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Diaz Jr. Submits Charter Revision Testimony Focused on Land Use and Police Accountability


ruben bx brf

(photo: office of Ruben Diaz Jr.)


One week after the 2019 Charter Revision Commission held its final hearing in the Bronx and one day after its last borough hearing, but before the commission decides what proposals it will put before voters this fall, Bronx Borough President Ruben Diaz Jr. released his testimony to the commission on Wednesday.

While the 15-member charter commission, on which Diaz Jr. has one appointee, is considering a wide range of possible changes to city governance and elections, Diaz Jr. focused his written testimony on two crucial measures: land use and planning, and the Civilian Complaint Review Board (CCRB), which performs police oversight. He also touched on budgeting for the borough president offices. His testimony is in large part a reaction to the charter commission’s preliminary staff report, which helped narrow the commission’s likely focus areas as it headed into the now-completed final round of borough hearings and more deliberations.

Diaz Jr. is calling for more community input in land use matters, but not sweeping reforms to the process, and for more power for the CCRB, though he did not come out in favor of a popularly-elected CCRB (its members are currently appointed by several public officials). The CCRB was the focus of significant attention during the Bronx hearing of the charter commission held May 7, at which Diaz Jr. did not appear. And Diaz Jr. wants the charter to codify protections for budget allocations to the borough president offices.

While Diaz Jr. agrees with parts of the commission’s preliminary report on land use, he called the city’s current Environmental Quality Review (CEQR) process “insufficient.” He called for more comprehensive reviews of potential displacement from a proposed change in land use rules or a development project. Currently, the CEQR rules do not trigger a socioeconomic impact review until 500 residents or 100 jobs are at likely risk of displacement. Diaz Jr. called for a “lower threshold of estimated residential or commercial displacements,” but did not specify a number.

Diaz Jr. also recommended that the Charter Revision Commission “explore” a requirement for the chair of the City Planning Commission to need a two-thirds approval from the rest of the planning commission in order to be elected -- the chair is currently appointed by the mayor, while members of the commission are appointed by the mayor, public advocate, and borough presidents, and approved by the City Council. “This would give the borough presidents and public advocate a greater voice in the ULURP process, and give the chair greater accountability to all members of the City Planning Commission,” Diaz Jr.’s testimony reads.

He also suggested that the City Planning Commission either vote on certifying ULURP applications “out of the commission,” or that the relevant City Planning Commission Borough Commissioner should reserve the right to place a 30-day hold on certification in cases where they feel “additional consultation” with borough-level officials are needed.

Harkening to the contention over the proposal for a new jail in each of the four boroughs other than Staten Island that will in part make shuttering the Rikers Island jails possible, Diaz Jr. further suggested that when there’s a multi-site proposal like the jail plan, the charter “dictate unequivocally that each borough’s site must undergo a separate ULURP process, to avoid issues such as minimization of community input that is occurring in the jail siting process currently underway.”

Diaz Jr. has repeatedly slammed the process for grouping all four jail openings together, rather than allowing each borough separate input through the ULURP process, where the borough presidents and community boards have advisory input. Diaz Jr.’s charter commission appointee, former City Council Member Jimmy Vacca, advocated for the same idea in last week’s Bronx charter hearing.

Notably, Diaz Jr. did not call for major changes to the land use process, such as giving the borough president the power to effectively veto or restart negotiations on a development proposal. Though there appears to be a lot of discontent across the city about how land use decisions are made and a top-down approach from mayoral administrations, there has not been an apparent appetite among elected officials for sweeping alterations to ULURP.

Like land use, police accountability is a perpetually controversial topic in New York City, brought into particularly sharp relief this month given the NYPD administrative trial of Officer Daniel Pantaleo, whose chokehold led to Eric Garner’s 2014 death.

In his charter testimony, Diaz Jr. also wrote in support of the CCRB provisions included in the commission’s preliminary staff report, which advocate for increased transparency in the process, particularly in terms of the NYPD commissioner being required to explain when he or she differs with a CCRB recommendation in holding an officer accountable.

Diaz Jr.’s testimony expresses his support for guaranteed funding for the CCRB, at 1% of the annual NYPD budget, and creating a “non-binding disciplinary matrix to make discipline for violations clearer and more consistent.”

“This transparency will help restore faith in the good women and men of the NYPD who work so hard to keep us safe,” he wrote. Diaz Jr., who is overtly readying his run for mayor in the 2021 election, is among those attempting to toe the line between community activists and police reformers on one hand and a working relationship with the NYPD and its members’ labor unions on the other. It’s a balancing act that has at times confounded Mayor Bill de Blasio, among others.

Calling borough presidents' offices "conveners, constituent services providers, policy hubs, planning departments, and watchdog agencies" Diaz Jr. also called on the charter commission to protect the budgets of those offices. "Borough presidents’ budgets ought to be set with the current total allocation as a floor that shall not be decreased either in total for all borough presidents’ offices or for any individual borough president’s office. Increases should factor in any increases to the Department of City Planning’s Budget," he wrote in his testimony. Diaz Jr. said the "only exception" to that requirement would be in years when the city's financial picture includes a reduction in the expense budget.

This testimony is the first that Diaz Jr. has submitted to the charter revision commission. When asked on the Max & Murphy podcast in late March if he would submit testimony, he said, “Absolutely. I’m not here for window dressing.”

According to a Gotham Gazette review of Diaz Jr.'s recent schedules, he held an April 1 meeting with Vacca, his commission appointee.

Manhattan Borough President Gale Brewer and Staten Island Borough President James Oddo both released testimony during early stages of the charter revision commission process, in September of 2018. Brewer also testified at the Manhattan borough hearing last week. Brooklyn Borough President Eric Adams and Queens Borough President Melinda Katz have not submitted testimony to the commission.

De Blasio Fundraising Exposed Grey Area for Ethics Board


mayor bdb fl chir

(photo: Michael Appleton/Mayoral Photography)


In the last three years, Mayor Bill de Blasio has been investigated by law enforcement and oversight entities at the city, state, and federal levels for soliciting donations from people seeking favors from his administration. While several of the investigations have concluded without chargers, investigators and others have criticized the mayor for shirking conflicts of interest and campaign finance rules.

In the case of the city investigation, conducted by the Department of Investigation (DOI) and referred to the Conflicts of Interest Board (COIB), it is hard for the public to know just how close to breaking the law the board felt he came.

What is known is that DOI investigated thoroughly and found the mayor had violated guidance from the COIB, the agency tasked with enforcing the city’s ethics statute, when he raised money for a political nonprofit from individuals with or seeking city business; and that COIB, despite the DOI’s substantiation of the claim, did not take formal, public action against the mayor. It has also become clear that de Blasio is unwilling to be fully transparent about his communications with COIB, and that the mayor’s case has led COIB to adopt a new rule around the type of fundraising he did.

For serious violations of the conflicts of interest law, COIB has a range of enforcement options, from issuing public admonishments and imposing fines, to negotiating discipline, including termination, with the employee’s agency. But for minor violations or when something in the law prevents prosecution, which includes the grey area the mayor has operated in, COIB can only respond from a grey area of its own.

In the absence of charges, the DOI referral may still have resulted in what COIB refers to as a “private warning letter,” a tool it employs outside its formal adjudication process, sent to the mayor. Strict privacy provisions in the city charter and due process concerns prevent the board from discussing it, and the mayor, who is at liberty to be fully transparent, refuses to answer questions about the recently-revealed investigation into his behavior, including the DOI findings and potential COIB correspondence.

Richard Briffault, the COIB chair, told the New York Times that the board was prevented from issuing a fine or a public reprimand in de Blasio’s case because of restrictions in the ethics law. (Two other penalties -- joining a settlement with the violator’s employing agency, and ordering the employee to pay back any financial gain -- would not apply to the mayor’s fundraising.)

De Blasio has refused to speak on the matter since the latest news was revealed, first in reporting by The City, only saying that he believes he has sufficiently addressed an issue that is now past, without acknowledging the new information about the DOI referral -- including findings of wrongdoing by him -- or the question of whether he received a private warning letter from COIB.

When pressed yet again by reporters at an unrelated news conference last week, the mayor maintained his stance, saying, “I’m just not going over it. Every investigation was closed, no further action was taken, and the entity involved is defunct.”

The Conflicts of Interest Board cannot reveal whether any action is taking place or took place unless it formally determines the law has been violated. That would require the board to fully adjudicate a case and issue a public determination including action taken, which it typically does multiple times a month, often for cases in which a city employee misuses city resources, like using official email accounts for personal business or having outside employment without a waiver from the COIB.

It appears the type of fundraising de Blasio did through his now-shuttered non-profit did not meet the legal requirements for a formal penalty, even though he ignored COIB guidance.

A new rule issued by COIB last week now makes the type of fundraising de Blasio carried out -- soliciting donations to government-affiliated nonprofits from people and companies with pending city business -- a punishable offense.

The rule is based on two COIB advisory opinions from 2003 and 2008, respectively, which were cited in the DOI referral; “an advisory opinion is not a ‘rule of the Board,’” according to a statement that accompanied the new rule, and as such cannot lead to penalty on its own, even if violated.

The episode casts light on how far New York City’s conflicts of interest law goes and what COIB is able to do to enforce it. The de Blasio case has shown challenges around how to bring the ethical underpinnings of the law to bear in cases where there is not a well-established precedent or official proscription.

“The Board has now acted”
In the absence of formal enforcement the board has, since 1995, retained the option of issuing a private warning letter to city employees who have come close to violating the conflicts of interest law, but whose behavior fails to satisfy some element of it.

A COIB spokesperson provided Gotham Gazette a list of four instances in which a private warning letter might be used, including when there is not enough evidence to support a violation, or when “there is some legal reason why the Board is unable to engage in a formal enforcement action.”

Also on the list of instances are when the public servant has already been disciplined by their employing agency and when “a current or former public servant has allegedly committed a minor or isolated violation, particularly if self-reported, e.g., a public servant sent a single email using his City email account related to his private business.”

The latter two are unlikely to be the case for de Blasio and the Campaign for One New York, given that de Blasio does not appear to have ever been formally disciplined, and the fact that his non-profit raised approximately $4 million and solicited donations from people with business before the city on multiple occasions, according to the DOI report.

The conflicts of interest law was enshrined in the city charter in 1990, and there is nothing in it that mentions private or confidential warning letters.

In 1995, while its enforcement staff was severely diminished and facing a mounting backlog of cases, COIB was employing letter notices to ensure compliance in financial disclosure matters. The same year, the board issued six “informal warning[s] or other confidential letter[s]” for the first time. Also that year, the board established a formal liaison with the Department of Investigation to bolster the enforcement work of its anemic staff.

For the past decade COIB has sent between 46 and 88 private warning letters per year, according to its annual report. In 2018, the year the DOI referred the Campaign for One New York case to COIB, 62 private warning letters were sent.

“It’s questionable that an agency can actually create policy without promulgating rules because it’s required that they go through a public process where there’s a hearing and people have input,” Alex Camarda of Reinvent Albany, a government watchdog organization, told Gotham Gazette.

But the private warning letter appears to be an informal tool COIB uses to ensure the law is followed, and tracked every year in the board’s annual report.

“A private warning letter is simply a letter written by the Board to a current or former public servant or lobbyist to educate the recipient about the law relevant to his or her alleged conduct,” the COIB spokesperson told Gotham Gazette in an email.

In COIB’s Monograph, which provides commentary on the conflicts of interest law, it states that private warning letters “sometimes prove useful in the enforcement process if a public servant who has been so warned commits another offense.”

Going forward, the new COIB rule will make soliciting donations from entities with city business to nonprofits affiliated with the city or a city official subject to the ethics law. Violations could result in fines of up to $25,000, the highest the board can impose.

But the new rule is not likely to apply to de Blasio’s past actions. In the COIB statement announcing the rule, the board said, “Without any ‘rule of the Board’ governing official fundraising, the Board is prohibited by the Charter from imposing a penalty on a public servant” who violated the Charter’s “catch-all” provision related to conflicts with one’s official duties. In the case of fundraising for nonprofits affiliated with a city agency or public servant, the statement says, “The Board has now acted to fill this gap.”

***
by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

At Manhattan Charter Commission Hearing, Pleas to Reconsider Major Planning Changes


anhd thriving communities rally

(photo: @ANHDNYC)


The City Hall chambers of the New York City Council were packed with over 100 people on Thursday evening for a hearing of the 2019 Charter Revision Commission. New Yorkers who attended, including some elected officials, were largely focused on always-contentious land use issues and processes that the commission is considering as part of its larger effort to rethink aspects of city governance.

The Manhattan hearing was the fourth of the five boroughs, to be followed by Staten Island on Tuesday night, where the 15-member commission heard reactions to its recently-released “preliminary staff report,” wherein the commission staff sought to narrow the scope of the body’s final months of deliberations as commissioners propose changes to voters on the November ballot. The commission will announce its city charter revision proposals this summer, providing months for public education on the potential changes that could touch on the powers of certain elected offices, city budgeting, voting procedures, and more.

Many who testified -- and rallied outside City Hall ahead of the hearing -- were members of organizations in the Thriving Communities Coalition, which is calling for more sweeping changes to city planning and land use processes than the charter revision commission appears to be considering.

Other topics of interest among those who testified over the course of more than six hours were elements included in and excluded from the staff report, such as the creation of a budgetary rainy day fund, instituting ranked-choice voting, strengthening the Civilian Complaint Review Board (CCRB), which deals with police misconduct allegations, and the creation of a city chief diversity officer.

The Thriving Communities Coalition argues the status quo in city planning is racist and socio-economically unequal. Members of the New York City Council Progressive Caucus, which is backing the idea of the city charter being amended to include a mandatory comprehensive city plan every ten years, something the charter commission appears disinclined toward, joined the rally to urge the commission to consider such a proposal.

Council Members Carlos Menchaca, Antonio Reynoso, and Brad Lander were among those who spoke. Manhattan Borough President Gale Brewer also spoke at the rally and proceeded to give testimony in front of the Charter Revision Commission.

“The city needs to and must intentionally plan and invest for communities like the South Bronx, if it wants to assure an equitable, diverse, and thriving future for the city,” said Carmen Vega-Rivera, leader of Community Action for Safe Apartments.

Uniform Land Use Procedure (ULURP) and Broader City Planning
The rally leading up to the hearing mostly focused on the city’s ULURP process, neighborhood rezonings, and city planning. Several people who testified at the hearing said they believe the possible charter revisions being considered by the commission, per the staff report, are appropriate, but inadequate.

Community Board 8 Manhattan Chair Alida Camp asked that boards like hers, which provide non-binding input on land use matters that require city approval, receive earlier notification and an additional 45 days as part of the process to provide public notice and vote on applications. Camp also said the Mayor has too much power in the rezoning process. “We ask that mayoral zoning overrides be prohibited,” she said.

Borough President Brewer urged that the possible proposals on ULURP as outlined in the commission staff report go forward. These include providing more time for the early stages of the ULURP process and clarifying how city plans and projections impact each other. She also advocated that Borough Presidents should play more of a role in ULURP.

Brewer also criticized the mayoral administration over neighborhood rezonings that have been moved for targeting neighborhoods of low-income people of color, urging for the Department of City Planning to take a more long-term approach.

“I further urge the commission to propose a charter amendment requiring decennial review of the zoning resolution,” she said.

Brewer further argued the charter should mandate a publicly accessible map portal for Zoning Lot Development and Easement Agreements as well as specifications regarding how “major” and “minor” modifications are defined when it comes to Special Permits from the City Planning Commission.

The Civilian Complaint Review Board
As it has at other hearings, the CCRB received a lot of attention during the Manhattan meeting on Thursday. The consensus for most people giving testimony was that the Police Department needs further oversight via the CCRB and that the NYPD commissioner should not have the current level of discretion in the disciplinary process.

Whether the CCRB should be elected or appointed by elected officials as is currently the set-up was subject to more debate because of perceived bias from the City Council, which must approve the 13 appointees.

Charter Revision Commissioner Sateesh Nori came out strongly against the idea of popular elections of CCRB members. “That is why we have Donald Trump in office,” he said of decisions by the masses. When challenged on that stance, he responded saying that the CCRB discussion was “hinging on an election when every other discussion is about how elections are flawed.”

When Brewer testified, commissioners asked her if she thought the CCRB should be decided through a vote, and she said, “I am not supportive of the vote because people don’t turn out unless they are aware.” She agreed with the charter commission’s proposals, but also suggested further amendments, which included codifying the current Memoranda of Understanding to ensure cooperation between the CCRB and police department and setting the CCRB budget at 1% of that of the Police Department’s.

Ranked-Choice Voting
As has been the case throughout the charter commission process, most who testified and discussion ranked-choice voting on Thursday expressed strong support for instituting the process, which would help avoid costly runoff elections and also provide for more apparent popular support among the winners of heavily contested elections.

New York City only currently holds runoffs for citywide positions, where as elections for borough presidencies and the City Council can be won by simple plurality. Ranked-choice voting could eliminate run-offs and provide so that the winner of all races has reached whatever the set threshold is, perhaps 50%, after multiple rounds of tallies.

Rainy Day Fund
Andrew Rein, President of the Citizens Budget Commission (CBC), a non-partisan, nonprofit watchdog and think tank, gave detailed testimony supporting the creation of a possible Rainy Day Fund (RDF), which would also need state approval and, he said, help the city better prepare for recessions and tough budgetary times. He recommended mandates that the RDF be big enough to cover a two-year, multi-billion-dollar budget gap and be provided minimum annual deposits when there is economic growth, with restrictions on withdrawing from the fund unless there is an economic contraction.

Overall, Rein said CBC hopes the commission will keep its proposals for changes to city budgeting minimal. “Since the current system isn’t a problem, we shouldn’t try changing it,” he said.

Chief Diversity Officer
Wendy Garcia, the Chief Diversity Officer from City Comptroller Scott Stringer’s office, stressed the need for a citywide chief diversity officers as well as one at every city agency. Stringer has made the push for such requirements his number one priority in charter revision.

Garcia indicated that there is evidence of the effectiveness of her position, saying that it has helped the comptroller’s office increase contract spending with minority- and women-owned businesses from 11% to 29%.

*Note: Gotham Gazette did not stay for the entire six hour-plus hearing.

***
by Ashad Hajela, Gotham Gazette

Read more by this writer.



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