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Should Everything Silver and Skelos Touched Be Reviewed?


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Skelos, Cuomo, Silver (l-r) (photo via The Governor's Office, Jan. 2015)


Former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos were each told by their judge during recent prison sentencing that their corrupt actions have increased public cynicism around state government. Their corrupt actions, they were told, make people question what might have been different in the budgets and policy deals they negotiated, government decision-making that impacted millions. Judge Kimba Wood told Skelos we “can’t know” how his budget advocacy would have differed had he not been corrupt.

In fact, everything that has come through the state Legislature during Silver’s or Skelos’ tenure is open to questioning based on the facts that we now know they were illegally using their public positions for private gain and that nothing goes through either chamber without its majority leader signing off. In the wake of their convictions, every decision either was involved in could be worth reviewing, not that such an investigation is necessarily warranted or welcome.

For years, SIlver and Skelos were two of the “three men in a room” negotiating budget and other deals, approving what legislation came to a vote in their houses and directing policy initiatives. The third man in that equation, Governor Andrew Cuomo, currently faces a vast probe into his administration’s signature economic development program.

As Albany grapples with a wave of corruption convictions highlighted by those of Silver and Skelos, it does so with ethics laws negotiated by two men who have now been sentenced in major federal corruption cases and under the watch of an ethics body they not only helped create but appointed members to. The latest convictions also follow the shutdown of The Moreland Commission on Public Corruption, which was ended prematurely in a deal among Cuomo, Skelos, and Silver.

A Siena poll released on the day of Silver’s early May sentencing found 93 percent of New Yorkers think corruption is a major problem for the state and 97 percent want new laws to combat corruption.

With 16 lawmakers forced from office due to misconduct in the last six years, the nearly simultaneous downfall of the two legislative leaders, and U.S. Attorney Preet Bharara’s continued insistence that everyone “stay tuned,” the questions arise: How tainted were the budget- and law-making processes? Should decisions engineered and shepherded by corrupt officials stand?

Those are questions, according to former Assemblymember Richard Brodsky, currently a Demos scholar, that are in the hands of Governor Cuomo and the Legislature.

“If the governor or Legislature has concerns about the integrity of a law, it can be repealed, re-enacted, etcetera,” said Brodsky. He added, though, “Remember, the motive of a bill's author is what it is. It takes 76 Assembly votes to pass a bill no matter who the sponsor is.”

It is nearly impossible to imagine the governor or lawmakers wanted to revisit decisions made during the tenure of Silver or Skelos to investigate whether certain decisions were made in relation to their scandals.

Gerald Benjamin, professor of political science at SUNY New Paltz, concurred that no matter how powerful Skelos or Silver was, laws passed by the Legislature are the action of “an institution,” not “one legislator.”

Benjamin said he knows of no case where a law was later “examined due to a general charge of corruption.”

Jennifer Rodgers, a former U.S assistant attorney and current head of Columbia Law School’s Center for the Advancement of Public Integrity, said that the Silver and Skelos convictions don’t prove that either of them manipulated legislation. “And the opacity of the proceedings leaves us in the dark as to what they actually did,” she said, referring to Albany’s “three men in a room” decision-making culture. Because of that, Rodgers said repealing a law due to corruption does not seem to be “a realistic avenue to pursue -- you couldn't prove that the bribe caused the legislation to pass or fail.”

Silver, the long-time Democratic Assembly Speaker known for getting his way in budget deals by holding out longer than anyone else, was convicted of sending government money to a doctor who researched cures for mesothelioma in return for the researcher referring patients to a law firm that in turn paid fees to Silver. Able to tap into opaque pots of discretionary money called State and Municipal Facilities Program funding, Silver quietly funded the doctor’s work.

Silver had a similar deal with two real estate firms that moved their business to a law firm that paid Silver in exchange for supporting rent legislation that they backed.

At the time of his misdeeds, Silver was considered by some to be tenants’ best hope in negotiations over rent laws as Senate Republicans favored real estate. Tenant advocates now see many of the actions taken by Silver, including renewing controversial tax breaks for developers and his back-room dealings on the extension of rent regulations, as tainted.

Skelos, meanwhile was accused of extorting three firms with business before the state to employ his son Adam, who rarely showed up to work and often made problems when he did. Those businesses were real estate firm Glenwood Management; an environmental technologies firm, AbTech Industry, which wanted to earn lucrative state contracts having to do with Hurricane Sandy and hydraulic fracturing; and Physicians Reciprocal Insurers, which gave Adam Skelos a $78,000-a-year job. PRI was hoping for favorable action from Dean Skelos on legislation having to do with medical malpractice.

Skelos also benefited from State and Municipal Facilities Program, or SAM, funds. He was able to secure hundreds of millions of dollars in discretionary funding for projects at universities and colleges all over Long Island.

In Albany it is rare for major legislation to move independently. Legislative leaders and the Governor generally have two major sets of negotiations a year: early in the year around the budget, especially in the days leading up to the April 1 deadline, and during the post-budget legislative session, especially the days nearing its June end.

Budget negotiations are notorious for being sorted out in intense, closed-door meetings by the three leaders while rank-and-file legislators remain mostly in the dark. Items included in negotiations rarely adhere to generally accepted budget issues and allow the governor to trade spending increases or threaten cuts for other policies.

In post-budget session, lawmakers usually jam through a “big ugly” deal at the end, again with much secrecy and little time for many legislators or the public to review.

With so much opportunity for behind-the-scenes horse-trading it is impossible to know what exactly was influenced by Silver or Skelos, but it is also impossible to rule out that the corrupt practices they were convicted of didn’t color the major deals they oversaw.

Laws have been challenged in court due to what plaintiffs charge were improper procedures. The gun control package Cuomo pushed in the wake of the Sandy Hook Elementary School shooting faced a lawsuit over the use of a message of necessity. State law requires bills to age three days before coming to a vote. Cuomo issued a message of necessity, saying that introducing the bills and allowing them to age would lead to a rush on gun stores. Courts withheld Cuomo’s use of the message and have generally deferred to the governors on such matters. The governor has repeatedly used messages of necessity to move budget deals through, giving legislators minimal time to review thousands of pages of bill language before having to vote.

“Concerns of disruption and consequences of undoing laws weigh heavily on all of this,” said Professor Benjamin, indicating how unwieldy a review process could be.

Rodgers said that “unwinding legislation is not one of the remedies available in a criminal case.”

Even if it were, she said she sees “A huge problem to this notion of trying to undo legislation (even if it is procedurally possible, which I don't know enough to offer an opinion on), which is proving causation."

Rodgers said “given the lack of transparency of how things are actually passed in Albany,” even if there was a lawsuit brought seeking an injunction on behalf of an impacted company that wanted to undo legislation, “It seems to me that even in a civil court it would be impossible to prove that a bribe, even if the bribe itself was proved beyond a reasonable doubt in criminal court, was the proximate cause of the plaintiff's harm, assuming a plaintiff could even prove harm.”

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

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Wright Runs for Congress as Tenants Champion, to Mixed Reviews


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Keith Wright, Charles Rangel, and others (photo via Wright's campaign)


New York Assemblymember Keith Wright’s congressional campaign has flooded inboxes declaring him a “champion” for tenants. Many see it as an appropriate description for the housing committee chair - his campaign touts the support of “100 tenant leaders” and he has a long history of advocating for renters, starting in the 1980s as the head of the tenant association in Harlem’s Riverton Houses, where he still lives. Wright and his fellow tenants recently settled a lawsuit with their landlord for $2 million after alleging they were charged improper rent and other misdeeds.

One of several campaign emails to supporters seeking donations based on Wright’s tenant advocacy reads: “Keith has been a voice for our neighborhoods for decades. His leadership has made sure that NYC protects and expands affordable housing. He pushes to stand up for tenants and hold NYCHA management accountable.”

Wright is a leader in the crowded Democratic primary to replace retiring Rep. Charles Rangel, who has endorsed him, and he’s very much running on his housing record.

There is another view of Wright held by some tenant advocates and legislators, though, who see him as being an outspoken advocate on housing issues who has failed to turn his bully pulpit and considerable power and influence in Albany into actual results.

These critics maintain that Wright failed to buck former Assembly Speaker Sheldon Silver and Governor Andrew Cuomo and fight for drastic changes to the rent laws that would do away with what they see as incentives for landlords to increase rent and drive out rent-controlled tenants.

In the 13th Congressional District largely made up of Harlem and Washington Heights, Wright is facing state Senator Adriano Espaillat; Clyde Williams, a former adviser to President Bill Clinton; Assemblymember Guillermo Linares; and former Assemblymember Adam Clayton Powell. Appearing the favored establishment candidate, Wright - along with Espaillat and Linares - has faced criticism from Williams and others for connections to Albany and its notorious corruption and dysfunction.

Several tenant groups were excited when Wright took over the housing committee from disgraced Assemblymember Vito Lopez in 2013, but a number of them were quickly disillusioned, representatives say. They believe Wright has simply maintained the status quo and amassed power in anticipation for his run for Congress. They point to Wright’s fundraising records that show he’s taken significant donations from real estate interests and question his loyalty to tenant issues such as doing away with the process by which landlords can deregulate affordable units or ending the 421-a subsidy they call a giveaway to developers.

“The problem with Keith is that he says all the right things but then follows orders, resulting in the ongoing destruction of our rent-regulated housing. And I am disturbed by the staggering amount of real estate money he has amassed for his congressional race,” said Michael McKee of Tenants PAC, which organizes around affordable housing issues and backs like-minded candidates. Tenants PAC does not endorse in national races.

A 2014 study by the Community Service Society, an advocacy group for low-income New Yorkers, found that the city lost 40 percent of apartments for low-income residents over the prior decade.

Wright defended his record in an interview: “As chair of the housing committee we’ve had to work against a very conservative state Senate,” Wright said, referring to the Republican-controlled upper house of the New York Legislature. “Listen, no matter what you do you are not going to be able to please everyone. Sure you get folks who want me to hold up the budget and this that, but I’ve been through those days before and it didn't quite work. If I thought it would work I would do it again. You can’t please everyone.”

As for his major wins, Wright counts his “greatest achievement” as a 2014 lawsuit he filed with his fellow tenants at Riverton Square accusing the landlords of illegally inflating rent, improperly evicting tenants, and overstating the value of the improvements made to apartments. In February the landlord, CWCapital and CompassRock, agreed to a $2 million settlement that will be paid in rent credits (they admitted no wrongdoing).

Wright was also a key player in negotiations of the recent sale of Riverton to A&E Real Estate. Part of the sale included an agreement that A&E would repair homes and include 975 apartments, including Wright’s, in a 30-year affordability agreement.

Two of Wright’s major wins didn’t come legislatively, but instead in actions he took to protect his own housing complex.

Wright rejected the idea that contributions from real estate influenced his fight for stronger rent laws. “Ask him why he’s taken so much Wall Street money and D.C. money,” Wright said, apparently referencing his opponent Clyde Williams, who brought up donations Wright has taken from real estate interests in recent debates. “We’ve all taken real estate money. It has nothing to do with my commitment to the tenants of New York City. I think my record is plain on its face.”

Filings with the State Board of Elections and Federal Elections Commission dating back to 2013 show that Wright has taken tens of thousands of dollars in donations from major real estate and construction interests and their subsidiaries. Real estate groups are known for donating to many state politicians in hopes of influencing policy.

Major donations to Wright from real estate interests include $2,050 from the Real Estate Board PAC; $4,100 from JSignal LLC, which is connected to Cayuga Capital, a real estate management and development firm; $500 from John Banks, president of the Real Estate Board of NY; $2,700 from Eliot Spitzer, the former governor who now focuses on real estate; $5,000 from Empire PAC, which represents real estate interests; $2,500 from REBNY member Daniel Zucker; and a total of $4,200 over three contributions from Donald Capoccia, head of BFC Partners, a development firm that specializes in affordable housing.

Wright’s first action as housing chair in 2013 was to introduce a package of housing bills that included a surprise: renewal of the lapsed J-51 program. The program is intended to provide tax breaks to landlords who make improvements to affordable housing, but tenant groups asserted it was abused by landlords. A study found half of the tax breaks went to owners of market-rate buildings.

“I was named housing chair on a Friday and we had a very large bill that was somewhat controversial that had to be done on Monday," Wright told Gotham Gazette during an interview in February 2013. "I know folks in the tenant movement were upset, they wanted that bill to be used as leverage, but it was a bill for coops, condos, and lofts, and those type of people do live in New York City. We had to do this bill.”

Last year, as rent regulations that govern affordable housing in the city and across the state came up for renewal, tenant groups were hoping Wright and newly sworn-in Assembly Speaker Carl Heastie, a Bronx Democrat, would be able to win significant changes to the rent laws to do away with what they call incentives for landlords to take apartments off of the affordable housing rolls. Instead they say they got tweaks.

The threshold for rent at which a vacant apartment can be deregulated was increased from $2,500 to $2,700. The deal also required landlords stretch out the period they increase tenants’ rent after making major capital improvements. Landlords were also limited in how much they can increase rent between tenants. The wins were seen as small, minimal in comparison to what Cuomo and the Assembly publicly pushed for. Wright said he was nevertheless proud of the changes that were made.

Last year was a not a typical year - both legislative leaders Dean Skelos and Sheldon Silver were indicted during budget season (and later convicted). Rather than a traditional negotiation of the expiring rent laws and 421-a program that gives tax breaks to developers for including affordable housing in their projects, Cuomo allowed real estate and labor interests to negotiate 421-a renewal on their own, outside the Legislature.

Tenant groups say 421-a is a “tax suck” that has been demonstrated to produce very few affordable units and been the subject to major abuse and fraud by developers. Investigations, like one by ProPublica, have proven those claims to be true. Still, Mayor Bill de Blasio and others want to see a new, strengthened 421-a program enacted.

Cuomo attributed giving real estate and labor control of negotiations to the sensitivity of legislators towards the Silver and Skelos scandals that included revelations about the political influence of Glenwood Management, a real estate company that was the state’s largest campaign donor.

Labor and real estate failed to reach an agreement on renewing 421-a, so the program lapsed. Still, Cuomo and other stakeholders appear loathe to let it go, to the dismay of some tenant groups.

Results of the legislative negotiations on rent laws last year were hailed as “historic” by Cuomo, but tenant groups found it lacking. They say it basically cemented the status quo allowing landlords to steadily raise rents and move apartments off the affordable housing rolls.

"We pretty much got nothing," said Delsenia Glover, director of Alliance for Tenant Power, said at a press conference in Albany in early April. "At the time Governor Cuomo said they were the 'strongest rent laws in history.' It's not true, we got nothing."

Glover, who is from Harlem, does not blame Wright for the rent law negotiations. “Keith is extremely supportive,” Glover told Gotham Gazette in a recent interview. “He was one of our lead champions last year along with Speaker Heastie. He worked as hard as he could on the rent laws.”

The focus of Alliance for Tenant Power’s April press conference was demanding that if Albany does decide to find a replacement for 421-a that they must also reopen negotiations on rent laws. Glover says lawmakers should end current rules that incentivize landlords to make apartments unaffordable.

“Instead of discussing benefits for rich developers, all attention should be on fixing the major loopholes in the rent regulation system that houses 2.5 million tenants in approximately 1 million units with no cost whatsoever to the taxpayer,” Glover wrote in an April op-ed at Gotham Gazette.

Glover and other tenant groups deride the idea of any replacement for 421-a. Wright attended the press conference and appeared to agree, despite the fact he introduced what many tenant advocates saw as a direct replacement. Wright proposed a program that would provide $100,000 to developers per affordable unit they build that would be funded by the state abandoned property fund.

Wright said at the time that the bill was negotiated with the Real Estate Board of New York the NYS Association for Affordable Housing, and the Building & Construction Trades Council. All three groups indicated to the Daily News at the time that they didn’t actually support the plan.

“I’m sorry the press picked it up as a replacement for 421-a,” Wright told Gotham Gazette, implying that his plan was not aimed to be such and that a lack of enthusiasm for it was the result of that mistaken characterization.

Asked for her take on Wright’s plan, Glover demurred, saying, “You’d have to ask someone who was in the room.”

Barika Williams, deputy director of the Association for Neighborhood and Housing Development (ANHD), praised Wright for bringing together disparate groups to discuss the creation of “a tool” to spur the creation of affordable housing. “It was a unique table that brought together different parts of the for-profit and nonprofit set. You saw a lot of people who don’t normally sit at the same table. We were looking at achieving the deepest affordability and trying to target resources to those buckets of the population that are desperately in need.”

Williams said that in the end all of the groups may not have been on the same page because not all the groups involved were present for the entire process. “It was a long process that took commitment and being consistently involved for over two months.”

Wright has been criticized by advocates and fellow legislators for not being properly versed in the bills he supports. He’s also been criticized for being too close to Governor Cuomo.

Wright said he would love to see the rent laws reopened for negotiation this year.

City & State NY recently reported that Tom Cayler, chair of the West Side Neighborhood Alliance’s Illegal Hotel Committee, was unhappy with a bill Wright carries that is technically designed to deal with illegal hotels.

Wright’s bill would create a process by which permanent residents of certain apartment buildings could register to rent their apartments in the short term - similar to how Airbnb functions.

Cayler said the bill would simply allow residents to rent their apartments as “illegal hotels,” rather than ending the practice. There is a good deal of pushback against Airbnb in Manhattan. The group met with Wright and were asked to send him a memo with their concerns. They say they never heard back.

“It was really shocking to us that he didn’t actually seem to know much about the bill he had his name on,” Cayler told City & State. “He was not well-informed about it. His chief of staff was the one who knew about this particular bill.”

Wright’s spokesperson Emma Forbes told City & State that the bill was designed to increase transparency and that the bill had yet to move because there wasn’t “consensus” from residents and stakeholders.

Asked about Cayler’s criticism Wright told Gotham Gazette: “I thought he was somewhat misinformed.”

Wright said his door is always open and he is willing to discuss legislation.

WIlliams, of ANHD, countered the idea that Wright was ill informed about legislation. “I think from our experience Assemblymember Wright understands the complexity of housing and the complex mix of interests that are involved. With all of that in mind, his goal always seems to be thinking about deep affordability and how to help those folks in New York City who are struggling and who are the most underserved.”

Asked if he expects legislation on illegal hotels to move this session, which ends in mid-June, Wright replied, “The bill is in my name in a committee I head and I control the bill and it hasn’t moved.” “So if it quacks like a duck...,” he added, implying there was little chance the bill would advance.

Wright said he is proud of his record as a tenant advocate and that despite the overwhelming support he has received from the Democratic establishment, including words of support from former President Bill Clinton and formal endorsements from Gov. Cuomo, Speaker Heastie, and Rep. Rangel, he does not take it for granted that he will be leaving Albany for Washington. “We have a lot to do here,” Wright said, adding that should he be elected to Congress his main focus will be on changing the definition of area median income because of the way it impacts affordable housing in the city.

“The reason I’m running is to change the definition of area median income and the way it is put forward with affordable housing,” said Wright. “The housing that is being built is called “affordable,” but it's not affordable to anyone I know or even me.” (Wright, who lives in rent-stabilized housing, has an Assembly salary of $79,500, not including the stipend he receives for heading the housing committee, and he has served for 24 years.)

Citing the fact that the AMI used for New York City to determine rent thresholds takes into account Westchester and Rockland counties, greatly increasing the number, Wright said that reform would benefit city residents.

“Changing the definition is what I want to do the first day I get to Congress, most definitely,” said Wright.

New Yorkers are tired of seeing condos going for millions of dollars while they worry about paying the bills and staying in their neighborhood, Wright said.

“The people of Harlem shed blood, sweat, and tears to make their neighborhood a safe place to live,” Wright said. “People are scared to death their children won't be able to afford to live in the neighborhood because it won’t be affordable.”

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by David King, Albany editor, Gotham Gazette
     

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Sponsor Says Deal Reached to Eliminate 'Tampon Tax'


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Assembly Member Rosenthal, right, and Council Member Ferreras-Copeland (photo)


A difference of a few words is all that stands in the way of New York State becoming the sixth in the nation to exempt feminine hygiene products from state sales tax, though that could soon change. The Assembly sponsor of the bill, Assemblymember Linda Rosenthal, told Gotham Gazette on Thursday that she and state Senator Sue Serino, the Senate sponsor of the bill that has slightly different language, have agreed on new amendments that will make their bills identical.

However, Serino’s office declined to comment as to whether or not the two had actually reached an agreement, raising doubts about whether a compromise had truly been reached on an issue that is so strongly supported that both houses unanimously passed the bills to eliminate the so-called ‘tampon tax.’

Rosenthal said that, having agreed upon a few amendments to the legislation, the bill will head to the Governor “probably next week” after moving through both houses. Rosenthal is in the Assembly’s Democratic majority, Serino in the Senate Republican majority. Governor Andrew Cuomo, a Democrat, has already expressed his support for the legislation and will sign a bill to exempt feminine hygiene products from the tampon tax if and when it does reach his desk. The Legislature has just 15 days of legislative session left before its June end.

In March, the Assembly passed Rosenthal’s bill to exempt “feminine hygiene products, including, but not limited to, sanitary napkins, tampons, and panty liners,” from the state sales tax. In February, Serino introduced the same bill as Rosenthal, yet amended it some time after “to specifically exempt sanitary napkins and tampons from the tax,” according to a press release from Serino’s office. The Senate then passed that more limited version of Serino’s bill in April.

News of the bill’s passage in the Senate was met with celebration, and many outlets incorrectly reporting that the same bill had passed both houses and was heading to Cuomo’s desk.

Yet, the slight but significant difference between the two bills means legislation to eliminate the tax on feminine hygiene products can’t be signed into law by Cuomo - not until the language is identical.

According to Rosenthal, after speaking with Serino last week, the two agreed upon a few amendments to the bills that would make the two identical. “We put back other feminine hygiene products and added panty liners,” Rosenthal said on Thursday. The tax exemption “will include feminine hygiene products, including, but not limited to, tampons, sanitary napkins, and panty liners, because the world of products to meet the needs of women menstruating is actually expanding right now, so we didn’t want to have to revisit this at some point. It will be done,” Rosenthal said.

Organizations like NOW-NYC and the Campaign for a Pro-Choice New York (both of which either supported Rosenthal’s bill or lobbied for its passage) would prefer the more inclusive language of Rosenthal’s bill become the law.

“Obviously it’s always better if it’s more inclusive, but I don’t know what the mechanics of putting it into place are,” Jean Bucaria, deputy director of NOW-NYC, told Gotham Gazette.

“In instances like this, we of course support the broadest possible version of this legislation that helps the most people,” said Danielle Castaldi-Micca, director of political and governmental affairs for the Campaign for a Pro-Choice New York.

It may be the case that Serino and other lawmakers prefer the more specific language of the Senate bill because the fiscal impact of exempting only those two products (pads and tampons) from the state sales tax is easier to predict and account for.

However, both Bucaria and Castaldi-Micca believe a compromise is likely to happen. “I have confidence that they’re going to get to a point of agreement and a single bill that the governor can sign,” Castaldi-Micca said. In Albany, deals are often elusive until the very end of session, when a bill package known as a “big ugly” gets passed at the last minute before lawmakers leave town for the rest of the year.

Besides amending the language of the bill to leave room for less-common, reusable menstrual products like sponges, cloth pads, and menstrual cups, Rosenthal says she and Serino have also agreed on an amendment to change the time when the exemption will go into effect, and an amendment to make the exemption exist in it’s own section of the tax code, rather than lump the exemption for feminine hygiene products in with exemptions for medical products.

Initially, the bill was to go into effect immediately, but “we changed that because there are four state tax reporting periods, so it will go into effect during one of those, it’s just easier to align it,” Rosenthal said.

In tax law, the coming exemption for feminine hygiene products, Rosenthal says, “stands on it’s own, it’s its own little section, it’s not connected with the other tax exemptions. It was a regressive tax on women and their bodies and it’s related to a natural biological function, so it shouldn’t be viewed as a medical problem or anything else, so it has it’s own line - section 3A.”

It seems some movement has indeed been made on Rosenthal’s version of the bill - according to the Senate website, on May 11, the bill was recalled from the Senate, returned to the Assembly, and amended on third reading. The latest version of the bill in the Assembly does indeed include all of the amendments Rosenthal mentioned above: it would take effect on the first day of a sales tax quarterly period; it would add a new section to the tax code, rather than lumping it in with drugs and medicine; and it maintains the more inclusive language.

These amendments have not yet been included in the Senate version of the bill, according to the Senate’s website, and no changes have been made to the bill since it passed in the Senate last month.

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by Meg O'Connor, Gotham Gazette
     

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