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James Wins Battle in Long War Over Public Advocate's Legal Standing


Tish James presser vets

Public Advocate Letitia James (photo via @TishJames)


The Public Advocate’s office was created in 1993 to give a voice to everyday New Yorkers and act as checks on the authority of the Mayor and the function of city agencies. Letitia James, the fourth New York City Public Advocate, has made litigation a major tool in her attempt to fulfill the office’s mandates. James, who has a background as an attorney and has hired several lawyers to her staff since taking office in 2014, has fought the city and its agencies in the courts with mixed success. James’ aggressive use of litigation has raised the question of what legal standing the Public Advocate has on behalf of all New Yorkers.

After multiple occasions where she was either bumped from lawsuits for lack of standing or she withdrew, within the last few weeks James declared victory in two cases where judges recognized her capacity to sue the city. The decisions have served to embolden James in her commitment to legal action and also possibly set a precedent for the powers of her office.

The debate and the proceedings over the legal powers of the Public Advocate are far from over, though, as the de Blasio administration plans its appeals and is likely to move to dismiss legal action from James in the future. Mayor Bill de Blasio, a political ally of James and James’ predecessor as Public Advocate, is also not ready to accept the Public Advocate’s blanket ability to sue the city.

“I think it’s case by case, that’s my understanding,” de Blasio said Sept. 6 when asked by Gotham Gazette at a news conference about the most recent decision. “That was not a blanket assessment, that was about that case,” he added.

James doesn’t agree with de Blasio though. "By its very nature, a judge's ruling sets precedent for the future and this most recent decision affirms the Public Advocate's capacity to sue to protect the rights of New Yorkers,” the public advocate said in a statement to Gotham Gazette.

Future cases will either cement the litigious powers of the office or not. Meanwhile, former office holders and legal experts are mixed on the extent to which the Public Advocate can litigate against the City.

The two court rulings that have bolstered James, though, were delivered in August in separate lawsuits initiated by James against the New York City Department of Education and the City of New York. They affirmed and reinforced the legal capacity of the Public Advocate to sue the city.

The most recent decision came on August 30 when a New York County Supreme Court judge issued a ruling on the viability of a lawsuit brought by James against the Department of Education over the lack of air-conditioning on school buses for students with disabilities. The court found that the Public Advocate’s mandate “would include an obligation to explore a serious health problem affecting disabled children of the City and attempt, with the help of the Court, to remedy that problem.” It held that the case could move forward since James had the legal capacity to sue, which the de Blasio administration had argued against in seeking to dismiss the case.

A Law Department spokesperson confirmed that the City will appeal the court’s decision that favored the Public Advocate’s right to sue on behalf of New Yorkers and in conducting the office’s duties. “The DOE is committed to ensuring air-conditioned buses to all students who require them and that any concerns are immediately addressed," the spokesperson said in a statement.

Earlier, on August 11, James hailed another court decision that found her office could compel the DOE to respond to her concerns over its failure to effectively track the needs of students with disabilities in the city’s school system.

These are only the latest in a number of judicial decisions over the years that have in turns enhanced the powers of the Public Advocate and also defined the limits of the office’s jurisdiction in certain cases. James’ litigation, largely aimed at the de Blasio administration, puts the mayor and former public advocate in the unique position of regularly opposing his successor’s claims and even right to sue. The current dynamic is also the first time in the history of the Public Advocate office that the Mayor and Public Advocate are of the same party -- de Blasio and James are both Democrats.

Public Advocates have often used litigation as a tool to take the city and its many agencies to task, and in doing so have managed to expand the jurisdiction of the office, which remains unchanged in the City Charter. The charter does not expressly give the public advocate the right to bring a lawsuit, but it does not forbid it either.

Mark Green, the city’s first Public Advocate, depended on his experience as a lawyer to bring suits against the City. During his tenure, he won two major victories that established precedent for the Public Advocate’s capacity to bring legal action. James has cited these rulings in court to push back against the City’s attempts to dismiss her cases.

The first was Green v. Safir in 1997, in which Green sued then-NYPD Commissioner Howard Safir for access to the police department’s disciplinary case files for officers with substantiated complaints against them. An appellate court that ruled in Green’s favor held that he had standing to do so to further an investigation.

In the second case, Green v. Giuliani in 2000, the public advocate sought a judicial inquiry into then-Mayor Rudolph Giuliani for disclosing information from the sealed juvenile record of an unarmed African-American man who was shot dead by an NYPD officer. The New York County Supreme court stated in that case that the Public Advocate is an independently elected official with the capacity to sue.

“Those two cases, especially, confirmed that the Public Advocate could bring lawsuits in order to exercise its power as the city’s ombudsman,” said Green, in a phone interview with Gotham Gazette. “That doesn’t mean the Public Advocate can sue anybody for anything, but can, as we did in the Green v. Safir case, compel the city government to disclose information that should be in the public arena.”

In a later case involving Long Island College Hospital, which was initiated by de Blasio when he was Public Advocate, the Kings County Supreme Court ruled that the Public Advocate had the right to intervene and help choose the next operator of the facility since it was in the community’s interest. The case was inherited by James. 

Over the course of several public advocates, the office has, however, hit walls in certain instances, showing the limits of its power. When former Public Advocate Betsy Gotbaum sought to intervene in a legal dispute involving the Metropolitan Transportation Authority (MTA), a court ruled that she did not have the capacity to challenge decisions made by a state entity. And when Public Advocate James tried to compel the release of grand jury transcripts in the Eric Garner case by suing then-Staten Island District Attorney Daniel Donovan, she was denied on the grounds that her charter duties do not extend to criminal investigations. There have been other lawsuits that James has been involved in that were also unsuccessful, wherein she either withdrew or was dismissed.

The Public Advocate office over the years has been defined by its holder and each has opted to use litigation as a tool, to varying degrees. The office has a relatively small budget, which was actually cut under Mayor Michael Bloomberg and partially restored since de Blasio has been Mayor. Some have called for the office to receive so-called independent budgeting wherein it receives a set percentage of the overall city budget and is therefore not susceptible to an unfriendly mayor or City Council.

“The office of the public advocate almost always reflects the personality and priorities of the incumbent,” said Green. “So I did turn it into a sort of Nader’s Raiders public interest organization reflecting my history,” he said, referring to his role in a volunteer activist group of law students created by former independent presidential candidate Ralph Nader. But Green insisted that litigation was not necessarily the “major tool” of the office. “The ability to bring lawsuits is important but not the core function of the Public Advocate’s office, which is monitoring city agencies, answering complaints on city government and proposing new laws and ideas to make city government more accountable.”

James has been more active in her use of litigation. Now in the third year of her first term, she has been a plaintiff in 11 lawsuits so far and filed numerous amicus briefs in other cases. In contrast, de Blasio initiated only three suits while he held the post for one term, according to a spokesperson for the public advocate.

James has brought to bear her experience as an assistant attorney general and public interest litigator, initiating action on the behalf of members of the public to challenge the performance of city agencies. She said she has redesigned the office of the Public Advocate, raising awareness of its role and capacity in advocating for New Yorkers through a three-pronged approach.

“When I was elected, my vision was advocacy work, litigation and investigatory work,” James told Gotham Gazette. Feeling good about the advocacy and litigation efforts thus far, she said, “In my next term, I want to advance the investigative power of the office including forensic audits to determine the effective of city agencies and programs.” James is up for reelection in 2017.

She points to the victories won by Green and de Blasio as affirmation of her office’s broader ambit, and is bolstered by the recent decisions in her favor as evidence of the effectiveness of litigation. Following the August 11 decision, she told Gotham Gazette, her office is better placed to bring legal action that could also be recognized by higher courts. “I would imagine that a lot of judges will look to that as paramount to our ability to bring lawsuits,” she said.

The de Blasio administration has attempted to stymie many of James’ lawsuits by arguing that cases be dismissed because they are out of the Public Advocate’s purview. It was the same tactic that de Blasio was on the other side of in the Long Island College Hospital case.

Judicial decisions show that the office’s charter-mandated authority is open to interpretation even if its architects did not intend for it to be so. The City Charter establishes the role of the public advocate in monitoring city agencies and their response to complaints from the public; proposing means of improving response to complaints; and fielding, investigating, and redressing individual complaints as well.

One expert on the City Charter said the language in the section that states the Public Advocate’s duties could construe broader authority for the office and that legal standing for lawsuits would exist in cases involving those core powers. “Tish James has been very structured in her approach,” said the expert, who requested anonymity to remain out of public legal and political disputes. “Her view and interpretation of her office’s role includes legal advocacy and impact litigation.” (This legal expert also noted a peculiar conflict in the way the Public Advocate’s office relates to the city’s Corporation Counsel, the head of the Law Department, pointing out that the Corporation Counsel is the attorney on record for both the City of New York and the Public Advocate, and is often on the opposing side of litigation brought by the Public Advocate.)

But Eric Lane, dean of Hofstra Law School, doesn’t believe the Public Advocate’s duties can be interpreted broadly. Lane was executive director and counsel to the New York City Charter Revision Commission between 1986 and 1989 and oversaw the very provisions that established the powers of the public advocate.

Lane said the Public Advocate’s job should be to oversee and report on the system, to be the “public critic” who should only use legal action to further the completion of his or her duties. “I agree that [James] has the right to sue to gain access to information to allow her to fulfill her oversight obligations under the Charter, but I don't believe that Charter provides the Public Advocate with the authority to sue ‘to protect the rights of all New Yorkers,’” Lane told Gotham Gazette, referring to a statement put out by the public advocate’s office after the August 30 ruling. “I think this is inconsistent with the Charter scope of her job and problematic,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Council to Hear Bill Mandating Publication of NYPD Patrol Guide


Garodnick NYPD

City Council Member Garodnick, in NYPD hat, & colleagues (photo: William Alatriste)


A bill introduced by City Council Member Dan Garodnick to require the NYPD to publish its patrol guide online will be heard for the first time by the City Council’s Committee on Public Safety next week. The hearing, set for Thursday, September 15, follows shortly on the recent controversy over the Right to Know Act, a package of police reform legislation that Council Speaker Melissa Mark-Viverito put on the backburner in favor of related changes the NYPD agreed to implement through training and its patrol guide.

The compromise struck between Mark-Viverito and NYPD Commissioner Bill Bratton upset some Council members and police reform activists, while also drawing renewed scrutiny to the NYPD patrol guide.

While Mark-Viverito has insisted the Right to Know Act bills are not off the table permanently and some call for Council members to push for their passage without her agreement to schedule a vote, Garodnick’s patrol guide bill is moving forward, and appears to have widespread support. After being heard in committee the bill can be amended and then voted through committee and the full Council - if it has enough support.

While police and government reform advocates alike call for more transparency around police officer conduct, publishing the patrol guide online may be one fairly simple measure that most, if not all, stakeholders can agree on.

The NYPD patrol guide lays out procedures and codes of conduct for police officers, including protocols for interactions with the public. Free but outdated versions of the guide are available online. In 2014, Shawn Musgrave, a reporter for MuckRock, obtained a copy through a Freedom of Information Law request, albeit after significant back and forth with the department. (Local writer and political organizer Keegan Stephan also posted the same version on his blog in April this year.) The current guide can also apparently be purchased online, at this officer uniform store and through this publisher, for between $55 and $70. Garodnick’s bill, introduced in March of 2015, would require the police department to make the full patrol guide available on their website free of cost, but would exclude portions on non-routine investigative techniques, confidential information or any information that would compromise an officer’s safety or that of the public. The police department would have to update the guide each time an amendment is made, clearly noting the changes along with their effective dates. The bill would go into effect 90 days after it is signed into law. 

“The Police Commissioner supports posting the Patrol Guide on the Department's website,” said an NYPD spokesperson in a statement to Gotham Gazette, also confirming that department personnel will testify at the Sept. 15 hearing. (Coincidentally, Bratton’s last day at the NYPD is set for Sept. 16; he announced his retirement earlier this summer. Bratton has often clashed with the Council on police reform and oversight.)

Garodnick called his bill an “important transparency initiative” for the police. “This bill will help build the trust that some feel is lacking between the police and communities,” he said in a phone interview with Gotham Gazette. “It will also add accountability because New Yorkers will be able to know what to expect in interactions with the police and be better equipped to speak up” if there are any violations, he said.

It will also help the police department, Garodnick said, in ensuring that the public understands the rules. Mark-Viverito appears to be backing the bill. “This is part of our continued push to reform the NYPD to make it more transparent,” said Eric Koch, spokesperson for the speaker, in a statement.

Publishing the patrol guide is unlikely to quiet those calling for passage of the Right to Know Act, but it would bring more light to the new directives being given to officers for carrying out street stops, among other updates that have recently been agreed upon, such as the use of civil summonses instead of criminal summonses or arrests for a variety of non-violent, low-level offenses.

Incoming Police Commissioner James O’Neill, who will take over the department when Bratton departs, has said he is fully supportive of the Right to Know compromise.

The legislation in the Right to Know Act would require police officers to identify themselves by name, rank, and command if a street stop does not result in an arrest and requires an officer to obtain consent to search a civilian, a vehicle or house and inform a civilian of their right to refuse consent for a search if there is no probable cause. The bills were strongly opposed by Bratton on behalf of the NYPD, and thus the de Blasio administration. Mark-Viverito did not agree to schedule a vote on the bills, which had a committee hearing on June 29, 2015.

Instead, Mark-Viverito struck an administrative compromise with Bratton to implement aspects of the two bills through department training and the patrol guide. In a recent interview with Gotham Gazette, Mark-Viverito defended the compromise as progress, explaining that the Council had moved the NYPD from its strong opposition toward middle ground. Police reform advocates have criticized the agreement, pointing out that the NYPD is particularly opaque when it comes to its patrol guide.

“Editing training and patrol guide language will never deliver real change on the ground to end the police abuses that the Right to Know Act would help end, and the Speaker’s deal to gut and seek delay of the reforms certainly will not,” said Anthonine Pierre, lead community organizer for Brooklyn Movement Center, in a statement.

Brooklyn Movement Center is a part of Communities United for Police Reform, a coalition. “Transparency is needed on a range of fronts with the NYPD and Council Member Garodnick’s efforts to advance that regarding the patrol guide are positive, but it’s troubling that this transparency bill was not provided with a hearing until public scrutiny of Speaker Mark-Viverito’s deal that lacks transparency and deficiently relies on the patrol guide,” Pierre said. There is no evidence that the hearing comes as a result of the Right to Know Act compromise.

Amid the criticism of the deal, Politico New York recently reported that the NYPD was speeding up its estimated timeline for implementing the compromise by six months. According to Politico, NYPD sergeants were to receive training on updated search protocols as early as August 26 and would relay that to officers in the next few weeks. A second “reinforcement” training was planned for September, with the department expecting the patrol guide to be updated by October 15.

At a recent news conference on the steps of City Hall, government reform group Citizens Union pointed to the lack of transparency with the patrol guide. The group released a set of proposals to improve police accountability; among them, making the patrol guide freely accessible to the public.

“I’m surprised that it even takes a law,” said Council Member Rory Lancman, a vocal proponent of police reform and a co-sponsor of the bill. “It seems obvious that it should be available to the public except in rare circumstances where that compromises public safety.”

Lancman said making the patrol guide public has been an issue for years, and not just since the Right to Know controversy. “One would have thought that de Blasio, on taking office, would have published it without needing to be forced through legislation three years into his term, to do so.”

Lancman expects the hearing to go smoothly and that the bill will receive overwhelming support. “There’s no reason the NYPD shouldn’t be transparent in this way,” he said.

***
by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

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

The Week Ahead in New York Politics, September 6


New York City Hall

New York City Hall


What to watch for this week in New York politics:

After a Labor Day weekend with storm scares from Hermine that mostly proved to have little impact on New York, things kick into gear on Tuesday. On Monday, Mayor Bill de Blasio, Governor Andrew Cuomo, and a variety of other officials marched in the West Indian Day Parade in Brooklyn. Before marching, de Blasio and NYPD Commissioner Bill Bratton answered questions about violence during the pre-dawn J'Ouvert celebration, which city and community officials had taken additional measures to avoid this year. Two people were killed in shooting that also injured at least two others.

On Tuesday, de Blasio will hold a press conference with Bratton and other NYPD officials to "discuss crime statistics," at 1:30 p.m. at NYPD headquarters. Presumably, they will be discussing August crime numbers and year-to-date crime through the first eight months compared to last year through the same period.

Prior to that, at 11:30 a.m. de Blasio and First Lady Chirlane McCray will appear on The View on ABC television.

Meanwhile, Tuesday marks one week until the state legislative primaries in New York.

Thursday is the first day of the school year for most New York City schools, expect Mayor de Blasio and others to mark the occassion with several events.

After a typically quiet August, the City Council swings back into action this week for what promises to be a busy Fall. Council committee hearings get going on Wednesday, and the Council will have its first of two full-body Stated Meetings of the month next week, on Wednesday the 14th.

Sunday September 11 is the 15th anniversary of the terrorist attacks of September 11, 2001.

There's a good deal happening during this Labor Day week, with several events to be aware of - see our day-by-day rundown below.

***Do you have events or topics for us to include in an upcoming Week Ahead in New York Politics?
e-mail Gotham Gazette editor Ben Max: This email address is being protected from spambots. You need JavaScript enabled to view it.***

The run of the week in detail:

Monday: Labor Day

Tuesday
Tuesday marks one week until the state legislative primaries in New York. It is the third of three primary days this election year in New York, after the April presidential primaries and June congressional primaries. Read several of our recent articles on the elections:

"On Tuesday at 8:45 AM, Brooklyn Borough President Eric L. Adams will host his annual 9/11 Remembrance Ceremony in the Rotunda of Brooklyn Borough Hall, bringing together the families of victims and fallen heroes with citywide leaders and local residents. The event, commemorating the 15th anniversary of the attack on the World Trade Center, will feature interfaith prayers, readings and tributes by surviving family members, and selections from the Brooklyn Conservatory of Music. There will be moments of silence coinciding with the time of the towers’ collapse; the silence observed at 9:58 AM in memory of the fall of the South Tower will be followed by the lowering of the American flag atop Brooklyn Borough Hall as well as the placement of a remembrance wreath outside the building by Borough President Adams and victims’ families. Borough President Adams, who served in the New York City Police Department (NYPD) during 9/11, will speak about terrorism’s enduring impact on Brooklyn and New York City. Other citywide leaders scheduled to address the ceremony include NYPD Commissioner William J. Bratton, FDNY Commissioner Daniel Nigro, NYPD Chief of Department James O’Neill, FDNY Chief of Department James E. Leonard, and United States Army Garrison (USAG) Fort Hamilton Commander Colonel Peter Sicoli."

On Tuesday morning's The Brian Lehrer Show on WNYC at about 10:30 a.m., Carmen Fariña, New York City schools chancellor, will discuss Thursday's first day of school and talk about the issues facing city schools and what to expect this year.

On Tuesday at 11 a.m. at City Hall, there will be a “press conference to announce filing of amicus briefs by elected officials and community groups in support of state court decision ordering release of Officer Pantaleo’s misconduct record summary.” Pantaleo was the officer who put Eric Garner in a fatal chokehold. Participants will include Gwen Carr, mother of Eric Garner; Manhattan Borough President Gale Brewer; City Council Members Ritchie Torres, Brad Lander, Robert Cornegy and Andy King; Tina Luongo, Legal Aid Society; Donna Lieberman, New York Civil Liberties Union; Communities United for Police Reform and others.

On Tuesday at noon at City Hall, Public Advocate Letitia James will deliver remarks at a press conference calling for Halal and Kosher food in city public schools. At 6:30 p.m., James will deliver remarks at a press conference with tenants at 888 Grand Concourse in the Bronx.

At 1 p.m. Tuesday, the City Planning Commission will hold a review session.

At 1 p.m. Tuesday, State Comptroller Tom DiNapoli will release a report on Lower Manhattan’s economy. He’ll be joined by other elected officials and area representatives at 150 Broadway.

At 6:30 p.m. Tuesday, the Brooklyn Historical Society is hosting a book talk: ”Renee Dinnerstein on Choice Time: How to Deepen Learning Through Inquiry and Play, Pre-k to 2.” Dinnerstein will talk about her new book, and will also talk with Brooklyn New School Principal Anna Allanbrook about “the challenges of bringing progressive instruction into New York City schools.”

Wednesday
On Wednesday, City Council Speaker Melissa Mark-Viverito at the 2016 Global Social Economy Forum in Montréal, Canada, where she will speak during two sessions, including one on participatory government.

At the City Council on Wednesday:

  • The Subcommittee on Zoning and Franchises will meet at 9:30 a.m.
  • The Subcommittee on Landmarks, Public Siting, and Maritime Uses will meet at 11 a.m.
  • The Subcommittee on Planning, Dispositions, and Connections will meet at 1 p.m.

At 10 a.m. Wednesday, the City Planning Commission will hold a public meeting.

At 11 a.m. Wednesday, the New York State Legislature will hold a public hearing on water quality and contamination. This hearing will happen in the Legislative Office Building in Albany. It is the second of three water contamination hearings scheduled by the state Legislature and the first that is a joint Assembly-Senate hearing.

At 6 p.m. Wednesday, the Manhattan Institute will host a lecture from New York University Law Professor Richard A. Epstein on how former Attorney General Eliot Spitzer and current Attorney General Eric Schneiderman have used and overused New York’s Martin Act. This Act was passed in 1921 to deal with financial fraud, but has been used quite frequently in recent times.

At 6:30 p.m. Wednesday, the Brooklyn Historical Society is hosting “Race and History: An Evening with Annette Gordon-Reed.” This event is a part of the Brooklyn Historical Society’s “Race and History” series.

At 7:30 p.m. Wednesday, State Senator James Sanders, Jr. will host a workshop on financial management, especially suited for small business owners and operators.

Thursday
Thursday is the first day of the new school year for traditional public schools in New York City.

At 8:30 a.m. Thursday, the Association for a Better New York will host a breakfast event featuring Chair of the City Planning Commission Carl Weisbrod.

At 10:00 a.m., the New York State Department of Financial Services will hold a public hearing related to Anthem Inc.’s acquisition of Cigna Life Insurance Company of New York.

At the City Council on Thursday:

  • The Committee on Contracts will meet at 10 a.m. to go over a “resolution condemning all efforts to delegitimize the State of Israel and the global movement to boycott, divest from, and sanction the people of Israel.”
  • The Committee on Land Use will meet at 11 a.m. to look at the land use issues discussed at meetings the previous day.
  • The Committee on Rules, Privileges, and Elections will meet at noon on “submitting the name of Hari Savitala to the Council for its advice and consent regarding his appointment to the Environmental Control Board.”

At 6 p.m. Thursday, the New York City Bar Association will host "The Road To the Court of Appeals: Demystifying the Process": The Commission on Judicial Nominations to Hold Open Discussions about Nomination Process.” One member of the New York State Court of Appeals is supposed to retire at the end of this year. 

At 7 p.m. Thursday, the Brooklyn Historical Society will continue its #LetsTalkFeminism series with “Are We There Yet? The Illusion of a Post-Sexist Society.” Speakers will include Marcia Gillespie of Ms. and Essence; Anna Holmes of Jezebel; and Muthoni Wambu Kraal of Emily’s List. President and CEO of the Ms. Foundation for Women, Teresa Younger will moderate the discussion.

Friday and the weekend:
On Saturday at 9 a.m., the New York City Charter School Center will host “Dignity for All Students Act Training: Harassment, Bullying, Cyberbullying, & Discrimination in Schools.”

Sunday September 11 is the 15th anniversary of the terrorist attacks of September 11, 2001.

The Postcards Memorial in Staten Island will host a ceremony at 6:30 p.m. on Sunday to commemorate the lives of Staten Islanders lost on September 11, 2001.

***
Have events or topics for us to include in an upcoming Week Ahead in New York Politics? E-mail Gotham Gazette executive editor Ben Max any time: This email address is being protected from spambots. You need JavaScript enabled to view it. (please use "For Week Ahead" as email subject).

***
by Brendan Birth and Ben Max
@GothamGazette



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