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Early in Albany Session, Plastic Bag Fee Sparks Home Rule Debate


felder bag fee city hall via scott reif

Senator Felder & opponents of the bag fee (photo: Scott Reif)


An attempt by lawmakers in Albany to prevent the New York City Council from imposing a fee on plastic and paper bags at retail stores has reignited a debate over home rule and the state government’s interference in the work of a democratically elected local legislative body.  

The New York State Senate passed a bill on Tuesday that prohibits “the imposition of any tax, fee or local charge on carry out merchandise bags in cities having a population of one million or more.” The bill, sponsored by Sen. Simcha Felder, a Brooklyn Democrat, directly targets a law passed by the City Council and signed by Mayor Bill de Blasio last year that imposes a nickel fee on those bags and is due to go into effect February 15.

The law, which passed with a relatively slim City Council majority, is meant to reduce waste and environmental damage, as New Yorkers send billions of bags per year into the waste stream While it make exceptions for people on public assistance, its opponents argue that it would be a prohibitive burden on New Yorkers, including poor people and families more broadly.

“Many families have a hard time just getting by, paying for groceries, rent and heat, and now the Mayor wants to shake them down every time they shop just for the privilege of using a plastic bag,” Senator Felder, who represents part of Brooklyn, said in a statement on Tuesday. “Mayor de Blasio, please do not nickel-and-dime New Yorkers with another tax. This will hurt lower- and middle-income families who already struggle. I'm asking New Yorkers to stand up and tell the Mayor that this bag tax has to go.”

Although Felder is a Democrat, he caucuses with Republicans to create a Senate majority. His bill was co-sponsored by three Republicans and also two other Democrats, both members of the Independent Democratic Conference, a breakaway group that shares power in the Senate with Republicans. Felder’s bill passed with 42 votes in favor and 18 against.

For the Democratic Senators who opposed Tuesday’s bill, the plastic bag fee at the heart of the issue was not the only thing under threat. They criticized Felder’s bill for violating the state constitution’s principle of home rule that gives local governments the authority over many of their own affairs, and for doing so only in the case of New York City while making no mention of smaller jurisdictions that have passed similar bag fees.

The Senate bill, Democrats insisted, was narrowly targeted and would set a dangerous precedent for the legislative body. Even the word “fee” became a point of contention. Felder, and those who supported him, call it a “tax” instead and argue that the city has no right to impose it. Under state law, only the state Legislature can approve any new taxes. It is considered a fee because the stores keep it, the money is not passed to the government.

Sen. Liz Krueger, a Democrat from Manhattan, arguing on the Senate floor against Felder’s proposal, wondered “why should we override history, precedent, perhaps the constitution...and take an action that overrides a local government’s law applying only to itself?”

Krueger expressed concern that it reflects political developments at the national level, where the incoming federal administration may seek to unduly interfere in the workings of the state. In a statement after the passage of the bill, Krueger said, “If this bill becomes law, it will set a shameful and dangerous precedent that local solutions to local environmental issues will be vetoed in Albany.”

The bill is now with the Democrat-led Assembly and if it passes there, it would be sent to Governor Andrew Cuomo for his signature. “We would like to see if we can get the city come to an agreement with how the Legislature has raised a concern,” said Assembly Speaker Carl Heastie, at a Tuesday news conference. “But again, we don’t want to minimize the environmental concern that the city has raised.”

State intervention in New York City’s affairs is not novel and has in the past been a source of tension in the city-state dynamic, at times along partisan lines. The state’s Municipal Home Rule Law provides that the state can intervene in a local jurisdiction’s affairs if the locality sends a “Home Rule message” to the state Legislature requesting that certain laws be enacted or if the state Legislature demonstrates that an issue is a “matter of state concern.” Otherwise, the state Legislature cannot pass laws that apply only to a specific locality. That the bill targets New York City is a given: there is no other municipality in the state with more than a million residents. That might give its opponents an opportunity to challenge it as a “special law” rather than a “general law” that applies statewide.

Courts have in the past cited ‘home rule’ as a basis for striking down laws passed in Albany that affect New York City alone. But the language in Felder’s bill refers to an “open class” of locality, rather than naming New York City, and that argument has been upheld by courts, said Richard Briffault, a professor at Columbia Law School who specializes in state and local government law. “The state most likely has the legal authority to ban local plastic bag fees but it is completely inconsistent with the idea and purpose of local home rule,” he said.

Echoing Briffault, Doug Muzzio, political science professor at Baruch College, emphasized Albany’s “virtually absolute” power over New York City. “Under Dillon's rule, cities are creatures of the state,” Muzzio said, referring to a judgement in 1868 by Judge John Forrest Dillon, then-chief justice of the Iowa Supreme Court, which narrowly defined a municipality’s authority as being derived from the state government. “Their powers, their very existence is determined by the state,” Muzzio added. “Albany's power over the city has long been a source of anguish. In his 1861 address before the Common Council, Mayor Fernando Wood called Albany's power ‘odious and oppressive.’ It remains so.”

Muzzio said Senate Republicans were using the authority within their right to enforce their own goals. Complicating matters, though, is that there are more than a dozen Democrats in the New York City Council who voted against the bag fee. Still, this does not change the fact that the city passed its own law on the matter.

The overarching debate is also somewhat complicated by the fact that the plastic bag fee has pitted senators representing New York City against their colleagues from the five boroughs, making them all stakeholders in the issue serving overlapping constituents. Supporters of the bag fee insisted on Tuesday that legislators from outside the city should not interfere with local matters while opponents of the fee pleaded to those outside legislators to help them avoid imposing a new burden on their constituents.

“There are seven City Council members who represent my district,” said Senator Diane Savino, an IDC memebr and one of the state cosponsors who represents Staten Island’s northern shore and parts of South Brooklyn, during the Senate debate. “Every single one of them voted against [the bag fee bill in the City Council]…What they weren’t able to accomplish in the City Council, they want me to be able to deliver for them up here in Albany. They thought it was bad policy for the City of New York. They lost the fight there but they want us to win the fight here.”

Savino also complained that the Senate had been misled by the City Council. The bag fee would have gone into effect in October last year but the Council delayed its implementation after facing strong opposition in Albany. The Senate voted then, as it has now, to ban any taxes or fees on plastic bags. As a result, the City Council struck a deal with the State Assembly to push implementation to 2017 and to revisit the language in the bill. Those negotiations have yet to produce results, with the fee set to go into effect in less than one month. “They did not negotiate in good faith,” said Savino. “We cannot trust them.”

Senator Jesse Hamilton, another IDC member from Brooklyn, who spoke later, stood up against the Senate bill. “Every time we speak about home rule in this chamber, it never applies to New York City," he said. "For this chamber to say the City Council in New York City, they don't know what they are doing, I find that a little offensive.”

Negotiations between the Council and state lawmakers are still continuing, said City Council Speaker Melissa Mark-Viverito at a news conference on Wednesday, in response to Gotham Gazette’s questions. Mark-Viverito expressed her displeasure that the Senate was attempting to thwart legislation that had been extensively debated. “I think it’s unfortunate that New York City is being specifically targeted by the bill that is being presented and that is being discussed and the Senate voted on,” she said.

The day before the Senate took up the bill, Mayor de Blasio vowed to push back against its efforts. In his weekly appearance on NY1, he told host Errol Louis, “I’ll work with the City Council to push this back, because I don’t see an alternative. Do we really want to keep doing something that’s really bad for our environment and takes up lots of fossil fuels as we’re facing climate change. I think the Council was right to pass it and if some of the folks in the state Senate oppose it, what’s their alternative? The status quo is not acceptable.”

A key player in what happens next is a main de Blasio ally: Assembly Speaker Heastie, a Bronx Democrat. Then, there is Gov. Cuomo, not typically a de Blasio friend, who would be forced to decide whether to sign the state legislation if it passes both houses. Cuomo’s office did not return a request for comment about the debate over the bag fee.

City Council Member Brad Lander, a Brooklyn Democrat and one of the prime sponsors of the bag fee legislation, is hoping that either the Assembly will vote down the bill or that Governor Cuomo, known for his positive record on environmental conservation, will veto it.

Lander said it was “mystifying” that the state Legislature would attempt to roll back environmental regulation and dictate a “law of dubious legality” to the city. But he remained open to changing the language in the bill if it meant it could be improved and receive the Legislature’s support. “I’m worried that Albany is going to nullify this very sensible effective environmental policy,” he said. “I assumed that when Suffolk County, not known as a bastion of left-wingers, passed the same bill, and when the City of Long Beach in Nassau County did the same, that that would help members of the Legislature see that this is growing, that there’s support for it, that this is something we should be looking at more broadly.”

Critiquing Felder’s bill, he added, “It is an unconstitutional special law masquerading as a general law. Home rule should be required and I think everyone knows it.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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Additional reporting by Rachel Silberstein

Largely Inactive Senate Ethics Committee Restructures


gianaris state senate site

Sen. Gianaris (photo: State Senate)


New York state government has had no shortage of ethics scandals, but has had a deficiency in active, effective bodies to prevent, punish, and root out bad behavior among elected and appointed officials.

When the new legislative session began in Albany earlier this month, there was an immediate shake-up of the long-dormant state Senate ethics committee, throwing the always-simmering chamber to a quick boil.

The Senate ethics committee, as well as a parallel committee in the New York State Assembly, in theory, are places where lawmakers review and make recommendations on Senate policies, including travel expenses, time and attendance, sexual harassment, and other aspects of workplace ethics. Like other issue committees, the ethics committee should consider ways within its purview to improve governance, such as limiting legislators’ outside income or requiring greater disclosure of potential conflicts of interest.

Yet, even with much to do, the committees’ actual function is unclear: despite the fact that committee chairs in both chambers earn an additional $12,500 stipend per year, legislative ethics committees have rarely met over the last two decades, allowing misdeeds to go unaddressed in-house.

As the rules were being adopted for the new Senate class that will govern for 2017 and 2018, the majority coalition of Republicans and the Independent Democratic Conference -- a seven-member group of breakaway Democrats -- included changes to the ethics committee.

After a brouhaha over how the committee would be structured, how the political parties and conferences would be represented on it, and, essentially, what it means to be a Democrat in the New York State Senate, the committee’s new shape was established. It will grow by one member, to nine, and will give the IDC significant power to determine what business, if any, the committee takes up.

Initially, Senator Thomas Croci, a Long Island Republican and the previous ethics committee chair, proposed that, at eight members, the committee be split evenly by representatives of the two major political parties, rather than by majority and minority conference, as was previously the case. Ostensibly, this would have meant that the committee could feature four Republicans and four IDC members.

The motion was challenged by Democratic Senator Michael Gianaris of Queens, who, on the first day of the session, January 4, pushed for the body’s continued split between the two major conferences, or three ways among mainline Democrats, Republicans, and the IDC.

Croci argued that an equal split by political party would create parity with a similar body in the New York State Assembly, while Gianaris questioned how committee members would be selected and whether such a makeup would equate to a GOP/IDC power-grab.

“Ethics committees have always been treated differently, regardless of makeup of bodies, because of their very sensitive nature and the possibility of using an ethics overview committee for political reasons,” Gianaris said on the Senate floor.

Though Croci’s resolution passed at that January 4 session, last week Senate Republicans agreed to revisit the issue. They hammered out an agreement with Democrats that satisfied members of all three conferences. The new committee will include nine members — three Republicans, three mainline Democrats, and three IDC members.

Committee members are to be appointed by leaders of the three conferences. While the new structure disproportionately represents members of the Republican-IDC coalition, any investigation proposed by the body must have the approval of one member from each conference to move forward, according to the new rules. Effectively, it remains easy for a conference to kill an internal ethics investigation into one of its members.

The full list of ethics committee members were revealed during legislative session on Tuesday, with Elaine Phillips, a freshman Republican from Long Island, replacing Croci as chair, while former chairs Croci and Andrew Lanza, of Staten Island, remained on the body as Republican committee members. Senators David Valesky, Staten Island’s Diane Savino, and David Carlucci of the IDC also joined the committee, and three mainline Democratic seats will be filled by Gianaris, Brooklyn’s Roxanne Persaud, and Gustavo Rivera of the Bronx.

An aide to Croci said the senator never intended to politicize the committee’s structure, but that he believed strongly that the body should mirror the Assembly’s structure. A spokesperson for Senate Democrats said that Republicans were eager to find a solution at this Tuesday’s session that is satisfactory to all parties.

“We are pleased with the final composition of the Senate Ethics Committee and thank the Senate Republicans for working with us to achieve equal representation for all Senate Conferences,” said Mike Murphy, communications director for Senate Democrats, who are led by Minority Leader Andrea Stewart-Cousins.

IDC Leader Jeff Klein, who has been mostly silent on the issue so far, issued a statement through spokesperson Candice Giove: "The original intention of the Ethics Committee makeup was never to be unfair to any Senate conference, but in its new configuration I expect all appointees from each of the Senate's three conferences will carry out their work just the same -- in a fair and ethical manner."

Political affiliations aside, the ethics committees in both legislative chambers have been repeatedly criticized for failing to police their own houses or put forward any ethics reforms. Instead, critics say, they have been focused on protecting lawmakers from scrutiny, despite pervasive corruption and major ethical lapses. There has been a long parade of state legislators who have left office due to corruption scandal, including, recently, the two legislative leaders, Sheldon Silver and Dean Skelos.

Blair Horner, executive director at NYPIRG, a government reform group, said this move sets an unusual precedent for legislative standing committees, but said ultimately internal ethics committees are no substitute for meaningful independent oversight.

“It’s understandable where they are going, if that’s how they want to enforce their own rules, but what New York needs is independent oversight, and no one -- except [United State Attorney] Preet Bharara -- is talking about that,” he said.

The Senate ethics committee has not met since 2009, when Senator John Sampson was chair, according to the Senate website. Sampson, ironically, was convicted in 2016 on charges of obstructing justice and lying in relation to a federal investigation into whether he had embezzled state funds, and is expected to be sentenced shortly.

U. S. Attorney Preet Bharara, who has overseen the convictions of more than a dozen state lawmakers, including former Senate Majority Leader Skelos and former Assembly Speaker Silver, told the New York Times that the ethics committee’s blank calendar reveals how ineffectual these bodies are.

“The idea that the chair of the ethics committee has never had the opportunity to mark up a bill, has never had the opportunity to hold a hearing tells you everything you need to know about the enabling nature of all the people in the State Legislature who may not have been convicted of crimes, but seem not to care that they’re going on,” he said.

Senator Tony Avella, a Queens Democrat and former committee chair, testified at Skelos’ 2015 corruption trial, that he was surprised to learn that Senate had never referred a bill to the committee and no bill has ever been produced by the committee for a vote.

“You’d think the standing committee would have the ability to have bills referred to it,” Avella told the Times last year. “I think it would be important, for anything that has to do with ethics reform, that it should go to the Ethics Committee.”

But when Avella tried to call a meeting to try to address some ethical issues plaguing the legislature, he told outlets the meeting was canceled over budget negotiations and was never recalled.

Whether this latest restructuring indicates a sign of life from the defunct committee, or results in yet another year of inaction -- one absent of hearings, bills, or proposed reforms  -- remains to be seen.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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Constitutional Convention Absent from Cuomo’s 2017 Agenda


cuomo budget address cameras

Gov. Cuomo (photo: Governor's Office)


Though he has expressed support in the past for a “yes” vote for a constitutional convention on this year’s ballot, Governor Andrew Cuomo’s newly revealed 2017 agenda and 2017-2018 budget provide no indication that such support continues.

Last year, Cuomo backed a constitutional convention in his lone State of the State speech, which was combined with a budget presentation, and he included $1 million in his spending proposal for a preparatory commission. Yet, this year, the issue is notably absent from Cuomo’s $152.3 billion executive budget, unveiled Tuesday, as well as his 149-proposal, 380-page policy book, which was released last week in conjunction with an unconventional, six-speech State of the State tour.

While a spokesperson for the governor told Gotham Gazette that Cuomo still supports a constitutional convention, he made no mention of it during any of his speeches or his budget presentation. In his 2016 speech, Cuomo said, “a constitutional convention that is properly held – with independent, non-elected official delegates – could make real change and re-engage the public.”

On November 7, 2017 – Election Day – New Yorkers who go to the polls will have a ballot question of whether the state should hold a constitutional convention. A majority “yes” vote would lead to a convention that could streamline or significantly modify New York State’s outdated constitutional document and propose changes on issues like campaign finance, redistricting, voter registration, term limits, home rule, and much more. New Yorkers get to vote on whether to hold a constitutional convention once every 20 years.

In his three-day State of the State tour, Cuomo visited cities across New York, touting a populist message aimed at the middle class, delivering his policy agenda directly “to the people” rather than to the state Legislature, as is Albany tradition. At one appearance just before the State of the State tour, he was accompanied by Senator Bernie Sanders – a progressive icon whose 2016 presidential run helped fuel a populist movement – to announce a plan for making city and state colleges tuition-free for middle class New Yorkers.

Yet, Cuomo’s agenda contains nothing on the upcoming constitutional convention vote – just 10 months away – which is a rare opportunity for the public participate in a process that could potentially curb the power of big money in politics. An opportunity for the people to “take their government back” at a time when state government has been plagued by corruption scandals.

Powerful interests -- particularly environmental and labor groups who are fearful that a convention could put at risk environmental protections and public employee pensions -- are already lining up in opposition, as they did in 1997, when the Con Con question was defeated in a landslide.

Meanwhile, legislators have little motivation to implement these reforms, since it is the status quo that effectively put them in office. The $1 million Cuomo proposed last year for a preparatory commission did not make it into the adopted fiscal 2016-2017 budget, likely because of legislative opposition from Assembly Democrats. Such a commission would make process recommendations and examine key issues to be addressed in a constitutional convention, including how delegates are selected and running the convention itself.

Cuomo’s father, former Governor Mario Cuomo, was forced to use an executive order to create a Con Con commission and last year the governor’s office expressed interest in going the executive order route after the money was not included in the budget. None has been announced.

Later last year, in response to criticism that few items in his 11-part plan to clean up Albany passed through the Legislature, Cuomo made the case for a constitutional convention in a New York Times interview, saying it was the only way to close the infamous LLC loophole, which allows virtually unlimited campaign donations from deep-pocketed interests.

Republicans would never agree to such reform, Cuomo said, “because they believe it ends corporate money, and only union money would come into the system, which would help the Democrats.”

He added, “The people are going to have to do it.”

In this year’s State of the State and budget, the governor once again laid out an ambitious plan for government ethics reforms in areas like campaign finance, voter registration, and term limits, but his silence on Con Con may be related to his wanting to maintain the support of labor groups ahead of his 2018 reelection campaign.

A spokesperson for Cuomo did not rule out the possibility of forming a commission through means outside of the budget. “We continue to support a Constitutional Convention and are examining all options and resources available to form a commission,” said Cuomo press secretary Abbey Fashouer.

Bill Samuels, the founder of government reform organization EffectiveNY and a vocal proponent of a Con Con who supported the governor because of his stance on the issue, said he remains hopeful that the governor would identify funds to convene a commission.

“If he is serious about major constitutional change, it's only going to happen through a constitutional convention,” Samuels said. “He clearly has not made a statement ‘I've changed my mind.’ I don't think he’s changed his mind, but he may have changed how active he wants to be,” he added, with a nod toward Cuomo’s looming reelection year.

A major challenge for nonprofits and interest groups pushing for a convention is getting the word out to the public and educating New Yorkers about the issues at stake. Recent polls show that nearly two-thirds of New Yorkers have heard little or nothing about the referendum, though polls also show that the idea does resonate with people. Constitutional convention advocates beyond Samuels expressed dismay over the governor's silence, saying he missed a significant opportunity to engage and educate the public on the upcoming referendum.

“New Yorkers have three chances in a lifetime to get serious attention to the operational structure of their state government and now we have a clear crisis in confidence,” said Gerard Benjamin, political scientist, SUNY New Paltz professor, and longtime advocate for a constitutional convention. “The governor has joined the state Legislature in its efforts to deny the public the necessary info to make the choice.”

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

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