Gotham Gazette https://www.gothamgazette.com/component/tags/tag/369 Tue, 10 Dec 2019 03:23:22 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) State Senate Looks Ahead to Complicated Task of Property Tax Reform https://www.gothamgazette.com/state/8969-state-senate-property-tax-reform-albany-new-york-city https://www.gothamgazette.com/state/8969-state-senate-property-tax-reform-albany-new-york-city sen br be3

Wednesday's Senate roundtable (photo: @NYSenBenjamin)


A roomful of top experts on New York’s property tax system -- an opaque topic that nonetheless touches every New Yorker, property-owner or not -- gathered for a roundtable discussion convened by state lawmakers Wednesday in downtown Manhattan. They were assembled at the hearing by State Senator Brian Benjamin, a Manhattan Democrat and chair of the Senate’s budget and revenues committee, to discuss solutions to the antiquated and unequal levy system that many want to see tackled in 2020, however overdue the action would be.

The issue has been a political “hot potato,” to use one lawmaker’s words, since the current property tax system was established through state law 40 years ago. Lawmakers, analysts, property owners, and others are now looking ahead to the next legislative session in Albany, which begins in early January, where a number of the issues raised Wednesday are promised to be on the table.

“What I have found so far as chair of this committee...is that the real property tax system is confusing, it’s complicated, and it’s not entirely fair,” said Benjamin, in opening remarks. The roundtable Wednesday followed a series of six public forums held by Benjamin’s office in all five boroughs over the past three months.

“The system as it currently exists was a temporary fix that was quickly outdated...Another bandaid or patch, in my opinion, will not fix this system. This system is broken at its core,” he said.

Wednesday’s conversation, which included economists, lawyers, and tax policy veterans, also unfolds in the context of a lawsuit challenging the system on the grounds that it imposes taxes disproportionately without regard to true market value -- a case that has the potential to drastically shake-up the property tax landscape.

At the same time, interested parties are awaiting the final report of an advisory commission established by city officials to comprehensively examine the entire system and make recommendations. The commission’s report, which was promised this year, would undoubtedly have implications for state legislators going into session in January. Wednesday’s roundtable was a kind of parallel effort by Benjamin to ready his committee for the technical and political heavy lifting it will face next year.

Other senators present Wednesday, all Democrats, included Liz Krueger, Leroy Comrie, Brad Hoylman, Robert Jackson, Zellnor Myrie, Andrew Gounardes, and John Liu, the former New York City Comptroller. For those legislators, in all but Comrie’s district in Queens, the effective tax rate on small owner-occupied homes is below the citywide average, according to an analysis of FY 2017 data by Tax Equity Now.

“This is by far one of the biggest issues I hear from my constituents,” said Gounardes, who represents parts of southern Brooklyn.

Among the biggest problems facing the state’s troubled system is that owners of similar properties can pay drastically different taxes. A 2018 study by the Citizens Budget Commission found that homeowners in the Bronx and Staten Island pay a higher percentage of the market value of their homes than they would in other boroughs, even though their homes tend to be worth less.

Another is the differential assessment formula used for different classifications of property, a vestige of the politically fraught landscape that created the current system, which now means the owners of some of the city’s most expensive co-ops and condos pay among the lowest real estate taxes.

The arithmetic used to levy taxes is complex. It involves four classes of property, each of which is valued differently and taxed on a different percentage of that value. To complicate matters, the rate at which the assessed value can climb in each property class is uniquely capped. Over time, the caps can lead to tax rates that lag behind the growth in market value, especially in booming neighborhoods.

Adding to the opacity of the system is a regime of abatements, rebates, and exemptions that obfuscate the logic behind a particular tax rate.

“The problem with the property tax is...nobody understands it, but nobody thinks they’re benefiting from it either. You have a really crazy system if nobody is actually patting themselves on the back and saying, ‘Wow, I’m getting away with paying much less,’” said Martha Stark, the former commissioner of the Department of Finance under Mayor Michael Bloomberg. Stark is the policy director of Tax Equity Now, the group that brought the lawsuit against the city and state.

That case survived motions to dismiss by both the city and the state, which are now appealing the lower court’s determination. Stark said the courts could decide whether the suit can move forward in as little as a matter of weeks.

While it may be months before the lawsuit is resolved, officials say the city’s advisory commission may be coming out with its report soon, though no timeline has been provided.

In a statement to Gotham Gazette, Marc Shaw, chair of the commission and senior advisor at the CUNY Institute on State and Local Governance, wrote, “This is an enormously important issue for our city, and we want to get this right. We have made significant progress on the majority of the issues we believe are needed for reform, but a few do remain. Those issues need to be resolved before we release any report. We expect to have a preliminary report out soon for the public to review.”

A spokesperson for Mayor Bill de Blasio, who signed the executive order creating the commission, said the administration does not have an update on the commission’s status.

Many of the experts in the room agreed that a starting point for reform should be that each class’s baseline assessment be a property’s market price, which in some cases is estimated based on sales of similar properties. Under the state’s current assessment methodology that is not always the case.

For the past four decades, the state has placed 1-, 2-, and 3-family homes in Class 1, where their assessed values are based on the sales price of the property. By contrast, larger residential buildings fall into Class 2, where they are valued based on the annual income they receive in rent. But co-ops and condos, which are often owner-occupied and comprise some of the city’s most expensive properties, also fall into Class 2. As a result, it is not uncommon for a co-op that sold in the millions to be valued at a few hundred-thousand dollars or less, based on estimates of so-called “comparable” apartments nearby. (A number of experts said Wednesday that the way the city identifies comparable apartments is also flawed, at times going far afield to find them without adjusting for variables like the differing land values in a region or whether they have comparable amenities.)

Complicating the politics further is the fact that in many areas incomes have not kept pace with the market value growth of property. That means people who purchased homes when prices were low often struggle to keep up with property taxes when neighborhoods gentrify. Several of the state senators present, all of whom represented districts in New York City, expressed concern that moving to a fully market-based system could mean some long-term homeowners will see a sudden rise in property taxes so great they would not be able to keep their homes.

“When I say the system should be based on market value, the starting point should be a real market value that people recognize. How one then decides what taxes someone is going to pay is very, very different. If you want to consider a person’s income afterward you could do that,” said Stark, responding to the concerns.

Jeff Golkin, a veteran property tax lawyer, warned against making changes too quickly, especially in real estate where the return on investment is often registered in the long-term. “You can’t take away rights that people have now. You can’t take people who are protected now and throw them into the fire,” he said, “...so change has to be done in a transitional grandfathering type of mechanism.”

Another issue is the size of the levy after a property’s value is determined. While state law dictates the tax assessment, the city controls the tax rate.

Roughly a third of the city’s budget comes from real estate taxes, the single largest revenue stream. Since fiscal year 2009, City Hall has kept the tax rate frozen, but rising market values and annual reassessments have allowed revenue from property taxes to increase year over year. The city’s advisory commission, created jointly by Mayor Bill de Blasio and Council Speaker Corey Johnson, was mandated to make recommendations to reform the system without diminishing the revenue it generates.

One analysis found that under Bloomberg the city budget rose 31.6 percent above inflation. In 2002, his first year in office and as the city was reeling from the effects of the 2001 terror attacks, Bloomberg raised the property tax rate by 18.5 percent. Since de Blasio took office, the city budget has grown over $20 billion.

“I think that there is a real need for some fiscal responsibility, not just on the state level but on the city level. The city should not be able to levy themselves out of fiscal responsibility every year,” said Comrie, who previously served in the City Council.

“At some point you can’t keep burdening folks who can’t pay. Most people in my district are on fixed income, they’re not getting Wall Street bonuses every year,” he said.

Senator Krueger summarized the feelings of many of her constituents. “Please God, give us a system that we can understand,” she said.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

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State Senate Looks Ahead to Complicated Task of Property Tax Reform Thu, 05 Dec 2019 05:00:00 +0000
Senators Krueger & Myrie on Historic Albany Session, Senate's Relationship with Cuomo, & More https://www.gothamgazette.com/state/8658-senators-krueger-myrie-albany-session-senate-relationship-with-cuomo https://www.gothamgazette.com/state/8658-senators-krueger-myrie-albany-session-senate-relationship-with-cuomo krueg myrie 600

l-r: Liz Krueger (photo: @LizKrueger) & Zellnor Myrie (photo: @zellnor4ny)


The New York State Legislature, under full Democratic control for the first time in a decade, had an exceptionally productive 2019 legislative session in Albany. Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie ushered through a broad agenda of progressive legislation, long forestalled by Republicans who had controlled the state Senate, most of which has already been signed into law by Governor Andrew Cuomo, a third-term Democrat.

Landmark rent regulations were approved, voting and elections reforms were passed, stronger reproductive health rights were codified, and environmental protections were expanded, among a far longer list of accomplishments.

But several proposals did fall by the wayside amid opposition – or at least a lack of support – from the governor and a dearth of consensus in the state Senate where progressive members mostly from New York City found their priorities at odds with more moderate, suburban members more concerned about their seats in the 2020 elections.

In a recent interview on the Max & Murphy WBAI radio show, Senator Liz Krueger, a Manhattan veteran, and Senator Zellnor Myrie, a Brooklyn freshman, assessed the legislative victories, and failures, and the role that Governor Cuomo and New York City Mayor Bill de Blasio played in this historic Albany year. They also looked ahead to next year’s session, which will take place in an election year when every member of the Legislature will be on the ballot and their Senate Democratic majority will look to extend its newfound dominance and partnership with the long-time Assembly Democratic majority.

“I’m actually still kvelling about how much we were able to get done this year, things that I had been telling my district I was trying to accomplish for the entire 17 years,” said Krueger, who represents Manhattan’s East Side.

Krueger, now the chair of the Senate’s finance committee, highlighted the expansion of voter rights and election reforms, the passage of the Reproductive Health Act, the Climate Leadership and Community Protection Act, and legislation related to public transportation and consumer rights.

“[W]hen you’re hitting grand slams every week, you forget about the singles and the doubles that loaded the bases,” said Myrie, after first echoing that there were a vast number of major Democratic accomplishments that moved in January and thereafter, “and so there are things that we did that didn’t get as much play, but really are important for people in our districts.”

He cited $20 million in funding restored for home foreclosure prevention, $500 million in proposed Medicaid cuts that were avoided, and a $618 million increase in funding for public schools.

But both legislators pointed to agenda items, some prominent and some less so, that they couldn’t get across the finish line.

Most notable among them was the legalization, regulation, and taxation of adult-use marijuana, a thorny issue that Krueger has pursued for years but divided the Senate Democratic conference and tested Cuomo’s commitment to a policy he recently came around to express support for but did not appear especially eager to risk political capital on.

“Well, marijuana, even though people talk about as if it’s one issue, is actually a whole series of complicated issues,” she said, noting the difficulty in getting a majority of votes in the Senate. After failing to push the proposal through in the state budget as Cuomo had sought, some Democrats looked to move it in the post-budget session. Cuomo had insisted it was one of his top priorities but refused to put weight behind it when push came to shove and without his involvement in negotiations, Krueger said, the proposal was doomed to fail.

“We really wanted the governor back at the table with us, because big, complicated issues really do make sense to be three-way, and he was not there...and messaging very strangely as to whether he supported or didn’t support it, so we just couldn’t bring it over the line at the end,” she said. Krueger acknowledged what Cuomo had said publicly -- that she did not have the votes in the Senate, but she said she needed the governor to help get those final votes.

Among the issues, she insisted, was that state agencies essential to implementing the new law needed to explain to skeptical legislators how they would execute portions and in order for that to happen, Cuomo needed to be more present. “You can’t simply legislate and believe that all of the agencies are immediately going to change course to do what the law says unless you have an executive behind it,” she said.

In the end, the Legislature compromised to decriminalize possession of small quantities of marijuana and expunge records for hundreds of thousands of New Yorkers convicted on low-level marijuana offenses.

Myrie noted additionally that marijuana legalization is far from universally popular, even in New York City districts like his, and though he expressed confidence the Legislature would pass it next year, there’s work to be done to get constituents on board.

“Now, I am willing to make the case to my community why this is important for us, not just the decriminalization, but the economic opportunity that it would provide for folks,” he said. “I think that we do have a lot of support there, but the assumption that even in the districts where their representatives were fully in support, that the support in the district was monolithic, I think is a presumption that we need to fight back against. And so, I’m ready to double down and do the work on education; I’ve been talking to the folks in my community about why this is important and good for us.”

Controlling both legislative chambers, Democrats were able this year to deal with Cuomo on stronger footing, rather than begrudgingly participate in the triangulation that he employed with Republicans and the Senate Independent Democratic Conference, a breakaway faction of Senate Democrats, in past legislative sessions. And the governor was not shy about making his displeasure known at having lost some degree of power in Albany, while constantly taunting or questioning the new Senate Democratic majority, which he blamed for the demise of the deal he helped broker to bring a massive Amazon campus to Queens and which appeared to make him uncomfortable in dealing with an all-Demcoratic Legislature.

During and after the session, the governor variously described a successful partnership with the legislative leaders while at other times attacking them for failing to achieve promises they had made over the years. Kreuger and Myrie were careful when asked about the tense relationship between Cuomo and the Senate majority. “I decided long ago that I was never going to try to explain Andrew Cuomo or his behavior on any given day,” Krueger said of the reasons behind Cuomo’s harsh attitude towards the Senate.

“I suppose I could define it as, he was testing us, and he was playing bad cop, and our job was to show, ‘Hey, bad cop, we’re ready to govern, and we have our act together. We’re going to be there, and you’re going to come along because you know that we are in the right place, and in a place you want to be,’” she continued. “Now, why he doesn’t take the approach of ‘Oh, you’re a new majority, you’re trying to do a number of things that are my agenda issues, let’s work together and get to that place together,’ I sincerely don’t know. I think you’d have to ask him.”

Myrie is among the newly-elected crop of young progressives who deposed members of the IDC. “If you have spent the entirety of your governorship in main control, in trying to get some progressive wins in a Republican-controlled Senate, I think you’re going to have to adjust to the new dynamic of now, you have a very powerful leader in Andrea Stewart-Cousins, with a conference full of people who ran in sort of an unorthodox way,” he said of Cuomo, after also saying he is hesitant to try to explain Cuomo’s motives and behavior.

Mayor de Blasio, meanwhile, was not a significant factor in legislative negotiations this year, perhaps to everyone’s benefit, Krueger indicated. “He wasn’t that present,” Krueger said when asked if de Blasio, who is now running for president, had been active, and active enough, in Albany. “Whether he should have been is a separate question because, not as a disrespect to him so please don’t misunderstand, but the general sense in Albany is, if the mayor really wanted something, that would cause a problem.”

She acknowledged that that owes both to the governor’s long-standing dislike for the mayor as well as perhaps some similar sentiments among lawmakers. “So it would be better if people made clear what the hopes of the city were, without the mayor being the banner front-pusher on whatever those issues are,” she added. De Blasio did do well with his state agenda this year overall.

The marijuana legalization fight highlighted one of the central conflicts for the state Senate majority – balancing the priorities of Democrats in safely blue districts with those of their colleagues who replaced Republicans in more moderate parts of the state where they may be vulnerable in next year’s election.

Myrie commended Stewart-Cousins for doing “a really good job of trying to balance these two bases.” And he recognized that some members from suburban districts faced difficult votes “that they’re going to have to explain going back to 2020.” That includes, for instance, the Senate approving driver’s licenses for undocumented immigrants, which is far more popular in Central Brooklyn than in Long Island -- on which Democrats from the Island voted no.

“I think that we are going to have to balance our approach here, because we’re going to have such a high turnout in 2020, I think that the bases are going to be motivated,” he said. “I think the same folks that allowed for these senators to take these seats, they’re going to be coming out, and I think there are going to be more people coming out, excited about challenging the man in the White House right now.”

Krueger added of the Democrats who control 40 of 63 Senate seats: “We recognize it’s a big state, really different areas, really different issues. We want to make sure we grow our majority in 2020, we don’t want to put anyone at risk, and frankly, the more we grow our majority the more diversified our needs will be, but also the more opportunity we’ll have to allow people to not take votes that they think aren’t the right answers for their constituents while still being able to move the people’s business for the entire state forward.”

And there’s indeed much business left to accomplish. Myrie wants to codify the restoration of voting rights for parolees, which Cuomo did through an executive order; and he wants to pass a “good cause” eviction bill that was excluded from the rent regulations this year.

There are also lingering issues around a prevailing wage bill for construction projects receiving public funds and a push to ban solitary confinement in state prisons, among others that have varying level of support from legislators and Cuomo.

“I think that we have an opportunity to further discuss what didn’t get done, take it up at the beginning of the next session,” Myrie said, “and by the time that we get to January of 2020, there will be 50 more things that people have come up with that we have not gotten done, that we have not paid enough attention to, and I look forward to taking that on in full.”

Krueger wants to push the state on releasing more than half-a-billion dollars in pledged funds for the New York City Housing Authority (NYCHA) and for a thorough reevaluation of the state’s economic development strategy to ensure taxpayer funds are spent responsibly. “So those are some of the places I’ll be starting again the minute we get back up to Albany, or before,” she said.

[LISTEN: Max & Murphy Podcast: Senators Krueger & Myrie on the Year in Albany]

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Cyan Hunte contributed to this story.

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Senators Krueger & Myrie on Historic Albany Session, Senate's Relationship with Cuomo, & More Tue, 09 Jul 2019 04:00:00 +0000
Max & Murphy Podcast: State Senators Liz Krueger & Zellnor Myrie on the Year in Albany https://www.gothamgazette.com/state/8643-max-murphy-podcast-reflecting-on-the-year-in-albany-with-senators-krueger-myrie https://www.gothamgazette.com/state/8643-max-murphy-podcast-reflecting-on-the-year-in-albany-with-senators-krueger-myrie mryie krueger wbai 600px

(photo: NYSenate)


June 26, 2019 - Max & Murphy Podcast: Reflecting on the Year in Albany, with Senators Krueger & Myrie

wbai krueger myrieState Senators Liz Krueger of Manhattan and Zellnor Myrie of Brooklyn joined the show to reflect on the year that was in Albany, the January through June session with Democrats in full control of state government for the first time in many years. Two two senators discussed their majority's first session in power, dynamics between the Legislature and Governor Cuomo, what got done and what fell off the table - and why.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

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by Ben Max, Gotham Gazette
     

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Max & Murphy Podcast: State Senators Liz Krueger & Zellnor Myrie on the Year in Albany Wed, 26 Jun 2019 04:00:00 +0000
Legislators Search for Common Ground on Expansion of Equal Rights Amendment https://www.gothamgazette.com/state/8615-legislators-search-for-common-ground-on-expansion-of-equal-rights-amendment https://www.gothamgazette.com/state/8615-legislators-search-for-common-ground-on-expansion-of-equal-rights-amendment Cuomo New York equal rights pride

(photo: Governor's Office)


The state Senate embraced the notion that the civil rights protections enshrined in the New York state constitution should be more inclusive when it decisively passed an expansive version of an equal rights amendment Monday.

The Senate’s amendment goes a step farther than other equal rights amendments by expanding the equal protection clause of the state bill of rights to outlaw discrimination not only based on sex, but also on sexual orientation, gender identity and expression, national origin, ethnicity, age, and ability. Currently, the state constitution only prohibits discrimination based on a person’s “race, color, creed or religion.”

“Today, we further the fight for justice for women by moving this crucial amendment forward. At the same time, we are standing up for the rights of the LGBTQ community, the elderly, and the disabled,” said Democratic Senate Majority Leader Andrea Stewart-Cousins in a statement.

The amendment, which had unanimous support in the Senate (it passed 62-0 in the 63-seat chamber), differs significantly from the version that passed in the Assembly in February, namely on the number of protected classes added and language clarifying the meaning of “civil rights.”

The Assembly’s version, which also passed with a groundswell of support, simply adds the word “sex” to the equal protection clause, extending constitutional protections to women but no further. These differences will have to be reconciled for the amendment to advance.

Governor Andrew Cuomo made passing an equal rights amendment that would ban discrimination based on sex a top priority this year, including it in his “2019 Justice Agenda” released in December, and listing it at the end of May among ten priorities identified for the final stretch of the legislative session, which is scheduled to end this week.

Unlike other state law changes, which simply need to pass both chambers of the Legislature and be signed by the Governor, amendments to the state constitution must be passed by two consecutive Legislatures and then be approved directly by voters via ballot referendum. The current Legislature was sworn-in in January to a two-year term, meaning the second passage of the amendment would have to take place in either 2021 or 2022 in order for it to be put before voters in a referendum. The earliest the amendment could go into effect is late 2021, if it is passed this year or next, then again in 2021 by both houses of the Legislature and voters.

A number of the protections in the Senate’s equal rights amendment are already contained in the state’s Human Rights Law, including for gender expression thanks to the passage of GENDA earlier this year, but putting them in the state constitution makes them stronger.

“Generally when things are listed in the equal protection clause there’s a standard of review that’s attached to constitutional principles that do not attach to statute,” said Alphonso David, the governor’s counsel, at a press conference on June 3.

The Senate’s version, by defining the phrase “civil rights,” would also make the constitutional provision self-executing, meaning protections for individual civil rights won’t have to be affirmed in subsequent legislation, as is currently the case.

The Equal Rights Amendment to the U.S. Constitution was first introduced in 1923, but has never been ratified. Since then, 11 states have adopted equal rights amendments that protect women’s civil rights, according to a press release from state Senator Liz Krueger, a Manhattan Democrat and the amendment’s main sponsor in the upper chamber. “New York is not one of those 11 states. No state has explicitly granted equal rights to LGBTQ people or the disabled,” the press release reads.

At the June 3 press conference, the governor said he would support an expanded version of the amendment in the future but didn’t believe the Assembly would pass one in the final days of the legislative session.

“I am totally open to, in the future, adding other classes -- which is what the Senate wants to do. But let’s achieve what we can achieve today and where we have agreement today,” Cuomo said at the press conference, referring to the addition of “sex” to the amendment.

He blames the uncertainty of the amendment on the “failed Albany game” of feigning support for a concept but falling short of passing legislation. With different versions of the amendment on the table, much of the political heavy-lifting of securing majority support in both chambers lays ahead even as nearly everyone agrees equal rights protections should be broadened.

“There’s 11 days left,” Cuomo said on June 3. “Pass that bill. Next year, come back and I fully support expanding the class even greater.” This is “the old Albany formula for failure. Assembly wants to do this, Senate wants to do this, nothing happens.”

“I don’t believe we can get agreement on it this year in 11 days,” Cuomo said of an expanded amendment.

Discussions are ongoing to bring the equal rights amendment closer to passage.

“We are continuing to urge colleagues in both the Assembly and the Senate to search for common ground.  We will see when the dust clears how much more work has to be done,” said Assembly Member Rebecca Seawright, in an email to Gotham Gazette. Seawright, a Manhattan Democrat, is the main sponsor of the narrower version of the amendment that passed her chamber in February, and also of a broader companion to the Senate’s amendment.

With the clock ticking on the session, the governor has said his focus now is on the passage of other marquee reforms, namely expanding the prevailing wage and legalizing recreational marijuana, but a host of issues are finding resolution among the Senate, Assembly, and governor’s office, and an end-of-session “big ugly” omnibus bill could be in the works, with untold number of aspects.

“Fortunately we have until the end of next year's legislative session to get first passage in both houses in order to stay on schedule with the amendment process,” said Justin Flagg, communications director for Krueger.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

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Legislators Search for Common Ground on Expansion of Equal Rights Amendment Tue, 18 Jun 2019 04:00:00 +0000
Stuck on Marijuana Legalization, Could Lawmakers Offer a Referendum as Cuomo Suggested? https://www.gothamgazette.com/state/8606-stuck-on-marijuana-legalization-could-lawmakers-offer-a-referendum-as-cuomo-suggested https://www.gothamgazette.com/state/8606-stuck-on-marijuana-legalization-could-lawmakers-offer-a-referendum-as-cuomo-suggested state capitol new york

the state capitol (photo: Mike Groll/Governor's Office)


In an interview at the end of May, Governor Andrew Cuomo made a provocative assertion: he said opponents to recreational marijuana legalization in the state Senate have argued no state in the country has legalized the controversial measure without first putting the question to voters in a ballot referendum. No such referendum has taken place in New York, but Cuomo -- who has pushed for marijuana legalization this year -- indicated on WNYC radio that it was a possibility as legislative efforts to legalize and regulate recreational, adult-use cannabis in the state have stalled.

In a state government with virtually no tradition of holding referenda on policy initiatives, what this means for the embattled marijuana push in the final days of the legislative session is uncertain. Reports indicate that negotiations on legalization among the Democratic majorities in the Senate and Assembly and Cuomo’s office have continued throughout the weekend, with the parties eyeing the scheduled end of the session on Wednesday.

“The opposition Senate position is, there is no state that has passed it without a referendum. It’s never been done just by the Legislature,” Cuomo, a third-term Democrat, told Brian Lehrer on WNYC on May 28. “They think it’s an overreach by the Legislature,” he added.

While it appears true that this narrative has floated around Senate circles fearing the consequences, both political and pragmatic, the assertion itself that no state has legalized recreational marijuana without a referendum, is not (Vermont legalized marijuana possession through its legislature in 2018, and Illinois did the same for marijuana sales just days after Cuomo’s comments). Nevertheless, the governor appeared to lend credence to the notion that it could be done this way in New York, despite the state’s historically closed attitude toward referenda.

The goal of making recreational marijuana legal in New York became a realistic prospect when Democrats took control of the state Legislature earlier this year, joining a slew of priorities backed by progressives that had been backlogged under the previously Republican-controlled state Senate. It was spurred on by parallel efforts in New Jersey, which have since collapsed. Garden State lawmakers now plan to put the issue directly before voters in a referendum in 2020.

As the end of the legislative session in Albany approaches, the momentum on some reforms has faltered as more centrist, and vulnerable, Democrats from Long Island and north of New York City hedge against political backlash.

“New Jersey was going to legalize it, New Jersey stopped. I think that started to shift the political environment. The senators say on the record that they don’t have the votes to pass it politically,” Cuomo told Lehrer. This is true, but senators, led by Manhattan’s Liz Krueger, the lead sponsor of her chamber’s marijuana legalization bill, have said that it’s in part due to Cuomo’s lack of engagement on the issue. As he did on rent regulations, Cuomo has mostly sat back and said senators are being cowed by political considerations, and he’d sign whatever the legislative majorities could agree on.

The effort may only require support from two additional senators to reach a majority in the 63-seat chamber, the Democrat and Chronicle reported at the beginning of June. While a legislative path may be there, especially with new compromises packed amid a “big ugly” end-of-session omnibus package, Cuomo did indicate another potential path.

In the WNYC interview, after Cuomo pointed out the national referendum trend, he was asked whether a referendum approach could work in New York. The governor responded, “Yes, the short answer is you could do a referendum for a sense of the people where you sketch out the provision and have a referendum, and if it passes then the Legislature could say, ‘We will pass it.’”

The long answer is not as clear. While certain types of measures require ballot referenda, like state constitutional amendments and bond issues, New York does not have the mechanism known as “initiative and referendum” at the state level, which many other so-called “direct democracy” states do (New Jersey doesn’t have it either). Initiative and referendum is a process that allows either the legislature or the public through petitions to put proposals directly onto the ballot to be advanced or blocked by voters.

In some states, referenda are also used to solicit public opinion to provide non-binding guidance (and political cover) to legislators. This may be more along the lines of what the governor was describing in his comments on WNYC.

New York does not have the infrastructure or political tradition of conducting either type of referendum, according to Gerald Benjamin, an expert on New York State government and director of the Benjamin Center at SUNY New Paltz.

“It’s just a matter of fact that we don’t have the institutional design that supports decision-making by referendum in state government on policy,” Benjamin told Gotham Gazette.

The governor’s office has not returned a request for comment to provide more information about Cuomo’s assertion or thinking on the matter.

At the state level, referenda are used in a narrow set of matters that invoke the self-determination of the people, when the form and structure of the government is at stake and lawmakers’ interests pose a conflict to changing them. New York has a lengthy and politically exhausting legislative process for constitutional amendments that culminates in a referendum after passage in consecutive legislative sessions.

The question of whether to hold a constitutional convention to amend the state’s foundational document is also mandated by law to be placed on the ballot every 20 years. And any bond issue requiring borrowing on the “full faith and credit” of the state is supposed to be approved by voters in a referendum (though much borrowing, like by public authorities, is not), according to Benjamin.

Calling for a referendum can also be a political tool for lawmakers to diffuse responsibility on contentious issues, like recreational marijuana.

“We have at least some body of law that says the representative bodies and the elected representatives of the state government should make these decisions, not try to essentially diminish their accountability by turning to the public on matters that are controversial,” Benjamin said.

Other practical considerations also complicate the equation. There is a difference between the concept of putting a question of importance directly to voters and the pragmatic demands of getting a meaningful response.

In the world of referendum politics there are state rules about qualifying a ballot proposal, and a number of considerations can change the meaning of the question to voters. On a complex topic where the merits are also the subject of current debate, the language of a marijuana question is significant.

Stakeholders are still weighing the particulars of what legalizing adult-use cannabis would mean, and the outcome of that discussion could impact how a potential referendum is framed. Debates are far from settled on questions like whether criminal records for marijuana offenses should be sealed or completely expunged, the legally permissible quantities, and what the state should do with the revenue generated from licenses and taxes.

Outside the issue-specific questions are more technical ones that would have to be answered: will the referendum be written in plain language that is easily understood; how much of the issue will make it onto the ballot; and how will it be explained to voters?

“It’s an easy thing to say, ‘Well, let’s ask the public,’” said Benjamin, and another thing to do it. “We’re not set up to do it, we don’t have the rules and regulations and process. Would we just commission a Siena poll?”

Still, some lawmakers are pushing for that approach to legalizing recreational marijuana, and the governor’s comments may give them traction. Especially for state Senate Democrats, who were elected to the majority last November by flipping swing districts and unseating party members who shared power with Republicans, the political ramifications of supporting marijuana legalization in conservative-leaning or recently Republican-led districts could be treacherous.

“I do believe that it is true that certain members may have said we should do this through referendum because it’s a way of saying we should let the public vote on this,” a spokesperson for Senator Krueger told Gotham Gazette in an interview.

Some senators seem to be in favor of the most progressive elements of the marijuana debate but fall short of supporting it through the legislative process. State Senator Monica Martinez, a first-term Long Island Democrat representing a swing district, has said she would not support Krueger’s bill but a spokesperson told Gotham Gazette she is in favor of decriminalizing marijuana and of expunging the records of people with prior offenses. (Expungement is considered a stronger stance than sealing because it means records are destroyed completely rather than sealed but still accessible by police.)

“Senator Martinez does support the legalization of Marijuana through a statewide referendum,” wrote a spokesperson for the senator in an email.

According to a Siena College poll conducted in April, 52 percent of registered voters statewide supported legalization while 42 percent were opposed at the time. The math was flipped in the suburbs, where several of the Democratic state senators who don’t support the legislation live: 44 percent support the proposal and 49 percent oppose it. A more recent Siena poll conducted in the first week of June found those numbers had balanced out, with support both statewide and in the suburbs at 55 percent. (Earlier this year the Democratic county executives of both Suffolk and Nassau on Long Island said their counties would opt out of allowing marijuana sales if the governor’s bill, which includes opt-outs for localities, was passed.)

The marijuana bill in the state Assembly, sponsored by Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat, appears to have stronger support in the majority conference, where the partisan balance isn’t as delicate.

New Yorkers have not always been warm to the referendum mechanism in the past. At the turn of the 20th century, the Progressive Movement in the state was concerned with changing the institutions of government, in part, to mitigate the power of political parties. While New Yorkers adopted a number of proposals like electing party officials and statewide party nominees (at times, through constitutional convention referenda), they spurned the idea of initiative and referendum, according to Benjamin.

“Historically, referendum is regarded as essentially the ducking of responsibility by the representative government elected to make decisions,” he told Gotham Gazette.

Still, the idea of going directly to the people appears to be attractive as the new cohort of state senators that swept into office this year grapple with the potential loss of a signature progressive campaign promise.

“I think that’s the problem here, is the political reality that you don’t have the votes in the Senate,” Cuomo told Lehrer.

Later he added, “Everything else is smoke.”

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

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Stuck on Marijuana Legalization, Could Lawmakers Offer a Referendum as Cuomo Suggested? Sun, 16 Jun 2019 04:00:00 +0000
Automatic Sealing? Expungement? As They Legalize Marijuana, New York Lawmakers Negotiate Clearing Criminal Records https://www.gothamgazette.com/state/8288-automatic-sealing-expungement-as-they-legalize-legalize-marijuana-new-york-lawmakers-negotiate-criminal-record-clearing https://www.gothamgazette.com/state/8288-automatic-sealing-expungement-as-they-legalize-legalize-marijuana-new-york-lawmakers-negotiate-criminal-record-clearing may bdblasio office

Mayor de Blasio discusses marijuana policy (photo: Michael Appleton/Mayor's Office)


New York seems poised to enact the country’s first automatic record-clearing guidelines for past marijuana convictions. Doing so, advocates and officials say, could remove barriers for hundreds of thousands of New Yorkers whose convictions -- for behavior that may soon be legal -- complicate tasks ranging from obtaining child custody to job searching to renting an apartment.

Automatic record-clearing is part of a larger ongoing discussion on legalizing adult marijuana use in New York, something Governor Andrew Cuomo has made a 2019 priority after years of opposition that also has support in both Democratically-controlled houses of the state Legislature. “Legalize adult-used cannabis,” Cuomo said in his State of the State address in January. “Stop the disproportionate criminal impact on communities of color.”

Bronx Senator and Senate health committee chair Gustavo Rivera also emphasized on the Capitol Pressroom with Susan Arbetter earlier this month that “the primary concern for many of us is the restorative justice aspect of this.”

New Yorkers poised to benefit from record-clearing for past marijuana offenses are majority black and Hispanic. In New York City, these communities made up 85 percent of marijuana possession arrests in 2016. It’s still unclear, though, how many crimes will be eligible for automatic clearing. There are also different record-clearing processes within an automatic framework: to seal a record is to shield it from view, while to expunge it -- advocates’ preference -- removes it completely.

Melissa Moore, deputy New York director for the Drug Policy Alliance, said advocates with the statewide marijuana abolition campaign Start SMART took notes on California’s approach to marijuana legalization. There, people with certain marijuana-related convictions were invited to apply for their records to be cleared. The Drug Policy Alliance has hosted free legal clinics in the state to assist them. “It’s still onerous,” says Moore. “In New York, how do we do this in such a way that places the lowest burden possible on individuals who have already been wronged? Making it automatic.”

“I believe that the Governor's office shares the goal of Assemblymember Peoples-Stokes and I,” stated Senator Liz Krueger, “to create a mechanism for automatically clearing records for marijuana offenses that would no longer be crimes.” Krueger, a Manhattan Democrat, carries the Legislature’s Marijuana Regulation and Taxation Act along with Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat who is also the majority leader of the Assembly.

As for scope, Cuomo’s budget proposal would automatically clear the low-level possession convictions that make up the majority of marijuana arrests -- 800,000 over the last 20 years according to his office -- by amending existing record-sealing procedures. By contrast, Democrats in the Legislature have in recent legislative sessions proposed clearing more records: all possession-related, and some sale-related, convictions.

“We recognize and see where the governor was trying to go and we think it just needs to be much more expansive,” says Kassandra Frederique, New York director of the Drug Policy Alliance. “If we are going to end the criminalization of marijuana in this state, then we have to end the criminalization of marijuana in this state, wholesale.”

"We have three goals,” Cuomo’s counsel Alphonso David told Gotham Gazette, defending Cuomo’s proposal. “The first goal is to make sure that we advance social justice. The second is to advance economic development, and the third is to protect public health and safety. Our proposal addresses all three goals."

Currently there is no expungement procedure in New York, and the governor’s office has indicated he prefers sealing. But advocates say expungement would remove ambiguity. “You would be able to say, ‘I have no criminal record,’ and that would be the end of the conversation,” says Legal Aid Society attorney Emma Goodman, an expungement expert who helped draft relevant bill language shared with Krueger’s office in January.

Advocates have proposed that court records, including criminal complaints and any written decisions, be marked as expunged, while ancillary records such as fingerprints and mugshots are physically destroyed. (Even expunged marijuana convictions can be grounds for deportation, notes Immigrant Defense Project Supervising Attorney Marie Mark, so the proposal includes additional protective measures for non-citizens.)

“Expungement means completely erasing these convictions and criminal records to give New Yorkers of color a fresh start,” said Samaria Phillips, manager of the We Rise to Legalize campaign, in a statement. Her group is attending the New York State Association of Black and Puerto Rican Legislators’ annual conference on Saturday in Albany to call for expungement.

Mayor Bill de Blasio also endorsed automatic expungement in a December 2018 task force report from his administration, with the caveat that district attorneys should have the ability to challenge on a case-by-case basis. “Expungement should occur as an automatic process…to minimize procedural burdens on those with past convictions,” the report states.

But in the interview, David emphasized the governor’s support for sealing. Because New York has strong sealing laws, he argued, the “impact of sealing is a functional equivalent of expungement, while immunizing the legislation from potential legal challenge.”

Senator Krueger’s chief of staff, Brad Usher, also confirmed that her office does not have a preference so long as the process is automatic.

“While sealing does essentially the same thing to the record, it does not bring the same level of clarity and peace of mind,” Goodman challenges. “Sealing is ambiguous and confusing for employers and people with convictions, whereas expungement is not.”

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by Emma Whitford, Gotham Gazette
@emma_a_whitford

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Automatic Sealing? Expungement? As They Legalize Marijuana, New York Lawmakers Negotiate Clearing Criminal Records Sat, 16 Feb 2019 05:00:00 +0000
Legislators Pursue Campaign Finance Reform for District Attorneys https://www.gothamgazette.com/state/8278-legislators-pursue-campaign-finance-reform-for-district-attorneys https://www.gothamgazette.com/state/8278-legislators-pursue-campaign-finance-reform-for-district-attorneys cy vance manhattanda

Manhattan DA Cy Vance (photo: @ManhattanDA)


District attorneys wield nearly unfettered discretion as to whether to prosecute potential defendants, but nothing in the law prevents lawyers for the accused from donating to a district attorney’s election campaign. Most New Yorkers became aware of this glaring blindspot in the state’s campaign finance law in 2017, following news that Manhattan District Attorney Cy Vance’s campaign had accepted thousands of dollars from an attorney for Harvey Weinstein, the disgraced Hollywood mogul who Vance’s office had declined to prosecute after he allegedly groped a woman and was caught on tape seemingly admitting to the act.

But the state Legislature could soon make sweeping changes to the rules governing district attorney campaign financing, as Assemblymember Dan Quart and Senator Liz Krueger, both Manhattan Democrats, are pursuing legislation to enact stringent restrictions on who can contribute, and how much, to candidates running for district attorney, of which there are 62, one for each county, across the state.

“Reforming of our campaign finance laws with respect to how district attorneys and candidates for district attorneys run is critical,” Quart said in a phone interview, “so that the public gets confidence that decisions made by district attorneys are on the merits and free of any conflicts.” Quart is rumored to be considering a run for Manhattan DA in 2021.

The proposed legislation would require that all district attorney candidates disclose to the state Board of Elections whether they have accepted campaign contributions from a law firm or an attorney at that law firm representing a criminal defendant in any New York state court. The bill would also mandate that the BOE create a statewide “legal dealings database” with the names of every licensed attorney, law firm or a firm executive who represents an individual or corporation in a criminal proceeding in any state court. The individuals and firms in the database would be restricted to donating only $320 to any district attorney candidate.

Spokespeople for Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins did not respond to requests for comment about support for district attorney campaign finance reform. Hazel Crampton-Hays, a spokesperson for Governor Andrew Cuomo, said in a statement, "The Governor has put forward a comprehensive ethics package in the Executive Budget and we will review any additional legislation if it passes both houses."

The proposal was first introduced by Quart in October 2017, shortly after Vance, a Democrat, requested an external, independent review of his campaign finances to rebut allegations that his office gave favorable treatment to Weinstein and other wealthy actual or potential defendants, including Ivanka Trump and Donald Trump Jr., whose lawyers gave to this campaign and who Vance’s office declined to prosecute for alleged criminal fraud in the sale of condos in the Trump SoHo hotel development.   

The review was conducted by the Center for the Advancement of Public Integrity at Columbia University, which issued seven recommendations for district attorney candidates to prevent real and perceived conflicts of interest or unconscious bias by prosecutors. They include blind fundraising (so candidates are not aware of donor identities), refusing or limiting contributions from donors with real or perceived conflicts, a strict firewall between a DA’s office and campaign, refusing contributions from one’s own office staff and their spouses, strong donor vetting processes, requiring certifications of eligibility to contribute, and published campaign contribution policies.  

Quart and Krueger’s bill would establish some of those firewalls. Quart’s legal dealings database is modelled on New York City’s own “doing business” database that logs companies and individuals who have contracts with the city and limits how much they can contribute to candidates in local elections. The $320 limit applies to candidates for borough president, whose districts are equivalent to the jurisdiction of a district attorney in the city. “I took those rules and that principle and applied it to district attorneys’ races,” Quart said.

The proposal would apply statewide. So, for instance, a law firm representing a defendant in Suffolk County wouldn’t be able to give more than $320 to a candidate running for Brooklyn District Attorney.

"It is vital that every New Yorker be able to trust our judicial system to reach conclusions based solely on the fact of cases, without even the perception that other influences might affect the results,” Senator Krueger said in a statement. “District Attorneys hold a singularly powerful position in our system, and therefore must be held to the highest standards to avoid potential conflicts of interest. This bill will help ensure that in New York, justice remains blind.”

The bill doesn’t cover all of CAPI’s recommendations, however. Berit Berger, executive director of CAPI, said the legislation is a “good start” but could go further. “The legislation does not require district attorneys to adopt blinding procedures that shield them from learning their donors’ identities,” she pointed out, in an email to Gotham Gazette. Blinding standards are currently used by candidates running for judicial seats in New York.

“As we explained in our report, this approach would most clearly address the conflicts of interest issue and safeguard against any conscious and unconscious bias in favor of campaign contributors,” Berger continued. “While the increased transparency from disclosing contributions from attorneys or firms representing criminal defendants is a great first step, I think more is needed to truly preserve the integrity of this fundraising process.”

It’s unclear if the bill will be supported or opposed by the District Attorneys Association of New York. Morgan Bitton, a DAASNY spokesperson, said the association is reviewing the proposal and that its legislative committee is set to meet later this month.

If the bill passes into law, Quart believes it could be in place for the 2021 elections. If he runs for Manhattan District Attorney that year, it would put him in contest with Vance, who will be up for reelection but has not declared whether he will run again or not. “My dissatisfaction with Cy Vance, the Manhattan District Attorney is well known,” Quart said, insisting that he had not made any decisions about his own political future yet. “I have said that whether this legislation passes or not, I would self-police in a way if I were a candidate in 2021.”

Whether Vance decides to seek reelection or not, the 2021 race could be a crowded one. This year, with no incumbent running, the race to be the next Queens District Attorney features more than half a dozen Democratic hopefuls, while races in the Bronx and on Staten Island with incumbents running again have sparse fields.

For his part, Vance, a former DAASNY president himself, supports Quart’s proposal. “As DA Vance said last year when he announced the most restrictive voluntary campaign finance limits of any elected prosecutor in New York, ‘legislative action is the surest way to achieve lasting, mandatory campaign finance reform,’” said a spokesperson for his campaign, who also noted Vance’s support for a public matching funds program for DA candidates, which is not part of the Quart-Krueger legislation, but could potentially be included in any broader public campaign finance system that Democrats in Albany hope to pass this year. Assemblymember Tom Abinanti, a Democrat, has reintroduced a bill this year that would establish such a public financing system for candidates for district attorney and supreme court justices. 

But the Vance spokesperson did say the Legislature should consider the feasibility of the legal dealings database proposal, which would be far more vast than New York City’s doing business portal. “As Columbia’s report notes with regard to the City database, ‘the class of individuals subject to Doing Business restrictions in New York City is relatively small, and is limited to senior company executives, major stakeholders, and registered lobbyists’ – as opposed to the vast and fluid population of lawyers who represent criminal defendants in New York State,” the spokesperson said.

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

Read more by this writer.

Note - This article has been updated to note that Assemblymember Tom Abinanti reintroduced a bill on public financing for district attorneys and supreme court judges.  

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Legislators Pursue Campaign Finance Reform for District Attorneys Tue, 12 Feb 2019 05:00:00 +0000
As Session Starts, Legislators and Advocates Push Overhaul of State Ethics Enforcement https://www.gothamgazette.com/state/8184-as-session-starts-legislators-and-advocates-push-overhaul-of-state-ethics-enforcement https://www.gothamgazette.com/state/8184-as-session-starts-legislators-and-advocates-push-overhaul-of-state-ethics-enforcement comprehensive reform gov

(photo via the Governor's Office)


As the state Legislature returns to session on Wednesday with Democrats in control of both chambers for the first time in a decade, State Senator Liz Krueger of Manhattan and Assemblymember Robert Carroll from Brooklyn are set to introduce a resolution that would amend the state constitution, adding new provisions to prevent and combat public corruption.

The resolution, first introduced late in last year’s session, would add a new section on state government integrity to the state constitution and would consolidate two agencies that are currently charged with monitoring and tackling corruption -- the Joint Commission on Public Ethics (JCOPE) and the Legislative Ethics Commission -- into a new New York State Commission on Government Integrity. The effort is aimed at dealing with a long-standing problem in New York state government that recently saw the leaders of both houses of the Legislature convicted of public corruption, along with many other legislators who were removed from or left office due to ethical issues over the course of decades.

“We think this is the way to create a truly independent ethics body,” Assemblymember Carroll said in a phone interview on Tuesday, shortly after a rally outside the State Senate chambers alongside Senator Krueger and a cohort of government reform advocates. One of the central criticisms of JCOPE, which was created in 2011, is that it is too closely tied to the governor and legislators to be effective, making it a limited deterrent and a weak enforcer.

The proposed resolution would have to be passed by the current Legislature and again by the next elected Legislature in the 2021-2022 session, after which it would be presented to voters as a ballot question for their approval. If successful during this session and in 2021, Carroll estimated that the new law could go into effect by January 2022.

It would create the new nine-member commission -- five of whom would be appointed by the judiciary; two appointments jointly by the governor, comptroller, and attorney general; and two by legislative conference leaders whose parties are the top-two voter getters in a previous gubernatorial election. The commission would be empowered to issue civil sanctions and censures against legislators, would be able to suspend, demote, or terminate a non-elected employee, and make referrals for criminal prosecution. It would also serve as an independent counsel to legislators and state employees seeking informal ethics advice that can later be used in their defense. Those who have served as political party officials, state employees or lobbyists within the previous three years would be barred from being appointed.

Though the proposal does not require Governor Andrew Cuomo’s support, Carroll hoped that it would receive it nonetheless. “I hope the governor sees this is a major ingredient in reforming our broken political system in Albany,” he said.

During the only general election debate against his Republican opponent Marc Molinaro, Cuomo had signalled support for reforming JCOPE. “Change begins with the thin edge of a wedge,” Cuomo said, using a phrase he has often employed, in this case to indicate that he was pleased to accomplish something on ethics reform, and can then use it to do more.

He added, “I believe we need more independence on JCOPE, I believe we need totally independent appointees and not necessarily representatives of both houses. I’d be open to a number of configurations, but they’d have to be independent.” In a statement on Tuesday, Hazel Crampton-Hays, a spokesperson for Cuomo, reiterated that stance, but stopped short of endorsing the Carroll-Krueger plan: “As the Governor has previously said, we are open to changes to the structure of ethics enforcement and we will review any proposals that are introduced.”

Both Carroll and Krueger, Democrats like Cuomo, argue that a constitutional amendment is essential, particularly with renewed attention in this last election cycle to the activities of JCOPE, headed by Seth Agata, a former Cuomo aide nominated by the governor and appointed as executive director by the agency's commissioners in similar fashion to his predecessors. The state agency, which monitors lobbying at the state level besides ethics violations, has been widely criticized as inefficient and overly vulnerable to political interference, while at the same time being entirely opaque to the public and lacking clear jurisdiction.

In particular, Krueger said the agency has failed to investigate incidents and allegations of sexual harassment, even when they are made widely known. For instance, in January 2018, then-State Senator and Independent Democratic Conference leader Jeff Klein was accused of forcible kissing a former staffer, Erica Vladimer, but JCOPE has yet to make clear whether it is investigating the claim and has not provided any information to either the public, press, or Vladimer in the year since since she spoke out. JCOPE officials have pushed back against such criticism, noting that divulging information about investigations is against the law. At a March 2018 meeting, Commission Chair Michael Rozen said the agency's silence does not indicate action or inaction. "No conclusions should be inferred by the Commission’s silence," he said.

The new agency, on the other hand, would have to establish a dedicated unit for sexual harassment investigations and would also have more expansive transparency provisions, being subject to the same Freedom of Information Law that currently applies to the executive branch (there are ongoing negotiations about extending FOIL to the Legislature).

Last year, JCOPE’s lack of transparency was put to the legal test. New York Republican party chair Ed Cox and Molinaro, the Republican gubernatorial nominee, sued the agency to force a vote on an investigation into Joe Percoco, the former top Cuomo aide who was convicted on federal corruption charges last year. During the trial, Percoco was found to have improperly used his executive chamber office while working on Cuomo’s campaign, but he was never investigated by JCOPE. On December 19, a state supreme court judge ruled that the agency must take a vote within 30 days and then inform the judge, though they were not ordered to release the details of the vote to the public.

“I don’t think that current model is working and I think we need to fix that...It’s just not designed to do its job,” Krueger said of JCOPE in a December interview. She and Carroll were joined at the state Capitol building on Tuesday by representatives of groups including Common Cause New York, Reinvent Albany, the League of Women Voters of the State of New York, the New York Public Interest Research Group, the New York City Bar Association, as well as a few legislators, such as Senator Jen Metzger and Assemblymembers Richard Gottfried and Carrie Woerner.

What remains unclear is whether the leaders of both legislative chambers will support the proposal. Requests for comment to Assembly Speaker Carl Heastie’s and Senate Majority Leader Andrea Stewart-Cousins’ offices went unanswered.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note - this article has been updated to clarify that Seth Agata was appointed by JCOPE commissioners, not the governor. It has also been updated to include public statements made by JCOPE chair Michael Rosen about why the agency does not comment on investigations. 

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As Session Starts, Legislators and Advocates Push Overhaul of State Ethics Enforcement Tue, 08 Jan 2019 05:00:00 +0000
‘It’s just not designed to do its job’: Will New York reform its state ethics agency? https://www.gothamgazette.com/state/8141-it-s-just-not-designed-to-do-its-job-will-new-york-reform-its-state-ethics-agency https://www.gothamgazette.com/state/8141-it-s-just-not-designed-to-do-its-job-will-new-york-reform-its-state-ethics-agency ethics reform announc

Skelos, Cuomo & Silver in 2011 (photo via the Governor's office)


This year’s elections in New York saw the issues of public corruption and government ethics reform take centerstage in several campaigns. Insurgent Democratic candidates, some who succeeded and others who did not, challenged incumbent elected officials on their parts in the broken system of corruption prevention and ethics enforcement at the state level that has allowed -- some say encouraged -- rampant corruption and self-enrichment.

Much criticism has been levelled at the state’s Joint Commission on Public Ethics, or JCOPE, a relatively young agency with a lackluster record of keeping watch on wrongdoing in state government. Since the agency’s inception seven years ago, several sitting lawmakers have been indicted and convicted of public corruption. But in most, if not all, those cases, JCOPE seems to have sat idly by as other enforcement agencies eventually stepped in. JCOPE has brought enforcement actions for ethical violations against only two lawmakers in that time -- one in 2013 against former Assemblymember Vito Lopez and then in 2015 against former Assemblymember Dennis Gabryszak. The body does not appear to many as much of a deterrent or enforcer.

Now, with Democrats set to take full control of the state Legislature and legislative leaders signalling a renewed commitment to reform, there’s talk of altering, or even repealing and replacing JCOPE, with some reform-minded legislators eyeing their new opportunity and even some relevant campaign season words from Governor Andrew Cuomo about making the ethics body more independent. Among them are Assemblymember Tom Abinanti, who wants to reform the agency’s membership, and State Senator Liz Krueger, who has proposed eliminating JCOPE and creating an entirely new agency from scratch.

Good government advocates are pushing for a soup-to-nuts reimagining of ethics enforcement. At minimum, they say, there should be changes to how JCOPE commissioners are appointed and that the agency should be given more teeth. The best-case scenario? Do away with JCOPE entirely and replace it with an entity as close to completely independent of political interference as possible.

JCOPE was created in 2011 during Cuomo’s first term, after he came into office promising to wipe clean the rot that had infected state government. Part of a deal with a hesitant Legislature, the agency was charged with overseeing lobbying activities and ethics violations by members of the state Assembly and Senate, the executive branch, dozens of state agencies, and candidates for elected office. It’s composed of 14 commissioners who serve five-year terms -- six appointed by the governor and lieutenant governor, three appointed by the Assembly speaker, three appointed by the Senate majority leader, and one each appointed by the minority leaders in both legislative chambers. The governor also appoints the chair of JCOPE while its executive director is chosen by the commissioners.

To advocates, JCOPE’s structure is plainly at the root of its problems. “The fundamental problem is, if you don’t have independent enforcement of the law, it doesn’t matter how good the laws are,” said Blair Horner of the New York Public Interest Research Group. “While that’s not a bumper sticker issue, it’s not the sexy ethics issue to talk about, it is the critical one. The cornerstone of effective ethics enforcement is the independence of the agency that deals with it.”

Advocates and reform-minded elected officials have argued for years that JCOPE commissioners cannot be expected to conduct robust investigations of the very institutions, entities, and individuals that appoint them. JCOPE’s current executive director Seth Agata, a former aide to Cuomo, was a particular target of that criticism during the election. Cuomo’s Republican opponent, Dutchess County Executive Marc Molinaro, repeatedly called on Agata to step down over having failed to adequately scrutinize the executive chamber, particularly after the corruption conviction of Joe Percoco, a former top aide to Cuomo, who was found to have used his executive chamber office while working on Cuomo’s first reelection campaign.

In their only debate of the race, even Cuomo conceded that he would prefer to see a more independent JCOPE. “I believe we need more independence on JCOPE, I believe we need totally independent appointees and not necessarily representatives of both houses [of the Legislature],” he said. “I’d be open to a number of configurations, but they’d have to be independent. I’d have the attorney general involved; I’d have the chief judge involved in appointing the members.”

As he often has, Cuomo indicated his belief that even getting the Legislature to agree to creating JCOPE was a significant lift, and he added that it provided an opportunity to push further, having cracked the door open.

In the Democratic attorney general primary race as well, Fordham Law professor and anti-corruption crusader Zephyr Teachout led the charge in calling for Agata’s resignation, inflamed in part by JCOPE’s investigation and subsequent clearing of Sam Hoyt, a former state economic development official who was accused of sexual harassment and assault by a woman who said he helped her obtain a job at the state DMV. Hoyt was previously a long-serving member of the Assembly and was also investigated for sexual harassment while in office, and was later disciplined for having an inappropriate relationship with an intern. He was recruited after that by the Cuomo administration.

Public Advocate Letitia James, who went on to win the attorney general seat, initially took a softer position on JCOPE but eventually too joined Teachout in calling for Agata to step down, as did Rep. Sean Patrick Maloney, who was also in the race. Former Verizon executive Leecia Eve, who worked with Agata in Cuomo’s administration, was the only Democratic attorney general candidate not to issue that demand but did say that JCOPE should be scrapped and a new agency created from the ground up.

[Read: Agenda 2019: High Hopes for Long-Awaited Reforms]

There have been bills introduced in the state Legislature that would accomplish these goals. Earlier this year, Assembly Member Tom Abinanti, a Democrat representing parts of Westchester County, proposed restrictions to JCOPE’s membership. His bill would prohibit an individual from serving on the commission if they had been a registered lobbyist, elected official, state officer or employee, or a legislative employee within the previous ten years. “We should ensure that no member of JCOPE is inclined to act preferentially for or prejudicially against any subject of a JCOPE inquiry,” Abinanti said in a phone interview.

Abinanti said he was open to the idea of potentially scrapping the agency but said his bill was a necessary half-measure in the absence of broader action. “My bill is a more practical approach that, so long as we have JCOPE, we have to make some reforms and we need to make sure that the members of JCOPE do not have any relationships with the people who might become the subjects of their inquiry,” he said.

The office of Assembly Speaker Carl Heastie, a Bronx Democrat, did not respond to a request for comment. Senate Democratic spokesperson Mike Murphy said, “There was much done by the previous majority in furtherance of Senate Republicans’ partisan agenda and we expect to reform those inequalities to create more fairness,” likely referring to the fact that the Senate Republicans will still maintain control of a majority of the chamber’s appointments to JCOPE even after Democrats take the majority.  

Good government advocates agree that, in the absence of a new independent agency, the Legislature should make fixes to JCOPE’s problems, which are many. Besides the perceived conflicts of interest in appointments, the agency is notoriously opaque to the public. It does not release the details of investigations or even say whether an investigation has been initiated or concluded, for which it was recently sued by New York State Republican Party Chair Ed Cox. Its bizarre rules also effectively allow three Republicans out of the 14 members to block a majority vote for an investigation to proceed into a state elected official, said Alex Camarda, senior policy advisor at Reinvent Albany. The law mandates that the majority vote must include “at least two members appointed by the governor and lieutenant governor and enrolled in the individual's major political party, if he or she is enrolled in a major political party.”

“That’s probably the greatest flaw with JCOPE,” Camarda said. And, owing to how the original JCOPE law was written, both parties also retain the number of appointments they can make even if they are not in the majority in a legislative chamber.

“There’s tweaks and adjustments to the current structure or there’s scrap the whole thing and start over,” said Camarda. “The best practice is to start with a nominating pool from which elected officials choose and the candidates that are put into the nominating pool would be put there by an outside body like the City Bar Association or judges, people who are unaffiliated with the targets of ethics investigations.”

Senator Krueger, a Manhattan Democrat, agrees with that sentiment and has proposed a state constitutional amendment to create that independent entity.

Krueger introduced a resolution, co-sponsored by Assembly Member Robert Carroll, a Brooklyn Democrat, at the tail end of the 2018 legislative session that would add a new article on state government integrity to the constitution. It would establish a New York State Commission on Government Integrity to take over the role currently played by JCOPE. The new commission would be made up of nine members -- two appointed jointly by the governor, attorney general and comptroller; five appointed by the state’s chief judge and the presiding justices of the appellate courts; and one each by legislative conference leaders of political parties that are the top-two vote getters in the previous gubernatorial election.

Pursuing a constitutional amendment would also remove Governor Cuomo from the process. Unlike a bill that he could choose to sign or veto, the amendment would have to be approved by both legislative chambers in two consecutive sessions and then be presented to voters as a ballot measure.

“So do I assume [the governor] wouldn’t like this? Yes, probably he wouldn’t like this,” said Krueger, who will be a powerful member of the incoming Senate majority. “He wrote the existing JCOPE language. I don’t think that current model is working and I think we need to fix that...It’s just not designed to do its job.”

Krueger plans on reintroducing her resolution in the upcoming legislative session in January, with a few changes, which her office shared with Gotham Gazette, after consulting with the state’s chief judge and attorney general’s office. The earlier version allowed the commission to remove a legislator from office but the new version does not give the body that authority. Another revision allows the commission to give informal advice, which can then be used by an individual as defense in any potential future investigation.

The bill hasn’t been discussed yet by Senate Democrats and Krueger said it isn’t on the list of priorities for the conference as it meets this week to prepare for January. But Krueger is particularly optimistic that the Legislature will be under added public pressure after this election to move ahead on ethics reforms, both preventative and in enforcement. “I always have said, never waste a good crisis in government,” she said, “and when people have serious doubts about the honesty and integrity of their government leaders, it is a serious problem for all of us.”

She continued, “We depend on federal prosecutors to come in and play gotcha with us to finally get anything done. I’m not opposed to federal prosecutors playing gotcha, I just think the state of New York ought to have a system in place that can self-police, that can investigate, that can find people innocent when wrongfully accused and direct those, where there are findings of bad behavior and guilt, that those people be referred to the appropriate people in criminal justice.”

Another area where JCOPE is thought to be unequipped is in examining allegations of sexual harassment, an issue brought into recent relief by the allegation of forcible kissing brought against Senator Jeff Klein by a former aide, Erica Vladimer. Not only is it unclear if JCOPE has the expertise to examine sexual harassment claims, but there is little transparency related to any investigation that may or may not be happening, nor clarity around whether an accuser is provided information about the status of an investigation.

JCOPE spokesperson Walter McClure declined to comment on the proposals put forward by Krueger and Abinanti. “Any decisions on changes to our enabling legislation or the laws that we have oversight over are up to the Legislature and the Executive,” he said in an email.

It’s unclear whether the governor will back these efforts. On government ethics reform he has a history of promising big but delivering small, something that has left critics wary. As Camarda noted, “The governor told the editorial board of the Daily News that he was going to put into place a database of [economic development] deals, which he could do via executive order or pass legislation. He has not done that.” He also cited Cuomo’s unfulfilled promise to restrict campaign contributions from vendors bidding on state contracts.

The governor also made promises to pursue campaign finance reforms, including closing the so-called LLC loophole, and has repeatedly emphasized banning outside income for legislators as a sweeping ethics solution, even when the corruption has touched his own inner circle, removed from the Legislature. He lauded the recent recommendations of a state panel that would give lawmakers a pay raise while severely curtailing the money they can make from outside sources. Cuomo has been less vocal, however, about the issues within his own administration as highlighted by the scandal-ridden Buffalo Billion economic development program.

The governor’s office also did not provide any concrete proposals for reforming JCOPE when asked for comment. Hazel Crampton-Hays, a spokesperson for the governor, said in an email, “Governor Cuomo will continue to lead the fight on ethics reform to restore confidence in government, and we look forward to engaging with the new legislature to update and refine our laws and identify which new reforms will be most effective.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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‘It’s just not designed to do its job’: Will New York reform its state ethics agency? Wed, 12 Dec 2018 05:00:00 +0000
WATCH: Agenda 2019: Movement Expected on Reform, But What Will It Look Like? https://www.gothamgazette.com/state/8119-watch-agenda-2019-movement-expected-on-reform-but-what-will-it-look-like https://www.gothamgazette.com/state/8119-watch-agenda-2019-movement-expected-on-reform-but-what-will-it-look-like mnn agenda ep2

(photo: @MNN59)


This is part of AGENDA 2019, a joint Gotham Gazette-City Limits project
Find the rest of the series here

mnn59 agenda ep2As part of Agenda 2019, the project from Gotham Gazette and City Limits, hosts Ben Max and Jarrett Murphy were joined on Manhattan Neighborhood Network by State Senator Liz Krueger, a Manhattan Democrat, and Susan Lerner, executive director of Common Cause NY, to discuss reform issues and the year ahead. Topics included voting and election reform, government ethics reform, and campaign finance reform. Krueger's new Democratic majority in the state Senate are pledging to work with the Democratic Assembly majority and Democratic Governor Andrew Cuomo to usher through a long list of stalled reforms, but what will actually get done? And what should it look like? Watch:

 Gotham Gazette:

This is part of AGENDA 2019, a joint Gotham Gazette-City Limits project
Find the rest of the series here

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by Ben Max, Gotham Gazette
     

Read more by this writer.

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WATCH: Agenda 2019: Movement Expected on Reform, But What Will It Look Like? Thu, 06 Dec 2018 05:00:00 +0000