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Major State Ethics and Governance Reforms Hoped for Under Hochul


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Then-Gov. Cuomo with current Gov. Hochul (photo: Governor's Office)


With the abrupt end of the ten-year reign of Governor Andrew Cuomo, reformers inside and outside of state government are looking for change. Unspooling their wishlist has been a kind of inaugural red carpet for Governor Kathy Hochul, who took office last month after Cuomo resigned amid a flurry of scandal -- almost all connected, in some way, to government ethics, transparency, and the erosion of checks and balances.

Hochul immediately pledged to take steps to undo Cuomo's culture of political aggression and aggrandisement and move New York into a new era of more ethical government. Cuomo was known for trying to use every lever of government to his advantage -- controlling the flow of information from state agencies, using the massive state budget to advance his policy agenda, and stacking state commissions and public authorities with his aides and allies.

He resigned in the face of an Assembly impeachment probe over his abuse of power, including the sexual harassment of aides and a state trooper, his handling of covid-related death in nursing homes, the use of state resources on a $5.1 million book deal, a possible cover-up of faults in the Mario M. Cuomo Bridge -- one of his signature infrastructure projects -- and more. But the parade of wrongdoers in New York State government extends well beyond Cuomo to include prior governors, legislative leaders, and others.

In more than half a dozen interviews with Gotham Gazette, lawmakers and advocates described the ways Cuomo wielded his power to punish adversaries and elevate his position at the expense of democratic and transparent government. While Hochul, the first woman to lead the state, has been described by many as "a breath of fresh air" in the smoke-staled State Capitol, reformers see a litany of litmus tests ahead of her bid for a full term next year.

In her first major address as governor, Hochul -- a Buffalo native and former Congresswoman and Lieutenant Governor -- set out her pandemic-era priorities: getting kids back in classrooms, boosting vaccination rates, and moving stalled relief funding to renters, landlords, and ‘excluded workers.’ She also vowed "a dramatic change in culture—with accountability and no tolerance for individuals who cross the line."

And she promised "a new era of transparency" with a "focus on open, ethical governing that New Yorkers will trust."

"On day one of her administration, the Governor ins​tructed her counsel to come up with an expedited FOIL process, directed State entities to review their compliance with state transparency laws, and began including an additional data set from the CDC in the daily COVID reports," said Hazel Crampton-Hays, Hochul's press secretary, in a statement to Gotham Gazette. "As part of the 45-day transition period, we are reviewing the matters raised by recent investigations and exploring all ways to ensure accountability and open, ethical governing that New Yorkers will trust.”

Good government advocates, including some legislators, see the new administration as a chance to fix some of the worst elements of Albany's political culture. They are taking aim at the state's ethics watchdog, the Joint Commission on Public Ethics (JCOPE), which is known to be compromised by conflicts of interest and something Hochul has also identified.

Reformers want to see the inspector general's office -- another watchdog appointed by the governor -- retooled and the state's sexual abuse statutes and harassment policies updated. And they hope Hochul will restore oversight powers of the Legislature and state comptroller that were stripped by Cuomo, as well as address the state's massive Freedom of Information backlog, including the disclosure of covid-related datasets and the financial interests of a top state judge.

In some regards, Hochul has already met these expectations -- with the acknowledgement of the pandemic's full death toll, for example -- or provided encouraging remarks. But in other instances, like temporary changes to the state's Open Meetings Law made without public review -- her first act of lawmaking as governor -- Hochul's actions have raised alarms.

JCOPE and the Inspector General
For many, high on the list of necessary changes in Albany is revamping the state's system of government ethics oversight. That begins with the Joint Commission on Public Ethics, or JCOPE, the watchdog designed in 2011 by Cuomo and the legislative leaders, Senate Majority Leader Dean Skelos and Assembly Speaker Sheldon Silver -- all of whom left office in disgrace (the former still facing multiple investigations and the latter two in prison on corruption charges).

JCOPE was introduced as an independent watchdog with commissioners appointed by the governor and majority and minority legislative leaders. It is meant to have jurisdiction over government ethics and lobbying issues. But in its ten years, critics say the body has been plagued by inaction and obfuscation stemming from political loyalties and conflicts of interest.

A number of examples have come to light of alleged political interference by Cuomo via his appointees on the commission. That was enabled by an allowance in the state constitution for a small number of commissioners to block investigations from going forward, which can render inert complaints about appointing authorities or their allies.

"The model that we have in the constitution now is just fundamentally flawed," said Senator Liz Krueger, a Manhattan Democrat, who sponsors an amendment that would abolish the commission and create a new body with full jurisdiction over both the legislative and executive branches.

Allowing the governor and legislative leaders, "whoever they are, to have veto power over investigations going forward is just completely unacceptable," she said. While support for replacing the body entirely has grown widely among legislators, legal experts, and good government groups, not all agree on the proposed amendment or the details of a better oversight system.

"My hope is that we do it in a smart, transparent fashion that is honest and earnest and is not hyperbolic or just pure virtue-signalling," said Assembly Member Robert Carroll, a Brooklyn Democrat who sponsors the amendment in the Assembly. "I think that is too often what happens in Albany."

On her first day in office, Hochul indicated support for changing JCOPE but did not go as far as say it should be replaced. She reiterated that position last week after JCOPE again made headlines related to Cuomo's controversial book deal: "We are committed to instituting bold reforms of JCOPE, which is why my administration will work with legislators, good government groups and the public to reform ethics oversight and ensure that the work of this ethics body is beyond reproach."

When asked directly by a reporter at a September 15 press briefing whether JCOPE should be abolished, Hochul said, "I said what I'm going to do is turn it upside down and to challenge the premise that an entity that is created by elected officials with their own appointees should be charged with investigating those individuals, should circumstances arise. The whole premise behind it is flawed."

An omnibus bill in the state Senate, sponsored by Senator Alessandra Biaggi, a Bronx Democrat and the chamber’s ethics committee chair, would make a number of changes to JCOPE short of the constitutional amendment needed to create a new agency with full authority over both the leg and executive branch. The bill would eliminate the requirement that JCOPE investigations have support from two members of the same political party as the person being investigated. It would also get rid of a partisan voting requirement to appoint an executive director. And the bill would give legislative majority and minority leaders an equal number of appointments on the commission.

While it passed the Senate in May, it represents one instance in which the upper chamber advanced a bill without the Assembly doing likewise. Biaggi said she had been working with Assembly ethics chair Jo Anne Simon, a Brooklyn Democrat, to introduce the bill last year but that they were blocked administratively.

"She said yes, she put the bill in for the number, and was never given a bill number," Biaggi told Gotham Gazette. Biaggi said she is still working with Simon to introduce a bill but is again facing resistance: "What I have heard, both in public statements as well as internally, that there's a real reluctance to want to pass these bills," she said.

Biaggi, whose committee held a hearing examining JCOPE in August, plans to hold another in December, this time jointly with members of the Assembly. "Their participation does matter and...they do have a lot of members who have opinions and we want them to be accounted for," she said.

On September 14, Hochul appointed two commissioners to replace Cuomo appointees who had recently resigned, including James Dering -- one of those recently departed appointees -- as acting chair. Her choice of Dering, who also had once worked for Cuomo as general counsel in the health department, raised the ire of politicos seeking a change from business as usual.

"Rather than fulfilling her promise to prioritize transparency and integrity in government, Governor Hochul’s appointment only maintains the status quo," Biaggi said in a statement. "It is now even more imperative for the Legislature to take matters into our own hands, and pass legislation to completely reform and restructure our state’s system of ethics and oversight.”

Hochul defended her choice to reporters a day later. "I had to find an individual, an individual who is highly recommended, has credentials, but literally is unknown to me. I want to make sure that we are not stacking these bodies with our friends and with our allies as had been the past," she said at the September 15 briefing.

Hochul will have another chance to win the approval of reformers seeking an independent watchdog when she appoints a new inspector general to replace Cuomo-appointee and ally Letizia Tagliafierro, who stepped down last week without specifying a reason.

Tagliafierro's office was the subject of public criticism for failing to interview Cuomo or Assembly Speaker Carl Heastie in a probe of their involvement in an alleged leak of a confidential JCOPE vote -- one to investigate Joseph Percoco, a former top Cuomo aide, who is also now serving prison time for corruption. Tagliafierro has said she recused herself from that investigation.

Regardless of who is appointed, Krueger believes the "rules of the road" for an inspector general should be changed entirely so that the position does not report to the governor. "I believe this IG failed on any number of occasions to follow through on what they were supposed to be doing and instead, either by order or request of Governor Cuomo, didn't do what they should have been doing," she said.

Sexual Harassment
Advocates for better policy to prevent and punish sexual harassment in and outside of government have won a series of major changes to state law in recent years, including some signed by Cuomo that he went on to violate, according to the State Attorney General’s August report. Those advocates had already been seeking additional changes to state law, which gained new life in the wake of the many sexual misconduct allegations against Cuomo and subsequent Attorney General report.

"Today, I am directing an overhaul of state government's policies on sexual harassment and ethics, starting with requiring all training be done live, instead of allowing people to click their way through a class," Hochul said during remarks on her first day as governor. She also said she would sign an executive order requiring ethics training for all government employees.

The Sexual Harassment Working Group, an advocacy organization of former legislative aides who were harassed by employers, has been pushing for the definition of abuse of power to be expanded, both in the public's eye and in state law. Among the group’s goals is to have "discrimination, harassment, assault, and retaliation" included as a violation in the Public Officers Law.

"They are not explicitly mentioned in the Public Officers Law, leaving too much room for interpretation," said Erica Vladimer, the group's co-founder, in testimony at the Senate ethics committee's August hearing.

The Working Group is also pushing a bill that would extend workplace harassment protections under the state's Human Rights Law to all employees of government officials, including so-called "personal staff" who in some cases have been considered exempt from protections under a federal statute.

The bill, sponsored by Senator Andrew Gounardes and Assembly Member Yuh-Line Niou, passed the Senate in May and remains in committee in the Assembly. "I can assure you that we will continue to look at that and any other appropriate legislation that continues to underscore that we value...a workplace that allows you to do your best work," Senate Majority Leader Andrea Stewart-Cousins said in a recent interview with Gotham Gazette.

"And when you work, regardless of who you are, you will be protected," she added. "So, yes, there will be continued conversations on that."

Another glaring gap advocates see is the so-called "rape intoxication loophole," which has been used to undercut the state's rape statute in cases where the victim or survivor was voluntarily enibriated. Biaggi sponsors a bill that would close that loophole and believes Hochul may be the one to help advance it.

"Having a female governor come in and also really take on things like closing the rape intoxication loophole is important because we know that even though all people can be raped, women are most likely the ones who are raped," she said. The bill passed the Senate in June, but remains in committee in the Assembly.

Government Transparency and the Freedom of Information Law
Before there was a series of sexual harassment allegations against Cuomo, the governor and his Department of Health were facing criticism for mishandling COVID-19 and nursing homes, and questions around their purposeful underreporting of the number of deaths of nursing home residents due to the virus.

For close to a year, the state's regularly reported covid death toll lagged behind one kept by the CDC and other groups monitoring New York. On her first day at the helm, Hochul reconciled the discrepancy by disclosing the deaths of 12,000 more New Yorkers than had previously been reported by the state’s Health Electronic Response Data System (HERDS).

It was a promising first step toward fulfilling a commitment she had made in her first major address as governor: "A new era of transparency will be one of the hallmarks of my administration," she said on her inauguration day.

But good government groups and transparency advocates have been disappointed with some of Hochul's actions and inaction since. At the top of the list was a middle-of-the-night amendment to the state's Open Meetings Law, which, citing covid, temporarily allows local governments to block the public from physically participating in meetings as long as they are broadcast virtually. The change, Hochul's first law signed as governor, was made during a special legislative session originally slated to extend the state's expired eviction moratorium. Because much of the legislation was discussed in an executive session of the state Legislature, the public did not see the bill language until after it passed.

"Going straight into secret session...with an unknown agenda with changes to basic parts of public transparency law...which have not been seen by the public -- that's the kind of thing that makes watchdog groups howl," said John Kaehny, executive director of good government group Reinvent Albany, in a recent interview with Gotham Gazette. "It rattles one's confidence in a clean break from the past."

Advocates including Reinvent Albany, Citizens Union, Empire Center, and others have also been pushing the state to release its COVID-19 data sets, which they argue are public documents subject to disclosure under New York's Freedom of Information Law (FOIL). "Of the [123] datasets we identified, the state has published only 14 as open data, with 64 others provided in a format that cannot be easily used or analyzed," the groups wrote in a letter to Hochul on September 7. The hidden data includes everything from infection and mortality rates by zip code, age, and ethnicity to hospital capacities and facility statistics.

For Ron Kim, a Queens Democrat in the state Assembly and an outspoken Cuomo critic, this is one of the most pressing issues facing the new governor. "The previous administration under [Health Commissioner Dr.] Howard Zucker came up with a million excuses of how they couldn't correlate the data and release accurate numbers," Kim said in an interview. On Thursday, Hochul announced Zucker's resignation as health commissioner.

Kim, whose uncle died in a nursing home last year after contracting COVID-19, was on a call with Melissa DeRosa, Cuomo's Secretary to the Governor, and other Democratic lawmakers when DeRosa admitted to dodging their calls for nursing home data out of fear it would be used by President Donald Trump against the Cuomo administration. He said Hochul could administratively ensure compliance with FOIL requests "in real time" rather than "stonewalling us...something Cuomo was notorious for with the press and legislative body."

Hochul can also enact changes to the FOIL statute that could strengthen enforcement and give the request process more teeth. One bill in the State Legislature would require an agency to provide a "particularized and specific justification" when denying a FOIL request, something transparency advocates say would help block frivolous exemptions to the law. Cuomo vetoed that bill in 2019, but the Legislature reintroduced and passed it again earlier this year. It awaits Hochul's signature.

"I think the FOIL statute is pretty good. You just have to follow it and the Cuomo administration was not following it," Senator Krueger told Gotham Gazette. Instead, extensive delays and refusals regularly "require[d] us to go to court for basic FOIL-able information," she said.

In her inaugural address, Hochul promised to fix that status quo. "I will direct State entities to review their compliance with state transparency laws, and provide a public report on their findings," she said. "I have instructed my counsel to come up with an expedited process to fulfill all FOIL requests as fast as possible—and post completed requests publicly online." Two weeks later, good government groups issued the September 7 letter for the release of the missing covid datasets.

Hochul's office would not provide a status update on these changes to Gotham Gazette or elaborate on what her commitments will entail. But on September 20, the governor's office issued a memo, first reported by the Buffalo News, to agency heads to review their transparency "policies and practices." The memo directed agencies to submit plans for improving transparency by October 20, including FOIL response times, and "proactively posting frequently requested information or completed requests online."

None of those measures would address another long-standing cause for transparency advocates: extending the full coverage of FOIL to the state Legislature. While the Legislature is subject to some FOIL disclosure -- and the Assembly has adopted internal rules to increase the release of information -- the requirements of the law are not as expansive as they are for state and local agencies.

Oversight Powers and Public Authorities
One of the hallmarks of the Cuomo administration was consolidating under the executive branch the separate powers of state government -- namely those of the state Legislature, state comptroller, public authorities and government watchdogs like JCOPE and the inspector general. He also exploited the powers the governor's office already had.

The most powerful tool he wielded in this regard was the state budget. Since the early 20th century, the New York State Constitution has ensured the proposed budget, unlike typical legislation, originates with the governor. Over the years the courts have strengthened the office's standing in budget negotiations.

The most recent example is a series of lawsuits, decided in 2004, between former Governor George Pataki and the state Assembly under Silver. The cases limited the Legislature's ability to alter spending and conditions set in appropriation bills. They also allowed the governor to include certain language that did not relate directly to budget matters. That has been used by governors, particularly Cuomo, to pack the budget with policy that goes beyond state spending.

The practice has created, in effect, two legislative sessions, according to Kaehny, the good government advocate. "There is kind of the varsity level one, which is the budget, and the big policy changes that go into that. And then there is the JV session that comes afterwards after the budget deal is done, when you have less important bills," he said.

According to Senator Biaggi, the state constitution, and the fact that many of the appropriation bills are negotiated at the last minute before the April 1 fiscal year deadline, means legislators often have to decide between forcing a government shutdown or deferring to the governor's proposal.

"The way to deal with this is to allow for the Legislature to have the same kind of power as the executive to say, 'no we're going to make this change and it's not going to reset the whole entire negotiating process,'" she said.

Biaggi and Assembly Member Dick Gottfried, a Manhattan Democrat, sponsor an amendment to even out that balance by allowing the Legislature to "modify and substitute" budget language rather than simply "striking" or adjusting existing proposed appropriations, among other provisions.

Biaggi said the Cuomo administration indicated to lawmakers that voting on the amendment, which remains in committee, would amount to "an act of war." She hopes Hochul or a future governor would be more supportive of it. The amendment doesn't address the governor's ability to include policy matters in the budget, but "when it comes to this issue, the most important thing is that the Legislature and the executive have equal bargaining power," she said.

Hochul will have limited opportunity to pursue legislation outside the budget before she faces a potential primary challenger in June, Kaehny noted. "She has barely any time to do anything so her budget is going to be her main product," he said. The governor’s executive budget plan is due in January.

Avoiding 'acts of war' with Cuomo was in many ways the state of play in Albany. It extended from the budget to the Legislature's power to hold oversight hearings over state agencies, according to Assembly Member Kim.

"There's been kind of a soft agreement to play nicely under Cuomo's administration, fear that members would be punished if they crossed the line with the executive office," said Kim. "I think Kathy Hochul can immediately send the right message that transparency is about holding state government agencies accountable and they should be completely cooperative with our hearings." Kim was among those to expose Cuomo’s notorious bullying after he said he received a threatening phone call from the then-governor earlier this year.

Cuomo also used his broad budget powers to remove a key piece of oversight once held by the state comptroller to review state contracts before they begin. Good government groups have been pushing to restore that power for years. In July, Cuomo extended the comptroller's preclearance exemption to programs to combat gun violence when he signed executive order 211, declaring a state of emergency in the wake of numerous shootings.

"No new contracts should be entered into by Governor Cuomo or Budget Director Robert Mujica without Comptroller review regardless of any prior exceptions," said good government groups in a joint statement in August.

That oversight power is one of a handful of tools advocates say is needed to ensure economic development projects like Cuomo's "Buffalo Billion" are not misused. In the case of the Buffalo Billion -- a billion-dollar-plus initiative to expand nanotechnology manufacturing in western New York and revitalize the state’s second biggest city -- charges of bid-rigging and bribery landed Alain Kaloyeros, the CEO of SUNY Polytechnic Institute, and Joseph Percoco, a top Cuomo aide, in prison.

The state funding came through the Empire State Development Corporation and the New York State Energy Research and Development Authority, or NYSERDA, two public authorities whose members are appointed largely by the governor. State Comptroller Tom DiNapoli, some legislators, and good government groups have said the convoluted funding and contracting structure of the entities made them far too unaccountable to public oversight. It's part of what they say enabled some of the corruption Kaloyeros, Percoco, and others were convicted of.

"If you look at the chain of accountability it starts with the Legislature writing blank checks" to Empire State Development, Kaehny said, which then funneled the money through SUNY-controlled nonprofits. The comptroller's preclearance powers over SUNY contracts, which were removed in Cuomo's first budget in 2011, would have been the canary in the corruption coal mine, he said, but legislative oversight was "really supposed to be the first line of defense."

Even with the laws in place, Kaehny warned, Albany -- including the Legislature and comptroller -- has a fiefdom culture of acquiescence to power that goes beyond Cuomo. "There's a tacit agreement that you'll stay out of my business and I'll stay out of your business," he said.

While some of the comptroller's oversight power was restored in a pre-pandemic 2020 agreement between Cuomo and DiNapoli, it may be terminated with ten days notice. "In the long-term, contract oversight provisions such as these should be embodied in law," said Matthew Ryan, a spokesperson for DiNapoli.

Ryan warned that state budgets "routinely" contained measures "allowing state spending without standard protections," like the comptroller's preclearance power. The pandemic budgets have been rife with them: "Most recently, the State Fiscal Year 2021-22 Enacted State Budget included several new provisions authorizing substantial COVID-related (or public health emergency-related) state spending without such protections," Ryan said.

Another opaque authority where Cuomo's influence has been criticized is the massive Metropolitan Transportation Authority (MTA) -- responsible for public transit in the greater New York City area and employs over 70,000 people. Reformers want to see Hochul and her predecessors appoint competent and independent people to run the MTA (and other authorities). To do that, they would need to operate without political interference and under clear standards of accountability. Hochul has pledged just that, saying she will "professionalize" boards through her appointments and not interfere.

"One of the reasons why it is hard to get additional funding for necessary infrastructure projects for the MTA or for airports or bridges is because people question whether the money is being well spent and who is overseeing it," said Assembly Member Carroll.

"It's our job to pass laws that make sure that the management and the accounting of the MTA is transparent and...there's accountability when there are problems," he added. Carroll sponsored two bills with Senator Leroy Comrie, a Queens Democrat, to require the MTA to publish information in open data format -- one that is easily downloadable and searchable -- and to bring New York City subways and buses under municipal control. The data bill has passed both chambers and could be signed by Hochul this year. The municipal control bill remains in committee.

"If we allow for business as usual, which is the MTA as a black box, that will be a failure of leadership on Governor Hochul's part but also on the legislature's part," Carroll said.

"There was a real push from the second floor not to meddle with the MTA and I think that's because Governor Cuomo and his folks on the board wanted to control everything," he added.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

State Senate Examines Board of Elections at Oversight Hearing


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State Senate elections hearing (photo: @CitizensUnionNY)


The State Senate analyzed the execution of the June primary elections in a major hearing Tuesday that included testimony from election administrators for New York City and State, as well as counties, and election reform experts. The lawmakers not only examined how elections were run, but the systems and structures that undergirded their performance -- and, as many said, enabled their failures. 

Tuesday's event was unusual in that it served as the culmination of a series of public hearings held around the state this summer by the Senate elections committee, which gathered feedback on the voting experience from average voters. Those hearings highlighted and exposed a number of problems that lawmakers hoped to address Tuesday and in subsequent legislation, according to committee chair Zellnor Myrie.

"Most New Yorkers vote without incident and most board of elections employees work in good faith, work tirelessly, and work to administer a clean and helpful election," said Myrie, a Brooklyn Democrat in his third year in office. "But if I told you that most of the levers on an elevator were sound...or that most of the controls on a train were working you'd say, 'thank you,' and find another mode of transport."

Despite (or perhaps shored up by) the summer tour, Tuesday's hearing focused on topics advocates have been raising for years and, in some cases decades. They include the Board of Elections' structure, widely seen as enabling inaction and diffusing accountability. The senators and election administrators also discussed the slew of voting changes made in recent years and a growing push to "professionalize" the boards of elections.

New York City, which contains roughly 40% of the state's registered voters and is known to have especially troubled election administration, was a big focus. Topics of interest included the new ranked-choice voting system, poll site staffing and locations, and the age-old problem of long lines at the polls. The city Board of Elections representatives who testified defended their agency and complained about the criticism they frequently receive.

There was also a concerted push by good government advocates for the New York City Council, which is responsible for confirming commissioners of the city BOE, to take a more active role in vetting and shedding light on the commissioners. (The Council is expected to vote through a new Democratic Manhattan commissioner on Thursday with little public vetting of the nominee put forward by the county party.)

Boards of Elections’ Bipartisan Structure
Good government groups and many elections experts have for years said the bipartisan structure of elections boards, in which commissioners are chosen evenly from the two major parties, is anachronistic and convoluted. 

A progressive era reform, in place since the turn of the last century, the partisan split was intended to place checks on the parties, so that no single one controlled the levers of voting. Elections advocates largely agree that the split now diminishes an emphasis on expertise and professionalism.

"Not even basic management skills are necessary criteria for selection or retention as a commissioner, much less familiarity with election administration," said Susan Lerner, executive director of Common Cause New York, in testimony submitted to the committee.

The bipartisan divide also leads to gridlock, which can cripple elections with inefficiency -- wasted time and tax dollars that could go toward election preparation. "The fact that there are an even number of commissioners, split between Democrats and Republicans is a further complicating factor, as the lawsuit filed in 2020 by 3 Democratic Election Commissioners against their own Boards to effect a desperately needed extension of early voting hours illustrates," Lerner said.

"This Tammany Hall era arrangement is not in step with the needs of voters today," wrote good government group Citizens Union, in testimony. Instead, the group is calling on legislators to pass an amendment to replace the Board of Elections system with an elected Secretary of State with limitations on their future participation in politics.

Election administrators from the State Board of Elections and county boards defended the make-up, which they said helps ensure faith in the outcomes. "Our bipartisan system delivers a result that is believed on all sides because there are representatives from the two major parties involved in every decision that we make," said Dustin Czarny, a Democratic commissioner from Onondaga County.

Peter Kosinski, the Republican co-chair of the State Board, loosely compared the "checks and balance" of the bipartisan structure to the separation of powers in the American republic, calling it "a basic tenet of our government and it is reflected in our boards of elections."

Douglas Kellner, the Democratic co-chair, supported the bipartisan structure but said New York City's model of ten commissioners (two per borough) -- as opposed to the typical two in most county boards -- was unwieldy and should be changed. "I strongly urge that the time has come to abolish the ten-commissioner model that separates New York City from the rest of the state and go to the model of two commissioners who work full-time and who have full responsibility and accountability for the operation of the agencies," Kellner said.

Patronage and Professionalization
Many have criticized the partisan structure for the boards' lack of professionalism, which leads to blunders like misinformation from poll workers and chaotic poll sites. 

"At the city board the problem is that the senior management positions are not necessarily chosen on the basis of professionalism because of the need to provide patronage to each of the borough parties," said Kellner. "That's one place where changing the structure of the board would make a big difference."

But he said that same patronage helps ensure well-run elections at the poll-site level, where administrators interact with voters.

Kellner added: "I think it is important to retain one of the best aspects of the bipartisan 'patronage' system, which is [to] keep local district leaders involved in the inspector appointment process," Kellner said. "Where the local district leaders and the local clubs have been involved are where the best run poll sites have been. The biggest problems come when the district leaders don't care about running elections and that has to default to the board of elections to fill that gap."

Kosinski defended the competency of election workers throughout the state. But the sheer quantity of election hires needed each year to run elections makes training workers difficult, he said.

"We hire tens of thousands of people every year to help with the election process," he said. "Is it difficult to train those people and to find those people? Yes it is, that's just a fact because of the number of people that you have to bring in on any election day."

Michael Ryan, the executive director of the New York City Board of Elections, said most employees begin as poll workers and "graduate up." Less than 40% of poll workers are referred through the Democratic and Republican parties, he told the committee.

But that doesn't mean they have professional qualifications. Most are "regular neighbors and friends and maybe they get involved in the political process afterwards," he said, adding: "outside of technical jobs and a few other positions we don't do job postings but I think that's the normal way things get done in a lot of the government processes."

Ryan blamed one of the most high profile snafus of the primaries -- the inaccurate reporting of preliminary ranked-choice voting data -- on a lack of protocols for releasing vote data between the typical "unofficial election night results" and the certification of vote totals.

Had they avoided releasing preliminary ranked-choice tabulations, Ryan said, "I can unequivocally say that never would have happened because prior to certification the borough chiefs and deputies have to complete a discrepancy report."

"We're going to have to circle back amongst ourselves and the commissioners to determine whether or not it makes sense to do any preliminary release of data before the certification and if it does make sense...then we have to develop a set of protocols similar to the protocols that we engage in for certification," he added.

A bill in committee in the state Legislature, sponsored by Senator Liz Krueger, a Manhattan Democrat, and Assembly Member Nily Rozic, a Queens Democrat, would require New York City elections commissioners to have certain professional qualifications. It would create co-executive directors and delineate their powers and that of the commissioners, among other provisions. While conceptually in line with the widely supported spirit of professionalization, good government groups have not universally supported the legislation.

City Council Involvement
While Ryan and Deputy Executive Director Dawn Sandow faced the Senate committee's questions -- along with commissioners from the State and several county boards -- the commissioners of the city Board of Elections did not. In fact, they are almost never to be found at oversight hearings conducted by the State Legislature or New York City Council.

That makes holding the New York City Board of Elections accountable for its decisions, and errors, almost impossible, advocates say. There are mechanisms for the governor to remove commissioners acting badly, and the New York City Council has the ability to reject commissioners during confirmation -- but it almost never happens. Instead the confirmation process in New York City is a perfunctory affair in which the Council -- whose members are often elected with major help from party machinery -- appoints commissioners based on selections from party bosses in the five boroughs.

On Tuesday, a coalition of good government groups issued a letter to Council Speaker Corey Johnson, Majority Leader Laurie Cumbo, and Council Member Karen Koslowitz, the chair of the committee on Rules, Privileges, and Elections, calling on them to "hold a public confirmation hearing" for Jenny Low, who was recently nominated to the BOE by the Manhattan Democratic and "vet the nominee’s experience and fitness to administer elections."

"Low’s experience could be relevant, but the Council must make a real effort to inspect her qualifications and whether she is suitable for the position," wrote the groups, including Citizens Union, Common Cause, the New York Public Interest Research Group, and Reinvent Albany. The letter called for transparency in the confirmation process, including making votes public, and publishing Low's resume. The groups also called for the Council to ask Low to commit to certain reforms like "allowing the Board’s Executive Director to unilaterally hire and fire employees, and publicly posting all open job positions," as it has done in previous confirmations.

Public Advocate Jumaane Williams made a similar push in his testimony before the Senate committee Tuesday: "Our Office is encouraging the incoming New York City Council to exercise more discretion when voting on BOE appointees to ensure that staffing is of the highest possible quality," he wrote.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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Debate Over Reform and Safety in Manhattan District Attorney General Election


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Alvin Bragg, left, & Thomas Kenniff


With Manhattan District Attorney Cyrus Vance Jr. retiring after 12 years leading one of the most high-profile prosecutorial offices in the country, Alvin Bragg emerged from a crowded, competitive, expensive, and closely-watched Democratic primary and is now in the midst of a one-on-one general election. Bragg, a progressive former prosecutor and top deputy New York Attorney General, competing with Republican nominee Thomas Kenniff, a former military judge and criminal defense attorney.

The two candidates have drastically different visions for criminal justice and running the office as the top state-level prosecutor in Manhattan. With Democrats outnumbering Republicans more than eight-to-one in Manhattan, Bragg is heavily favored to win the general election, which culminates on Election Day, November 2, but Kenniff is seeking to make the race competitive, largely by portraying Bragg as soft on crime. No Republican has held the office since Thomas Dewey in 1941.

The Manhattan District Attorney oversees an office with a $146 million budget and 1,185 employees, including more than 500 attorneys and many other investigators. Vance, a three-term Democrat, has blended a number of progressive reforms with a fairly traditional view of running the prosecutor’s office.

Vance declined to seek another term while facing significant criticism that his office mishandled several major investigations, including into the Trump family’s business dealings and a sexual assault case against now-convicted rapist and former Hollywood producer Harvey Weinstein. People to Vance’s right believe he’s retreated too much from tougher prosecution of low- and mid-level offenses while criminal justice reform advocates have long accused him of over-prosecuting low-income New Yorkers of color while looking the other way in cases involving richer, white defendants and doing too little to crack down on police abuses.  

Bragg, who would be the first Black district attorney representing the 1.6 million residents of Manhattan (as well as many millions more who work, own businesses, or visit in the borough), is promising to go much further than Vance when it comes to reducing racial and economic biases in the criminal justice system. He is also pledging to take less punitive approaches to many crimes, instead using different approaches to reduce incarceration and its impacts and create more long-lasting safety.

Kenniff, who is white, characterizes himself as a candidate with a “commonsense approach to prosecuting crime” and promises to be  “a compassionate DA, who will innovate our system without abandoning law & order.”

According to the latest Census redistricting data from 2019, about 46.8% of Manhattan residents were white, 23.7% Hispanic, 12.9% Asian, and 11.7% Black. 

The borough is also overwhelmingly Democratic. As of February 21, 2021, there were 871,969 registered Democrats and 107,920 registered Republicans in Manhattan; with another 243,007 registered voters, often called “independents,” who were unaffiliated with any political party.

The next Manhattan District Attorney faces a complicated law and order landscape in the wake of the coronavirus pandemic, recent increases in gun violence, and ongoing calls for rethinking criminal justice.

As shootings and murders increased dramatically in 2020 and much of 2021 until recent drops compared to last year, crime and public safety have taken a front seat for a concerned public. There have also been added worries about broader street disorder and subway safety, with notable responses at different levels of government that appear to be having some impact in terms of subway crime rates, gun arrests, and more.

The likely next mayor, Brooklyn Borough President Eric Adams, a Democrat, won the primary nomination pledging to reverse those trends while ensuring more fair and racially equitable policing and criminal justice policies. Bragg made similar promises in his successful primary, though he has been further to Adams’ left on reform and expressed some reservations about some of the language the mayoral frontrunner has used, even as the two have pledged to work well together.

Vance’s successor will also assume responsibility for the office’s case against the Trump Organization; while the organization and CFO Allen Weisselberg have been indicted on several tax fraud charges, former President Donald Trump has not faced charges from Vance’s office. That could change as the probe progresses and key decisions could be up to the next DA.

Alvin Bragg
Bragg, who was recently the ​​chief deputy attorney general for New York State, won the Democratic primary campaigning as a progressive reformer against a crowded field that included candidates both to his left and right. He was generally viewed (and rated by some reformers) as among the more reform-minded candidates in the eight-candidate field, but more moderate than three competitors pledging massive decarceral overhauls of the office and its practices.

“[F]airness and safety go hand in hand,” he said in a phone interview, professing policies that he believes will balance the two, transform the culture of the DA’s office, and focus on justice rather than punishment. 

Bragg, a civil rights lawyer and New York Law School professor, has a long list of priorities and has outlined nearly a dozen changes, including organizational, that he will undertake on his first day in office. They include creating a new Police Integrity Unit, appointing a public defender as executive DA for policy, replacing the Conviction Integrity Unit with a “Free the Wrongfully Convicted Unit,” boosting resources for the hate crimes unit, and replacing the sex crimes unit with one that is survivor-centered and trauma-informed, among others. 

He has pledged to “shrink the system,” reducing prosecutions of low-level offenses such as fare-beating and resisting arrest. And he promised to rely on data to inform policy decisions, including where it points to racial disparities in prosecutions. 

“Fundamentally this is a management job, overseeing a large office that got things done,” Bragg said. “So voters should be thinking about who should be entrusted with fairness and safety, who has done it before, and who has done this work in the courtroom.” 

The Harlem-born-and-raised Bragg drew on his own personal experiences with gun violence – pointing to six incidents where has had a gun pointed at him, including three times by police officers – as he insisted that it will be a priority for his office. He has pledged not to charge every case of illegal gun possession, instead looking in some cases to alternatives to prosecution, which has earned him criticism from his opponent and those on the right but praise from many Democrats.  

Bragg argued that there exists a “false dichotomy” that reform comes at the cost of public safety, as his opponent and others have suggested. It is one way his rhetoric resembles that of Adams, who is likely to become only the second Black mayor of New York City. 

But in key ways, Bragg has taken positions at odds with his fellow Democrat. Adams has called for reinstating a version of the NYPD’s plainclothes “anti-crime” unit, which was disbanded last year because it was disproportionately the source of complaints of abusive policing in the city. Adams has also pushed for overhauling a set of bail reforms passed by the state Legislature (and subsequently somewhat rolled back) that went into effect at the start of 2020. Bragg has opposed both ideas, and has a lengthy plan for reducing pretrial detention. He is also a supporter of the Less is More Act, signed into law by Governor Kathy Hochul on Friday, which will restrict the reincarceration of people on parole for technical violations.

Hochul signed the bill into law in part citing dire conditions on Rikers Island, where the incarcerated population has ballooned to over 6,000 after having dropped to a many-decades low under 4,000 in the spring of 2020. About a three-tenths to a third of those locked up in city jails have been or are being prosecuted by Vance’s office.

Though district attorneys often insist they only enforce the law and do not create it, a prominent voice in legislation at the state level is the District Attorney’s Association of the State of New York (DAASNY) and individual prosecutorial offices can and often do exercise massive discretion in how they enforce the law, what alternatives-to-incarceration programs they support, and more.

Advocates for criminal justice reform have often critiqued DAASNY as a roadblock to progressive reforms, a view that Bragg shares. “There’s no doubt about it. The Association has been an impediment to change. I think that is an objective truth,” he said. But he said he plans to become a member to push for change from within and to represent the interests of Manhattan. “Being in the room is necessary,” he said. 

On prospectively inheriting the Trump case, Bragg has been careful to make any presumptions and has said he will “follow the facts, wherever they go,” as he has done throughout his long career as a prosecutor. He already has experience investigating Trump. In 2018, at the attorney general’s office, he was part of the team that sued the Trump Foundation for improper use of charitable assets, leading to the foundation’s dissolution. 

Thomas Kenniff
Kenniff, an Iraq war veteran, has had a long career as a prosecutor, Judge Advocate General, and now as a defense attorney who co-founded his own practice. He is also a major in the Army National Guard and was called to active duty last year to serve as legal officer at the federal mass vaccination site at the Javits Center in Manhattan. 

He said his call to arms in this election was prompted by the massive spike in violent crime last year. “Like so many people, I’m very disenchanted with the state of the city and the state of crime in the city,” he said in a phone interview. 

Though there was a national trend of increasing crime last year in the wake of the pandemic and resulting mass unemployment and dislocation, Kenniff instead attributes it to “the progressive criminal justice agenda” that has been instituted in recent years in New York. “I think that there is much blame to go around. I think that it is first and foremost an indictment of our legislature,” he said, referring especially to bail reform. 

Kenniff specifically discounts the pandemic as the trigger for increasing crime. “I think it's counterintuitive to suggest that it is,” he said, arguing that the accompanying citywide partial lockdown, exodus of some residents, reduced tourism, and portion of the commuting population that remained at home should have in fact led to lower crime rates. “I don't see any logic in trying to pin the blame for this on covid,” he said.

Kenniff insists he is not an ideologue, but rather a “common sense” candidate. His platform includes tough-on-crime policies – including a promise to aggressively prosecute illegal gun possession and gun-related violence – but also reforms to prosecutorial practices. While he has said he will “fairly” prosecute lower-level offenses, including graffiti and fare evasion, he has also promised to support diversion practices that focus on rehabilitative justice.

He criticized the Legislature’s criminal justice reforms of 2019 and 2020, specifically reforms to the discovery law, giving defendants and their attorneys much more information earlier in the process, but not because he opposed the reform but because he said it overwhelmed local prosecutors who did not receive the requisite funding for its implementation. He also pushed for greater funding for public defenders “because frankly, it’s a lot of work for them.”

Kenniff has promised other reforms. He has said he will hold police officers accountable for abuse of power, though he has not offered specifics. He wants to reduce the use of disproportionate charging decisions to pressure defendants into plea bargains. He wants to establish a rehabilitation program that will allow for the early sealing of criminal convictions and remove the stigma of criminal records – though he notes it differs greatly from the Clean Slate Act currently before the Legislature. He wants diversion for low-level drug offenses and to focus on traffickers. And he wants to expand the number of offenses eligible to be referred to mental health treatment courts and provide for mental health professionals in court at arraignments. 

But Kenniff has largely crafted his public message of the campaign around taking a harder line. In press releases and on social media, he regularly criticizes the “radical policies” of the “far left,” which he believes are causing “mayhem” and “unchecked violence” in the streets of New York City.

“A lot of politicians are doing what they do best - shifting the blame and avoiding accountability. My opponent, Alvin Bragg, goes silent and ignores the violence,” he said in an August 23 statement, after a weekend that saw 18 shootings in the city (though Bragg does regularly discuss gun violence). “All because this doesn't fit their narrative. Because for them, it's not about what's actually good for the people. It's about what will get them headlines and dollars.”

Kenniff said his platform is largely similar to previous Manhattan District Attorneys who are Democrats, including Vance and his predecessor, Robert Morgenthau, who served in the office for 34 years. “A lot of my platform, had they been running on it, they might even have been accused of being too liberal,” he said.

But in terms of this election, the question is in large part the electorate, which has been moving left, even in Manhattan where there are still pockets of more conservative voters, including Democrats. Kenniff said concerns for public safety aren’t a partisan issue, and he is relying on that message as he campaigns. “[New Yorkers] are absolutely fed up with crime in the city, Democrats as much as Republicans, and they are not on board with a progressive district attorney like Alvin Bragg that will bring the experiments that we've seen in San Francisco, Detroit, Philadelphia here to New York,” he said.

Where Bragg has differences with Adams, Kenniff shares common ground. He too wants to see the citywide NYPD plainclothes unit back on the street and wants tougher bail laws back in place. “We have divested judges of the ability to take people that are recidivist offenders, demonstrably dangerous, of our streets, and we're forcing this revolving door system of justice where the courts have no choice but to place these individuals back on the street to commit more crime,” he said. 

If victorious, Kenniff would join DAASNY, even if he does not completely agree with its agenda. “I've always been a very independent thinker. I don't get hung up on labels like Democrat, Republican,” he said, noting that he has not received much monetary support from the local, state, or national Republican parties. The Manhattan GOP has, however, endorsed him and undertaken some efforts to boost his campaign and help him raise funds.

Kenniff has raised limited funds for a competitive campaign. As of July 15, he had only pulled in about $55,500 and spent about $37,800. In comparison, Bragg had raised about $2.75 million over the course of the campaign as of July 15, and had spent about $2.5 million, largely in winning the primary, though he was widely outspent by the second-place finisher, Tali Farhadian Weinstein, who ran a more moderate campaign. Bragg had just about $237,000 in cash on hand as of the July 15 filing.

Like Bragg, Kenniff also did not want to comment on the Trump organization investigation. “I’ll handle it like I handle any other case,” he said. 

Asked if he was a supporter of the former president, he said, “I really have no public opinion on that. Yeah, I don't think it's relevant to this. What I can say is that I have absolutely no connections, zero, to either former President Trump or any former president for that matter.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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‘An Amazing Transition’: Andrea Stewart-Cousins on the New Era in State Politics and What’s Next


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Senate Majority Leader Andrea Stewart-Cousins (photo: NY Senate Media Services)


Amid major upheaval in state government and ongoing pandemic-era crises in New York, State Senate Majority Leader Andrea Stewart-Cousins is embracing a sense of stability and an opportunity for more collaboration among political leaders.

During a recent appearance on the Max Politics podcast from Gotham Gazette, Stewart-Cousins, a Democrat from Westchester who has led the Senate since 2019, discussed the early stages of Governor Kathy Hochul’s tenure, her relationship with former Governor Andrew Cuomo, key issues facing state government and New Yorkers, and upcoming legislative priorities.

“It’s always easier when everyone sees the same reality,” Stewart-Cousins, a Westchester Democrat, told host Ben Max. “We’re all rowing in the same direction. I think the response to extending the eviction moratorium is really emblematic of how important that is.”

“It was clear that we needed to do something and we needed to be on the same page to do it,” Stewart-Cousins said of one of Hochul’s first acts as governor. “It was very clear that we had to extend the eviction moratorium.” State leaders also recognized the need to get rental relief money out faster to tenants and landlords, and moved additional tweaks to the emergency program for doing so, she said.

“We were able to make corrections, we were able to do important things and we have until next year,” Stewart-Cousins said about addressing the moratorium and the relief fund for renters and landlords. “Hopefully we will be in a better position in many, many ways so that people will be able to get on with their lives with some sense of security.” 

Though she had a difficult relationship with Cuomo, Stewart-Cousins was reserved in her comments when asked about him, calling it a “character-building” exercise. She was more forward-looking, expressing optimism about the new era that has dawned under Hochul, a Democrat, and the two Democratic supermajorities in the Legislature, and getting back to the business of governing after many months where Cuomo’s scandals hung over everything.

“It certainly has been an amazing transition,” Stewart-Cousins told Max when asked about the shift from Cuomo to Hochul. She said that she and Hochul haven’t been friends, per se, but “certainly had a good relationship before,” and that Hochul consistently reached out, visited Stewart-Cousins’ district, and showed herself to be a “partner in government” who was “honest and earnest” and committed to “a collaborative government.”

“I am happy that at this point, the governor is fully immersed in fighting covid, building the economy, and obviously with the tragic flooding we’ve had as a result of Ida,” she said of Hochul and lawmakers. “We’ve had real issues and she is singularly focused on that. I think it bodes well for the future and our recovery.”

[Listen to the full conversation: Max Politics Podcast: Senate Majority Leader Andrea Stewart-Cousins on the New Era in State Government & Upcoming Priorities]

When asked about any advice she may have given Hochul, Stewart-Cousins said she did not feel the need to offer advice to the newly-appointed governor as they have known each other a long time and had good communication, and she expects them to be open with each other throughout. She also noted that she, Hochul, and Assembly Speaker Carl Heastie all took unprecedented paths to respectively become the first female Senate majority leader and governor and first Black Assembly speaker. 

“I think for both of us, we are women in rarified air for women,” said Stewart-Cousins of herself and Hochul. “We’re all people who have not had predictable journeys to put us into these places, so I believe that in our relationship, we’ve always been honest with each other and so there was no advice that I had to give her because she knows that I will say what I believe and express very clearly what I think our priorities should be.” 

Asked about how Hochul should handle some of Cuomo’s top appointees who still hold leadership positions in state government, Stewart-Cousins deferred to Hochul, who has pledged a full review of personnel over her first 45 days.

“I know that she has made it very clear that people who appeared in that report and had an active role in creating some of what we unfortunately experienced have no place in her administration,” she said. “I think she’s taking the time that she’s taking in order to determine whether their abilities are suitable to the tasks at hand,” she said of several top officials Max named, including SUNY Chancellor Jim Malatras, the state health commissioner, Dr. Howard Zucker, and budget director Robert Mujica.

Asked about possible state ethics reforms in the wake of Cuomo’s resignation, Stewart-Cousins stressed that those changes continue to be a priority for her majority, as they have been in recent years. She said improving government transparency and ethics has been “our brand.”

“We’ve been very, very clear what we feel the government should look like in terms of transparency, in terms of really living up to the highest ethical standards,” said Stewart-Cousins. “We’re very much interested in making sure that people trust the government and I believe our behavior around these issues will make a difference.” 

She stopped short when asked how she could get the Assembly to agree to some of the same reforms that the Senate has passed, including major changes to the Joint Commission on Public Ethics, or JCOPE, telling Max to ask Assembly Speaker Carl Heastie when he appears on the show.

“Whether it’s sexual harassment, toxic workplaces, there’s always a conversation about how to make sure that people are respected in the workplace, that they’re protected in the work place, that they know exactly what to do and where to go should they feel that this is not happening for them,” Stewart-Cousins said when asked about potential changes to state laws in light of Cuomo’s transgressions. “ I can assure you that we will continue to look at that and any other appropriate legislation that continues to underscore that we value people’s work, we value a workplace that allows you to continue to do your best work...When you work, regardless of who you are, you will be protected.”

Another piece of legislation the Senate has passed but that has not moved in the Assembly is one that would cover all employees of state elected officials under the Human Rights Law, a top ask of reformers seeking to improve the state’s sexual harassment protections for government workers.

Asked what priorities she and her Senate majority have around climate and resiliency policy in the wake of the death and destruction from Hurricane Ida, Stewart-Cousins said her conference is considering next steps and promoted the $3 billion environmental bond act that will be on the fall ballot this year for voters to approve or disapprove. She also acknowledged the need for a long-term plan to fortify infrastructure and mitigate flooding. 

“I’m happy that at a federal level, we have partners that are also willing to talk about climate change,” Stewart-Cousins added. “I am hoping that we will have partners in terms of resources, in terms of commitment because, frankly, if we can’t save the planet, then none of this other stuff matters.” 

[Listen to the full conversation: Max Politics Podcast: Senate Majority Leader Andrea Stewart-Cousins on the New Era in State Government & Upcoming Priorities]

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by Alexander Puri, Gotham Gazette

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Ben Max contributed to this story.

Max Politics Podcast: Senate Majority Leader Andrea Stewart-Cousins on the New Era in State Government and Upcoming Priorities


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Senate Majority Leader Andrea Stewart-Cousins (photo: NYS Senate Media Services)


September 8, 2021 - Max Politics Podcast: Senate Majority Leader Andrea Stewart-Cousins on the New Era in State Government

New York State Senate Majority Leader Andrea Stewart-Cousins, a Democrat from Westchester, joined the show to discuss the new era in state government, the transition from Governor Andrew Cuomo to Governor Kathy Hochul, her conference's upcoming priorities, and a variety of key issues in state government and New York politics.

Listen to the conversation and let us know what you think, on Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts at Max Politics.

Read more: Max Politics Podcast: Senate Majority Leader Andrea Stewart-Cousins on the New Era in State...

After Voter Input, State Senate Set to Hear from Election Administrators and Reform Groups


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Senator Zellnor Myrie (photo: NY Senate)


After a novel round of public hearings throughout the state, the New York State Senate elections committee is gearing up to hold its traditional post-election oversight hearing, where the New York City and State boards of elections will have to answer questions about what went right and what went wrong in the primaries earlier this year.

On September 21, lawmakers will have their perennial conversation with representatives from the boards, as well as good government groups and other election experts, where the former will defend (or apologize for) their decisions and performance, and the latter will renew calls for reform. But this year's hearing will be different, according to Senator Zellnor Myrie, a Brooklyn Democrat and the committee chair, because it will be informed by the testimony of everyday New Yorkers, which the body gathered in four public hearings this summer.

"The previous hearings were really an attempt to listen first and ask questions second and that dynamic will be flipped in this hearing," Myrie told Gotham Gazette in a recent interview. "We will be asking more pointed questions and expecting answers because New Yorkers deserve a world class democracy and it is the boards' responsibility to deliver that."

The summer hearings were unusual because they centered on voters and their experiences, rather than the esoteric and often repetitive oversight hearings led by city and state election administrators and advocates that typically follow major elections. "We had regular, everyday voters just talking about their experiences and some of those were pretty alarming," Myrie said.

Among the issues voters (including some who were poll workers) raised were malfunctioning ballot scanners, absentee ballots that never arrived, and a lack of interpretation services at poll sites. There were also accounts of "poll workers who were incapable or refused to service voters with disabilities," Myrie said.

The hearings helped expose problems faced by upstate voters and election administrators, alike, which are frequently dwarfed in the media by blunders in the five boroughs of New York City, the largest election jurisdiction in the state.

The city Board of Elections’ latest failures -- including the release of an inaccurate preliminary vote count in New York's first major ranked-choice voting election -- have reignited a push to reform the state's election administration structure, which advocates say contributes to inefficiency and a lack of accountability. But in some upstate county boards, where the operations are smaller and resources thinner, administrators claim the bipartisan format, where the two major political parties hold equal power, is the only thing maintaining checks and balances.

"Our Bi-partisan board structure allows for a system where results are not questioned like we see throughout other states," wrote Dustin Czarny, the Democratic commissioner of the Onondaga County Board of Elections, in an email to Gotham Gazette. He said the boards need minimum staffing requirements, mandatory training, standards for data transparency, and the authority to discipline "non-compliant boards," all of which would come from the State Board of Elections, which has oversight and regulatory power over county boards and the New York City Board of Elections.

"The structure of who runs the boards is often an easy target for those not as versed in the election process," Czarny wrote. "If you don't provide adequate resources, training, and accountability then it won't matter who runs the BOEs, they will be set up for failure."

A common theme of the statewide hearings, Myrie said, was "the notion that any wholesale reform to the boards shouldn't be one-size-fits-all and that there are varying needs throughout the state and various sources of problems."

Creating a non-partisan election administration system would require changes to the state constitution, which can take years. Myrie plans to produce a report in the coming weeks or months with an analysis of the hearings and recommendations for reform "large and small," including measures that can be taken without a constitutional amendment.

One bill in the Legislature, sponsored by Senator Liz Krueger and Assemblymember Nily Rozic, would require New York City's election commissioners to have professional qualifications and create standards for certain key functions like appointing co-executive directors and expending the budget, among other measures. These types of changes, which could be made statutorily, without a constitutional amendment, would help "professionalize" the New York City Board of Elections and add levels of accountability to its operations by removing political patronage from board appointments. That patronage, in which party leaders rather than elected officials choose the board's staff, in some cases down to the rank and file and rife with nepotism, has been diagnosed as the cause of much of the inefficiency and ineptitude plaguing election administration in the country’s biggest city.

The pandemic has also exacerbated problems and in some places left commissioners struggling to balance the safety of voters with their right to access the ballot box. At one of the upstate hearings, "we heard stories of Black voters in Syracuse who had polling sites moved without their knowledge," Myrie said.

Czarny, whose county includes Syracuse, told Gotham Gazette that long-time polling locations at Toomey Abbott Apartments and Brighton Tower Apartments, two senior living facilities, had to be moved in the 2020 primary and general elections and the June 2021 primaries because of the risk of spreading the virus among the vulnerable populations living there. The Onondaga board notified residents by mail before each election, as well as campaigns, he said.

"It is unfortunate that we had to move those polling places but in the pre-vaccine portion of the epidemic we could not afford residents to be exposed," he wrote. "Our plan is to open polling sites back in those buildings this fall, however we are closely monitoring the situation with the rise in the Delta variant."

In total, 20 polling places at senior living facilities in Onondaga County were closed during the pandemic, he said.

Critically, the September 21 hearing will take aim at the structure of Board of Elections operations in New York City. "What I am hoping we gain out of this hearing on the 21st is really direct responses to why this structure has contributed to the failures that we see in every single election," Myrie said. "There is an accountability issue, particularly in the New York City structure, where the bipartisan nature actually in certain instances is farcical."

At the New York City hearing this summer, which took place at Medgar Evers College in July, for example, lawmakers heard testimony from "Democrats who were working as poll workers under a Republican nametag and only doing so to meet this requirement of bipartisan administration," Myrie said.

"The Board stands ready to participate at the upcoming hearing before the New York State Senate," wrote Valerie Diaz, a spokesperson for the New York City Board of Elections, in response to Myrie's comments.

The Senate has also sent invitations to testify to the board of elections involved in the calamitous general election in Congressional District 22 last year. In that race, the Oneida County Board of Elections failed to register 2,400 potential voters ahead of a highly competitive contest, leading to the resignation of both elections commissioners. That House seat, with the victory of Republican Claudia Tenney over incumbent Democrat Anthony Brindisi in a rematch from two years prior, was the last in the country to be certified.

"I'm very interested in hearing what their response is going to be to what went wrong and how we can do better," Myrie said.

The Senate elections hearing will take place on Tuesday, September 21 at 10 a.m. in the Legislative Office Building in Albany (the proceedings will be streamed live on the Senate's website and recorded). Oral testimony is by invitation only.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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New York Redistricting Process Heads Into Map-Drawing Phase


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(l-r) Top: Ivelisse Cuevas-Molina, Ross Brady & Jack Martins; Middle: John Flateau & David Imamura; Bottom: John Conway


New York's legislative redistricting commission is moving into its next phase following a series of public hearings intended to get a sense of the contours of "communities of interest," a new criteria being incorporated into the line-drawing process for the first time this cycle, in addition to constitutional and statutory requirements.

The commission, itself a nascent entity, held nine public hearings in regions around the state this summer to solicit feedback from New Yorkers about what ties their communities together. Officials say the public input was key to finding the best-fit boundaries for the new units of representation for the U.S. House of Representatives, State Senate, and State Assembly, to be voted on by the State Legislature next year.

Now the commission and its map-drawers are working to release a set of draft congressional and state legislative district maps by a September 15 target date followed by another round of statewide hearings to get feedback on those boundaries next month.

"I would be the first to say that we will miss things and we want the public to weigh in and tell us that the lines should be changed to reflect this community of interest or this area or this thing we missed," said David Imamura, the chair of the 10-member Independent Redistricting Committee, in an interview with Gotham Gazette. 

"New Yorkers stepped up with the first round of public hearings. We need them to step up a second time," added Imamura, a Democratic District Leader in Irvington who was appointed to the commission by State Senate Majority Leader Andrea Stewart-Cousins, a Democrat from Westchester.

The redistricting commission has been working at breakneck speed following delays in funding and the release of 2020 Census data essential to drawing maps. Data that was supposed to be released in March by the U.S. Census Bureau came out mid-August following extensions in the federal enumeration process due to the pandemic.

"Under the current deadlines we would normally have six months to look at the Census data. Instead we have one month to look at the Census data," Imamura said. "It has impacted everything we've done."

New York's once-a-decade map-drawing process, which in previous decades has been conducted entirely within the State Legislature, will begin with the redistricting commission thanks to a state constitutional amendment approved by voters in 2014. The commission is meant to be independent of sitting politicians, though its members were appointed by majority and minority legislative leaders and its maps are still subject to approval by state lawmakers.

If the Legislature rejects the commission's maps more than once it may redraw them. With supermajorities in both the Senate and Assembly, there is a chance Democrats will be able to unilaterally draw the final district lines.

"I have not talked to any state legislators directly about this," Imamura said.

Under the current rules, the commission must submit its final proposed maps to the Legislature by January 1, or shortly after, but no later than January 15. Early passage in the 2022 legislative session is essential for local boards of elections to be able to prepare for the spring petitioning candidates must complete in order to get on the ballot in the June primaries -- in a year where every House, State Senate, and State Assembly seat in New York is on the ballot.

An amendment before voters this November may eliminate the January 15 grace period, along with several other changes that could impact the way lines are drawn and approved. Imamura said he hopes to get maps to the Legislature by the January 1 deadline.

The commission was expected to introduce its map-drawers at a public meeting Thursday, along with what instructions they have been given, and whether or not they were partisan in nature, being hired by each of the Democratic and Republican halves of the body. That meeting was postponed after Hurricane Ida caused severe flooding and damage to much of the city and state. It will now occur on Thursday, September 9 at 4pm.

District lines must meet several criteria enshrined in state and federal law, including the federal Voting Rights Act. Districts must be contiguous and compact with relatively similar population sizes, and they cannot be drawn in a way that favors particular politicians or diminishes the vote of protected racial and linguistic groups. The proposed constitutional amendment adds additional criteria like the explicit requirement that incarcerated individuals be counted in their most recent place of residence prior to incarceration and that individuals be counted regardless of immigration status. The amendment would also freeze the number of State Senate seats at 63. There are 150 Assembly seats. New York currently has 27 seats in the U.S. House, but that number is shrinking to 26, adding further intrigue to the redistricting process.

Even with these criteria, drawing district lines is an art and has been used to diffuse and increase the political power of certain communities, racial groups, and political parties.

"Packing and cracking are classic techniques," said Jeffrey Wice, a senior fellow at New York Law School’s Census and Redistricting Institute, in an interview. "You want to make sure that you are not violating the Voting Rights Act by diluting the minority vote in circumstances where you have high levels of racially polarized voting."

"On the other hand, you don't want to pack too many minority voters into a single district where you end up wasting their vote and minimizing their influence in adjoining districts," Wice said.

In Sunset Park, Brooklyn, and surrounding neighborhoods, for example, growing Asian communities have historically been split among multiple Senate and Assembly districts. At one of the commission's public meetings in July, speakers called for Asian populations in Sunset Park, Bensonhurst, Homecrest, and Sheepshead Bay to be brought together in one district, according to a New York Law School newsletter.

With the public hearings this summer and the ones slated for the fall, commissioners are considering other characteristics that make communities cohesive.

"It does the community no good if they are split into five, six different ways and are unable to elect a representative who truly reflects their interest," Imamura said. "Communities of interest can be anything. They can be religious, they can be geographic, they can be racial."

How the commission prioritizes communities of interest will be another art and will amount to "a fine balance," according to the chair. "We have to be in compliance with federal and state law. Period. We're going to have to make a lot of decisions and sometimes that means one community of interest won't necessarily trump another," Imamura told Gotham Gazette -- another reason why the second round of input from New Yorkers will be so important, he said.

New York State is slated to lose the congressional seat after the most recent Census count showed that while the population in the New York City metropolitan area grew significantly, the Upstate population declined and several other states saw their populations grow enough for New York to lose in its relative standing again. One of the key questions before the commission is where the lost seat will come from.

"I think that my colleagues and I are going to have a spirited debate on this," Imamura said. "There are a lot of different factors that are weighed in determining the movements of districts or the elimination of districts so we'll see where the commission goes."

Governor Kathy Hochul has indicated she will use her power as governor to help Democrats grow their slim majority in Congress, aided by Democratic gains in New York. "Yes," she said in a New York Times interview, when asked if she would try to use the redistricting process to do so. "I am also the leader of the New York State Democratic Party. I embrace that."

Some state senators in New York City told The City that they may also use their power in the Legislature to protect the district lines that brought them to power.

New York State Senate districts, more so than Assembly districts, are notoriously gerrymandered and disconfigured, designed to help keep Republicans in power during the last redistricting, a decade ago, in a deal with Democrats who got to draw their own Assembly lines.

In an interview Thursday, Senator Zellnor Myrie, a Democrat who represents a gerrymandered district that cuts from central Brooklyn to Sunset Park, said any position was "premature" without seeing the commission's proposed maps. "The process is meant to include the public and those who would be impacted and I look forward to seeing what the commission comes up with," he told Gotham Gazette, adding, "the goal is to keep like communities together."

"The people should be picking the politicians, not the other way around," he said.

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

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Max Politics Podcast: New York's Eviction Moratorium and the Housing Justice Movement


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Housing justice protest (photo: @housing4allNY)


September 01, 2021 - Max Politics Podcast: New York's Eviction Moratorium and the Housing Justice Movement

Cea Weaver, campaign coordinator at Housing Justice for All, joined the show to discuss the extension of New York's eviction moratorium and the bigger housing policy picture.

Listen to the conversation and let us know what you think, on Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts at Max Politics.

Read more: Max Politics Podcast: New York's Eviction Moratorium and the Housing Justice Movement

Max Politics Podcast: A Government Reform Agenda for Governor Hochul


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Gov. Hochul is sworn in (photo: Mike Groll/Office of Governor Kathy Hochul)


September 01, 2021 - Max Politics Podcast: A Government Reform Agenda for Governor Hochul

John Kaehny, executive director of government watchdog and reform group Reinvent Albany, joined the show to discuss what ethics, transparency, and other reforms Governor Kathy Hochul should prioritize as well as a number of other issues related to how state government works in New York.

Listen to the conversation and let us know what you think, on Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts at Max Politics.

 

Read more: Max Politics Podcast: A Government Reform Agenda for Governor Hochul

New York Voters to Decide Fate of 5 Proposed Constitutional Amendments on General Election Ballot


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Voting (photo: Ed Reed/Mayoral Photography Office)


In addition to municipal elections across the state, including the consequential New York City mayor's race, all New York voters will have an opportunity to approve or disapprove five state constitutional amendments on the ballot this fall. If any of them are ratified through general election voting -- and that is likely given the state's recent history of ballot referenda -- they will be enshrined in the state's central governing document.

The questions before voters have already been drafted and passed by state legislators and deal with elections, redistricting, the environment, and the courts. The proposals include changes to the way legislative districts are drawn and seats apportioned; adding a constitutional right to clean air and water; amendments allowing same-day voter registration and no-excuse absentee voting; and an expansion of the jurisdiction of the New York City Civil Court.

To amend the state constitution, proposals must be passed by lawmakers in two successive legislative sessions and then be approved by voters in ballot referenda. Voters will see simplified versions of the potential amendments in the form of yes-or-no questions. The full text of the amendments can be found on the New York State Board of Elections website. The website notes there may be other local ballot proposals, which would be listed on the websites of county boards of elections.

Below is a brief overview of each of the five proposals that New York voters will be asked about on their fall ballots:

Proposal 1: Amending the Apportionment and Redistricting Process
The first proposal on the ballot is an omnibus amendment containing numerous technical changes to the state's redistricting process, which takes place once a decade and is unfolding now after the 2020 Census count.

Some of its key components, if approved, include permanently freezing the number of New York State Senate districts at 63; counting incarcerated individuals in their last place of residence rather than where they are incarcerated for purposes of district populations; and requiring the state to count all residents in district populations regardless of their citizenship status.

The amendment also includes changes to the approval process of legislative district lines for the House of Representatives, State Senate and State Assembly.

A 2014 state constitutional amendment created a 10-member redistricting commission, appointed by legislative leaders, which is operating for the first time starting this year and to which the current proposal makes additional changes. The commission must draw and submit district maps to the Legislature for approval after a series of public hearings. As it is currently conceived, maps require approval from seven members of the commission, including appointees from each majority and minority legislative leader, and must be passed by a legislative supermajority of two-thirds of each chamber.

The proposed amendment would continue to require the commission advance maps with affirmative votes by at least seven members, but would eliminate the requirement that they be supported by appointees of each legislative leader. It would also reduce the vote threshold from two-thirds to 60% of the 63-seat Senate and 60% of the 150-seat Assembly.

The amendment would also get rid of a requirement that the commission's co-executive directors be one Democrat and one Republican. It would also adjust some of the deadlines for submitting and approving district maps.

Good government groups have been divided on the merits of both the 2014 amendment, which passed, and the current proposal to alter it. Supporters in 2014 believed creating the commission added an element of independence and, through the public hearing process, transparency to the drawing of draft maps. But the 2014 amendment still allows the Legislature to override the commission's maps, which opponents said would leave politicians with control over the final outcomes.

Now, the groups are again divided with some noting the new proposed amendment would simplify the voting procedure and remove certain partisan elements. But others say cutting the approval threshold from 66% to 60% reduces the need for bipartisan support in the Legislature. Democrats currently hold a supermajority in both the Senate and Assembly, meaning threshold changes would not be likely to have an impact on the current redistricting process, which will culminate in the legislative session next year just ahead of the 2022 elections. But it could have implications for the process in future decades.

Proposal 2: Right to Clean Air and Water
This proposal would add to the state's Bill of Rights an explicit "right to clean air and water, and a healthful environment." The amendment would give New Yorkers additional recourse to challenge and seek restitution in the court system for polluted air and water. It may also impact the way regulators like the state Department of Environmental Conservation and city Department of Environmental Protection view their responsibilities and the regulations they promulgate.

The amendment is a longtime goal of environmental advocates and environmental justice activists but there has been some discussion of concerns about the language of the amendment and what the legal ramifications could be. The text is simple and would add only a single line to the constitution: "Each person shall have a right to clean air and water, and a healthful environment." The brevity means the implications of the right will likely be subject to interpretation in the courts.

According to Blair Horner, the executive director of the New York Public Interest Research Group, a good government organization that supports the amendment, about six states have similar rights on the books. "It's not unheard of and New York was the first state to have any sort of environmental protections baked into its constitution, really starting with the Adirondack Park," he told Gotham Gazette in a recent interview. "It harkens back to that to some extent."

Proposal 3: Same-Day Voter Registration
This amendment would eliminate the requirement that voters register to vote no later than ten days before an election or the close of polls. By doing so, there will be no constitutional block to registering to vote on the same day as voting and would open the door to state laws that could allow that.

Voting rights advocates have been seeking this reform for years, arguing it would expand access to the ballot box and increase voter engagement in what they have called an antiquated system.

"Newly naturalized voters, in particular, can finally navigate what was once an outdated and opaque voter registration process," wrote Murad Awawdeh, executive director of the New York Immigration Coalition, after the amendment passed the Legislature for the second time in May.

Unlike other recently enacted election reforms -- like early voting and changes to the party enrollment deadline or primary election calendar, which were done by concurrent passage in the state Senate and Assembly and signed by the governor -- the ten-day registration requirement is in the constitution and requires the lengthier amendment process.

Proposal 4: No-Excuse Absentee Voting
Another voting reform on the ballot would drop the constitutional requirement that absentee voters provide an "excuse" or explanation for why they cannot vote in-person. The state constitution currently allows voters to mail in ballots if they expect to be away on election day or if they have an illness or disability that would prevent them from going to a poll site.

Since the start of the pandemic, an emergency executive order signed by Governor Andrew Cuomo and a subsequent state law essentially enacted no-excuse-needed absentee voting while there is a risk of spreading COVID-19 and other transmissible diseases. This amendment, if approved, would make that permanent as part of the constitution, opening the door to continued widespread voting by mail and ballot drop-off.

Both no-excuse absentee voting and same-day voter registration were among a suite of reforms long-sought by voting rights advocates that had been blocked by Republicans who controlled the state Senate for much of the last decade. Both amendments received first passage in January 2019, shortly after Democrats gained control of the Senate and thus both houses of the Legislature and the governorship.

"No-fault absentee voting and same-day voter registration amendments are now a crucial step closer to being codified in our state constitution and delivering a more accessible franchise for generations to come," wrote Erika Lorshbough, deputy policy director at the New York Civil Liberties Union, after the amendments received second passage in May.

“Democrats are racing each other to the left to get credit for being the most progressive without stopping to think about the negative ramifications,” said Scott Reif, then a Republican spokesperson in a statement reported by the New York Times after the reforms passed in 2019. “In the meantime, hardworking New Yorkers are overtaxed and overregulated, and upstate is facing an economic emergency. It’s time to find real solutions to the economic challenges facing real people.”

Proposal 5: Expanding the New York City Civil Court Jurisdiction
The fifth proposal on the statewide ballot would only impact the five boroughs of New York City but must go before all voters because it deals with a stipulation in the state constitution. The amendment would increase the scope of claims the New York City Civil Court can hear and make decisions on from the current maximum of $25,000 to $50,000. Claims greater than $25,000 now go before the state Supreme Court.

This is not the first time this proposal and similar ones have been on the ballot. In 1983, an amendment increased the Civil Court's jurisdiction from $10,000 to the current $25,000 in order to keep up with inflation and to reduce a backlog of cases in the state Supreme Court. In the mid-1990s, a nearly identical amendment to the one being considered now would have increased the jurisdiction to $50,000 claims, but it failed by a narrow margin.

According to the amendment's sponsors in the Legislature, the justification is the same as it was in the 1980s: to acknowledge inflation and reduce the burden on higher courts. "Adjusting this jurisdictional limit would be one powerful tool to address these problems," reads the bill memo written by Senate sponsor Luis Sepúlveda, a Bronx Democrat. Both passages received unanimous support in both chambers of the Legislature.

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

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'This Moment Calls For Immediate Change': State Senate Takes Aim at New York's Ethics Watchdog


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State Senator Alessandra Biaggi (center) (Photo: NY Senate)


Looking over the scandal-pocked landscape of Albany in the wake of former Governor Andrew Cuomo’s resignation, lawmakers in the State Senate set their sights this week on the dysfunctional Joint Commission on Public Ethics, the state’s ethics watchdog often criticized for its apparent lack of independence and bite.

At a Senate ethics committee hearing Wednesday, senators on both sides of the aisle tore into JCOPE’s executive director, Judge Sanford Berland, over the rules and practices dictating the body’s decision-making and confidentiality, particularly surrounding an alleged 2019 illegal leak of a closed-doors vote regarding whether the agency should investigate one of Cuomo’s former top aides. On Thursday, JCOPE commissioners voted to refer that matter to New York Attorney General Letitia James for an investigation. JCOPE also sent James a criminal inquiry into whether the state inspector general's investigation into the leak was adequate or if it amounted to a 'cover up.'

"JCOPE was created to restore public trust in government, yet since it's creation there has only been rising concern about JCOPE's neutrality and ability to act as an independent body," said Senator Alessandra Biaggi, a Bronx Democrat and the ethics committee chair, at the hearing Wednesday. "After a year that has been dominated by scandals within the executive [branch] it is very clear that this moment calls for immediate change and structural reform."

"JCOPE has actually reinforced corruption over the years," said Senator Anthony Palumbo, a Republican from Suffolk County. "They have been on the fringe of some real big situations and ignored them."

JCOPE was established in 2011 by legislation introduced by Cuomo and carried by former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos, all of whom left office under a shroud of scandal. Cuomo exited this week after an attorney general's report found he sexually harassed or groped 11 women, including current and former staffers; he faces ongoing criminal investigations by multiple district attorneys and a forthcoming report from a shuttered Assembly impeachment probe. Silver and Skelos are both serving prison sentences for their misuse of government resources and abuse of the public trust. JCOPE did little, if anything, to address these cases while the men were in office. Since its creation, the body has been accused of insulating, rather than regulating, the state's most powerful officials -- especially Cuomo, who, as governor, selected six of the body's 14 members, including its chair.

Some of the most recent issues in front of the agency include JCOPE's staff granting permission to Cuomo for his $5.1 million book deal – a memoir of his governorship during the first months of the pandemic – and the lack of oversight of his reported use of state resources, including staff, to write the book.

Among the most glaring now-public examples of political interference is the alleged 2019 leak, which not only constitutes a potential misdemeanor for the leaker, but also illustrates the intertwined strings of power among Albany's leaders -- namely Cuomo and Skelos's successor, Assembly Speaker Carl Heastie -- who are meant to place checks on one another.

In 2019, former JCOPE Commissioner Julie Garcia's confidential vote on a matter related to Joseph Percoco, a high-ranking staffer of Cuomo's, and his involvement in the Buffalo Billions pay-to-play scandal, was allegedly leaked to the governor in violation of state law. The leak was referred to the state inspector general's office, another watchdog, which concluded its investigation, finding no wrongdoing, without interviewing key figures allegedly involved, including Cuomo and Assembly Speaker Carl Heastie. The speaker appointed Garcia to JCOPE and, through counsel, contacted her about Cuomo's displeasure with her vote, according to Garcia.

"The fact that [Cuomo] called the speaker just underscores the fundamental flaw with JCOPE and the one that we've always talked about," said Blair Horner, executive director of the New York Public Interest Research Group, a good government organization, at the hearing Wednesday. "The commission needs to be independent."

At the heart of JCOPE's troubles is the body's appointment structure and rules allowing a minority of commissioners to block investigations, according to lawmakers on the Senate ethics committee and good government advocates. While the stated purpose is to prevent partisan investigations, the power to dismiss complaints allows commissioners to protect their appointers -- the governor and legislative leaders -- and allies, the very people frequently at the center of investigations.

Senator Liz Krueger, a Manhattan Democrat, has proposed a state constitutional amendment that would abolish JCOPE and establish another, more independent body in its place. The amendment would replace JCOPE and a separate entity known as the Legislative Ethics Commission with a 13-member body comprised of appointees from all three branches of government. A majority of appointees would come from the chief judge and appellate division justices, who would not be subject to the body's oversight and enforcement. Enacting a constitutional amendment is a lengthy process, requiring passage in successive legislative sessions and ballot approval by voters. In the meantime, other bills have been introduced to change JCOPE's appointment structure, reduce explicitly partisan requirements, and expand transparency.

In some of her most detailed public testimony since resigning from JCOPE in the aftermath of the leak, Garcia told the Senate ethics committee the body's failures were "elementary" and "black or white."

"It, completely, is so counter intuitive or unreasonable to think that the person who actually committed the crime might be voting not to have a criminal investigation," she said of a possible JCOPE vote to refer the alleged leak to a criminal probe.

Of the subsequent inspector general's investigation, Garcia said, "When the inspector general completely fails to interview people who have direct evidence, who are witnesses...either the inspector general's office is incompetent or corrupt."

The inspector general's office submitted written testimony but declined invitations to participate in the hearing Wednesday where representatives would face lawmakers' questions. The office's written testimony did not discuss the alleged leak. Officials from the Governor's Office of Employee Relations, which could speak to the issues of workplace toxicity and sexual misconduct that led to Cuomo's resignation, also submitted written testimony but declined to participate in person Wednesday.

“We obviously disagree with Ms. Garcia’s statement," wrote Lee Park, a spokesperson for the inspector general's office, in a statement. "We stand by the investigation. Inspector General
[Letizia] Tagliafierro was and remains fully recused from this matter.” Tagliafierro, a former JCOPE executive director and Cuomo aide, recused herself from the investigation because of potential conflicts of interest.

In some cases, Garcia told lawmakers, matters before JCOPE would be terminated by attrition without a formal vote of commissioners. "It's not just a yes vote or a no vote. Sometimes nothing happens, it's complete gridlock...It's just in a black hole," she said. "When there's been gridlock, as far as I know nothing happens."

When asked by Biaggi if Cuomo or other state officials pressured her to resign, Garcia hesitated before declining to answer. "I'm really not able to answer that question because of conversations that went on inside executive session that I'm not able to talk about," she told the committee.

The Senate committee heard virtual testimony from ethics commissioners in Alaska and Rhode Island, which ranked first and fifth on the 2015 State Integrity Investigation, conducted by the Center for Public Integrity. Alaska's nine-member Select Committee on Legislative Ethics has four members selected by legislative leaders and five "public members" -- individuals who are not members of the legislature, elected or appointed officials subject to financial disclosure rules, party officers, candidates for office, or registered lobbyists. Those public members are selected by the chief justice of the Alaska Supreme Court and approved by two-thirds of each legislative chamber.

"You have to look at something that's a significantly more accountable system that seeks a bipartisan compromise," Alaska State Senator Tom Begich told the committee. "We do not have gridlock on our ethics committee. It does not happen and our public members are a key component of that."

In his own testimony, JCOPE executive director Sanford Berland, a former state Supreme Court judge, drew the ire of lawmakers for what they said was protecting commissioners and casting the body's problems as issues of public relations and limited resources to enforce its determinations. When asked by Suffolk County Republican Sen. Phil Boyle what changes are needed to make JCOPE "truly an ethics commission that fights malfeasance," Berland cited the body's enforcement capabilities but not potential conflicts of interest or the influence of appointing authorities, including the governor.

"I would ask that our enforcement powers and our budget for enforcement both be augmented," said Berland, who came into the director role three months ago. "We have very little fiscal capability in employing enforcement counsel and investigators." He added that while JCOPE has in-house experts in cases of sexual misconduct, it lacks the ability to hire other experts, like forensic accountants. "I wish we did," he said.

"From your opening testimony to the responses that you have given the committee members to the responses to my questions, you basically point out that the biggest problem with JCOPE is a bad PR image and that maybe its hands are tied too much by certain laws and regulations," Sen. John Liu, a Queens Democrat, told Berland.

In testimony from the public, advocates also raised questions about the state's sexual harassment and whistleblower protections, and policies allowing officials to earn income outside of their government jobs, among other issues.

"Power abuse is not just a commissioner leaking confidential information, an elected official using state resources for personal benefit, or a senior advisor rigging RFP processes for major donors," said Erica Vladimer, co-founder of the Sexual Harassment Working Group, an advocacy organization of former government staffers, in written testimony. "Power abuse is also an elected official shoving their tongue in a staffer's mouth, a chamber leader failing to hold a member accountable for sexual assault, and an elected pitting young staffers against one another, asking deeply personal and inappropriate questions, sticking his hand up a staffer's blouse."

Vladimer said sexual harassment in government workplaces could involve ethics bodies beyond JCOPE, like the inspector general, the Governor's Office of Employee Relations, the Legislative Ethics Commission, the Senate and Assembly ethics committees, and personnel divisions. She also criticized the state's Public Officer's Law, which does not explicitly prohibit "discrimination, harassment, assault, and retaliation" making it difficult to bring these types of complaints to JCOPE and other entities, Vladimir told the Senate committee. The Sexual Harassment Working Group is calling for those protections to be added.

"I do not think the Public Officer's Law, as it is currently written, does anything to protect staffers from harassment and discrimination and retaliation," Vladimer said.

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

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