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What Moved and What Didn’t as State Session Ended


Cuomo speaking tour

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MORE ON WHAT DID NOT GET DONE
There are several prominent issues that progressed in one or both houses, but have been tied up in committee or stalled.

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

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

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

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

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

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

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

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Albany on the Penultimate Day of Legislative Session


albany capitol

The Capitol (photo: Ben Max)


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***
by Ben Max, Gotham Gazette
     

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


Cuomo Flanagan Heastie

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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