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Anger, Protests & Potential Bellwether in Democratic Senate Primary Already Underway


protest alcantara IDC

(photos: Samar Khurshid/Gotham Gazette)


“No fake Democrats! Take the New York Senate back!,” yelled the crowd of protestors huddled on the sidewalk outside 5030 Broadway in Inwood, near the northern tip of Manhattan. The demonstrators -- a cohort of about three dozen older New Yorkers, millennials, and one as young as 10 years old -- were one of a number of groups that had gathered at locations across the city on a recent Wednesday to protest at the offices of Democratic state Senators who the protesters believe have betrayed them. These senators are members of a breakaway faction called the Independent Democratic Conference (IDC), which leverages its numbers to help Republicans control the legislative chamber, at odds with the Democratically-controlled Assembly.

The protest at 5030 Broadway, organized by True Blue NY, a four-month-old grassroots group, took aim at Sen. Marisol Alcántara of District 31, who was elected last year and joined the now eight-member IDC. Alcántara’s election has coincided with a groundswell awareness of state politics -- owing largely to the election of Donald Trump as president, a wake-up call to many Democrats -- and a growing movement by grassroots groups to make the bicameral New York Legislature entirely Democratic. Activists’ patience with the IDC has vanished, and with it much tolerance for the breakaway Democrats from other Democratic elected officials.

protest IDC senateAlcántara’s membership in the IDC is anathema to those hoping that New York Democrats can stand up to Trump administration policies, many of which Democrats believe will do significant harm to the state’s most vulnerable people. Democrats at the national, state and local level have increasingly come to call for IDC members to make their way back into the fold and caucus with the 23 mainline Democrats, as well as one other nominal Democrat, Senator Simcha Felder, who conferences with Republicans. After the recent election of Democrat Brian Benjamin to the state Senate, Democrats have 32 members, including Felder and the IDC, to 31 Republicans. But, they remain in the minority.

Many leaders in the Democratic National Committee, the state Legislature, local county committees, and elsewhere have weighed in, urging the wayward Democrats to make their way back home. (Democrats like Governor Andrew Cuomo and Senators Charles Schumer and Kirsten Gillibrand have largely stayed out of the discussion, however. Gillibrand recently indicated her disapproval of the IDC and called for Democratic unity.)

Alcántara’s opponents have declared their ultimatum to the senator: either join mainline Democrats or be replaced by someone who will. And those opponents see a clear path to deposing her in next year’s election by supporting former City Council Member Robert Jackson, who has already declared that he is challenging Alcántara though the primary is 16 months away.

Jackson, a three-term Democratic Council member who left office in 2013, also ran for Senate District 31 last year, losing to Alcántara by a margin of just 533 votes in a four-way Democratic primary (He ran in 2014 as well but lost to Adriano Espaillat, who is now a member of the U.S. House of Representatives). Jackson was a close third, after Micah Lasher, who was just 294 votes behind Alcántara but has thrown his weight behind Jackson’s campaign this time around.

Jackson is confident that the numbers are in his favor. “The race is pretty simplistic,” he said in a phone interview, citing last year’s vote totals and touting the recent endorsement he received from Lasher, which he believes will be more than enough to put him past Alcántara in a 2018 primary. “Then you take into factor, after Trump’s election as president, all of the various groups that have basically risen up from the dirt as beautiful flowers,” he said, referring to grassroots organizations that have sprung up to protest the IDC, groups that can mobilize support for his campaign. “There are many groups that are basically now standing up and fighting the system that basically they feel is not in their best interest.”

Democrats who backed Alcántara and other IDC members now find themselves in an awkward position of explaining their support while also calling for a unified Democratic conference. Public Advocate Letitia James endorsed Alcántara in last year’s race, but recently wrote in an editorial for City & State that “it’s time for Albany’s Democrats – mainline and Independent Democratic Conference – to come together. This is the only real way we will move forward on so many critical issues like reproductive choice, health care, education funding and the DREAM Act.”

Gotham Gazette sought comment from James’ office on whether she would support Alcántara next year, but a spokesperson did not respond.

Jackson cited the same policy issues, challenging Alcántara’s assertions, and those of her colleagues and supporters, that the IDC allows its members a place at the negotiating table and the ability to deliver resources to their communities. Instead, Jackson said, the IDC is simply “eating crumbs off the Republican plate,” while holding up the larger progressive Democratic agenda.

But Alcántara’s victory resonated with residents of her district who are glad to see a Latina representative in the overwhelmingly white and male Senate. Some of those residents and local Democratic party functionaries showed up at the protest outside Alcántara’s office to stand up for her and drown out the voices of her critics. “Marisol! Latino power!,” they yelled in unison, inching forward and eventually circling the members of True Blue NY to, peacefully, drive them away. True Blue NY members slowly trickled away as police officers stepped in with barricades to cordon off the two groups and clear the sidewalk.

“The IDC exists because of lack of leadership from the Democrats themselves,” said Alcántara supporter Manny De Los Santos, a state committee member and president of the Northern Manhattan Democrats for Change, at the protest. “At the end of the day, we need leaders that can not only represent the district where they live but also bring resources to this community, and Marisol has done just that. We had a senator who spent a lifetime in the Senate and wasn’t able to deliver resources to the community. As a rookie state senator, she has done that.” De Los Santos said Alcántara is a “pure Democrat” and vowed to fight back against those questioning her credentials. Alcántara has a history in labor unions and clearly progressive politics, which made her joining the IDC so shocking to some. The IDC pumped thousands of dollars into her primary, however, as she aligned with the breakaway faction.

The fight is likely to be a long, drawn out battle -- both in the 31st Senate District and elsewhere -- as groups like True Blue NY and No IDC are vowing a sustained campaign of opposition to the entire IDC. Just recently, the Manhattan County Democratic Committee, headed by Chair Keith Wright, a former Assembly member, passed a resolution vowing not to support members of the IDC in next year’s elections, and the prominent progressive Working Families Party (WFP) rallied against the IDC once the Democrats gained the numerical majority.

“Here in this very supposedly blue state, we have a state Senate controlled by the Republicans and propped up and enabled...by these eight Democrats,” said Bill Lipton, New York State Director of the WFP, in a May 25 NY1 interview, “these IDC independent Democrats whose voters elected them under the auspices that they were going to stand up and caucus with the Democrats. So people are extremely frustrated, they’ve become woke to this idea that these folks are not doing what they’re supposed to and we’ve just seen an outpouring of support.”

The WFP, with its considerable resources and strong grassroots following, could play a strong role in swaying voters away from reelecting IDC members. At the same time, the IDC will also be able to wield its own campaign finance machinery, which they employed in Alcantara’s favor last year, spending nearly $100,000 dollars in advertising and other support.

As it stands, Alcántara seems the most vulnerable of the lot. “People are really surprised to learn about [the IDC] and dismayed and that’s why all these people are out here,” said Lisa DellAquila, a co-leader of True Blue NY, at the Wednesday protest. DellAquila said the group had signed up hundreds of people in the last three months alone and held a recent summit attended by representatives of about 50 community groups, nonprofits and advocacy organizations. “We’re gonna have a big push to primary all the members of the IDC and Simcha Felder,” she said, insisting that the IDC dynamic, propping up Senate Republicans, is increasingly becoming untenable. “[IDC Leader] Jeff Klein is severely wounded right now,” she said. “I think he needs to come back to the Democrats and bring the IDC with him. Let’s unify and pass progressive legislation in New York.”

Alcántara was not made available to comment for this article. Instead, IDC spokesperson Candice Giove pushed back against the criticism, both of the senator and of the IDC at large. "Senator Alcántara was humbled to see so many Latina women come out to support her in the face of protesters from outside of the district attempting to distort her record, which includes securing $10 million in legal aid for immigrants in the face of bad policy coming from Washington,” said Giove, in a statement.

That pushback, along with Alcantara’s statements on the Senate floor in response to criticism of the IDC, have invited accusations of race-baiting by critics. Jackson reiterated that line in the phone interview. “They’re playing the race card,” said Jackson, who is black. “All of those people out there [protesting] are from the community...they live in the district.”

Giove also addressed the growing calls for Democratic unity, insisting that, "Thirty-two is not a magic number unless there are 32 Democrats who are ready to stand up and unite on policies that combat Donald Trump.”

“Until we achieve unity and stand up for women, immigrants, and the most vulnerable New Yorkers, all talk about a majority is nothing more than meaningless rhetoric on the part of failed leadership,” she said in the statement. “The Independent Democratic Conference has made its positions and its values clear. We are asking every other Senator to do the same. It's time to call the roll.” Giove’s comments are in reference to the fact that Felder continues to conference with Republicans and that at least one mainline Democratic senator, Ruben Diaz Sr., is not supportive of a variety of socially progressive measures.

Jackson, however, sees it another way. If nine people in a room are holding up a ceiling, he said, and eight of them walk away, “What happens to that ceiling?” If the eight-member IDC abandons the Republicans, he’s confident the ninth holdout, Simcha Felder, will too. Otherwise, he thinks they will all see a backlash at the polls.

“This is a movement that Jeff Klein and the IDC cannot stop,” he said.

***
by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

Note - This post has been updated to include a reference to Sen. Kirsten Gillibrand's recent comments on the IDC.   

10 Bold or Bizarre Proposals for a New York Constitutional Convention


voting constitutional convention


When New York voters head to the polls on November 7, Election Day, printed on their ballots will be the question, “Shall there be a convention to revise the constitution and amend the same?”

A "yes" vote would trigger a state constitutional convention process that could lead to major changes to the New York constitution.

While the first New York Constitution dates back to 1777, the version used today was adopted in 1894, with significant modifications made following the 1938 constitutional convention. Of those in support of a convention, some simply want New Yorkers to have the chance to debate key aspects of the antiquated, 52,500-word document, while others have clear policy agendas, like government ethics reform. There are many more mainstream ideas being discussed, but also a variety of more radical proposals that could be on the table if a convention were to be called.

The debate over whether to support a “yes” vote for a convention largely revolves around the potential to enact long-sought policy measures lawmakers seems unwilling to implement versus fears that hard-earned protections could be dismantled.

Advocates of various political affiliations see the constitutional convention as an opportunity to push for changes to redistricting, campaign finance, and term-limits for legislators -- not to mention a comprehensive rewrite of the at-times illegible constitution document that has many vestigial pieces.

At the same time, many labor unions and leading lawmakers are voicing their opposition to a convention. Of Albany’s five legislative conference leaders, only Assembly Minority Leader Brian Kolb has consistently backed a convention. Governor Andrew Cuomo has said he supports holding a convention, Mayor Bill de Blasio has said he does not.

Due to the democratic nature of a convention, people from all over the state and across the political spectrum frustrated by a lack of movement on their priorities in Albany are seizing on the opportunity to promote their causes, and are considering running their own delegates -- representatives will be elected in 2018 if a convention is approved this November.

Often, proposed constitutional amendments are framed in terms of “rights,” as in the right to clean air, the right to clean water, the right to hunt or farm, the right to equal treatment, the right to have a pension, and so on. Also being introduced, though, are some more unorthodox, even seemingly outlandish constitutional changes, like legalizing recreational marijuana, a dramatic restructuring of the state Legislature, or the splitting up of New York State.

Organizations (and individuals) pining for a convention are not necessarily powerful or well-funded -- anyone with internet access can start a political action committee -- and more radical proposals would be likely be countered at a convention by moderates with other priorities or competing interests.

The multi-phase process is also designed to prevent the convention from being hijacked by a single fringe agenda. If a majority of voters say “yes” to the convention question, which appears on the ballot once every 20 years, the following Election Day, New Yorkers elect delegates to an Albany convention, who would then be charged with crafting amendments to improve and streamline the constitution. The final, key step would be that any proposed constitutional changes coming out of a convention go to voter referendum the following year.

As a result, New Yorkers should not fear the exchange of ideas that a ConCon would allow, according to SUNY New Paltz Professor Gerald Benjamin, a constitutional scholar and longtime convention proponent.

“There’s no common agenda for a constitutional convention. Lots of people support a right to clean water, for example, and some other people think it would lead to excessive litigation. My view is that a convention cannot and will not produce radical solutions,” Benjamin said. “There are going to be 10,000 proposals, and each will be deliberated.”

A recent Siena College poll found that a strong majority of New Yorkers, 62 percent, from across the political spectrum support holding a constitution convention, a once-in-a-generation opportunity to modernize the lengthy, outdated New York State document that is the foundation of state law. Two-thirds of Democrats, 55 percent of Republicans, and 59 percent of independents polled said they support a ConCon.

But the same study found that New Yorkers are mostly uninformed about a convention; only 13 percent have heard a “great deal” or “some” about it. The disparity between the two sets of poll responses may indicate voter frustration with their state government, which has been home to a seemingly endless torrent of corruption scandals.

At the same time, powerful labor unions are spending big money to convince voters to reject the convention in November. While support of a ConCon remains strong, even among union families, according to the latest poll, labor organizations like the United Federation of Teachers and SEIU-1199 have already launched campaigns to sway New Yorkers towards a “no” vote.

“Support for ConCon has remained consistently strong over the last couple of years,” said Siena College pollster Steven Greenberg, in releasing the latest poll. “But the question remains, will that support stay strong as voters hear more about ConCon, particularly as we move into the fall and various interest groups start spending money to educate voters – both in support and opposition – about ConCon? Only time will tell.

In the meantime, we've compiled a round-up of 10 of the more intriguing proposals that have emerged ahead of the upcoming referendum, ranging from bold to bizarre.

1. Reforming the Court System
While the New York State Bar Association has not taken a position on a constitutional convention, in February, the NYSBA issued a report highlighting how an overhaul of the state constitution could go a long way towards streamlining the state’s notoriously complicated court system. A constitutional rewrite could simplify everyday legal processes related child custody, traffic tickets, business disputes, and more.

"The potential to simplify the state's court system, promote access to justice and reduce unnecessary costs and inefficiencies make the issue of court consolidation one that is ripe for consideration at a constitutional convention, should voters choose to hold one," the report says.

2. Home Rule
The constitution’s “home rule” statute, which dates back to 1963, says that anything not explicitly stated as purview of cities in the state constitution is placed in the authority of the state. Many issues impacting New York City fall into this grey area, including mayoral control of New York City schools and city speed limits. Cities are left disempowered and at the mercy of the state on many issues affecting local constituents. Local leaders, like the mayor of New York City, are then reliant on votes from far-off legislators related to especially parochial matters.

One proposal, laid out by Effective NY, a liberal think tank, would change the wording of the statute to grant cities power unless specifically restricted by the constitution (like the United States Constitution’s ninth amendment, which grants states any powers not explicitly granted the federal government). Other states, like New Jersey and New Mexico, already have provisions defaulting control to municipalities.

3. Unicameral Legislature
Does New York State really need two legislative houses? Some point to gridlock in Albany as a byproduct of the fact that New York has two legislative houses that often pass conflicting measures.

Nebraska is currently the only state that has a unicameral Legislature, or a Legislature with one house.

In 1962, the Supreme Court “one man, one vote” ruling required districts in both legislative chambers in state houses to be divided by population rather than geographic districts. The decision led to redistricting, which allowed Democrats to retake the state Assembly, although legally-dubious gerrymandering has allowed Republicans to retain control of the Senate, though currently by a sliver of politicking that is beyond district lines.

According to Professor Benjamin, of SUNY New Paltz, there is no rationale for bicameralism now that both houses are selected by the same formula.

“The idea there is that bicameralism suggests that there are different bases of representation. The Senate is a territorial and the House is population-based representation. Before 1960, you could have two different bases, but now it’s no longer defensible,” said Benjamin.

While some argue bicameralism is necessary to give Republicans a voice in the legislative process, Benjamin says GOP lawmakers should compete for the majority.

Some who are interested in unicameralism take a different view. Last year, Assemblymember Mark Johns, a Rochester Republican, proposed legislation to eliminate the Assembly and instead increase the numbers of Senators from 63 to 75, though the bill never made it to the floor and no companion bill has been presented in the Senate.

4. Make Lawmaking Unpaid
In the past two years, already waning public trust in the state Legislature was shattered following the convictions of both legislative leaders on public corruption charges. In order to restore that trust, one lawmaker is exploring ways to get money out of politics completely.

Legislation introduced earlier this year by Republican Assemblymember David DiPietro, whose district includes Erie and Wyoming counties, would make the Legislature unpaid -- volunteer positions with an even lighter part-time schedule than lawmakers currently are required.

“If we remove pay from the equation, only those entirely interested in serving the public would consider running for office,” DiPietro wrote in his legislative column in February. “This action would save the state millions of dollars, and bring about a new era of citizen leadership. Holding this position is an honor and one that should be respected. This isn’t a full-time position and there’s no need to make it one. This is a part-time position in which you serve the people and you should be serving them with a clear conscience.”

While no groups have specifically proposed this as a potential ConCon agenda item, a constitutional amendment would be required.

5. Special Prosecutor for Certain Police-Involved Deaths
Governor Andrew Cuomo signed an executive order appointing Attorney General Eric Schneiderman a special prosecutor for unarmed civilian deaths involving police officers in 2014, and though he has renewed the executive order since, there has been no movement in the Legislature on a bill to make a permanent special prosecutor.

While civil rights organizations like the American Civil Liberties Union have not taken a position on the upcoming convention referendum, should the public vote to hold a convention, this would be one plank advocacy groups might push to enshrine in constitutional law.

6. Single-payer Healthcare
Federal efforts to “repeal and replace” the Affordable Care Act have renewed the discussion around New York having its own comprehensive healthcare system.

“The New York Health program,” authored by Assemblymember Richard Gottfried, who chairs the Assembly Committee on Health, would provide comprehensive, universal health coverage for every New Yorker, and has passed the Assembly three years in a row. A similar bill has been sponsored by 30 Senate Democrats, a number which is likely to rise to 31 now that the seat of Senator-turned-City Council Member Bill Perkins has been filled, but without the requisite 32 votes in the 63-seat chamber, it is unlikely to pass any time soon.

Effective NY argues for a constitutional amendment that grants New Yorkers the right to health care, enabling a single-payer system.

7. Limit Messages of Necessity
Messages of Necessity, which allow the Governor and Legislature to override the otherwise-required three-day aging period for any piece of legislation, are often misused in Albany. Major legislation, including the recently-passed $153 billion state budget, are pushed through with little scrutiny from lawmakers, the media, and the public.

According to one proposal put forward by Effective NY, the constitution would be amended to require a two-thirds vote in the House and Senate in order to enable a Message of Necessity.

8. Pensions for All
More than half of private sector employees in New York State do not have access to a retirement savings plan through work. This spring, Obama-era rules allowing state- and city-based retirement savings programs were rejected by the Republican-controlled Congress. Both New York City and the State had been exploring the possibility of creating a publicly-backed private-sector retirement-savings program, but those possibilities appear scuttled, or at least on hold.

A constitutional convention could be the best way to compel the state to guarantee a retirement program for all working New Yorkers. Samuels of Effective NY, who is committed to spending significant money for a “yes” vote on the ConCon question, has been advocating for a private sector retirement savings program for years.

9. Legalizing Marijuana
Could New York become the next state to fully legalize medical and recreational marijuana? The legal cannabis movement is spreading across the United States, with eight states now allowing recreational use of the drug.

New York State recently created a medical marijuana program, but only for a short list of 10 health conditions, and it may only be consumed in specific forms. However, due to highly restrictive zoning requirements that prevent access and the limited number of patients that qualify, marijuana dispensaries are struggling, according to the Buffalo News.

There is also a criminal justice reform element to legalizing marijuana, as countless have been arrested and jailed for minor, non-violent drug offenses. While Gov. Cuomo unsuccessfully advocated for decriminalization laws in 2012, the governor and the Senate have consistently opposed legalizing recreational use.

Jerome W. Dewald, who founded the PAC Restrict & Regulate in NY State 2019 (RRNY), says he has talked to marijuana industry leaders about utilizing the constitutional convention to advocate for full adult-use cannabis legalization in 2019.

“It’s commonly accepted that our legislature is the most corrupt in the nation. New York is important [for marijuana legalization] and there is no viable mechanism to get our agenda in New York besides for a constitutional convention,” said Dewald.

10. Upstate Secession
On the more extreme end of the spectrum are the Upstate New York secessionists. Ever since Vermont successfully broke away from New York in 1791, there have been secession movements in the state, though they have mostly remained on the fringe.

The Divide NYS Caucus is a coalition of New Yorkers who are unhappy with state policy they feel is unfairly dictated by New York City lawmakers. The Assembly is controlled by Democrats, many of them from the city, while Republicans -- many of them from Long Island and upstate -- currently cling to the majority in the Senate thanks to partnerships with breakaway Democrats. In 2015, the secession movement gained steam, when upstate New Yorkers -- mostly conservatives upset over issues like the gun control Safe Act of 2013 and Cuomo’s 2014 hydrofracking ban -- organized a protest in the Southern Tier. Now the caucus is seizing on the potential for a convention as a way to drum up more support.

The group proposes dividing the state into two or three autonomous regions, separating upstate from New York City, and possibly segregating Suffolk and Nassau counties as well. Each region would have its own Governor and regional legislators, who would serve six weeks out of the year at the state Legislature, according to Divide New York Caucus Inc. Chair John Bergener.

“The state government under the proposal would have about the same powers of the Queen of England,” said Bergener. “We are required to have an administrator and a Legislature, but we are not required to give them power.”

While the consensus from constitutional experts is that secession is implausible and potentially damaging to upstate’s economy, which relies heavily on New York City tax revenue, a recent bill sponsored by Assemblymember Stephen Hawley (Western New York), and co-signed by eight of his colleagues in the Assembly GOP, calls for a referendum on whether to separate New York City from the rest of the state.

Related legislation introduced in the Assembly and Senate aims to increase power to the counties, allowing them to supersede state law, or exempt regions outside New York City from certain provisions of the SAFE Act.

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

Potential Departure of Two Senate Democrats Poses Another Threat to Unity


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Ruben Diaz Sr. (photo: @NYPD43Pct)


While Democrats technically reclaimed a majority of state Senate seats through a special election Tuesday, a deeply fractured party picture remains. As different factions point fingers and call for unity, it seems likely that the headcount will drop down again by the end of the year.

Two mainline Democratic senators have announced that they are running for other offices this year. Senator George Latimer, of Westchester County’s 37th District, is eying the county executive seat, while Senator Ruben Diaz Sr., representing the Bronx’s 32nd District, is a candidate for a City Council seat he briefly held in 2001.

On Tuesday, real estate developer Brian Benjamin replaced Bill Perkins, who left the Senate for the City Council in February, by winning a special election for Manhattan’s 30th Senate District, bringing the number of Democratic lawmakers in the 63-seat Senate to 32, a bare majority.

Benjamin’s win (on top of Donald Trump’s presidential victory) has amplified deep-seated divisions among Senate Democrats. Currently, the eight-member Independent Democratic Conference (IDC) forms a ruling coalition with Republicans, while a ninth nominal Democrat, Senator Simcha Felder, conferences with the Republicans. This leaves 23 mainline Democrats in the chamber, including Benjamin. The dynamics have prompted New York progressive leaders to call for breakaway Democrats to return to the fold, form a Democratic majority conference, and pass legislation that is reflective of the heavily Democratic state.

However, unity would not be possible under the current Senate rules, which list Republican Leader John Flanagan as the president of the chamber, as voted by Senate Republicans and Felder. And, before the next scheduled elections, in 2018, for all 63 Senate seats, there is a good chance that one or both of Diaz Sr. and Latimer will vacate their seat.

On Tuesday, Senate Minority Leader Andrea Stewart-Cousins sent letters to each IDC member, calling on them to realign with the Democrats. “As Donald Trump continues to propose devastating cuts to critical programs. it is more important than ever for progressive New Yorkers to unite. That is why we are asking you to join the now-23 members of the Democratic Conlèrence by pledging to only enter a coalition to lead the Senate with fellow Democrats and abandoning your coalition with Republicans,” wrote Stewart-Cousins.

Also calling for Democratic unity is the Working Families Party, which organized rallies outside the district offices of IDC members on Wednesday, top officials from the Democratic National Committee, and a variety of other Democratic elected officials and activists.

But some political insiders say that these calls and letters are ultimately meaningless if the Democrats’ control of 32 seats is short lived. If Diaz Sr. and Latimer win their respective races, Democrats would control 30 seats, two short of a majority stake. A Diaz Sr. or Latimer vacancy would occur as of January, leaving one or two seats empty for at least 90 days, the required window before Governor Andrew Cuomo could call a special election -- if he chooses to call one at all.

Cuomo, a second-term Democrat, is unlikely to call a special election for April, which is when budget negotiations are finalized -- which, depending on unity negotiations, could easily leave Senate Democrats out of the discussion on the final spending agreement.

Whether the governor calls a special election in May, after budget, or decides to wait out the rest of year until the regularly scheduled election, depends on a variety of factors and remains to be seen, according to veteran political consultant Hank Sheinkopf.

“It will depend on the state of play at the time,” said Sheinkopf. “Why should he call a special election in January if he’s got to get that budget done. What’s the best way for him to get it done? We don’t know yet.”

Cuomo’s decision may also be influenced by how active the Democratic base is in lobbying him, especially given his own 2018 reelection bid on the horizon, not to mention his possible 2020 presidential ambitions.

The odds are good for Diaz Sr. to win the City Council seat. While he faces a crowded primary, Diaz is popular in the Bronx, where his son Ruben Diaz Jr. is the borough president. He is a beloved community leader and minister at a local Pentecostal church, and his standing among his constituents is reflected by the district’s Senate primary results for the last few years. In 2016, Diaz Sr. beat out his Democratic rival with 8,557 votes out of 9,648 cast, or 88.7 percent.

“The Diaz name has magic in the Bronx, he’s going to be tough to beat, but in crowded primary, it’s hard to predict,” says Sheinkopf.

For Latimer, who is challenging incumbent Rob Astorino, a Republican seeking his third term, the path to victory is less clear. While Westchester is heavily Democratic on paper, experts say it is a classic suburban 'bellwether' county, meaning it can be turned red or blue based on the winds of influence from Washington, D.C. Astorino, who challenged Gov. Cuomo in 2014, is popular in the county, and in a typical year, Latimer would be fighting an uphill battle. But with the GOP at risk almost everywhere due to President Trump’s unpopularity, Latimer's chances may continue to improve, according to insiders.

“Latimer is unique in that he has a very significant following. He served the area as an Assemblyman and he’s highly regarded there. But could a Republican with the appropriate anti-Trump sentiment as part of his platform have an opportunity to make it a race? The answer is yes, it’s not impossible,” said Sheinkopf.

Both Diaz Sr. and Latimer would leave the Senate for better paying jobs. The County Executive position pays $160,760, up from the long-stagnant $79,500 state legislators make. As a City Council member, Diaz Sr. would also see a significant salary bump, earning $148,500.

The IDC, members of which receive financial and legislative perks as part of their partnership with the GOP, has little to gain from seeking a unity deal before November 2017, when the Diaz. Sr. and Latimer races will be decided.

In anticipation of this week’s special election in Harlem, the IDC released a video, calling on all 32 Democrats -- the number required to pass legislation -- to join them in declaring their support for progressive measures like ethics and voting reform, codifying a woman’s right to choose, and more. The video implies that there are Democrats who don’t support the measures named, references to the socially conservative views of Diaz Sr. and Felder.

"Thirty-two is not a magic number unless there are 32 Democrats who are ready to stand up and unite on policies that combat Donald Trump. Until we achieve unity and stand up for women, immigrants, and the most vulnerable New Yorkers, all talk about a majority is nothing more than meaningless rhetoric on the part of failed leadership,” said IDC spokesperson Candice Giove in a statement.

While Diaz Sr.’s more socially conservative views on issues like abortion and same-sex marriage sometimes pose a problem for fellow Democrats, his district is one of the few heavily Democratic areas of New York City where these positions are not a liability. In 2010, Diaz Sr. was challenged by a Democrat backed by LGBT groups and still won 79.4% of the vote. The senator was not primaried in 2012 or 2014.

While the Democratic Conference might welcome a more progressive replacement for Diaz Sr., the conference is at risk of losing the seat to a Democrat with loyalty to IDC leader Senator Jeffrey Klein, who also hails from the Bronx, noted Sheinkopf.

Meanwhile, Felder, the Brooklyn Democrat who caucuses with Republicans, told Gotham Gazette Wednesday that he would be “very interested in renegotiating the priorities” of his district, provided that the IDC first commit themselves to rejoining with mainline Democrats.

“The IDC represents 25 percent of the Democrats. I think it’s incumbent upon them to rejoin the Democrats to try to take back the majority and not play around, trying to make believe they are any different than the Republican conference,” he said, referencing a letter he sent to Senators Klein and Stewart-Cousins stating as much.

The GOP conference, which does not have without a numerical majority without Felder, is also at risk of losing members this year, which could force them to rely on the IDC for a majority in 2018. Senator Rob Ortt, a Republican from Niagara County, was indicted on charges of filing with a false instrument, and if found guilty, could eventually lose his seat. Senator Philip Boyle, of Suffolk County, was recently nominated as the Republican candidate for county sheriff, though he may face a GOP primary.

Even if the Democrats did unite, it is unclear what a coalition among mainline Democrats, the IDC, and Felder would look like, and who would lead the conference -- Klein, Stewart-Cousins, both, or someone else.

Ultimately, the only way the party will reunite during this short window, is if the governor decides to use his influence to compel party loyalty, according to Richard Brodsky, a former Assemblymember from Westchester and now a Demos scholar.

While Cuomo has signalled that he is comfortable with keeping the Senate GOP in power, Brodsky says the Working Families Party and other progressives have done a good job at publicly pressuring him to reunite the party, and may be more impactful if Cuomo pursues his rumored presidential aspirations.

“In the end, until the governor uses his influence -- which is a strong influence -- there's not going to be a resolution here,” said Brodsky. "The WFP has found innovative ways to step up the pressure and the consequences for Governor Cuomo in 2020 are not, as we say in Italian, ‘chopped liver.’”

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Crowley Appointee to Board of Elections Sees Spike in Queens Court Profits


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Rep. Joe Crowley photo: @JoeCrowleyNY


The Queens Democratic Board of Elections commissioner, who in the past has come under fire for conflicts of interest, is quickly becoming one of the highest earning recipients of Queens court patronage, Gotham Gazette has learned.

In 2014, Jose Miguel Araujo, then the newly elected BOE president, was fined $10,000 by the city's Conflicts of Interest Board (COIB) -- the maximum penalty for nepotism -- because he gave his wife Rita Patron Araujo a job as a temporary clerk between 2010 and 2012.

The fines issued against Araujo and other BOE employees followed a scathing 2013 Department of Investigation (DOI) report, which found the agency to be rife with nepotism, incompetence, and overall dysfunction.

"The imposition of the maximum legal fine on the Board’s President should send a powerful message that this conduct will not be tolerated,” DOI Commissioner Mark Peters said in a statement at the time of the fines.

Despite the incident, Araujo was renominated for the position by the Queens County Democratic Party and reconfirmed for a four-year term by the City Council in 2016. Since then, his law practice has become one of the top earners of Queens Court patronage doled out by the Queens Surrogate’s Court and Queens Supreme Court, raising questions about his impartiality as a BOE commissioner and other conflicts of interest this outside business might present.

Before he became a commissioner, from 2005 through 2007, Araujo earned significant payments from the Queens Surrogate’s Court, which settles estates of Queens residents who die without wills. The appointments required Araujo to act as a “guardian ad litem,” to advocate for individuals incapacitated by age or mental illness. After Araujo joined the BOE in 2008, the appointments stopped. Several payments trickled in again in 2011, but after the 2014 COIB fine, the appointments escalated from both Surrogate’s Court and also Supreme Court, which gave Araujo work as a court evaluator or counsel for guardians of incapacitated individuals.

Of the roughly $140,000 Araujo earned from Queens court appointments since 2005, half of the money -- $69,513 -- flowed to Araujo’s practice in the last two years, according to records obtained from the New York State Unified Court System.

Rita Araujo, the commissioner’s wife, has had financial difficulties in her past -- a records search shows she is named in 15 nonpayment eviction lawsuits by a previous landlord between 2000 and 2007 -- and Jose Araujo said during his 2014 COIB deposition that he put her on the BOE payroll to qualify her for health benefits. By 2015, the couple was able to purchase a home in Brookhaven, Suffolk County for $203,000, without a mortgage.

The couple’s additional income appears to be no coincidence -- current Queens Surrogate’s Court Judge Peter Kelly owes his position to Congressional Rep. Joseph Crowley, the chair of the Queens Democratic Party who nominated Kelly before he ran unopposed for a 14-year term in 2010. Kelly’s sister, Ann Anzalone, is Crowley’s district chief of staff and a Democratic district leader, a locally elected party official that comes with no salary but some political clout. As party chair, Crowley also appoints the Queens Democratic representative to the Board of Elections.

In most boroughs, Democratic judicial candidates are nominated by the party heads and must pass the scrutiny of an independent judicial screening panel before they make it on the ballot. In Queens, the Democratic Party does not require a screening for judges and the party’s pick is rarely opposed. For half a century, Queens Democratic Party heads have successfully avoided a primary for the powerful Surrogate’s Court post, but if a rogue lawyer did challenge the party’s preferred candidate, it would be helpful for Crowley to have a friendly Board of Elections commissioner, were anything related to ballot petitions or other matters to arise. This is also the case for virtually all other elected offices, where the county party runs a preferred candidate, whether for seats in the City Council, state Assembly, state Senate, and so on.

The fact that Queens court appointments are notoriously handed out to a select few lawyers by judges that have the backing and support of Crowley’s machine makes the arrangement particularly questionable, according to one election attorney who spoke on the condition of anonymity.

"There doesn't seem to be any reason that [Jose Miguel Araujo] should to be sitting there as a commissioner while he is getting all these appointments. No one can say getting a job as a surrogate in a particular county is unrelated to the politics of the county," said the lawyer. “They have to like you, or you're not getting that job.”

The Queens judicial courts have been plagued by charges of cronyism and patronage for decades. Surrogate’s and Supreme Court judges, hand-picked by party leaders, assign lucrative and easy cases to a small group of lawyers with connections to the Queens County Democratic Party machine. However, besides Araujo, no other sitting Board of Elections commissioner has been handed court appointments since being confirmed to the BOE.

John Kaehny, executive director of Reinvent Albany, a government watchdog group, said the Queens Surrogate’s Courts have been used as a reward system for the party machine for too long and that it’s time for the proper authorities, in this case New York State’s Chief Judge Janet DiFiore, to step in. “The scandal and corruption risk around Queens Surrogate’s has reached a level of outrageousness that’s unacceptable," he said. "It’s turned into a kind of a punchline in good government and political circles."

A Board of Elections commissioner taking payment for these court assignments may also violate the city’s conflict of interest law. Chapter 68 of New York City’s Charter limits the types of outside work public servants who practice law can pursue. For example, public servants may not use their city positions for “financial gain, contract, license, privilege or other private or personal advantage, direct or indirect” -- which would be the case if Araujo’s influence at the BOE was the driving force behind his recent appointments -- according to a 2001 advisory opinion from COIB. They also may not represent private clients that have business dealings before the City, according to the same opinion. While Surrogate’s Court and Supreme Court are state agencies, if a Surrogate's Court estate proceeding results in a property sale, that sale would be conducted by the Queens Public Administrator's Office, which is a city agency.

The Queens public administrator also has ties to the Democratic party machine. The sole counsel to Queens Public Administrator Lois Rosenblatt is Gerard Sweeney, who takes a hefty percentage of each sale referred by the courts. Sweeney -- who in the 1990s was the party’s law chair, charged with ensuring party favorites wound up on the ballot while insurgents were disqualified -- no longer holds an official position in the Queens County Democratic Party, but was described in a recent Daily News article as its “most important strategist, helping guide the party’s political machinations on the homefront as it jousts for influence in City Hall and Albany.”

Sweeney has reportedly earned $30 million since 2006 for administering these sales referred by Surrogate’s Court, according to the Daily News. Meanwhile, Rosenblatt was herself fined $3,000 earlier this month by the COIB for nepotism.

In at least one case, Araujo did represent a client who had business before the public administrator. On November 10, 2011, Araujo was appointed “guardian ad litem” in Queens Surrogate's Court for the estate of Josephine Ralton, a 92-year-old woman who had died in 2009 with no clear heirs. Eight days later, the Queens Public Administrator sold Ralton's luxury Forest Hills apartment. Araujo received a $3,000 payment from Queens Surrogate's Court for his work on the case, according to court records.

Reached by phone, Araujo first denied having received court appointments in recent years. After being reminded that in fact the bulk of his appointments occurred in 2015 and 2016, he said some of cases were done pro-bono because of his “expertise.”

But court records show that only a single appointment throughout Araujo's career has ever gone unpaid - a guardianship for Dorothy Noto Lewis, a BOE employee, in April 2016. When Gotham Gazette pointed out that Araujo had in fact earned nearly $70,000 from Surrogate’s Court and Supreme Court in the last two years, Araujo cited the court’s rules, which limits how much one attorney can earn from court appointments in a calendar year, saying he is “capped out at a certain amount.”

Araujo said he sees no potential conflicts of interest which could arise from holding the part-time but influential job as Board of Elections commissioner while also benefiting from Surrogate’s appointments. "There is no conflict for me. I'm able to distinguish between the two and I’m able to recuse myself if necessary, but that hasn't happened and it hasn't been necessary," he said.

Like other BOE commissioners, Araujo’s work includes voting on whether candidates are eligible for the election ballot. This often includes petition signature validation and cases of petition fraud or irregularity. Commissioners also supervise recounts and oversee numerous issues that impact the voter turnout for elections, including the viability and location of poll sites.

These calls are supposed to be impartial, but the notoriously complex system often favors the incumbent or party’s prefered candidates, while outsiders -- who may be less experienced in electoral requirements or lack resources and access to select election lawyers -- are booted off the ballot.

Araujo maintains that the uptick in court appointments was merited because he is an expert in kinship cases. Meanwhile, he chose to keep his Board of Elections commissioner job, which comes with influence and a salary not to exceed $30,000 per year, according to a city listing.

As the election attorney put it, “There are many, many attorneys who could be appointed to do this job. It would be fair to say that if someone is getting these kinds of referrals from Surrogate's Court [and Supreme Court], they shouldn’t be on the Board of Elections. It’s not like BOE commissioners earn $250,000 a year and people are falling over themselves to get that job.”

A spokesperson for Rep. Crowley, the Queens Democratic Party chair, declined to comment on the distribution of Queens court appointments.

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Whose Job Is It To Investigate The Legislature’s Lulu System?


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IDC Leader Jeff Klein (via nysenate.gov)


Reports that state senators have been receiving stipends for committee chair positions that they do not actually hold has drawn scrutiny to the Legislature’s stipend system and raised questions about the legality of the ways in which Senate leadership has arranged such payouts, often called lulus. Those questions have led to others, specifically whose job it is to investigate the potential wrongdoing involved and whether any legal or ethics enforcement entities will take action.

Four Republican senators and three members of the Independent Democratic Conference (IDC), an eight-person breakaway group of Democrats that aligns with the Senate GOP -- all seen as loyalists to Senate Majority Leader John Flanagan -- were recipients of bonus checks ranging from $12,500 to $18,000 a year, despite holding roles as vice chairs, a position that does not include a stipend. The New York Times first reported the potentially fraudulent filings last week, and reported Thursday evening that an unnamed law enforcement entity is now investigating the falsified paperwork. The Daily News then reported that Attorney General Eric Schneiderman's office and the office of the U.S. Attorney for the Eastern District of New York are investigating.

Flanagan, who signed off on payroll requests sent to the New York State Comptroller’s Office, which appear to misidentify the seven vice chairs as committee chairs, has defended the practice. “I believe everything we’ve done in the past and right now is in full accordance not only with the constitution but the legislative law,” Flanagan, a Republican from Long Island, told reporters Monday afternoon at the state Capitol.

Over the weekend, the conference’s attorney, David Lewis, released a memo arguing that there was no impropriety, and noting that the practice started with IDC Senator David Valesky, of Syracuse, was awarded a lulu for a vice chair by former Majority Leader Dean Skelos several years ago.

Critics of the IDC’s coalition with the GOP say that the stipend practice effectively rewards the rogue Democrats for empowering the majority conference. The Daily News reports that IDC Leader Senator Jeff Klein also received a significant pay hike through an increased stipend this year after Flanagan formally named him the chamber’s vice president pro tempore.

Whether the payments are legal is unclear. The distribution of lulus is codified in state law, but it is not specified that an unclaimed stipend can be diverted from a chair to someone who does not hold the position. Furthermore, deliberately submitting false payroll documents to the Comptroller could warrant criminal charges -- the Senate majority leader’s office listed vice chairs as chairs on payroll documents.

But as a blame game ensues at the Capitol, and GOP senators hide out in their chamber to avoid the press gaggle, questions abound over which entity would be authorized to investigate this practice of falsifying information on payroll forms.

Without specifying who might have jurisdiction, Senate Minority Leader Andrea Stewart-Cousins, a Westchester Democrat, has called for “someone in authority” to look into “the obvious violations of state law.

“It seems every day troubling new questions arise and new details are learned about the apparent abuse of the Senate stipend system,” she said. The counsel for the Senate Democratic Conference issued a memo countering the arguments laid out by the Senate GOP’s counsel and pointing to impropriety.

Governor Andrew Cuomo, a second-term Democrat, took reporters’ questions after an unrelated news conference in New York City Thursday, and pointed to the comptroller’s office, saying it must determine whether or not the practice is legal. “If it was not legal, the comptroller should call up and say ‘whoops I made a mistake, I need the money back,’” Cuomo said. “The call is the comptroller’s.”

In response, a spokesperson for DiNapoli’s office said in a statement, “The Comptroller’s office is not a court of law. This issue needs to be decided by the Senate itself or the legal system.”

Previously, DiNapoli’s office had issued a statement saying that the Senate is expected to comply with state law and house practices when filling stipend requests. "When our office receives a payroll request that has been certified by the Senate, or any state entity, we make the payment. At this time, we have no basis to take back this money," said Jennifer Freeman, a spokesperson for the Office of the State Comptroller.

While Cuomo has enjoyed a close working relationship with Flanagan and Klein, he has feuded with DiNapoli, including earlier this week over a new report from the comptroller scrutinizing missed reports from one of the governor’s controversial economic development programs.

Beyond the Comptroller’s Office, other oversight authorities that may have jurisdiction to pursue an investigation include the Attorney General’s Office, the Albany District Attorney‘s Office, and the U.S. Attorney for the Southern District of New York (USASD). All three offices declined to comment on the stipend situation when Gotham Gazette reached out. 

Attorney General Eric Schneiderman’s office is not authorized to pursue an investigation without a referral from the comptroller, the governor’s office, or a number of other government authorities. The situation also could also fall under the jurisdiction of the USASD, a position previously held by Preet Bharara, who became known for aggressively pursuing cases of public corruption, but was fired suddenly by President Donald Trump in March.

Finally, there is the Joint Committee of Public Ethics (JCOPE). While the independent ethics board cannot pursue criminal charges, it can investigate potential violations of the state's ethics law within the Legislature and issue a report, which is then referred to the Legislative Ethics Commission, a body comprised of four-legislative members and five non-legislative members. If the Legislative Ethics Commission accepts the findings of the report, it is authorized to mete out an appropriate penalty. The Senate and Assembly also have in-house ethics committees, which rarely meet. A spokesperson for JCOPE declined to comment on the stipend matter.

Which law enforcement entity is looking into the issue was not clear in the initial Thursday evening report by the New York Times.

Cuomo also pointed to the structure in which lawmakers are paid, which he says is inherently flawed. The governor has called for a pay increase for legislators and a strict cap on or elimination of what income they can earn in other jobs -- legislators are technically part-time, and they have not received a salary increase since 1999. Cuomo did not address eliminating stipends.

“The fundamental problem is the way we pay legislators and the conflicts of interest that are intrinsic in the system,” he said. “The stipend is pennies compared from the salary structure which is premised on the fact that they are part-time, which is premised on a fallacy -- because they are full-time.”

While lawmakers collect $79,500 annual base pay, legislative stipends for committee leadership roles ranging from $9,000 to $41,500 are fairly common in both houses. An Empire Center report from 2016 notes that all 63 senators are eligible for stipends -- though some decline the cash -- and more that half of Assembly members receive supplementary payments through their secondary roles in the Legislature. Lawmakers are also permitted to hold outside jobs in addition to their legislative roles.

Calling for a formal investigation is the government watchdog group Common Cause/NY. “Today’s New York Times report that the Senate filed fraudulent documents to secure ‘lulus’ for members of the Independent Democratic Conference represents an egregious misuse of public monies, and potentially a more serious legal violation, which must be investigated by law enforcement,” Common Cause/NY said in a statement last week. “This is not a clerical error to be blamed on staff, or punted to the comptroller.”

The organization also defended the comptroller’s office saying, “It is entirely appropriate for the Comptroller to trust and rely on the information as certified to him by the designating authority, in this case the Senate.”

Meanwhile, members of the IDC have continued to dismiss the lulu scandal as business as usual.

“Well, certainly it seems as if everyone is obsessed with the 'Lulu Land' here in Albany. But quite frankly, it is a story about nothing," said Senator Diane Savino, an IDC member from Staten Island and one of the seven getting the extra stipends, on NY1 Monday. "Legislative stipends have been in existence for decades here in Albany. It's certainly not something new."

In addition to Valesky and Savino, IDC Senator Jose Peralta, a Democrat from Queens; and Republican Senators Thomas O’Mara, of the Finger Lakes region; Patrick Gallivan, of Buffalo; and Patty Ritchie, of Elmira, have also received payments for their roles on committees they do not chair.

Senator Pamela Helming, a first-term Republican from Central New York, was also misidentified in the Senate payroll documents as a chair, but her office told reporters she has not cashed the checks and intends to return them.

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Note: this article has been updated to reflect that the New York Times reported Thursday evening that an unnamed law enforcement entity is investigating the Senate stipend matter.

The Evolving Powers of the New York Attorney General


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Cuomo & Schneiderman (photo: The Governor's Office)


The office of New York Attorney General has recently become one of the most high-profile law enforcement jobs in the country, and a springboard to the Governor’s Mansion, with its own heightened powers and prestige. Both Eliot Spitzer and Andrew Cuomo jumped from Attorney General to Governor of New York after tenures marked by major prosecutorial victories, and there is plenty of talk that current A.G. Eric Schneiderman -- one of the leading national opponents of President Donald Trump through his litigation efforts -- has his eyes on a similar leap.

But this outsized role for the New York Attorney General, the head of the Law Department and the chief lawyer representing the state, hasn’t always been so -- in fact, the move to law enforcement leader prosecuting major public corruption, financial industry malfeasance, and other cases is a new phenomenon largely ushered in by Spitzer.

The New York State Constitution actually has very little to say about the Attorney General. The document outlines, in detail, the powers of the Governor, Lieutenant-Governor, and State Comptroller, the other elected offices in the executive branch, but the Attorney General’s power is mostly derived from statutes rather than the state constitution itself.

The Constitution doesn’t spell out the Attorney General’s power of enforcement, but rather, lists some of the office’s clerical duties. The document states that the Attorney General is to be elected “at the same general election as the governor and hold office for the same term,” that the Attorney General shall be the head of the Law Department, that the AG shall render opinions on proposed constitutional amendments prior to a vote in the Assembly and Senate, and that state money and measures violating the constitution can be restrained “on notice” of the AG “at the suit of the people.”

The actual enforcement and prosecutorial power against crime in the Constitution is endowed in District Attorneys. The Attorney General would focus on defending both the state of New York and the people of the state of New York. For example, Schneiderman’s office created a “Taxpayer Protection Bureau” to more diligently root out abuses, fraud, and theft committed against taxpayers whether it be through fraud in government programs, investments, or contracts.

But the Attorney General has gradually become a regulator rather than chief lawyer. Schneiderman’s tenure has seen crackdowns on tenant abuse by landlords, on malfeasance and opacity in the nonprofit sector, and on daily fantasy sports leagues like DraftKings, to name a few things; his office filed the initial lawsuit against Trump University, the President’s fraudulent college; he refused to join a settlement with the Obama administration and all other State Attorneys General over fraudulent mortgage dealings by banks, believing that more could be attained. He turned out to be correct.

This kind of outsize visibility and power has been building for some time.

According to Gerald Benjamin, the director of the Benjamin Center at SUNY New Paltz and a leading expert on state constitutions, especially New York’s, the Attorney General "was empowered without the constitution," but instead in common law, to become what it is today. The original intent of the position was to be the state’s chief lawyer, while prosecutorial power would be delineated to the various district attorneys. But various AGs -- more so recently -- have sought instead to be high profile prosecutors due to the visibility and political capital that such a role can bring.

The office is elected separately from the governor, like in most other states, and enjoys a certain sense of independence from the chief executive. However, the attorney general can be empowered in certain areas by the governor, such as Governor Cuomo using an executive order to assign Eric Schneiderman with prosecutorial authority over some potential police misconduct, a plan opposed by four out of five of New York City’s District Attorneys at the time it was proposed. (Some have suggested that DAs are too close with local police departments to impartially review improper use of deadly force by police; at the time Schneiderman requested that Cuomo grant him the additional power in such cases, Daniel Pantaleo, the police officer whose chokehold killed Eric Garner, had recently escaped an indictment.)

According to Richard Rifkin, special counsel to the New York State Bar Association who formerly worked under Attorneys General Robert Abrams and Eliot Spitzer, the governor granting power to the AG doesn’t tether them together. “The governor,” he said, “once having given the attorney general the power, would not interfere with the attorney general,” referring to the AG as “truly an independent prosecutor.”

The position of attorney general has recently become something of a gubernatorial catapult. Schneiderman’s two immediate predecessors, Spitzer and Cuomo, went on to be elected governor successively. And many expect Schneiderman, who has emerged as a leading opponent of President Trump, suing and threatening to sue Trump and the administration on matters ranging from the Muslim ban to the American Health Care Act, to pursue the same path (Schneiderman has also been criticized for going after Trump so fervently, with some saying he is overstepping his bounds, while he argues that everything he has pursued related to Trump has been applicable to his work representing New York.). All three men enjoyed high profiles during their tenures in the office, due in part to their visible roles as prosecutors of the powerful, whether government officials, Wall Street firms, or even the President.

But the position hasn’t always been this way. In fact, arguably the only other New York attorney general in recent history who used the position as a springboard to a higher position in government was Jacob Javits, who was only attorney general for two years before being elected to the U.S. Senate (in fact, Javits served concurrently as U.S. senator and New York attorney general for six days in 1957).

According to Professor Benjamin, it was “relatively rare” for an attorney general to seek higher elected office, such as Governor or U.S. Senator, prior to Robert Abrams’ 1994 Senate run, which he lost to incumbent Republican Al D’Amato. Attorneys general have also more recently sought to take the lead on issues of “statewide and national importance,” such as climate change, gun control, and sanctuary cities, “the effect of [which] has been to elevate their importance in state politics” and draw more ambitious politicians to the position, Benjamin noted. While virtually any attorney general from any state could pursue such goals, New York’s size and prominence make the possibility all the more attractive and plausible for the state’s AG.

All of these attorneys general expanded their power at least partially on the basis of a single 1921 statute known as the Martin Act, which gives the New York AG vastly greater latitude in prosecuting financial crimes against shareholders.

Among “Blue Sky Laws,” which are laws designed to protect investors from securities fraud, the Martin Act is largely considered to be the toughest in the nation. That wasn’t always the case though, as New York’s blue sky law was initially weaker than that of many other states, until the New York Supreme Court determined in People v Federated Radio Corporation (1926) that the act’s purpose was to “defeat all kinds of fraud in connection with the sale of securities and commodities and to defeat all unsubstantial and visionary schemes in relation thereto whereby the public is fraudulently exploited,” even if the fraud can’t be proven to have “originated in any actual evil design or contrivance to perpetrate fraud or injury upon others.”

Spitzer’s 2002 settlement with Merrill Lynch, totaling $100 million, over conflict-of-interest allegations is seen as a pivotal point on the road to what the AG has become today. Prior to Spitzer’s tenure, it was mostly used for smaller financial violations, such as “shady pharmacists, Ponzi schemes, and peddlers of fraudulent Salvador Dali lithographs,” according to a 2004 article in Legal Affairs by Nicholas Thompson, published prior to the revelation of the Bernie Madoff Ponzi scheme, for which Andrew Cuomo used the Martin Act when he was attorney general.

Spitzer was no stranger to the way the office changed under his tenure, and made it central to his gubernatorial campaign. In a gubernatorial debate with Republican John Faso, Spitzer claimed that “we’ve transformed an office that once stood for very little, into an office that brought cases that reflected the values we all share. Integrity on Wall Street to protect your pensions; honesty and accountability in government to pursue fraud and recover more money in Medicaid waste than ever before; and honesty in the pharmaceutical sector to make sure that companies told you the truth about the pharmaceuticals you were using. These are the values I hope to bring to Albany.” However, once in office, Spitzer found the office to be more constricting than the A.G., leading to frequent clashes with state legislators such as then Senate Majority Leader Joseph Bruno, and his approval ratings were already low before he resigned in disgrace due to a prostitution scandal.

Spitzer’s words have inspired his successors; rather than the A.G. being a “sleepy” job that just goes after small-time hucksters and defends the state in court, the office is now a formidable foe against powerful interests, and the attention those pursuits bring to the person at the helm can propel them to high office.

Schneiderman, who once represented financial firms in private practice, has used the Martin Act to pursue his “Insider Trading 2.0” initiative, obtaining multimillion-dollar settlements from financial institutions such as Deutsche Bank, BlackRock, and Barclays, as well as settlements with banks such as Morgan Stanley and Goldman Sachs over deceptive practices leading up to the financial crisis.

Beyond its use as a tool against large financial institutions, Schneiderman has used the act as a basis for a probe into ExxonMobil, arguing that its alleged failure to disclose to its shareholders and the public research that showed the potential impact of climate change constituted a Martin Act violation. Schneiderman issued a subpoena for the documents containing Exxon’s research, to which Exxon countersued. The suit was recently in the news when it was revealed that U.S. Secretary of State Rex Tillerson, formerly the CEO of Exxon, had used an alias, Wayne Tracker, in emails relating to the case that were “lost.” A court had ordered the documents to be released.

The New York AG also has leeway into how settlement funds are used. In a press release on April 11, Schneiderman announced that $20 million of funds from settlements with Goldman Sachs and Morgan Stanley would be used “to provide local governments with innovative technology to address and transform problem properties—including homes and buildings that are blighted, poorly maintained, vacant, abandoned, and in financial distress—that fell into disrepair following the foreclosure crisis,” as part of a program called Cities for Responsible Investment and Strategic Enforcement, or Cities RISE.

Previously, Schneiderman’s office had used settlement funds on other programs designed to assist homeowners post-housing crisis, such as the Homeowner Protection Program, providing legal services for homeowners, and the Mortgage Assistance Program, providing zero-interest loans to homeowners who are at risk of foreclosure; the office has also funded land banks with settlement money.

The use of settlement funds by Schneiderman is just one of many examples of how recent attorneys general have secured new money through investigative and prosecutorial work that they’ve then used for whatever priorities they see fit, at times expanding their office’s reach even further beyond the traditional role of AG.

Proponents of the Martin Act have noted the high rate at which financial crimes are prosecuted in New York; opponents have argued that the law has been used by attorneys general to score political points and boost political profiles, and that it’s been used improperly due to the broadness of the statute.

Paul Atkins, the head of Wall Street consulting firm Patomak Global Partners and the financial regulatory advisor to Donald Trump during his presidential transition, is an opponent of the Martin Act and other blue sky laws. He did not follow the president to the White House, however.

A referendum will appear on the ballot this November, asking New Yorkers if the state should convene a constitutional convention, which would make recommendations for potential changes to the state constitution. The last convention was held in 1967, but the state failed to accept the recommendations that emerged when they were later on another ballot referendum.

Professor Benjamin, a strong supporter of a constitutional convention, believes that the attorney general would seek to cement, even broaden, authority if the measure were to pass in November and a constitutional convention is indeed held. "I think they'd be well advised to try and get some of the powers of their office constitutionally grounded,” he said, “as the powers of the other state elected offices in New York are constitutionally grounded.”

For example, there could be discussion of granting the attorney general blanket prosecutorial jurisdiction to pursue public corruption cases against elected or appointed government officials. It is a power Cuomo sought as AG, but was not granted; and a power Schneiderman has sought as AG, but has not been granted by Cuomo.

Rifkin, meanwhile, believes that the AG, or any agency head, be they elected or appointed, should not push for codified powers in the constitution should a convention come to fruition. “That’s because the agencies need the powers that they need in this particular moment in time,” he said. “New issues come up, new problems arise, and life goes on, and when they’re locked in the constitution, government just can’t adjust to the current situation.”

[Related: How Cuomo's Special Prosecutor Order is Playing Out, 19 Months Later]

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by Ben Brachfeld, Gotham Gazette

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As Legislative Leaders Warn of Con Con Dangers, Good Government Groups Come Out in Favor


assembly chamber via wikicommons

The Assembly (photo: wikicommons)


While legislative leaders are declaring opposition to a New York State constitutional convention, government reform organizations are trending in the other direction, with some who were wary of the idea in previous years coming out in support or considering doing so.

Leading up to the November 7 vote on whether to hold a convention, the debate is shaping up around fear of what could be taken away versus hope that the public can take a shot at democratic reform.

Republican Senate Majority Leader John Flanagan and Democratic Assembly Speaker Carl Heastie, in a joint appearance in Albany on May 9, both warned of dangers posed by deep-pocketed interests from outside the state, who could potentially derail a “people’s convention.”

“I understand people’s desire to put it in the hands of the people to decide. But people are also subjected to campaigns,” Heastie said at the event at the Albany Times Union’s Hearst Media Center. “I think we should be very, very careful in exposing the constitution to the whims of someone from outside of the state who can decide to spend millions of dollars to put forward their position.”

Heastie and Flanagan, of the Bronx and Long Island, respectively, suggested that the state instead continue using piecemeal constitutional amendments to update the lengthy, outdated document. Such amendments must be passed by two consecutive legislative classes, then the public via singular ballot amendment.

Similar sentiments have been expressed by Senator Jeff Klein, leader of the Independent Democratic Conference, a breakaway group of Senate Democrats that forms a ruling coalition with the GOP, and, most recently, by Senate Minority Leader Andrea Stewart-Cousins in an interview with The Daily News. On the other hand, Assembly Minority Leader Brian Kolb, an upstate Republican, has for years been an outspoken proponent of holding a convention and is the only legislative conference leader in support of a “yes” vote on this year’s November ballot question as to whether New York should hold a convention to edit or rewrite its constitution.

The authors of the New York State Constitution included a provision that once every 20 years, the public would have the opportunity to completely overhaul and modernize the document. So, this Election Day, voters will vote on whether to hold a constitutional convention -- or a “con con,” as it is sometimes called -- and if the referendum passes, the people will then elect delegates, who would convene to potentially rewrite, or significantly propose modifications to the state constitution. Those proposals would then go before voters as a slate of changes to be voted up or down.

While legislative leaders are expressing their fear of a con con, a growing number of government reform advocates say it’s an opportunity to enact long-sought reforms that have been stagnant in the Legislature.

In March, for the first time in half a century, the League of Women Voters’ New York chapter endorsed a “yes” vote for the once-in-a-generation referendum, citing electoral reforms, campaign finance reform, fair legislative redistricting, and the modernization of New York’s court system as motivating factors. The League had been instrumental in the last convention, which took place in 1967, but did not produce the sweeping reforms many had hoped for, and ultimately all the proposed amendments, which were controversially presented to voters as a package deal, were voted down.

In the 1990s, the group’s board had a policy that the League would not endorse another constitutional convention unless the essential changes were made to the delegate selection and convention process. Five years ago, LWV board members agreed to modify that policy; rather than automatically opposing a convention that did not meet those requirements, the board would reconvene and consider whether to support a convention while thoroughly weighing delegate election and transparency concerns.

In 1997, the last time a con con was on the ballot, most good government groups chose to remain neutral on the ballot question, focussing instead on launching educational campaigns about the pros and cons of holding a convention, and potential issues to be addressed. Only Citizens Union, one of New York’s leading government reform organizations (and sister organization to Gotham Gazette’s publisher, Citizens Union Foundation), has consistently backed a constitutional convention, despite what was to many a disappointing outcome from the 1967 convention.

Twenty years ago, as was the case during previous con con votes, there was some momentum to back a convention prior to the vote, and public opinion polls showed significant interest. But a last-minute ad campaign by labor unions and other interest groups ultimately dissuaded voters for voting “yes” on the ballot question.

“The campaign to defeat the convention referendum has created some of the oddest political bedfellows in recent memory. The A.F.L.-C.I.O., the Conservative Party, the Sierra Club, the National Abortion Rights Action League, legislators of both parties and Change New York, the anti-tax group, were united against the measure,” wrote Richard Perez-Pena, for the New York Times, on November 5, 1997, just before the con con vote that year.

This year -- which follows a two-decade stretch that has seen dozens of elected officials leave office due to ethical or legal scandal -- there appears to be a marked shift and legislative leaders are finding themselves at odds with government reform organizations who view the convention more favorably, even those who sat out the vote in 1997.

Citizens Union is again in suppor and the League of Women Voters is not the only government reform organization reevaluating its stance. The New York State Bar Association (NYSBA), which as part of its mission seeks to raise judicial standards and reform the legal system, will discuss the issue at its upcoming House of Delegates meeting on June 17, and consider voting on whether to take a position on the ballot measure, a spokesperson has confirmed.

In February, NYSBA issued a report highlighting how a constitutional convention could streamline all aspects of New York’s bafflingly complex legal system, from traffic ticket processing to child support orders.

The League of Women Voters does still hold concerns about how a convention would be implemented, but decided the potential benefits outweigh the risks.

“We’re not saying this is the end-all and be-all, but we are going to try get all we want out of it. And there are risks, but it’s a balancing act. We asked the question: Is it worth it that we could gain more than people think might be lost? And the state League has decided yes, that it’s worth opening it up and trying to get the changes that we can’t get through the Legislature now,” said Laura Ladd Bierman, executive director of League of Women Voters New York.

Ladd Bierman noted that some state lawmakers recently told members of the League they would be more amenable to pushing for voting reform if the public voted in favor of a convention.

SUNY New Paltz professor Gerald Benjamin, who has been on the front lines pushing for constitutional reform for decades, said he is not surprised government reform organizations are coming around on the issue.

“Twenty years ago they made a set of decisions, so they have 20 years of experience in observing whether they have been able to achieve the reforms necessary -- they have not -- so they rightfully understand that this is the only way they are going to make progress,” said Benjamin. “Twenty years have reinforced the observation that the Legislature will not make fundamental structural changes, and the reputation in New York governance has steadily declined.”

Representatives from other government watchdog organizations -- including New York Public Interest Group (NYPIRG), Reinvent Albany, Common Cause, and Citizens Budget Commission -- told Gotham Gazette that they have not taken a position on the ballot question, but that the issue is being debated vigorously internally.

“I'm not sure what we will do. Twenty years ago we thought we could play the most useful role by staying neutral and offering a balanced look at the pros and cons of a convention,” said NYPIRG’s executive director Blair Horner. “It's possible we'll be in the same place this year.”

Bill Samuels, a businessman, con con advocate, and chair of the board of EffectiveNY, a think tank, believes the chaos surrounding President Donald Trump’s administration will also help fuel a “yes” vote in November.

“The same activists who were around in 1967 during the civil rights-anti war movement are still around today,” he said. “When you combine that with what’s happening in Washington -- if I had to sum it up: we still have a system in Albany that’s still not reaching its goal. New York and California have emerged as the great stand-up states to Trump. We want to be excited, we want to have the best Legislature in the country, and we think we can! The best way to fight Trump is to move New York forward.”

In the past, Governor Andrew Cuomo, a second-term Democrat, has repeatedly expressed support for a convention, suggesting a con con may be the only way to enact comprehensive campaign finance reform while Republicans who oppose a public matching system and donation limits continue to control the state Senate. While Cuomo came out in vocal support last year and attempted to insert money into the state budget for a preparatory committee, the issue was not included in his 2017 State of the State policy book nor his executive budget proposal. Cuomo’s office told Gotham Gazette the governor still favors a con con, but Cuomo has not been vocal about the issue. This governor has not set aside funds to plot out a potential convention like his father, former Governor Mario Cuomo, did ahead of the 1997 vote.

During a recent meeting with The Daily News editorial board, Cuomo said he supports the idea of a convention, but “you have to find a way where the delegates do not wind up being the same legislators who you are trying to change the rules on. I have not heard a plan that does that." In this point, Cuomo echoed what a variety of other elected officials, including Mayor Bill de Blasio, have said about concerns regarding the delegate process.

Meanwhile, a 40-member coalition of con con supporters called the Committee for a Constitutional Convention has launched. The group includes many prominent public figures including former chief judge Jonathan Lippman, former lieutenant governor Stan Lundine, and former state senator Seymour Lachman. They are joined by constitutional experts like Professor Benjamin and Touro Law Center dean Patty Salkin and slew of well-known attorneys like the Brennan Center’s Fritz Schwarz. Bill Samuels is a member as well.

For Citizens Union, support for a convention has only been reinforced over the last two decades. “Twenty years ago, we felt like money in politics was a problem, that effective strong oversight of public ethics was a problem, that our court system was a problem, and the balance of power between the governor and the Legislature were a problem,” said Citizen Union executive director Dick Dadey. “Those problems have not gone away. In fact, they’ve gotten worse. Our state government is broken. Budget bills are passed in the dark of night with little time to scrutinize them, pay to play culture is thriving, and voter apathy is rising.”

Opponents of a convention fear opening up the constitution could put at risk hard-won labor and environmental protections, among others. Those concerned about outside interests swaying the outcome of a convention also note that delegates are frequently people who are well-known in public life, often those who hold or previously held a public office, and point to a skewed delegate election process, which they say undermines the point of a “people’s convention.”

The current system allows major political parties to influence the delegate election, by grouping together a “slate” of candidates on the ballot. Further, of 204 elected delegates, 189 would be chosen from New York’s 63 state Senate districts, three from each, which Democrats note are heavily gerrymandered in favor of Republican interests.

While opposition forces, led by labor unions, have already begun to spend sizeable sums of money to encourage a “no” vote, it is unclear how rising populist sentiments indicated in last year’s presidential election -- especially through the campaigns of Bernie Sanders and Donald Trump -- may factor in.

If the ballot measure does pass, Ladd Bierman of LWV noted, there are many questions that must be addressed in the following legislative session. Will voters be presented with a preselected slate of delegates? Will the convention be made subject to Freedom of Information Law? Where will the convention take place? The constitution says it must take place at the Capitol on April 2, but if the convention overlaps with the legislative session, there may not be sufficient office space to host the event.

Regardless of where they stand on the ballot measure, she said, if it passes good government groups will be on the front lines pushing for a process that is as fair, transparent, and as democratic as possible.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

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

Adjusting to Albany: Assemblymember Brian Barnwell


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Assemblymember Brian Barnwell (photo via NY State Assembly District 30)


If Queens voters were looking for fresh face to represent them in Albany, they found it in Assemblymember Brian Barnwell.

The 30-year-old attorney beat out nine-time incumbent Assemblymember Margaret Markey during the September Democratic primary with a shocking 63.8 percent of the vote, and easily swept the general election against Republican Tony Nunziato. While Barnwell did well districtwide, many in Maspeth, Queens disapproved of Markey’s response to the city’s proposed homeless shelter in the neighborhood, a hot button issue that drew weeks of heated protests.

Barnwell is not new to the Albany area. After graduating Arizona State University, he obtained a law degree from Albany Law School. After working as a lawyer for several years, he worked as an aide in Queens City Council Member Costa Constantinides’ office. Now a lawmaker himself, Barnwell said he aims to find solutions for strengthening the middle class and those struggling to enter the middle class, and he has already put forward legislation related to affordable housing, senior issues, and workers’ safety. He spoke with Gotham Gazette in early May about New York’s affordable housing crisis, his first state budget experience, why it’s good to have millennials in the Legislature, and more.

Gotham Gazette (GG): What were your first few months like? Orientation?

Assemblymember Brian Barnwell (BB): “I thought everyone was all very helpful, the speaker’s staff were great, they’re all very nice and very helpful. The members themselves are still always saying, if you have any questions about anything, don’t be afraid to ask.

Honestly, as an attorney, when you graduate law school and you go to court, you are kind of thrown to the wolves as well. So you get used to it. You ask questions, if you have them, and if you don’t, you figure it out.

There was an orientation process, I think it was three days -- it feels like 80 years ago already. You get up there and they go over the basics. ‘This is who you go to if you have this issue.’ You know, ‘this is how the procedure how the Assembly works if you want to submit a bill.’ They go over the basics of bill drafting and indexing.

Same thing, when you are in law school, you learn the law. Usually, there are a couple classes you can take here and there, but mostly, when you get to court, you don’t know the ins and outs of the everyday procedure.

Same thing, obviously, when you are legislator, you know the things you want to change, but you don’t know how to change it. So you learn the procedure, the inherent procedure of the Assembly, and that’s what they teach you at orientation.”

GG: How do you juggle the weekly commute? Any favorite restaurants yet?

BB: “I actually went to law school up in Albany, so it’s not too different for me. When I was in law school, I’d take the Amtrak up, but now I drive up. I’m single, I don’t have any kids, so it’s not as bad for me as it would be for other members.

Favorite restaurant? I don’t necessarily have any. There is actually a good barbecue place called Capital Q [Smokehouse] though, over on Ontario (Street). That’s a pretty good. Wings over Albany is another good place. The normal stuff out on Wolf Road, by the mall, you have Cheesecake Factory and Texas Roadhouse, all those places.”

GG: You are one of the younger members of the Assembly -- not the youngest, that’s Assemblymember James Skoufis -- but still among the younger members of the Assembly. How do you think it benefits government and the state to have younger lawmakers representing them?

BB: “Someone asked me this the other day, and what I say is it’s good to have a good mix. There are some members that have been there a long time and it’s good to have their voices and then there are some newer members. I think in the last 6-8 years, there’s been a lot of new members that have been in.

Obviously, as time changes, there are new issues, that I’ve lived with myself. Like loans, for example, student loans. I’ve lived it, so I know all about it. Members who have been there 20 years, they may have loans too, but they haven’t had the same experience that I’ve had. So, it’s always good to have a good mixture of good backgrounds and ages, and it definitely comes into play. It’s definitely helpful to represent “

GG: In your district it’s particularly stark. You beat out a nine-term incumbent, and the uproar over the Maspeth homeless shelter certainly played a role. Housing issues are important to you. What are your thoughts on addressing homelessness, and more broadly, the city’s affordable housing shortage?

BB: “Actually, one of the major bills that I have deals with affordable housing. When they say it’s affordable, it’s laughable, it’s a headline -- it’s not affordable. One of the big reasons why, in my opinion, things are not affordable, is because the formula that determines quote-unquote what’s affordable, is they take the AMI, the average median income.

Basically, it’s supposed to say these are the average incomes of people of the area where they’re building the project. However, New York City has a ridiculous formula that when they want to build in New York City, they want to build in the Bronx, they want to build in Woodside, they want to build in Harlem, they have to take the AMI of the entire city, plus Westchester, Putnam, and Rockland Counties. We’ll use Harlem. The average income in Harlem is significantly lower than Westchester. When they build in Harlem and they are using the average incomes of Westchester and Putnam and Rockland County and Staten Island. The average income in Harlem is significantly lower than the AMI in Westchester.

My bill, it’s sponsored by Senator [Michael] Gianaris in the Senate, and we have about 22 co-sponsors in the Assembly. When they want to build “affordable housing,” they have to use the AMI of only the zip code where the project is located. If they build in Harlem, only the average income levels of people in Harlem will be considered. Not Westchester, not Rockland County, not Putnam County -- that’s just stupidity. In my opinion, not only does it help people in the community, but it deals with the homeless issue. That’s another reason why I supported Assemblyman Andrew Hevesi’s home stability plan. Because it keeps people in their homes. It keeps people who are in danger of losing their homes -- it would give them a subsidy which would help keep them in their homes.

If anyone says, ‘We shouldn’t take care the homeless,’ that’s idiocy. No. You’ve got to take care of everyone. You’ve got to take care of people in the state. If you are worried about the money part of it, then even more you should support Andrew Hevesi’s plan. Because the plan would save the city and the state millions of dollars. Instead of paying market rate -- they are charging $200 a night, to put someone in a hotel, like a paying customer -- instead of that you could spend a little bit of money and keep people in their homes.

So, the ideas are there, but the laws are not passing.”

GG: That leads me to my next question. Have you found it challenging to make your voice heard as a freshman legislator with such a large conference?

BB: There’s a big conference, a lot of people who have been there for a long time. And everyone’s been great, everyone’s been very nice, but there are people who have been there longer and have more pull -- that’s just the way it goes -- or their bills have been out for a long time. Some of these bills have been out there for 10 years and they are still trying to pass them. What I’ve done is draft the bills myself -- it’s one of the benefits of being a lawyer, I draft my own bills -- and then I just go speak to the members. You talk to them. Obviously the affordable housing issue is all over...I go over and ask them if they’ll sign on to the bill and about 20 members have signed on so far -- to the affordable housing one -- you’ve just got to put the legwork in.”

GG: Any challenges? You just survived a very difficult budget process...

BB: “I think the biggest annoyance is when a constituent needs help and you want to help them but you have to go through the agencies. It’s always a traffic signal, or a stop sign, or a speed bump, where it’s needed, right? And the constituent wants it, but you can’t just snap your fingers and make it happen. You have to go through the agency and the agency has to approve it. That’s frustrating. Sometimes obviously it doesn’t work out because the agency says ‘No, you can’t have the traffic light here.’

In regards to Albany, honestly the budget process was certainly long, but I don’t have a problem with that. In my opinion, it’s better to negotiate and negotiate and negotiate, instead of just doing the deal for the sake of doing a deal. I understand that [Governor Andrew] Cuomo likes to have his budget on time. But the budget shouldn’t be on time just to be on time. The budget should be thought out and reasoned and debated, I mean that’s the reason we have government. While it does take a while, and this one was extra special with how long it took to get done, I don’t have a problem with that.”

GG: As a lawyer, negotiating is your forte?

BB: “Exactly. It’s a negotiation. You’re not always going to get what you want, you negotiate, you come to an agreement, and live to fight another day.”

[Read more from our series, Adjusting to Albany: Meet NYC's New Class of State Legislators]

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

Adjusting to Albany: Assemblymember Carmen De La Rosa


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Assemblymember Carmen De La Rosa (photo via @CnDelarosa)


Born in the Dominican Republic, Carmen De La Rosa immigrated as a child to Inwood, in upper Manhattan, where she was raised and still lives, now with her fiance and daughter. She launched her legislative career in 2007, working for Assemblymember Daniel O’Donnell on the Upper West Side. She later became Democratic female district leader for the 72nd Assembly District and chief of staff to City Council Member Ydanis Rodriguez.

With the backing of her former boss and Rodriguez’s mentor, then-State Senator Adriano Espaillat, the 30-year-old De La Rosa took on incumbent Assemblyman Guillermo Linares, a longtime rival of Espaillat. During the campaign, she defined herself as a feminist who understands the struggles of working families and immigrants, someone who could break barriers for the upper Manhattan district, which has long been dominated by male leadership.

Now in office, De La Rosa told Gotham Gazette in February that she is looking forward to making a difference in the community she has lived in her whole life, especially given the ascendance of an anti-immigrant Trump administration in Washington, D.C.

Gotham Gazette (GG): What was your first few weeks as a state legislator like? How was the orientation?

Carmen De La Rosa (CDLR): It’s been obviously very interesting — and busy —  getting to know the budget process and all the components of the budget and how to navigate our communities within that process. Also, learning the basic 101 of the legislative process, in addition to also getting our offices up and running for constituent services. So it definitely feels like longer than a month. But I definitely feel like everyone here is very helpful. There are a lot of people who can assist you with technical issues.

The training was very interesting. We got to meet the incoming class of members on the Assembly side and majority side. It was wonderful because you are able to meet other members from all different part of the state who are coming in with different perspectives, but we have one thing in common, which is we are all new here. We’ve sort of created a bond of helping each other out, because we have similar questions about like where a particular hearing room is, or how to get over to chamber quickly. So it’s been really high pace. It’s definitely a great place to be, coming from the City Council, it’s sort of government on a larger scale, so it’s a welcome challenge for me.

GG: How is the commute? Where do you stay? Any favorite restaurants yet?

CDLR: I’ve been taking the train. I actually am taking the train from the Yonkers stop. So I often either have my husband drop me off and I’ll come up. It’s only two hours and 15 minutes depending on how the rail is going.

It’s really good to come on the train; you get a lot done, a lot of reading and catching up. I really like the train ride actually because you are able to disconnect and sort of just get your footing in before you even come up to Albany. So you do all the reading on what bills are coming up, on committees and all of that. And when I’m coming back into my district work, so what community events are happening and things like that.

I haven’t found a favorite restaurant yet. We’ve been really busy this session and we had a few late nights with some votes. So I haven’t had much time to go out and explore. I am usually eating in the members lounge or in the cafeteria or the concourse, so I definitely have goals for later on in the session to go out and find a good restaurant.

GG: As a mother of a 2-year-old, is it hard to juggle the demands of parenthood and the job?

CDLR: Definitely, I haven’t been away from her since she was born and I’ve been really spoiled by being able to work in the city and come home to her every night. But I have a really good support system. My parents have both been very helpful, and my husband. And my mom has seven sisters so they’re great aunts, they are always coming over, pitching in.

My daughter is at the age that she’s in daycare during the day, and then she comes home and we Facetime. Then she asks me all these questions and I ask her about her day. She’s now at a point where she doesn’t fully understand what mommy is doing. Actually, the other day I asked her, I said, ‘Bye, mommy’s going to Albany!’ She said, ‘You’re going to work mommy!’ and I said ‘Do you know what mommy does at work?’ and she says, ‘Talk to a lot of people!’ So she doesn’t really understand everything. But she understands that I’m up in Albany and I feel lucky because she’s been adjusting very well.

GG: You enter state government under such a strange climate with President Donald Trump’s administration moving forward with its anti-immigrant agenda. Has that shifted your priorities for the coming year?

CDLR: Absolutely. I think that actually contributed to the fact that in my brain, it feels longer than a month. Because very soon after I came to Albany, Trump was inaugurated and since then, especially in our district, it’s been protest after protest, demonstration after demonstration.

As a immigrant woman here at the state Legislature, we actually in the Assembly have been able to pass bills about protecting immigrant communities against registries....we did a ton of criminal justice reform bills. So for me, I feel like I’m in the front seat of something that is so important for the protection of immigrant communities and communities of color throughout the state. I just feel privileged and honored to have a seat at that table and be able to actually take these votes that are having significant impact in our communities and understanding the dynamics of the [Republican-controlled] Senate, and really pushing on this, so that some of those things can be adopted by the Legislature.

Being able to be in the [Democratic] Assembly Majority, and actually be able push for these things is really important. I think now for us to have a voice in what’s happening nationally and we show our constituents that on a state level there are some protections that can be put in place.

GG: As a freshman legislator, do you feel like you have gotten floor time where you really got to make your voice heard?

CDLR: Yes, I did! The first week we came in and voted on a ton of bills about contraception and women’s rights. They were health bills. So those bills were really important to me as a woman, as a woman who is pro-choice, and especially with what is happening on a national level with women and Planned Parenthood. In addition, I did have floor time last week -- which was my first time speaking on the floor -- about the Dream Act, and the Assembly was able to pass the Dream Act.

I spoke about my experiences being an immigrant woman, coming to the country as a child, and knowing that education -- and the opportunity to be educated -- has certainly made a difference in my life. And what we hope we could lead for our children and the children that are coming from other countries around the world and may not have that opportunity to follow the American dream.

I was very excited to be able to speak up on that. And yesterday I spoke up about the ‘Raise the Age’ conversation and the importance of doing that in New York State.

GG: Any surprises? Disappointments?

CDLR: No disappointments yet. I am still coming with a new person’s -- I’m not burnt out yet -- so I’m really coming with a fresh, hope perspective which I hope doesn’t die. But I have been very inspired with the passion that I see coming from all over the state on some of these issues. It doesn’t matter if you come from upstate or downstate.

A lot of the members of the chamber have really taken leadership roles when it comes to speaking out about women’s rights, immigrant rights, and that has really been a pleasant surprise for me here.

[Read more from our series, Adjusting to Albany: Meet NYC's New Class of State Legislators]

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Government Watchdogs Push 'Clean Contracting' Reform in Albany


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Alain Kaloyeros in 2016 (photo: The Governor's Office)


A coalition of budget and transparency watchdog groups are calling on the Legislature to pass, and for Governor Cuomo to sign, comprehensive “clean contracting” legislation in response to the bid-rigging scandal that rocked the state Capitol last year and continues to reverberate.

Specifically, at a Wednesday press conference the groups called for restoration of reviewing powers to State Comptroller Tom DiNapoli for all state contracts exceeding $250,000, an end to non-academic contracting by state-controlled non-profit organizations, the creation of a comprehensive “database of deals,” and a prohibition against state authorities, corporations, and affiliated non-profits doing business with their board members.

The organizations -- including Reinvent Albany, New York Public Interest Group, Citizens Union, League of Women Voters, Fiscal Policy Institute, Common Cause, and Citizens Budget Commission -- are also urging state leaders to reduce the potential for conflicts of interest by exploring options to limit campaign contributions from anyone seeking a state contract. Nineteen states and New York City -- but not the state -- already have these anti-pay-to-play laws in place.

“The moment of truth has arrived. State and federal prosecutors say $800 million in state economic development contracts were rigged, but so far, the Legislature and governor have yet to act,” said John Kaehny, executive director of Reinvent Albany, standing in the state Capitol. “It’s time they pass common sense legislation that includes independent oversight over state contracts, uniform contracting rules, and transparency that will prevent corruption and abuse before it happens.”

In 2016, an investigation into a sprawling alleged pay-to-play scheme connected to the Governor Cuomo’s Buffalo Billion economic development program resulted in charges against nine men, including a former top aide to Cuomo, Joe Percoco, and the former president of SUNY Polytechnic Institute, Alain Kaloyeros, a close government partner of Cuomo’s, on bid-rigging, bribery, and other charges.

In the aftermath of the scandal, DiNapoli called for comprehensive procurement reforms, including the restoration of his office’s powers to review contracts with CUNY- and SUNY-affiliated non-profits -- a power that was stripped by Cuomo and the Legislature in 2011. The governor and lawmakers had reasoned that they could more quickly move economic development funds to important projects, especially in previously downtrodden Buffalo, where Cuomo has dedicated so much focus since taking office.

Following the enactment of the 2017 state budget, DiNapoli issued a statement noting the lack of procurement reform. “Hopefully before the end of session, the procurement reforms my office has advanced will be addressed,” he said. The Legislature is in session until mid-June. Legislative leaders are looking at some procurement reform measures, while Cuomo remains opposed to what DiNapoli and government watchdogs are calling for.

At the time of the arrests, Cuomo vowed sweeping reform, and proposed a slew of them in his 2017-2018 executive budget. However few of these oversight and transparency measures -- which are different from those being proposed by legislators, DiNapoli, and reform groups -- made it into the agreed-upon spending plan, announced in early April. Additionally, at least one other key oversight and transparency provision -- a mandated report on the governor’s Start-Up NY program -- was actually removed. Instead of focusing on reform, the governor has continued boosting the his signature economic development programs and infrastructure projects, to which the state is dedicating billions of dollars every year.

Senator John DeFrancisco, a Republican from Syracuse and deputy majority leader, has proposed legislation encompassing the Comptroller’s Clean Contracting Bill, which has been approved by the Senate Finance Committee, and some form of it is expected to pass the Senate. A similar bill sponsored by Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat, is currently being considered in the Assembly.

Assembly Speaker Carl Heastie, a Bronx Democrat, and Senate Majority Leader John Flanagan, a Long Island Republican, both expressed support for the legislation during a joint appearance at the Times Union’s new media center in Colonie on Tuesday.

“I truly believe the comptroller plays an absolutely critical role in public policy in New York,” Flanagan said.

“You don’t always have to wait for something bad to happen to restore confidence to the public,” added Heastie.

The “database of deals” -- which has long been advocated by good-government organizations -- was supported by both the Senate and Assembly in their one-house budget resolutions, and the governor agreed in the budget to create a report by January 2018 detailing the spending by each economic development program. However, critics say the database should go further, providing data on the benefits received by each company.

Cuomo, in his executive budget, proposed prohibiting campaign finance contributions to the executive by vendors when they are bidding on and negotiating contracts, and expanding the power of the Office of the Inspector General to include the SUNY Research Foundation and CUNY-affiliated nonprofits. He also proposed instituting a Chief Procurement Officer who would be appointed by the governor, a position that many called redundant and less effective than the position of Comptroller.

“How many scandals and indictments are needed before we enact any meaningful reforms,” asked Ron Deutsch, executive director of the Fiscal Policy Institute, a think tank. “We need to restore the public’s trust and put real accountability measures in place to ensure that we have full transparency and a solid return on investment before we continue to provide billions of taxpayer dollars to private businesses under the guise of economic development.”

The legislation is currently facing opposition from SUNY. A spokesperson for Cuomo’s office said the governor finds the legislation “duplicative” and “overly broad,” and believes it does not address the core of the process on contracting reform. She noted that the comptroller can already perform audits on all procurement contracts before they are paid, he just cannot slow down the initial contracting process when awards are made.

Flanagan has indicated that there may be room for negotiation on the final bill. Heastie has been vague as he plans to discuss the issue with his majority conference.

Cuomo’s former aides, associates, and donors are set to go on trial late this year.

Another spokesperson for the governor, Rich Azzopardi, sent Gotham Gazette a statement attacking the watchdog groups. "This is the same crew who preaches transparency for others and then sues to overturn state law and keep their benefactors secret. If we need a crash course on hypocrisy we know who to ask," he said.

“To create needed independence and effective oversight, the governor and the Legislature must enact sensible clean-contracting reforms,” said Dick Dadey, executive director of Citizens Union. “Not to do so would be an unfortunate and careless shirking of their greatest responsibility to ensure that government operates in the interest of the people. Stronger oversight and increased transparency in the awarding of state contracts, including providing the state Comptroller with increased independent authority for oversight and approval, are principles that a strong and effective democracy must embrace.”

***
by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

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


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