inaction and indifference by the House of Representatives" to send aid, 66 days after the storm had hit.

Governor Cuomo's office declined to comment on the importance of the working relationship between the New York Governor and the New Jersey Governor. Cuomo and Christie have largely gotten along, with Cuomo refusing to criticize Christie over ARC or as Christie supported Donald Trump's candidacy. In 2014, Christie, as head of the Republican Governor's Association, refused to help Cuomo's Republican opponent, Rob Astorino.

Cuomo and Christie have not appeared together in public much in the last year-plus, but have repeatedly appeared to have a friendly relationship, including when they responded to the Ebola scare in 2014.

The Candidates
Democratic New Jersey gubernatorial candidate Phil Murphy has a policy agenda 28 items long, including issues such as "Getting Tough on Gun Violence," "Making the Economy Work for All of Us," "Lowering the Cost of a College Education," and what appears to be a major focus of the race, "Ending the Mismanagement and Building a World Class Transportation Infrastructure."

Specifically, part of Murphy's plan for transportation includes increasing investment by the state to "lower the burden on consumers" as well as completing the Gateway Project.

"If we don't get the economy right, we don't get New Jersey right, and that's the overwhelming central thesis of our campaign, and will continue to be," Murphy said on WNYC's The Brian Lehrer Show on June 7. "We have to grow this economy, and we have to make this economy and our society fair again," he said.

He went on to stress that his administration would be both progressive and fiscally responsible. "California has proven that," he said, also citing Minnesota and Massachusetts. Murphy has been endorsed by former Vice President Joe Biden, who called this election the "single most important" impending vote, according to Politico.

Murphy previously served on the board of the NAACP, served as the U.S. Ambassador to Germany, and helped launch The New Start Career Network, a group  that "provides free, personalized assistance to New Jersey residents, age 45 and over, who have been unemployed for six months or more." According to his website, as governor, Murphy plans to "increase oversight" of the Port Authority and NJ Transit, as well as complete the Gateway Project.

Murphy's media representative did not respond to requests for an interview discussing his campaign and the New Jersey-New York connection.

Republican Kim Guadagno, Chris Christie's 2009 running mate and Lieutenant Governor of New Jersey, lists "Improving Education," "Cutting Property Taxes," "Making New Jersey More Military & Veteran Friendly," and "Fixing Pension and Health Benefits," "Audit Trenton," and "Growing Jersey Jobs" as her entire list of issues on her campaign website.

Guadagno has no mention of her plans for fixing transportation infrastructure listed on her website.

"It's too expensive to live here," Guadagno said on the same WNYC program. "Going into November our whole conversation is going to be about how it's too expensive to live here - we have to make it more affordable. We cannot raise taxes on the most taxed people in the country and we have to lower those taxes."

Guadagno made a pledge that if as governor she could not lower property taxes in the state, she would not run for reelection. She also condemns higher gas taxes, which Gelinas says could be the difference in being able to afford the infrastructure changes necessary for New York.

Guadagno's media representatives could not be reached; no one answered the phone number listed on her website (that had a full voice mailbox) and no email is listed.

Transit Issues
Dubbed the "Summer of Hell" by officials with Long Island Rail Road, according to the New York Times, starting July 10 people using the Penn Station transit hub on Manhattan's West Side (which faces New Jersey) will begin to see the effects of around 30 years of neglect. The station will be cutting down on a fifth of its regular traffic while necessary renovations are underway.

Penn Station transports more passengers than any railroad station in North America, with over 600,000 commuters passing through every day either through the many different train services that pass through it. Many of these passengers consist of New Jerseyans who commute in and out of the city for work, some who have left the Empire State for the Garden State in an effort to find more affordable housing.

New Jersey Transit "is New Jersey's public transportation corporation." With over 5,000 square miles, it is the "third largest provider of bus, rail and light rail transit" in the country, connecting major areas like New York, Philadelphia, and New Jersey.

Among other places, NJ Transit operates out of Penn Station, as does the Long Island Railroad, or LIRR, the most used railroad in the country by commuters, "carrying an average of 301,000 customers each weekday on 735 daily trains." LIRR is run by the Metropolitan Transportation Authority (MTA), which is dealing with its own crisis.

"The MTA is in a state of crisis," wrote Governor Andrew Cuomo in a recent statement that also gets at the New York-New Jersey transit relationship. "Historic underfunding leaves it with obsolete equipment going back to the 1940s. The bureaucracy is dysfunctional. The recent Penn emergency track closures on July 8 will be the proverbial straw that breaks the camel's back. The July 8 LIRR and New Jersey Transit cancellations will drive more people into the subway system, in the middle of the summer. There is no quick or small fix for the MTA. We are advancing $32 billion for the MTA capital plan – an historic amount – but it must be implemented: new cars purchased, new signals installed, new equipment acquired and new personnel hired."

Cuomo and Christie also worked together to send a letter to Charles Moorman, the CEO of Amtrak, on May 11 calling for "systemic changes" that "cannot wait," and which placed blame for the "continuing string of infrastructure failures at Penn Station" on Amtrak's "decades of underinvestment." However, some experts feel the blame is not entirely off of the governors themselves.

"One of the first things Christie did in office was to cancel the Hudson tunnel, that would have given New Jersey transit a lot more independence from Amtrak and a lot more reliability," said Gelinas. "He really did that for short-term points with his voters and [to say] 'Oh look, I'm saving money.'"

"He didn't think of the long-term repercussions at all," Gelinas said, "and so now we're seeing the long-term repercussions, and that's good at least that people are aware of this - that they're thinking about this more seriously now. As for the letter that Cuomo and Christie sent to Amtrak...it's kind of a distraction."

Greg David, columnist for Crain's New York Business and director of the Business & Economics Reporting Program at the CUNY Graduate School of Journalism, agreed, saying, "Everything that is going wrong there is the result of the two men's inattention to this. Amtrak has become a convenient scapegoat for their own mistakes - not that Amtrak hasn't contributed, but it's the most hypocritical thing."

The total cost of building that new tunnel is estimated at around $20 billion, half of which is supposed to be supplied by the federal government, while the other half is split between New York and New Jersey. Since Cuomo is responsible for the Metropolitan Transportation Authority, said David, and Christie is responsible for "starving" NJ transit for money, citizens should be questioning the actions of all major parties involved.

And it isn't just Penn Station or the current Hudson tunnel, referred to as the North River Tunnel (which was severely damaged during Superstorm Sandy) that is in a state of crisis; the bus terminal responsible for commuters between the two states also needs significant refurbishment, and bus traffic could become more consistent in the years to come.

"The 42nd Street Port Authority Bus Terminal is the world's busiest bus terminal," said Philip Plotch, professor and director of the Masters of Public Administration Program at Saint Peter's University. "But, it's falling apart and it can't fit all the people and buses that want to use it."

The key place the Governors of New York and New Jersey interact, according to David, is at the Port Authority where they have "equal control." According to Plotch, the 42nd Street bus terminal is a "weird dynamic" in which it resides in New York but is more important to New Jerseyans, since not many of the people who use it are New Yorkers.

"Everybody agrees that either you knock it down and build a new one, or you totally rebuild it," said Plotch. "New Jersey thinks it should be totally knocked down and started from scratch, New York is trying to not put as much money into it."

Though not as important to New York voters, said Plotch, the bus terminal is important to New York businesses that rely on people from New Jersey both as employees and customers. "In New Jersey, it's the opposite," said Plotch, because New Jersey businesses are always trying to take back business from New York, whereas New Jersey voters who work in New York would rather have the problems fixed.

How the winner will impact New York
"So what about these two candidates? I would say that [Guadagno] doesn't have much of a serious plan yet," said Gelinas. "I mean, she said she wants to do an audit of New Jersey transit and the state transportation trust fund - that's fine - but she doesn't have much of a funding plan [for the tunnel]."

"I think Murphy has been a little bit more serious in saying that New Jersey transit needs a huge infusion of money," Gelinas continued. "He said he'll look at considering a new tax for the agency, but he also just talks about the federal funding for the big Hudson River Tunnel Project."

Ultimately, however, Plotch says there's no way to tell exactly who will have what effect until it happens, citing the difference between politicians during a campaign versus how they act in office as the reason voters never really know what they're getting.

"Neither of them is saying [they] are going to be raising taxes or borrowing a huge amount of money to make the improvements that are necessary," said Plotch. "No politician wants to go and say 'we need to raise gas taxes more' or 'we need to raise tolls more' or 'we need to raise fares more' or 'we need to borrow, even though we're one of the most heavily indebted states.' Nobody's going to do that on the campaign trail."

It remains unclear who is going to end up footing the bill for all of the needed infrastructure improvements, and how that bill will be split among New York, New Jersey, and Washington, D.C. Which gubernatorial candidate would best figure out that funding equation for New Jersey is also not clear, especially given that relationships are essential, both across the Hudson and with federal leaders.

"No matter who wins, we need to get going on the funding package for this Hudson tunnel," said Gelinas.

Gelinas also said as far as New Yorkers go, unless there is a candidate willing to say "Washington is not going to pay for this, we're going to need to come up with this $5 billion, and we will have to pay more for our infrastructure," that there will be room for even more concern.

"If we don't see that," she continued, "then I think New York can worry a huge chunk of its workforce coming from New Jersey and providing a lot of Manhattan's workers, is still going to be unpredictable, with unproductive, unhappy workers."

by Jynn Schubert for Gotham Gazette
@JynnWasHere  @GothamGazette

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What Moved and What Didn’t as State Session Ended

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Gov. Cuomo (photo: Kevin P. Coughlin/Governor's Office)

With both houses of the state Legislature gaveled out, signalling the end of the 2017 legislative session, there a several unsettled issues for New York City, starting with the annual saga of renewing mayoral control over city schools, a policy set to expire at the end of June.

Deadlocked over mayoral control, legislative leaders were not able to come to an agreement by the end of the scheduled session on Wednesday evening, though on Thursday talks continued among legislative leaders, Governor Andrew Cuomo, Mayor Bill de Blasio and other stakeholders. The governor ultimately held an hourlong press conference at which he indicated he still wants to see a deal on several items and that he may call the Legislature back to Albany for a special session.

Also set to expire in November are a slew of local taxes, including New York City’s personal income tax, which are necessary to keep municipalities functioning. The governor indicated Thursday that extensions of those tax provisions would have to be done this year. The Assembly tied the taxes to mayoral control, and the Senate would like to keep the two issues separate and instead connect mayoral control to more charter schools for New York City.

Assembly Speaker Carl Heastie told reporters on Monday that he would not budge on mayoral control. “At this point we stand by our bill, we treat it like every single county in the State of New York,” said Heastie. “We’ve done our job as far as the Senate is concerned. We’re not coming back.”

Heastie was steadfast that the Assembly would not return to Albany to rehash an agreement mayoral control, local taxes, or anything else. But on Thursday he was polling his members about returning. “It remains our desire not to return as we are very comfortable with the bill that we passed. However, if the Governor and/or the Senate is asking us to engage, we would be derelict in our duties not to consider those requests. With that being said, there is no plan to return,” Heastie said in a Thursday afternoon statement.

A spokesperson for Senate Majority Leader Flanagan confirmed that leaders were in talks, but said there was no plan for lawmakers to return.

Speaking Thursday afternoon in the Capitol’s Red Room, Cuomo blasted the Legislature for a “dereliction of duty” for not passing mayoral control. Inaction, he said, is a vote for restoring control to the Board of Education, which was rife with dysfunction and waste. Mayoral control was first instituted in 2002.

If a deal is struck on mayoral control, charter schools, tax extenders, and/or other outstanding priorities of the various parties, it could create a later than expected “big ugly,” Albany speak for a mashup of bills passed as a package deal -- which typically happens twice each session, once at the end of budget negotiations around April 1, and again in June as the legislative session ends and lawmakers go home for the rest of the calendar year.

While there was no deal on high-profile items like the above, electoral, ethics, and procurement reforms, and the Child Victim’s Act, there were bills that moved in the final days and hours of the session.

The Legislature did pass an extension of Kendra’s Law, which allows courts to order outpatient treatment for mentally ill New Yorkers. The law is named for Kendra Webdale, who was shoved in front of an oncoming N train in 1999 by a mentally ill man. It was set to expire in November.

Both houses have also passed a bill adding Post Traumatic Stress Disorder (PTSD) to the list of ailments that could qualify for medicinal marijuana, which is seen as a way to jumpstart New York’s nascent -- and floundering -- medical marijuana industry.

A bill banning “child marriage” passed, which raises the age of consent to marriage from 14 to 18, though there are exceptions for 17-year-olds with parental and judicial permissions. The governor became a major proponent of the legislation all of a sudden this year and held a ceremonial bill-signing at the Capitol, though it was closed to the press.

A three-way agreement on a Buy American bill, which faced opposition from the Canadian government, was also reached and celebrated by the governor. It adds seven state agencies to the list of those that must use only domestic steel: the Department of Transportation, Thruway Authority, Bridge Authority, Metropolitan Transportation Authority, Office of General Services, SUNY Construction Fund and Dormitory Authority of the State of New York.

While ethics and electoral reforms were for the most part not even discussed among legislative leaders and the governor, one transparency measure did move through both houses. The bill is a reform to the state’s Freedom of Information Law, adding penalties for city and state agencies that wrongfully deny FOIL requests, by mandating they cover attorney fees for any entity that successfully sues for withheld information. A similar bill was vetoed by Cuomo in 2015, but this version was amended based on concerns raised by Cuomo’s office.

The Legislature also passed one of two noteworthy tax credits aimed at the entertainment industry, which have been closely watched by those in the business. One, which has gotten much buzz in the press, but has been criticized by budget watchdogs, is a tax credit on film and music production, sponsored by Brooklyn legislators Joe Lentol, a Democratic Assembly member, and Republican Senator Marty Golden. Last, year the measure was passed, but ultimately vetoed by the executive, and this year the bill passed the Senate, but never made it to a floor vote in the Assembly

The other, sponsored by Assemblymember Marcos Crespo, a Democrat from the Bronx, and and Senator Marisol Alcantara, of Manhattan and the Independent Democratic Conference, builds on an existing film production credit for part of New York’s television industry. Specifically, it would allow credits for up to $50,000 per episode for television writer and director fees and salaries for women and minority writers and directors. For years, former Harlem Assemblymember Keith Wright had put forward similar legislation, but this year is the first time it is headed to the governor’s desk.

At the eleventh hour, Cuomo also moved through a new appointee as Chair and CEO of the MTA: Joe Lhota will return to the role after being confirmed late Wednesday night, just minutes after Cuomo nominated him and he took a few questions from senators by Skype.

There are several prominent issues that progressed in one or both houses, but have been tied up in committee or stalled.

The Child Victims Act, which would lift the statute of limitations for adults reporting sexual assault that happened when they were minors, is facing opposition in the GOP-controlled Senate. Majority Leader Flanagan said the Senate has discussed it but it will not come up for a vote this year. Governor Cuomo expressed disappointment about the legislation failing during his Thursday news conference.

The Child Victim’s Act passed overwhelming in the Assembly, but faces opposition from the Catholic Church, Boy Scouts of America, and others who fear they will be overburdened with lawsuits if the law applies retroactively. Another version, sponsored by Senator Jeff Klein, leader of the IDC, addresses concerns about “frivolous lawsuits.”

Cuomo introduced his own Child Victims Act bill -- one identical to legislation that passed by the Assembly earlier this month -- but was forced to face the fact that the Senate would not take up the issue.

“It’s under discussion, but the Senate is not going to be taking up the law,” said Sen. Flanagan.

Procurement reform, which would add oversight from the comptroller to the governor’s signature economic development programs, is opposed by the executive branch and also stalled, despite the bid-rigging scandal that came to light last year and appeared to cause a groundswell of support for reform from legislators, good government groups, and Comptroller Tom DiNapoli.

The Assembly also passed a bill “that will ban the request and requirement of a prospective employee’s salary history as a condition to receive an interview, an offer of employment, or in determining wages or salary” in an effort “to prevent wage discrimination.” It did not advance in the Senate.

Finally, there is always a slew of bills passed in one house but not the other, either by the Democratically-controlled Assembly or the Republican-controlled Senate, most if not all likely to be put off until at least 2018. Among the Assembly-backed bills are a single-payer healthcare bill; the Reproductive Health Act, which would codify Roe v. Wade; a euthanasia bill; the legalization of recreational marijuana; the expansion of design-build to New York City; and more. Bills that passed the Senate but not the Assembly include one aimed at reducing prison overcrowding, Leandra’s law -- which makes it a felony to drive drunk with a minor in the car; a law automatically granting veterans high school diplomas; various protections for seniors; and a plethora of tax breaks for small businesses and farms.

by Rachel Silberstein, State government reporter, Gotham Gazette

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Albany on the Penultimate Day of Legislative Session

albany capitol

The Capitol (photo: Ben Max)

The lobby was packed with lobbyists. The Dunkin Donuts was humming. Food trucks lined the sunny street and appeared to be doing better than average business. Reporters were hungry for any tidbit of news.

Assembly members and Senators bounced in and out of their respective chambers, where dozens of bills were voted through with astonishing speed. Negotiations on major pieces of more contentious legislation were held behind closed doors by the four most powerful people in state government, all men.

The state Capitol building on the penultimate day of the 2017 legislative session was full of energy and exasperation.

“My bill just passed!” one Assembly member exclaimed when she recognized a friendly face. “I have to get back in to vote, my bill is coming up soon,” said a senator optimistic that her legislation was about to move through the chamber. It did.

“I haven’t seen the bill,” legislator after legislator told waiting lobbyists looking to bend their ears and garner additional support in last-ditch efforts to see their clients’ legislation pass.

“Speed cameras just passed through committee,” said Mayor Bill de Blasio’s transportation commissioner, in the capital to help shepherd through two administration priorities.

“I’m just ready to be done,” said another Assembly member. And another. And another.

“Yes,” said the Senate majority leader when asked if session would end Wednesday night as scheduled.

But, even with somewhere around 36 hours left on the clock, there was a great deal of unresolved business. When Republican Senate Majority Leader John Flanagan told reporters that he was set on session ending Wednesday, he had just emerged from a meeting with other legislative leaders -- Democratic Assembly Speaker Carl Heastie and Senate Independent Democratic Conference Leader Jeff Klein -- and Governor Andrew Cuomo, a Democrat, at which some of the outstanding, big ticket items were discussed.

After that meeting, Klein said he was hopeful the sides would all agree on a two-year extension of mayoral control of New York City schools. When Flanagan came out he declined to put a duration on any extension, saying that negotiations are ongoing. (Mayoral control is set to expire at the end of the month. De Blasio has activated the usual suspects for a push similar to each of the last two years, when he was granted just a one-year extension. City schools Chancellor Carmen Farina was in the Capitol to help the effort, ready to talk to any legislator who wanted to chat, she told reporters.)

Flanagan put another major issue off the table completely, though, when he said that the Senate would not be voting on the Child Victims Act, which would allow sexual abuse victims more leeway to bring suits against their abusers and is supported by the Assembly majority and Cuomo.

Speaking of the governor, he held a closed-door bill-signing to celebrate passage of legislation raising the age at which one can consent to marriage in New York, in an effort to modernize those regulations and outlaw “child marriage.” Opting to sign the bill without members of the media, Cuomo took no questions on Tuesday.

He did, however, announce through press release a new bill to grant the Governor more control over the MTA, an end-of-session move aimed at showing he is thinking about the subway crisis that has earned Cuomo increasing scorn. The governor currently appoints six of the 14 MTA board members and the Chair, giving him de facto control. His proposal would have the Governor nominate eight of 16 board members plus the chair, who would be given a vote, giving the governor a majority of the votes, with nine.

The governor’s proposal, which may very well pass with almost no public review, came the day after state Senator Michael Gianaris announced his own MTA rescue plan, a bill that would, in part, institute a three-year “millionaire’s tax” on “those in the MTA region” to fund emergency repairs -- “a temporary surge of dedicated revenue” -- and create an emergency manager position at the MTA.

“Somebody had to do something,” Gianaris told Gotham Gazette on Tuesday at the Capitol. “Someone had to get a real conversation going.”

by Ben Max, Gotham Gazette

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With Session Ending and Trial Looming, No Legislative Response to Bid-rigging Scandal

Cuomo Flanagan Heastie

Flanagan, Cuomo, Heastie (photo: The Governor's Office)

With just three scheduled days left in the legislative session and the corruption trial of several close associates of Governor Andrew Cuomo for their roles in a bid-rigging scandal scheduled to commence in October, the Legislature has yet to pass any meaningful legislation to prevent such abuses of the procurement process.

State Comptroller Tom DiNapoli has introduced a comprehensive bill to address the issue, which is the basis for a Senate bill sponsored by Senator John DeFrancisco, a Syracuse Republican, and sister legislation by Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat. The legislation would restore authority of the Comptroller to pre-audit all state contracts over $250,000, particularly for SUNY and CUNY affiliated non-profits, a power that was stripped in 2011.

That year, Cuomo and legislative leaders (who are now headed to jail) said that the scaling back of oversight was necessary in order to expedite approval for the governor’s signature economic development initiatives. The idea that the Comptroller’s contract review slows down projects is misguided, according to budget watchdogs. The Comptroller has up to 30 days to approve a contract, but on average approves contracts within six days, according to April figures provided by DiNapoli’s office.

The absence of an independent oversight body appears to have cleared the way for the massive $800 million bribery scheme that took down close Cuomo associate and friend Joe Percoco, as well as then-SUNY Polytechnic President Alain Kaloyeros, who Cuomo had heaped praise and responsibility on, and several major donors to Cuomo who were awarded large contracts. The alleged scheme was uncovered by the office of then-U.S. Attorney Preet Bharara.

More recently, Bart Schwartz, head of Guidepost Solutions LLC, who was hired by Cuomo to probe the contracting process and what might have gone wrong, found significant flaws. In his review of the $417 million awarded to vendors at Buffalo’s SolarCity project and other upstate initiatives, he found that at least $49 million was awarded using a “sloppy process.” The Buffalo News first reported the details of Schwartz’s report, which the Cuomo administration had failed to make public, but was obtained through the Freedom of Information Law (FOIL). Schwartz was paid as much as $1 million for his investigative work and the Cuomo administration has indicated that it accepted his recommendations for cleaning up contracting processes.

While DeFrancisco’s bill has passed the Senate’s finance committee, and the Assembly on Wednesday tweaked its version of the bill to match the Senate’s, legislative leaders offered reserved endorsements of the legislation, and it has yet to be calendared for a floor vote in either house.

Both Republican Senate Majority Leader John Flanagan and Democratic Assembly Speaker Carl Heastie have said they support the restoration of pre-auditing powers to the comptroller’s office, but that they are working towards a “three-way agreement” with the governor before advancing the legislation, which is backed by good government groups and many rank-and-file lawmakers.

Meanwhile, the governor has been defiant, saying that the powers should not be returned to the Comptroller. Instead, Cuomo in his 2017 policy book proposed expanding the oversight powers of the state inspector general to include procurement at CUNY and SUNY nonprofits, as well as new inspectors general, appointed by and reporting to the executive branch. In the aftermath of the scandal, Cuomo also vowed to create a chief procurement officer in the executive branch.

“The proposed legislation does not address the issue and is both burdensome and duplicative,” said Cuomo’s counsel, Alphonso David, in a statement to Gotham Gazette. “The vast majority of these contracts are subject to OSC [Office of the State Comptroller] post-award oversight and these measures only add significant delays and increase costs for New York taxpayers.”

David’s statement highlights a key difference between the governor’s proposal and the “clean contracting” legislation backed by the comptroller and government reformers, which emphasizes prevention, making SUNY and CUNY projects subject to the same early scrutiny and standards as other state-funded projects, rather than after-the-fact oversight.

“The governor's proposal utterly and totally misses the point because it creates addition inspector generals who are appointed by the governor,” said John Kaehny, executive director of the government reform group ReInvent Albany. “The problem...was bid-rigging; the state contracts were rigged to favor one vendor over the others, and that could have been prevented by independent, pre-contract review.”

Representatives from the Reinvent Albany, New York Public Interest Group, League of Women Voters, and Citizens Budget Commission gathered at the Capitol this past Wednesday, with the blessing of other government reform groups, to call on Albany to pass the legislation -- with or without the governor’s support.

“If lawmakers are at all serious about addressing the problems that happened with last year’s bid-rigging scandal they need to support prevention of these crime -- and that means independent pre-contract review,” said Kaehny.

They noted that the Legislature is granted power to enact legislation without the governor’s support, first by passing it through both houses. If Cuomo does not then sign or veto the bill, it would automatically become law in 10 days. If the governor vetoes it, the Legislature could independently reconvene to override his veto. More than a majority, two-thirds of each house, must vote in favor in order pass legislation rejected by the governor. As a result, veto overrides are rare; the last time the Legislature successfully overrode a gubernatorial veto was in 2006, during a tumultuous budget negotiation that took place during the last year of Governor George Pataki’s final term, when legislative leaders went to bat over a property tax rebate and cuts to state university funding. 

Among those who floated the idea of the Legislature passing the bill without the governor’s support is Senator DeFrancisco, who expressed frustration the procurement reform legislation was not calendared earlier.

“I try to advocate for it all the time. I know the governor is apoplectic against it and he’d rather have an inspector general that he can control,” DeFrancisco told reporters at the Capitol on June 12. “Hopefully reason will prevail.”

When asked to elaborate on the problems with the governor’s proposal, DeFrancisco said, “What he wanted in the budget was to have an independent inspector general, appointed by him to review his contracts. I don’t think you have to be a lawyer, you just have to be somewhat sane to realize that that’s not a check and balance on anybody. He doesn’t want to lose that control and have that oversight. There’s no other logic why he wouldn’t do it.”

Speaker Heastie, in an interview with Gotham Gazette, remained coy about the possibility of passing the legislation and reconvening to override a potential gubernatorial veto.

"Those are always options, that are there but again you are asking me what you are going to do on failure, I don’t like to report on failure,“ he said, adding that there is always “the summer” and “next session” to pass legislation.

“The end of session is a deadline, but it’s not the end of the world if there is ever a need for us to do anything legislatively. We said we’ll come back if the actions in Washington dictate us to come back,” he said. “If we have to come back, the members will come back."

Majority Leader Flanagan expressed only slightly more enthusiasm about the idea of procurement reform. Calling the oversight measure “extraordinarily important,” Flanagan said, “I expect we will have procurement reform before the end of the session, whether it’s [legislation proposed by] Senator DeFrancisco or a variation of that bill, I expect we will move in that direction.”

The bill has widespread support in the Legislature; minority leaders say they also support the comptroller-backed proposal, which also ends contracting for non-academic purposes by state-controlled non-profit organizations, and transfers all economic development awards to the the Empire State Development Corporation.

However, Independent Democratic Conference (IDC) Leader Senator Jeff Klein struck a different tone Thursday, saying he opposed DeFrancisco’s legislation. The IDC and GOP have a power-sharing alliance in the Senate. Klein said he intends to introduce a new bill this week, which instead of restoring the comptroller’s powers would appoint an independent investigator to look at claims of misconduct. When pressed, he did not clarify how this proposal differed from the governor’s proposal.

“Right now the power of the comptroller is post-audit -- so what I would assume is if there is any problem in the procurement process, you’d be able to spot any problem post-audit. Then why would you need to have pre-audit ability?” said Klein. “I think what we need is a downright investigator -- someone who has the power to investigate the contracting process as it moves forward, to make sure there’s no favoritism, to make sure there’s no bribery.”

This past week, the bill’s Assembly sponsor, Peoples-Stokes, also expressed second thoughts about how the legislation could slow the approval for contracts for minority- and women-owned businesses that are awarded grants by the state’s Empire State Development Corporation, or impact healthcare organizations like Roswell Park Cancer Institute, a public not-for-profit that would be subject to increased scrutiny.

“The last thing we want is processes to slow down their ability to grow...At first blush, it seems like great legislation, when you delve in there’s some things that need to be tweaked,” said Peoples-Stokes. “I’m grateful there’s some lawyers and a team around here that can help me straighten something out. I think what happened in 2011, that maybe we should takes some looks at, but all these other things.”

Earlier this year, a month after talks of a long-awaited pay raise for lawmakers turned sour, legislative leaders seemed ready to take a different approach than they are now, vowing to stand up to the executive branch.

In January, during his remarks on opening day of the 2017 session, Flanagan urged his fellow lawmakers to stand up to the governor over the economic development programs, which were marred by the alleged bid-rigging scandal and other accountability problems. Urging his fellow legislators to “ask tough questions” on the progress of economic initiatives like Start-Up NY and Regional Economic Development Councils, Flanagan cited the Legislature’s power as a check on the governor.

“It’s very simple, the legislative power of the state is vested in the Senate and the Assembly,” Flanagan said in January. “Not the attorney general, not the controller, and not the governor.”

In the budget deal passed in April, Cuomo’s signature economic development and infrastructure programs were fully-funded and no new oversight measures were passed.

Another bill, sponsored by Senator Thomas Croci, a Long Island Republican, would create a searchable “database of deals,” cataloguing all businesses that have been awarded state subsidies -- a system in place in six other states -- has made no headway in the Senate or Assembly.

by Rachel Silberstein, State government reporter, Gotham Gazette

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Reviews Are In: What Watchdogs Say About The New State Budget

Cuomo budget presentation

(photo: The Governor's Office)

A new state budget was passed in April in typical Albany fashion: with almost no time for public scrutiny of the bills or proper review by the legislators who quickly voted them through. Since the $153.1 billion budget was passed, watchdogs both in and out of government have released analyses, helping to better inform citizens and increase accountability.

The budget was adopted a little over a week into the new fiscal year, which begins April 1, after compromises were reached among legislative leaders and Governor Andrew Cuomo on contentious issues such as raising the age of adult criminal responsibility, education aid, a college tuition affordability program, the allocation of large sums of affordable housing monies, and more. The frantic and secretive nature of state budget adoption leaves a lot to digest afterward.

Now, about two months after the budget was passed, those analyses by watchdogs can bring to light a few common themes and several other key points.

Aside from general criticism of the process itself, there are the issues of the large lump sum appropriations, projects funded by mysterious sources, and the governor faulty marketing of his budgetary discipline.

Comptroller Tom DiNapoli
State Comptroller Tom DiNapoli released a report on the state budget that includes critiques of the budgeting process and the end result. The budget continues to rely heavily on appropriations from the federal government, at almost a third of state revenue, despite the unpredictability of state aid from Washington, D.C. under President Donald Trump and the Republican Congress.

“Although the budget came together more than a week into the fiscal year, the Legislature and Executive acted on critical budget issues that will help New York move forward,” DiNapoli said in a statement. “However, billions of dollars in spending lacks key details that would better inform the public about how their tax dollars are being spent.”

The Comptroller’s report included a lengthy chart showing the legislature’s inaction on ethics reform, criticizing the fact that, among other things, the budget “intentionally omits” measures such as requiring advisory opinions on legislators’ outside income, closing the LLC loophole in corporate political contributions, and extending the Freedom of Information Law (FOIL) to cover the Legislature. The Comptroller was equally pointed on the state’s procurement practices, which have come under fire due to rampant corruption in the state’s contracting process, stating that the changes were needed to “ensure spending accountability and transparency” in a statement. A measure to authorize the IG to investigate criminal wrongdoing in the state’s procurements was intentionally omitted.

The Comptroller was critical of the quickness of the process, essentially disallowing public review. Also criticized was the prevalence of lump sum appropriations, which can make state money harder to track.

“It should concern all New Yorkers that budget decisions in Washington may force tough fiscal choices for the state and raise new questions for local governments and nonprofits that rely on state funding,” DiNapoli said. “Federal actions that could adversely affect New York, as well as economic uncertainty, are key risks to this budget.”

Citizens Budget Commission
In a statement on the day the budget was adopted, CBC President Carol Kellermann said “achieving a fiscally sound budget is more important than an ‘on time’ budget,” referring to the emergency budget extender passed when negotiating parties couldn’t reach a deal on time. Still, CBC expressed dismay that the state budget was neither on-time nor fiscally sound.

In a later report, CBC also criticized Governor Cuomo for misleadingly saying that the adopted budget continued his “record of holding State Operating Funds spending annual growth to no more than 2 percent.” In reality, CBC explained, spending growth is closer to 3.7%, well above the 2% benchmark that Cuomo prides himself on. The budget is able to exploit this loophole by not “adjusting for payment timing differences and accounting changes,” such as through premature debt service payments or “shifting expenditures out of state operating funds spending.”

CBC has created a “budget navigator” to allow citizens to see how city and state money is being spent.

Empire Center for Public Policy
Empire Center, a conservative think tank based in Albany, has released a slew of criticisms of the budget. Condemnations expressed on the Empire Center blog cover health care spending, certain tax breaks, and the “free” college tuition program. Empire Center is also critical of the added tax deduction for union dues, “effectively a $35 million gratuity for an already privileged caste of (mostly government) workers.”

“The positives in New York’s FY 2018 budget make up a pretty short list—while the negatives are in some respects worse than usual,” wrote E.J. McMahon, Empire Center’s founder and research director, in a budget breakdown post on the Center’s blog.

McMahon argues for more transparency and accountability with the Water Infrastructure Improvement Act, which he says “used to be put before voters in New York.” Now that doing so is no longer a requirement, McMahon writes, “the governor and Legislature obviously figure, why bother?”

Citizens Union
Citizens Union identifies the budget’s large non-specific lump sum funding in its “Spending in the Shadows” report. The watchdog identified nearly $13 billion in the budget in nonspecific funding: around $3 billion “subject to decisions of one or more particular elected officials,” and nearly $10 billion “in approximately 40 different economic development and infrastructure pots listing no official with spending authority.” The group also found that there was “inadequate reporting as to how these funds are eventually spent.”

Citizens Union calls on the governor and Legislature to publicly identify all nonspecific funding and to publicly disclose information, such as purposes and the requester, regarding these funds, especially ahead of spending, not afterward as is often the case. Further, the organization calls for amending state finance law to introduce accountability and conflict-of-interest identification to public contracting, the disclosure of grants and contracts “awarded under nonspecific lump sum appropriations and reappropriations,” and for “aging the budget bills for three days.”

Reinvent Albany
Reinvent Albany has focused largely on procurement reform, which has become a major point of contention, particularly after the Buffalo Billion corruption scandal broke. Along with other watchdog groups, Reinvent Albany issued a release in May calling for “five clean contracting reforms,” all of which failed to make it into the budget:

1. Require competitive and transparent contracting for the award of state funds by all state agencies, authorities, and affiliates. Use existing agency procurement guidelines as a uniform minimum standard.

2. Transfer responsibility for awarding all economic development awards to Empire State Development Corporation (ESDC) and end awards by state non-profits and SUNY.

3. Empower the Comptroller to review and approve all state contracts over $250,000.

4. Prohibit state authorities, state corporations, and state non-profits from doing business with their board members.

5. Create a ‘Database of Deals’ that allows the public to see the total value of all forms of subsidies awarded to a business – as six states have done.

The groups have continued to call for such reforms, but legislative leaders have been hesitant to challenge Cuomo, who is opposed.

New York Public Interest Research Group
NYPIRG also criticized the opacity of the state budget process, which notorious for taking place largely behind closed doors, especially in terms of the final, major deals reached, with the infamous “Three Men in a Room” process determining what stays and what goes -- largely without public input. (There’s been a fourth man in the room of late given the addition of IDC Leader Jeff Klein along with the governor, Assembly speaker and Senate majority leader.)

“The process by which these decisions were made was awful and arguably worse than in the recent past,” said the organization in a statement shortly after the budget’s passage. “Virtually all the deliberations in developing the budget were conducted behind closed doors. There were no hearings, no open meetings, and with the three day legislative review period waived by the governor lawmakers were voting on bills that they had little time to comprehensively review.”

by Ben Brachfeld & Jynn Schubert

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

Lawyers of Color Largely Shut Out of Queens Surrogate’s Court Business

Court room 
(photo: Karen Neoh)

For decades, the judicial courts in Queens have been plagued by nepotism and patronage charges, with judges accused of awarding lucrative appointments to a select few.

Some of the highest earners of guardianship appointments, doled out by Surrogate’s Court for those who die or become incapacitated without wills, frequently have ties to the County Democratic Party machine, headed by Congressional Rep. Joseph Crowley.

A demographic breakdown of the highest earning beneficiaries of Surrogate's Court appointments over the past seven years suggests that a pattern of favoritism may be creating a systemic barrier to entry for lawyers of color, and even amplifying racial disparities throughout the judicial system.

Assignments are bestowed by Surrogate Judge Peter Kelly, who was elected to a 14-year term in 2010 after being nominated by the Queens Democratic Party and faced no opponent.

Of 929 lawyers who are eligible for Surrogate’s Court assignments, and the fees that come with them, only 153 have received appointments from 2010 through 2016, the vast majority of them -- 129 -- are white. A similar ratio exists on the eligibility list: of 929 lawyers, about 850 of them are white.

Of nearly $7.2 million issued to attorneys over seven years of Surrogate’s Court appointments, around $6.4 million (88.1 percent) went to white attorneys, but just $699,249 (9.7 percent) went to black attorneys; $137,325.00 (1.9 percent) went to Latino attorneys; and just $21,795 (.3 percent) went to Asian attorneys.

A year-by-year analysis of the data reveals a widening racial gap regarding the frequency and size of appointments. In 2015, almost 92 percent of the guardianship money paid made by the court went to appointees who were white, up from nearly 82 percent white just five years earlier. In 2016, percentage of money earned by whites dipped again to 88 percent.

Of the top 10 Queens Surrogate’s Court earners over the last seven years, all were white. Of the top 20 earners, 19 were white.

Topping the list is Scott Kaufman, Rep. Crowley’s longtime campaign treasurer and business partner to Crowley’s brother Sean, who has raked in nearly $300,000 from Surrogate’s Court in seven years. Kaufman is currently being investigated by the state courts inspector general, for exceeding the $75,000 cap on how much one appointee may earn in a year, and then continuing to earn appointments the following year, despite being ineligible according to court rules, The New York Post reported on Monday. (Kaufman maintains that he is in compliance with the rules and that no one has contacted him regarding an investigation.)

The ninth highest earner is Albert F. Pennisi, a regular financial contributor to the Queens County Democratic Party, whose law license was suspended for five years in 1990 for his role in an illegal kickbacks scheme.

Fifteenth on the list is the son of former Surrogate’s judge Louis D. Laurino. The elder Laurino was censured in 1988 by the Commission on Judicial Conduct after the agency found he had rented offices to three lawyers to whom he granted lucrative appointments. He also was accused of pressuring a lawyer to hire his son, as well as a nephew, and making an improper political contribution to the late, scandal-scarred Queens Borough President Donald R. Manes, according to The New York Times.

Queens Surrogate’s Court judges have long been selected by the borough’s Democratic Party Chair, an arrangement that many see as responsible for the court’s rampant patronage. Judge Kelly, who worked alongside his predecessor Judge Robert Nahman as Acting Surrogate for several years before taking the bench, ran unopposed in 2010. Kelly’s sister, Ann Anzalone, is Rep. Crowley’s district chief of staff and a Democratic district leader.

Kelly and Crowley are both white, as are most of the Queens Democratic machine leaders, and while both men have expressed intentions to diversify Queens’ judiciary courts, the money trail shows little headway. Presented with data on the stark lack of diversity of lawyers receiving Surrogate's Court assignments, a spokesperson for Crowley’s office said the party has no influence over the diversity of Surrogate’s Court appointees -- the lawyers that receive assignments from the judge.

"The Queens Democratic Party is committed to diversity in all areas of our community. The party does not, nor should it, have a role in the selection of lawyers, but has made a commitment to nominating a diverse slate of judges to stand for election," said a spokesperson for the Queens Democratic Party.

‘A Road to Nowhere’
Queens is often hailed as one of the most diverse places in the world; more than a quarter of borough’s population identifies as Latino, another quarter is Asian, and about 18 percent is black, according to 2015 U.S. Census data.

The borough has become home to more people of color; from 2010 to 2015, the number of Latinos in Queens grew by nearly 5 percent, and the borough’s Asian population rose by over 16 percent.

But when it comes to the borough Surrogate's Court, diversity among guardianship appointments appears to be declining, and for those lawyers of Asian or Latino descent, appointments are almost non-existent.

In order to get appointments, lawyers must be on the Office of Court Administration’s eligibility list, which itself is lacking in diversity.

To determine the ethnic identities of those on the list of eligible lawyers as well as the 153 who received court appointments over the last seven years, their names were run through a VAN/Votebuilder database, which creates voter profiles based on voter registration, geographic information, public records, and a variety of other resources.

Of 929 eligible attorneys, 830 were identified as white, 45 as black, 29 as Asian, and 15 as Latino. Nine more could not be easily identified by VAN’s database.

Getting on the eligibility list is not particularly difficult -- lawyers must take a three-hour “guardian ad litem” course with the New York Bar Association and fill out a form demonstrating their competence in the material, then renew their eligibility every two years to remain -- but an apparent bias in the way the assignments are distributed may discourage lawyers of color from even applying.

When they do get on the list, it often proves to be “a road to nowhere” for lawyers of color, as one attorney, who spoke on the condition of anonymity, put it, so they choose not to renew their eligibility.

A review of all payments disbursed by the Queens County Surrogate’s Court between January 1, 2010 and the end of 2016 found an inverse relationship between the changing demographics of the borough and the racial identities of the court’s beneficiaries.

Of the 153 attorneys who received Queens County Surrogate’s Court payments during the seven-year review period, 129 (84 percent) were white, 17 (11 percent) were black, four (2.6 percent) were Asian, and three (1.9 percent) were Latino, according to the data.

The percentage of total money paid to black, Latino and Asian lawyers remains lower than the percentage of payments made to black, Latino and Asian attorneys -- a sign non-white attorneys are receiving less lucrative appointments and possibly making less for the same work.

One former appointee, Jimmy Wu, was for years the sole Asian attorney assigned “guardian ad litem” cases by the Queens Surrogate’s Court judge. He was assigned to act as a guardian for incapacitated immigrant seniors with no known family members in the United States. The jobs were so complex and the money so insignificant that it amounted to pro-bono work, he said.

"A lot of people don't want to take on these kinds of cases. I knew the community needed help so I was willing to give time to it," said Wu, who added he was likely chosen because he speaks Chinese dialect, and previously worked for the court system.

The most recent case Wu took on, is still not fully resolved, though he now lives California, where he works as a pro-tem judge in San Mateo County Superior Court. Wu said that at the time, he was not aware that he was the only Asian appointee.

"If I was the only one, there should be more," said Wu. “I was told ‘Wait until we trust you and you'll get bigger cases,’ but after five or seven cases, I got tired of waiting.”

Currently, there are at least 29 Asian attorneys on the eligibility list, but aside from Wu, only three were paid for Surrogate’s Court work during the seven-year period, most of them in 2016. Most years, there was just one, or zero, Asian attorneys in the pool of appointees.

These four Asian attorneys also received disproportionately small appointments. Despite making up 2.6 percent of the total appointees, Asian lawyers benefited from just .3 percent of money paid out by Queens Surrogate’s Court from 2010 through 2016.

Similarly underrepresented are Latino attorneys. Over the course of seven years, just three lawyers identified as Latino were paid for appointments. One of them, who received a handful of small payments in 2010, like Wu, appears to have stopped renewing his eligibility, according to the current list. That leaves just two out of at least 15 eligible Latino lawyers who are actively receiving appointments. One of them, Jose Araujo, is also the Queens Democratic Board of Elections commissioner, creating an inherent conflict of interest, and potentially a quid-pro-quo relationship, as Gotham Gazette has reported. In other words, this year there is just one Latino lawyer receiving court appointments who does not appear to have a patronage arrangement with the Queens Democratic machine.

Recognizing that Latino lawyers are underrepresented on the list of those eligible, Judge Kelly did reach out to the Latino Lawyers Association of Queens County in 2015, and held a Q&A session in an effort to recruit a more diverse pool of applicants -- a gesture that was appreciated by members of the organization.

“Our organization is dedicated to increasing the representation of attorneys of color in all areas of practice in Queens. We respect the autonomy of judges and we will continue to work with all parties to make Queens more diverse,” said Catalina Cruz, president of the Latino Lawyers Association.

Perhaps these efforts paid off, because there was a slight uptick in total Surrogate’s Court payments going to lawyers of color in 2016. Judge Kelly did not respond to multiple requests for comment.

Widened Racial Gap
While the number of guardianship appointees who are black is somewhat more representative -- 17 black lawyers have been paid by the Queens Surrogate’s Court from 2010 through 2016, and 41 are currently eligible for appointment -- overall, the cases they have received are fewer and less lucrative than those assigned to their white peers.

Of the $7.2 million in payments issued to attorneys over seven years, around $6.4 million (88.1 percent) went to white attorneys, but just $699,249 (9.7 percent) went to black attorneys.

Additionally, the year-by-year trend indicates that the racial gap in Queens Surrogate’s Court payments is widening, both in number of appointments per year and profitability of the cases assigned.

From 2010 to 2016, the percentage of money paid to white attorneys grew from 81.75 percent in 2010 to 87.79 percent in 2016, down slightly after peaking at 91.9 percent in 2015. At the same time, the percentage of Surrogate’s Court assignment money paid to black attorneys has declined from 14.44 percent in 2010 to 7.19 percent in 2016, after previously falling to 6.86 percent in 2015.

The percentage of number of Surrogate’s Court payments made to white attorneys rose from 77.98 percent in 2010 to 85.39 percent in 2016, after peaking at 90.02 percent in 2015.

Meanwhile, the number of fees disbursed to black attorneys declined from 18.38 percent in 2010 to 9.82 percent in 2016, after previously falling to a low of 8.27 percent in 2015.

Leaders of New York City’s minority bar associations, like the Metropolitan Black Bar Association, say the organizations were founded to help mend systemic problems that lead to racial disparities and create a pipeline to opportunity for more lawyers of color.

“Institutionalized bias happens across all kinds of structures,” said Paula Edgar, president of the Metropolitan Black Bar Association.“Whether there is explicit bias or implicit bias, it seems to me that there should be a focus on shifting the commitment to diversity. Because Queens is a diverse borough and we should have representation in the court and access to opportunities to reflect the diversity of the borough.”

Lack of Diversity in the Judiciary
On a larger scale, New York State’s judiciary has failed to keep up with the changing demographics of the state, according to a 2014 report from the New York State Bar Association.

“The composition of the government, including the judicial branch, must reflect the composition of the governed or risk losing credibility. The lack of judicial diversity in certain regions of New York is incompatible with the egalitarian ideals of our democracy,” the report cautions.

In Queens, where nearly half the population is foreign born, the court system’s lag in diversity has had rippling consequences.

In March, The Daily News reported that “at least four Queens judges have made empty threats to potential jurors with limited English skills, telling them they have to take language lessons or return to court to prove their proficiency.”

Two of the four judges – Ira Margulis and Kenneth Holder – were elected to their offices as official nominees for the Queens Democratic Party, meaning that they were effectively picked by the Queens Democratic boss, Rep. Joe Crowley.

Margulis was a Queens Democratic Party pick in 2003 and again for his Queens County Civil Supreme Court position in 2011. Holder was a Queens Democratic Party pick for Queens County Civil Supreme Court in 2007, when he moved up from his Civil Court position.

Campaign finance records show that neither Margulis nor Holder had their own campaign committees the year they were elected, meaning they would have been reliant on the Queens Democratic organization for campaign assistance.

Amidst all the scrutiny of Queens Surrogate's Court this year, two state legislators from Queens quietly introduced a bill that would gut court oversight by giving Surrogate's Court judges the power to waive annual reporting requirements for court-appointed guardians based on their previous years of service.

by Rachel Silberstein, State government reporter, Gotham Gazette

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While Calling for CUNY Investigations, Cuomo Sought Endorsements from College Presidents

Cuomo Sanders Excelsior 
(photo: Kevin Coughlin/Governor’s Office)

Public university administrators and college presidents enthusiastically supporting a governor’s proposal to fund tuition for potential students is a situation that would normally invite little scrutiny.

That picture becomes murkier when the university’s management has been a frequent target of that governor; is the focus of an expanding investigation conducted by the state’s inspector general, who reports to the secretary to the governor; and the governor publicly calls for greater oversight of the university system while seeking its top officials’ endorsements of his tuition subsidy proposal.

This describes the state of affairs for the state-controlled City University of New York (CUNY), which has been in the crosshairs as a former City College president and affiliated foundation are facing a federal probe and a state investigation targeting university-wide financial practices is underway.

The latter is spearheaded by Inspector General Catherine Leahy Scott, who served as Assistant Attorney General under then-Attorney General Andrew Cuomo before he was elected governor in 2010. Cuomo, a Democrat, appointed Scott to her current post in 2013, after she had served as acting Inspector General for a year. Cuomo was reelected in 2014.

After unveiling it in January alongside Senator Bernie Sanders, Cuomo spent months pushing his Excelsior Scholarship program, which would make CUNY and State University of New York (SUNY) tuition-free for many students from middle-class families. The scholarship was passed as part of a state budget deal in early April and signed that same month to great fanfare, with Cuomo extolled by Hillary Clinton.

In between, Cuomo also outlined his 2017 government ethics agenda, which included greater oversight of the CUNY and SUNY systems, and sought the endorsements of Excelsior by top CUNY and SUNY officials, including all the college presidents. As the governor negotiated with legislative leaders, Cuomo’s office announced in a March press release that nearly every CUNY or SUNY president was backing the plan.

The I.G. investigation began in October 2016 after CUNY board Chair William Thompson Jr. sent a letter to Inspector General Scott following revelations about deposed City College president Lisa Coico’s misuse of funds from the affiliated 21st Century Foundation, a nonprofit.

Earlier this month, Mr. Thompson, a Cuomo ally, said on City & State’s Slant podcast’s Slant podcast that he has thus far met with Scott about a half-dozen times, and stated that the board was looking “top-to-bottom,” at the makeup of the faculty and administration. Thompson did not respond to a request for comment for this article.

In November, Scott’s office took the unusual step of releasing its preliminary report; it detailed investigators’ discoveries that discretionary presidential funds were being used inappropriately, oversight was lax, and significant resources were being utilized to pay for “duplicative” government lobbying.

Following the release, the governor said in a statement that he was “directing the CUNY Board to review the entire senior management at CUNY,” and indicated that he intended to appoint “separate Inspector Generals for both SUNY and CUNY” who would investigate wrongdoing, including through reviewing contracts and hiring. The system saw high-level officials depart for other posts.

Then, in his Fiscal Year 2018 Executive Budget, issued in January, Cuomo included a proposal to compel CUNY to collect from each affiliated organization and nonprofit 10 percent of its annual revenue for use in “tuition assistance initiatives.” The idea swiftly drew a letter from the presidents and chairs of the 11 largest foundations to the CUNY trustees, insinuating that the measure was at best a threat to the foundations’ ability to raise money and at worst illegal, and asking them to make their opposition known. Ultimately, the measure did not make it into the adopted budget, finalized in April.

The governor also called for the state I.G. to have expanded oversight over the university, which was likewise not found in the final budget.

At the same time, the governor’s office was working behind the scenes to whip up support for the governor’s headline-generating proposal, reaching out to members of the public universities and dispatching staffers to campuses to sell presidents on the measure.

A spokesperson for the governor insisted it was only natural for university officials and college presidents to back a proposal like Excelsior, but did not answer questions about whether the governor still intended to appoint university-specific inspectors. The spokesperson would not characterize conversations between CUNY administrators and executive staff beyond stating that they were policy discussions, but called concerns raised around the push for endorsements’ relationship with the push for oversight “insane” and “conspiracy theories.”

“Anyone pretending a link exists between the implementation of this initiative and an independent inquiry by the inspector general is both wildly misinformed and delusional,” said Abbey Fashouer, the Cuomo spokesperson, though Gotham Gazette had stressed that no specific link was being alleged and only posed questions about the timing of the endorsement overtures coinciding with calls for greater oversight and investigations.

Emails obtained by Gotham Gazette through the Freedom of Information Law indicate that the governor’s staff was contacting CUNY presidents in February to request statements in support of the Excelsior program. Ultimately, except for the presidents of Baruch College and Manhattan Community College, all CUNY college presidents issued statements supporting the proposal, released all together in the mid-March announcement from the governor’s office that touted “statewide Support from SUNY and CUNY Leadership.”

Asked about communication between the Inspector General’s office and each of the CUNY presidents, a spokesperson for the I.G.’s office said the office would not comment on an ongoing investigation.

In a January email, Kingsborough Community College president Farley Herzek thanked the governor’s Brooklyn regional representative, Drew Gabriel, for visiting the campus. “I appreciate being able to discuss the Governor’s proposed Excelsior opportunity. We deeply appreciate every opportunity there is to mitigate the financial challenges of attending college and the Governor’s plan does just that,” Herzek wrote.

He also attached a document with information on 24 different types of scholarship programs in California, and wrote that families of 40% of his students came from households with incomes less than $20,000 per year; the students had, in focus groups, said that non-tuition costs were their “greatest stressors,” and often had to attend school and work at the same time.

“Since the proposed Excelsior Scholarship is a ‘last dollar’ type of scholarship and students are required to be enrolled in 15 credits or more we may be excluding a very large and needy population of New Yorkers,” he wrote (the community college course-load requirement is lower than that for the four-year colleges), and offered to assist the governor in “moving his Excelsior Scholarship proposal forward.”

Herzek’s positive statements on the proposal and access to higher education generally, and his statistic about the percentage of low-income students attending his college, appear verbatim in his endorsement from the governor’s press release. His concerns about the program’s effectiveness were not included. Herzek did not respond to a request for comment from Gotham Gazette.

“Oversight of the Executive Branch should not be done by the Executive Branch,” said Reinvent Albany Executive Director John Kaehny, referring to a university whose board is controlled by the governor being investigated by an office headed by a Cuomo appointee. Kaehny also called it inappropriate for the governor to enlist CUNY administrators’ help to push a signature proposal. The concurrent timing of Cuomo's public push for oversight and private push for endorsements raises questions about the motivations provoking those endorsements of Excelsior.

Spokespeople for both the inspector general’s office and the governor’s office vigorously insisted that the I.G. is fully independent from any executive influence and a spokesperson for Cuomo argued that there was nothing inappropriate about the governor’s dual efforts: calling for more oversight of the university systems while seeking their leaders’ backing for his top 2017 proposal.

When fully phased-in, Excelsior will cover tuition to CUNY and the SUNY for students from households making up to $125,000 a year in 2019, provided they meet certain requirements. These include the stipulation that students take at least 30 credits per academic year and remain in the state after graduation for a period equaling the length of time they received the scholarship.

The program is a “last dollar” approach, meaning that it will cover the remaining tuition balance after all other scholarships and grants have been applied, and does not contribute anything towards non-tuition costs like books and housing, which often form the majority of student costs given that CUNY and SUNY already have relatively low tuition. It is meant to complement programs already in place to help students from the lowest-income families.

The stringent requirements have provoked criticism from many advocates, academics, and editorial boards, who have called it insufficient, onerous, and more. Some have also pointed out that at current funding levels, CUNY schools will likely be overwhelmed by the expected uptick in enrollment provoked by the scholarship.

Assemblymember Deborah Glick, a Manhattan Democrat and chair of the Committee on Higher Education, said that funds would have been better allocated to operating aid for CUNY, but did not think there was anything inappropriate about the governor requesting support from members of the system.

“The flip side of that is, should there be no communication between the governor and the city university while there are some particular things under review?” she said, and referenced the governor’s appointment of state budget director Robert Mujica to the CUNY board, a move she called “aggressive and inappropriate,” as a bigger problem.

A spokesperson for the governor’s office dismissed critics of the proposal as mostly “private universities” upset that they “weren’t included” in Excelsior.

In fact, in addition to the faculty union, skeptics of the program have included the CUNY Graduate Center’s newspaper, the president of the SUNY Student Assembly, and SUNY’s own trustees; an academic program coordinator at CUNY’s Borough of Manhattan Community College offered a point-by-point evisceration of the scholarship in an op-ed for Inside Higher Ed. Several state legislators sought significant changes to Excelsior that did not occur before the program was passed. In a phone conversation, Professor Katherine Conway, chair of the CUNY Faculty Senate, said the plan “is not going to do anything for [the poorest of students.]”

To be fair, Cuomo never said it would -- he instead billed Excelsior as “tuition-free for the middle class,” part of his Middle Class Recovery Act that he framed as his direct response to the anxiety shown in the 2016 presidential election. But, many critics point out that Cuomo made a mistake in making it clear he was not interested in additional help for the state’s neediest students, or potential students, who often struggle, don’t graduate, or don’t enroll because of non-tuition costs.

Asked if the body she chairs had been privy to any conversations between the governor’s staff and CUNY administrators, Conway, the chair of the faculty senate, said it had not, but added that “it isn’t in our interest to confront the governor.”

Spokespeople for both the Inspector General and the governor insisted that the investigation, given its focus, could not have had any bearing on CUNY leaders’ decisions to enthusiastically back a pressing agenda item.

“It's an ongoing investigation and the scope has been laid out publicly,” said the spokesperson for the Inspector General’s office.

A spokesperson for the CUNY system said in an email that he was not aware of any conversations between a member of the governor’s staff and a CUNY president or administrator that had touched on the ongoing investigation. In relation to internal conversations surrounding the program, he wrote that the Chancellor’s office “has been in continuous communication with college presidents and state officials, including at the Higher Education Services Corporation, about details of the Excelsior Scholarship program that will be addressed in the regulations to be issued later this month.”

But it was not simply the ongoing I.G. CUNY probe, but that the governor was publicly calling for more investigation and oversight of CUNY administration that may have added pressure to CUNY administrators and presidents to endorse the governor’s signature 2017 proposal. Neither Cuomo’s office nor the offices of CUNY presidents’ nor the CUNY Chancellor’s office would comment on this relationship.

Sources have indicated that with CUNY Chancellor James Milliken initially somewhat lukewarm to the proposal, LaGuardia Community College President Dr. Gail Mellow acted as a primary influencer in coaxing some of her CUNY colleagues to support Excelsior, helping get them to “yes” on endorsements. Both Milliken and Mellow declined to comment on the matter. Cuomo held both the Excelsior launch and celebratory bill-signing events at LaGuardia Community College.

Government observers and watchdog groups have called for oversight of the city and state university systems to be expanded under the state Comptroller, not the Inspector General, including certain contract oversight powers that were stripped by Cuomo and the Legislature in 2011.

In an email, Kaehny of Reinvent Albany said that his organization “believes that independent oversight by the Comptroller and Attorney General is far more effective than Inspector Generals appointed and controlled by the governor.”

by Felipe De La Hoz, Gotham Gazette

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For Second Time, Legislature Sends FOIL Penalty Bill to Cuomo

bill signing Cuomo

(photo: Philip Kamrass/Governor's Office)

A bill that would greatly strengthen New York’s Freedom of Information Law (FOIL), already vetoed once by Governor Andrew Cuomo, has again passed both houses of the Legislature -- with some minor adjustments.

The bipartisan legislation, which passed the Assembly in May and the Senate on Monday, mandates that city or state agencies be liable for court costs incurred by any individual who submits a FOIL request, is wrongfully denied documents, and then prevails in a lawsuit. Currently, the public officers law states that a court “may” award legal fees -- leaving the decision up to a judge -- rather than “shall,” a word change that would effectively penalize state agencies that willfully disregard disclosure law.

The governor’s office did not provide indication which way Cuomo is leaning this time.

The Freedom of Information Law allows everyday citizens, journalists, advocates, and others to seek and obtain information, like documents and communications, from government entities. The scope of the law is fairly wide, though there are significant exceptions, including for the deliberative process and much of what the state Legislature does.

Nearly identical legislation passed the Legislature in 2015, but Cuomo vetoed it, along with another FOIL-related bill, at the eleventh hour and with some harsh words. In his 2015 veto letter, Cuomo wrote that the bill “would allow attorneys’ fees to be assessed against a state agency, even if the state agency ultimately prevails.”

In the same letter, Cuomo, who regularly rails against the Legislature’s FOIL exemption, suggested that tightened FOIL requirements should also apply to the legislative branch. The governor is known for communicating himself in ways that are not FOIL-able -- for example, he is known not to use email.

Based on feedback from Cuomo’s office and recommendations from the Committee on Open Government, which helped craft the bill, the legislation has been amended to create a two-tier system. The first tier relates to situations where the complainant in the FOIL lawsuit was victorious because the agency failed to respond to a request or appeal, in which case the court would still have discretionary authority to award attorneys’ fees. The “second tier” mandates the award of attorney fees when a party denied access to records “has substantially prevailed” and the court finds that “the agency had no reasonable basis for denying access.”

“We think [the two-tier system] address the veto messages that we had prior and conversations we’ve had with the governor’s office,” said Assemblymember Amy Paulin, a Democrat from Scarsdale who authored the bill and sponsored it in the Assembly, in an interview with Gotham Gazette. “So we are very confident that it will be a law this year and it will give everyone the opportunity to to file a complaint when there’s been a violation.”

This legislation, which has the backing of the newspaper industry and has been the subject of numerous editorials, would have immense implications for news outlets, good government groups, think tanks, and other organizations focused on transparency.

Reinvent Albany and the New York Civil Liberties Union also worked closely with Paulin and Senator Patrick Gallivan, the Senate sponsor, to fine tune the language, and hailed the legislation as an important step.

“We think this bill is a very big deal and, if the governor signs this, it will be the most important transparency legislation to pass in quite awhile,” John Kaehny, executive director of ReInvent Albany, told Gotham Gazette.

Kaehny noted than many are dissuaded from bringing FOIL lawsuits, even when they are confident they were wrongfully denied, because they fear being stuck with the legal bill. “How many people or groups can afford to ‘win’ a FOIL lawsuit when winning gets them a government document and a bill for $10,000 or $50,000 in attorneys' fees?” he asked rhetorically.

Other states -- including California, Colorado, Florida, Illinois, and New Jersey -- already have such laws granting legal fee reimbursement to those who file FOIL requests and are wrongly denied.

A spokesperson for the governor’s office said the bill is “under review.”

Gallivan and Paulin said they were hopeful that Cuomo would sign this version of the bill. “If the governor cares about transparency, he should sign it,” said Gallivan.

by Rachel Silberstein, State government reporter, Gotham Gazette

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Petition Asks Cuomo to Prioritize Voting Reforms

bk voters

Brooklyn Voters Allliance Action (photo: Sam Raskin)

Members of a new advocacy group, Brooklyn Voters Alliance Action, gathered outside Governor Andrew Cuomo’s New York City office Tuesday afternoon to deliver a petition urging the governor to take action on voting reforms.

The 30 or so demonstrators highlighted five key points they would like the governor to address in the petition they presented, which they said had 1,500 signatures on it. The state has about two weeks to pass any new laws before the end of the legislative session in Albany and Brooklyn Voters, along with a variety of others, is looking to the governor to take the lead on electoral reform.

The petition demands include early voting, automatic voter registration, providing electronic poll books, allowing for changes to one’s party registration closer to elections, and restoring parolee voting rights. Activists hope to increase access to the ballot and voter participation, which is notoriously low in New York, at least in part due to the state’s roundly-acknowledged antiquated voting laws.

“We have 1,500 signatures on this petition saying that this is something New Yorkers want,” said Nicole Hunt, a Brooklyn Voters Alliance organizer. The group delivered the petition to a staffer from the governor’s office in the lobby of 633 3rd Avenue at approximately 1:15 p.m.

The effort came the same day that Cuomo was participating in a political rally at the Javits Center, launching a push to flip the U.S. House of Representatives to Democrats through the 2018 elections. Meanwhile, the Legislature was also in session in Albany, where there are just nine more days of session after Tuesday.

“While Gov. Cuomo attends a rally on this same day to support electing more Democrats to Congress, he neglects voting reforms that would protect and benefit voters in his own state,” a Brooklyn Voters Alliance Action press release promoting the event read. “New Yorkers demand that Gov Cuomo provides more than excuses and empty rhetoric on voting reform.”

“We have been trying to get voting reform passed this legislative session,” Hunt said. “Cuomo talked about getting it into the budget and then kicked the can down the road. We think that the governor has more power to change this than he is letting on.”

Hunt also added that the group tried to meet with a Cuomo representative, but have “gotten nowhere,” and believes the governor is insufficiently attentive to his constituents.

In January, Cuomo outlined an extensive voting and election reform agenda as part of his 2017 State of the State policy platform. None of the reforms made it into the budget that was passed in April, and there has been almost no indication that electoral reform will move in the legislative session since. The Democratically-controlled Assembly has passed a slew of electoral reforms, but the Republican-controlled Senate has not. Cuomo has been virtually silent publicly on electoral reform since January, only addressing it when asked by reporters.

The Brooklyn Voters Alliance Action leadership also voiced skepticism of the Independent Democratic Conference (IDC), a faction of elected Democrats in the state Senate that allies with Republicans in a ruling coalition. BVAA blames the IDC, along Cuomo’s lack of leadership, for stifling efforts to amend voting laws.

“He’s [Governor Cuomo] at a rally today with Nancy Pelosi to push turning Congress blue, but he can’t even keep his own state Senate blue!” Hunt said. Even without the IDC, Republicans hold a one-seat majority in the 63-seat Senate with 31 elected Republicans and Senator Simcha Felder, a Brooklyn Democrat who caucuses with the GOP.

As Gotham Gazette reported Monday, there are currently two bills stuck in Senate committee that would address the implementation of electronic poll books and allow voters an additional seven days to cast their ballots through early voting. Some advocates believe e-poll books will be passed through both chambers, but that little else will get through the Senate.

Cuomo has taken the position recently that there is not enough political will in Albany to tackle voting reform (or government ethics reforms). Especially without aggressive advocacy from Cuomo, it appears that there is little hope for major electoral reforms, like early voting or same-day registration, this year.

In response to an inquiry from Gotham Gazette about the petition presented Monday by the Brooklyn Voters Alliance and whether the governor plans to take any public action on electoral reform before the end of the session, a spokesperson sent the same statement provided to Gotham Gazette previously:

“Since taking office, the Governor has repeatedly proposed voting reforms that have been opposed by the legislature and stalled during the budget process. We will continue to push to modernize our election system and we will work with all parties who join in those efforts.”

But those seeking the changes are not satisfied with how Cuomo has handled the issue, feeling as though he has put voting laws on the backburner. As a result, there are rallies planned to pressure Albany in the coming weeks, including by a large coalition known as Easy Elections NY, which includes a variety of government reform groups. “I would say if people are concerned about the state of our democracy, removing the barriers to participating in our democracy should be our number one priority,” said Amanda Ritchie, an activist with the Brooklyn Voters campaign. “Voter suppression is real and we need reform this year. We are not waiting any longer.”

by Sam Raskin & Amanda Tukaj

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