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Mass Mailer Loophole Gives State Legislators Advantage in City Council Races


ortiz mailer crop

The top of Assemblymember Felix Ortiz's recent constituent mailer


Members of the New York State Legislature have a key resource at their disposal to communicate with their constituents: mass mailers. Both the Senate and Assembly allow lawmakers to send public communications through different media -- chiefly employed in the form of direct printed newsletters and mailers -- to inform residents of their districts about recent legislation or special events, or to alert them of emergencies, and more. While these mailers are subject to certain restrictions in the run up to an election, differences between state rules and city regulations mean that state legislators running for City Council have a distinct advantage over their opponents at the local level.

In at least three City Council races where sitting state Assemblymembers are candidates, separate complaints have been filed with the city Campaign Finance Board alleging that each of them has violated prohibitions against using government-funded mass mailers within a mandated 90-day communication blackout period before the September 12 primary. Copies of the complaints were provided to Gotham Gazette.

The rules governing mass mailers are adopted by each legislative chamber, but they differ from the rules and guidelines established by the New York City Campaign Finance Board, which oversees expenditure by campaigns in the city. Each set of rules establishes ‘blackout’ periods ahead of an election, during which communications funded through government resources are prohibited unless they meet certain exceptions.

The New York City Charter states that “public servants” may not use government funds or resources for mass mailers within 90 days of a primary or general election. (The law also prohibits officials from appearing in government-funded advertisements in an election year.)

There are certain exceptions, for instance allowing one mailer to be sent out within 21 days of the passage of the city’s budget, and permitting communications required by law or those necessary for public safety or health emergencies, among others.

For City Council candidates currently working for New York City -- including incumbent Council members and even community board members -- the CFB blackout period began June 15, roughly three months before the September 12 primary.

But since the City Charter only applies to “all officials, officers and employees of the city,” state officials and legislators are out of reach of those provisions and prohibitions. The state Assembly’s blackout period, in comparison, is only 30 days before a local, special or primary election and 60 days before the general. This effectively allows state legislators to use their offices to promote their image and build greater name recognition, enhancing the already-significant power of incumbency and giving them an additional leg up over their opponents who would have to rely on campaign funds to communicate with voters.

“It’s a clear loophole,” said John Kaehny, executive director of Reinvent Albany, a government reform organization. “The problem is that city law is always subordinate to state law. So the CFB cannot tell a state legislator what they can or cannot do.”

ortiz mailer cropIn District 38, incumbent Democratic City Council Member Carlos Menchaca is facing a slew of challengers, including sitting Assemblymember Felix Ortiz. A complaint filed with the CFB earlier this month alleged that Ortiz had violated the CFB’s blackout provisions by sending out four mailers from his government office over the summer. But these mailers, a regular function of state legislative offices, are exempt from the CFB’s purview.

“Part of Felix’s job as an Assemblyman is to inform his constituents, whether he’s running for office or not,” said Robinson Iglesias, Ortiz’s campaign treasurer. “He has been in full compliance with the CFB and he will continue to do so.”

“For sure, it’s unfair. For sure, it’s an advantage,” said Kaehny of the loophole. “It hasn’t been effectively exploited until now. The reality is, an incumbent already has an advantage in name identity. Using their mail privileges helps reinforce that name identity...This is a real unfairness under the law.”

Assemblymember Mark Gjonaj, the frontrunner for the District 13 seat being vacated by Council Member James Vacca, similarly sent out a legislative update to his constituents at the end of June.

Of Gjonaj’s four opponents in the Democratic primary, John Doyle has been his most vociferous critic and lodged objections with the CFB over potential violations regarding mass mailers and government-sponsored communications. When informed that the communications were largely permitted under the Assembly’s rules, Doyle directed his ire at both the state Legislature and Gjonaj. “We have a culture of corruption in Albany that allows this,” Doyle said in a phone interview. “This is the state Legislature that can’t seem to pass comprehensive campaign finance reform.”

gjonaj mailer cropDoyle also insisted that Gjonaj has ample campaign resources at his disposal to get his message out and should have eschewed the Legislature’s mass mailing resources. “He’s against public funds to augment the voice of ordinary citizens,” Doyle said, referring to Gjonaj’s decision to not participate in the CFB’s public matching funds program, “but he has no problem using public funds when it supports his interests.”

Gjonaj’s campaign spokesperson Jennifer Blatus pushed back against Doyle’s complaint. “Let's be clear, there was no unfair advantage in the District 13 council race,” Blatus said in an email. “This is another ridiculous attempt by John Doyle to distract voters and continue his negative and divisive campaign.” Insisting that the CFB allows elected officials to conduct ordinary communications with constituents, she added, “In the final days of this election, while Mr. Doyle continues to complain over the experience Mark Gjonaj brings to this race, our campaign remains focused on the issues at hand, which is quality of life, public safety, education and transportation.”

In District 21, where Council Member Julissa Ferreras-Copeland is stepping down at the end of her current term, two Democrats are facing off in the primary: Assemblymember Francisco Moya and Hiram Monserrate, a disgraced former state Senator and Council member who is attempting a comeback after a checkered recent past that includes separate criminal convictions on fraud and assault charges.

Monserrate claims that Moya misused government resources to send mass email blasts within the 90-day period, including references to events Moya attended outside his district. Moya’s Assembly district overlaps with parts of Council District 21 but excludes large sections. “Moya is a liar and a fraud,” Monserrate said in a statement. “He lies about where he lives. And now we know he's committing fraud by using tax-dollars illegally to campaign.”

moya mailer cropIn a written response to the CFB on Monserrate’s complaint, Moya noted, correctly, that “as an Assemblymember my mail cut off deadline is different than sitting City electeds.” In a statement to Gotham Gazette, Moya had harsher words for his opponent. “My opponent is a convicted felon who has zero credibility on this or any other issue in the campaign,” he said. “He is using these baseless claims to attack my record of public service, and direct attention away from his corrupt, violent history. These charges have been easily refuted by my campaign, and simply bear no resemblance to the facts.”

Moya went on to criticize Monserrate for his own misuse of taxpayer funds. “The questions voters are asking are, ‘Hiram, where is our money that you stole and how can we ever trust you again?’”

The CFB and the City are mostly powerless to bridge the gap in the law. “Obviously we provide extensive guidance on how candidates should handle constituent communications in the days leading up to an election, It’s certainly something we monitor,” said Matt Sollars, a CFB spokesperson.

Reinvent Albany’s Kaehny says closing the loophole would require the state Legislature to take action, “which it seems very unlikely to do.” In the absence of legislation, he said, “The best thing CFB could do is keep track and include as much information in their post-election report to note how much of a problem it is and bring attention to that.”

The CFB issues a comprehensive report after each city election that includes numerous recommendations on improving the campaign finance and election system. Many of the recommendations from their 2013 report were passed into law by the City Council.

Two other state Legislators are also running for “open” City Council seats, though no apparent complaints have been lodged against either. Assemblymember Robert Rodriguez, who has also sent out mass mailers from his office, is running for the District 8 seat currently held by term-limited Council Speaker Melissa Mark-Viverito; and in District 18, state Senator Ruben Diaz Sr., famous for his constituent e-blasts, which have continued apace, is vying for the seat being vacated by term-limited Council Member Annabel Palma.

Blair Horner, executive director of the New York Public Interest Research Group, another good government group, conceded that the CFB has no authority over the state and insisted that the Legislature should increase its own communication blackout periods to undo the advantage that accrues to lawmakers.

“Legislators wouldn’t send [mailers] out if they didn’t think it will bolster public good will,” Horner said, adding that perhaps it will fall to voters to ensure a level standard. “I think it’s fair for the public to urge state elected officials running for City Council to follow the same rules,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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Max & Murphy Podcast: Public Advocate Candidate David Eisenbach


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Jarrett Murphy, left, of City Limits, and Ben Max, right, of Gotham Gazette


August 28, 2017 - Democratic Public Advocate Candidate David Eisenbach

public adv candidate david eisenbach277pxDavid Eisenbach is a history professor at Columbia University seeking to unseat incumbent Public Advocate Letitia James in this year's Demcratic primary. Eisenbach, who has raised minimal funds for his campaign, believes that James has not been a strong enough voice in addressing ethics problems in the administration of Mayor Bill de Blasio. He also believes James has not been active enough in addressing the city's small business crisis.

On the Max & Murphy podcast, Eisenbach discusses several of the reasons why he is running, what he believes in, and how he would approach the job of public advocate.

Listen to the full conversation and let us know what you think -- we're on Twitter @TweetBenMax and @jarrettmurphy, and guest @Eisenbach4NY. You can hear the conversation through the embedded audio below or download it wherever you get your podcasts.

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by Ben Max, Gotham Gazette
     

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Nonprofit Supporting NYCHA Adds to Early Fundraising & Programs


NYCHA Fund for Public Housing

Rasmia Krimani-Frye, center, at the farm at Bayview Houses


More than a year-and-a-half after the Fund for Public Housing officially began soliciting donors, the nonprofit has raised approximately $1.5 million, according to New York City Housing Authority Chair and CEO Shola Olatoye.

Appearing recently on the “What’s the [Data] Point?” podcast with Gotham Gazette and Citizens Budget commission, Olatoye explained that the 501(c)3, established to support NYCHA operations and community programming, is showing encouraging growth.

In a subsequent interview with Gotham Gazette, Rasmia Kirmani-Frye, the founding president of the Fund for Public Housing, said the nonprofit has begun to establish “a body of work” that now includes partnerships with tech startups, plans for the construction of new playgrounds, efforts to create a “leadership academy” for residents, and more.

Launched in the model of public-private partnerships that supplement city services, like the Fund for Public Health and the Fund for Public Education, the Fund for Public Housing seeks philanthropic donations targeted to benefit NYCHA residents and acts as a fast track for potential NYCHA programs. “It is really hard sometimes in government to try new things and iterate quickly,” Kirmani-Frye explained.

While NYCHA has recently corrected operating deficits, showing one sign of better fiscal footing, and has a comprehensive -- and somewhat controversial -- plan in place, Next Generation NYCHA, the country’s largest public housing system is facing a $17 billion capital budget gap and anticipates future cuts in federal funding.

Because the authority’s massive infrastructure need is, as Olatoye says, “a public sector and private sector capital intensive assignment,” the Fund exists to complement the larger NextGen NYCHA plan through community development, resources for public housing residents, improvements to quality of life and access to opportunity. These are causes donors and organizations are more inclined to give towards than the mold removal, new roofs, and boiler replacements that make up large chunks of the authority’s capital need.

Accepting its first donations in January 2016, the Fund had amassed $900,000 as of last October. It managed a number of small projects, which included growing the Virtual Vita initiative, a free tax preparation program for low-income New Yorkers, as well as updating design guidelines for NYCHA buildings (Citi Community Development and Deutsche Bank contributed funding to these two projects, respectively).

Almost a year later, the Fund’s current war chest of $1.5 million is a few drops in the bucket towards its initial goal of $200 million. However, Kirmani-Frye explained that the goal “really was just a number that we came up with to get people’s attention. Honestly, this is what it would take to transform and invest in public housing in a different way. Then, we quickly moved to what we could do in a year…It was a big flag.”

Emphasizing that her organization is still a “baby,” Kirmani-Frye added that she and her partners have spent their first year trying to “get an audience.” In addition to highlighting its coverage in The New York Times, she pointed to their recent selection as one of Fast Company’s top 10 most innovative non-profits of 2017.

The Fund has also held a number of fundraising events, including a “salon dinner” hosted by board member Liz Neumark, founder and CEO of a New York City-based catering and creative events company, as well as a happy hour hosted by the Fund’s 30-person advisory board.

Most notably, the Fund is leveraging NYCHA “alumni” as donors and spokespeople. These are people “that have grown up in public housing who have gone to do both extraordinary and ordinary things,” Olatoye explained. While former residents Lloyd C. Blankfein, Jay-Z, and Howard Schultz have yet to contribute to the nonprofit, recent successes include actress and comedian Whoopi Goldberg and the current New York City Department of Health Commissioner, Dr. Mary Travis Bassett.

Other than raising public awareness for the necessity of public housing, the Fund has added new projects to its portfolio that, Olatoye says, sustain its focus on improving residents’ “well-being through the investment in people, place, and work.”

In June of this year, it hosted a tech panel in conjunction with MetaProp and Urban Tech Hub. With approximately 80 people in attendance, 10 startups came to pitch ideas to improve NYCHA’s buildings and the lives of its residents. Companies like Radiator Labs and ThinkEco proposed solutions to minimize the cost of heating and cooling in NYCHA buildings. Others like hOM suggested on-demand amenities, including fitness classes and monthly social events. Kirmani-Frye did not specify, but said seven of the 10 were “selected to pilot their product/idea at NYCHA.”

The Fund has also partnered with KaBOOM!, a nonprofit that constructs eco-friendly playgrounds, to secure funding for the creation of one in both 2017 and 2018. As of August 11th, Olatoye said they had raised $75,000 for the future “play spaces” and wanted to raise another $75,000 by the end of that week.

In addition to improving physical space offerings on NYCHA properties, a pending program supported by current City Council Speaker Melissa Mark-Viverito in partnership with the City University of New York aims to form a “leadership academy” that offers NYCHA residents a suite of free, for-credit classes on topics like community organizing and public policy. Another, inspired by NYCHA’s Food Pathways program, is led by aforementioned board member Liz Neumark. This “food working group” aims to help residents find jobs not only as entrepreneurs, but as members more broadly in the food, beverage, and hospitality industry. According to the Bureau of Labor Statistics, these jobs will soon outnumber those in manufacturing.

Kirmani-Frye said the “crux of all this work is developing relationships” and that “people and investors and companies and whoever are welcome to come and talk about how they to want invest and contribute to public housing.”

Olatoye said similarly and noted that the Fund for Public Housing is hoping to find a game-changing donor soon. “We absolutely are seeking some additional, significant—I like to say—earth-moving investments,” Olatoye said on the podcast. “We have some good leads out there.”

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by Ben Weiss, Gotham Gazette

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