Gotham Gazette

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After the Deadline...

For updates on the impasse in Albany and its effect on New York City, stay tuned to The Wonkster.

On Tuesday, it became painfully clear that the chaos in the Senate had doomed any hopes that the legislature could perform its most basic duties. As New York City waited to see if the Senate would reauthorize mayoral control of schools and approve a measure that would help the city balance its budget, senators thrashed about in a nasty power struggle that left interested parties stunned, disgusted and angry.

At noon, Democrats said they had a quorum because Republican Sen. Frank Padavan had walked across the chamber while their session started. The Democrats began to read bills on the non-controversial calendar -- bills that pass unless someone raises an objection. There were no objections until the bill that would raise the city’s sales tax came up. Sen. Ruben Diaz Sr. animatedly asked that the bill be put aside. Instead, it came to a vote and was defeated 19 to 13.

Sens. Diaz and Hiram Monserrate said that they did not want the low-income residents of their districts to carry the burden of balancing the city budget. Diaz suggested Mayor Michael Bloomberg use his own wealth for that purpose. Some Senators said the bill was killed to use as leverage in coming negotiations with Bloomberg over mayoral control.

In the end, it turned out the vote did not really matter. Padavan said he had entered the chamber inadvertently, meaning the Senate did not have a quorum after all. Gov. David Paterson said he would not sign any of the bills passed during the so-called session.

The defeat of the revenue bill and the Senate's failure to vote on mayoral control indicates that, as long as the chaos persists in Albany, the Bloomberg administration may find things tougher than ever in the capital. Former Democratic Majority Leader Sen. Malcolm Smith had made it clear he would work with Republicans on passing a school governance bill the mayor could accept. Both mayoral control and the city sales tax increase would likely pass the Senate by a lopsided count if Republicans ran things.

Under the tenuous leadership of Sen. John Sampson, who has been described as "anti-mayor," Democrats repeatedly rejected appeals from Bloomberg to act on legislation affecting the city, telling him to pressure the Republican caucus to reach a power sharing agreement.

Losing Revenue

In failing to pass legislation yesterday, the Senate added a new item to the ever-growing list of casualties: the city's budget. In order to close a gaping budget hole, the City Council and the Bloomberg administration agreed to increase the city's sales tax by 0.5 percent, bringing it up to a total of 8.875 percent. The hike was expected to increase city revenues by $518 million, and was supposed to go into effect on July 1 -- the first day of the city's fiscal year 2010.

Now the measure is floundering in Albany's dysfunction.

Before what turned out to be an invalid vote yesterday, the administration appeared confident that the increase would pass. On Monday night, Bloomberg's press secretary Stu Loeser issued a statement arguing the measure should be brought to the floor because there was support for it.

"Sen. John Sampson stated today that passing taxes necessary to preserve essential city services and avoid layoffs and a bill that would prevent New York City schools from returning to chaos were controversial," said Loeser in an e-mailed statement. "They are not, and both enjoy the support of a bipartisan majority of state senators. Both pieces of legislation -- which already have the votes for passage -- deserve to be brought to the floor for a vote. That's democracy, and if the city's budget and public schools continue to be held hostage to the Senate's gridlock, it will cause real harm to New York families and the health of our city."

According to administration officials, the city will lose $2 million in revenue every day without the tax increase. Because the legislation is written to take effect on the first day of the following month, the city already will lose out on revenue for all of July -- costing a total of $60 million, officials said.

That sum, according to the administration, could support 600 police officers or the Fire Department's 198 engine companies and 143 ladder companies.

The Assembly has already approved the measure.

Into the Sunset

The effect of the inaction on school governance is harder to predict. For the past few months, Bloomberg has sought to portray the expiration of mayoral control of the school system in its most apocalyptic terms: riots in the streets, a return to the Soviet Union and so on. But in a press briefing yesterday, Bloomberg said his administration "will work hard to shield New York's children and their parents from the chaos." Schools, he said, "will not be padlocked" and summer school will open as scheduled today.

Instead of invoking images of angry mobs on the Grand Concourse, Bloomberg said the confusion over how to run the system would bring in lawyers -- and litigation. "Every decision -- from personnel decisions to policy decisions -- will be subject to litigation and uncertainty," Bloomberg continued.

That confusion arises partly because, as Philissa Cramer observed in Gotham Schools, the school governance law passed in 2002 calls for the law to sunset after seven years but "doesn’t include instructions for reconstituting the old school board or dismantling the current system."

The mayor foresees "a nightmare flashback to the days when politics ruled the schools." But some experts believe he may be overstating the effects of the current law's expiration. While the city would have to reconstitute a Board of Education, they say, that board could decide to continue most school policies and practices while waiting for the legislature to pass a school governance bill.

"If the mayor acts... at least changing the structure on top, then I think it's wrong to foresee any potential litigation," Udi Ofer, the policy director of the New York Civil Liberties Union, has said.

David Bloomfield, an expert on education law who teaches at Brooklyn College, has said the state education law provides for clear lines of authority. Bloomfield sees only two credible circumstances that could lead to litigation: The mayor could file suit against a Board of Education or suits could be filed against the administration if he decides to ignore the resurrected board.

Reconstituting the Board

When mayoral control replaced the old Board of Education, borough presidents lost one of their few legally defined responsibilities. Each borough president appointed one member of the board; the mayor named two. The current turmoil -- and possible return of the board -- has focused some attention on the presidents.

Earlier this month, Manhattan Borough President Scott Stringer proposed a plan for preserving stability if mayoral control runs out. Among other things, he called for the mayor and borough presidents to appoint a board on July 1 and have it meet immediately. The board, he said, should then vote to retain Joel Klein as schools chancellor -- under the old system, the board, not the mayor, named the chancellor -- and "form a committee to study how the board can ensure that accountability and the current successes of the system can be maintained."

So far, though, Bloomberg has given no indication he would call such a meeting. While Online Education in American reported that administration officials were conferring with the borough presidents, they say "it's not yet clear that Mayor Bloomberg will cooperate with plans to reconvene a Board of Education tomorrow." In fact, the blog indicates Bloomberg could call in lawyers -- and seek an injunction to prevent the schools from going back to the old system and to block the creation of a new Board of Education.

Yesterday, as it seemed increasingly likely that the State Senate would not vote on mayoral control, Bronx Borough President Ruben Diaz Jr. moved to name his appointee to the not-yet- resurrected Board of Education, choosing Dolores Fernandez, a former president of Hostos Community College and a professor of urban education at the City University of New York’s Graduate Center.

"Though I am a supporter of some form of mayoral control, and I am disappointed that the current law was allowed to expire, the business of our children is too important to wait for Albany to act," Diaz said in a prepared statement.

Three other presidents -- Stringer, Marty Markowitz of Brooklyn and Helen Marshall of Queens -- said they have selected their board appointees but will not announce names until the clock runs out on mayoral control. (The fifth president, James Molinaro of Staten Island is on vacation, according to his office.)

Echoing some of Stringer's recommendations, Markowitz issued a statement saying he "would advise that a reconstituted board meet tomorrow (Wednesday) morning and take immediate action to preserve continuity of all processes and make this transition as smooth as possible for the families of New York City -- as we collectively move to resolve the matter in Albany."

As to whether the board would then vote to keep Klein, it seems likely. Four of the borough presidents have said they would keep the chancellor at least for the time being. The one exception -- Diaz -- has indicated he has "mixed opinions" on Klein.

The Senate Bills

If and when the Senate returns to business, what will happen to mayoral control? The Assembly has already passed a bill -- proposed by Speaker Sheldon Silver -- that essentially retains the current system. The mayor supports that legislation.

Padavan has sponsored that bill in the Senate and has said he thinks at least 40 senators would vote for it if it came to the floor.

It does not, though, have the backing of new Democratic leader Sampson. He has offered his own mayoral control bill, which would continue to let the mayor name most members of the Panel on Educational Policy -- the largely toothless body that replaced the board -- but would require those members have set two-year terms. They currently serve at the pleasure of the official who appoints them.

While the change might seem arcane, set terms have emerged as a kind of litmus test issue in the fight over mayoral control.

"This bill is a poison pill," a Bloomberg aide told the Daily News. "Voting yes on this bill is the same as voting yes on the expiration of the mayoral control law."

Further complicating the picture is the fact that the Assembly is no longer in session. Under normal circumstances, if the Assembly and Senate pass different bills on the same issue, the two sides hold a conference to come up with a compromise measure. But that cannot happen if the Assembly has gone home for the summer.

"If the Assembly is in town and in session we can have negotiations," Sen. Liz Krueger said last week. 'Without the Assembly in town we are obviously in a situation where if we didn't pass the one law, it sunsets. If we wanted to pass something, we only had the one bill option."

Sampson and his allies, though, have said repeatedly that the mayor cannot browbeat them into passing his version of mayoral control. Among themselves, Sampson said in a written statement, Democrats "may have different opinions on school governance, but we are firmly opposed to mayoral control of the Senate."

A number of senators may welcome the chance to discus school governance further. "You know I have relative comfort with the bill that passed the Assembly but know we could have done better," said Krueger. "I wanted to see stronger language for the role of [community] superintendents and their authority."

Some critics of the current system go further, expressing relief that the chaos could derail passage of the Silver proposal.

"Mayoral control will sunset tonight at midnight," the Parents Commission on School Governance, which seeks a greater role for parents in the running of the schools, said in a statement released last night. "We predict that there will be no rioting in the streets, no chaos or confusion. Instead, many parents will celebrate the removal of an oppressive dictatorial system that has not served their children well. We look forward to working in the future with the Senate, the Assembly and the governor, to install a new governance system, with adequate checks and balances and a real voice for parents, in which no one, no matter how wealthy and powerful, can make all the decisions when it comes to our children."

Breaking the Logjam

No school bill or city revenue package, though, seems likely to pass until there is a power-sharing agreement between the two parties, and the prospects of that look bleaker by the minute.

Tuesday was supposed to be the deadline for a deal -- the line senators would not cross. Instead it now testifies to the difficulty of reaching any agreement. On Monday, many senators must have sensed the failure ahead as they desperately tried to place blame for the impending collapse. Senators saw the train coming and they pushed each other in front of it.

Republicans blamed Democrats for a breakdown in talks, saying that the fractured Democrats have disrupted negotiations by switching representatives at the negotiating table in midstream. For their part, Democrats faulted the Republicans, saying they would only look at long-term solutions and so were unwilling to hold a session with neutral leadership to vote on non-controversial bills.

Tuesday opened with both sides of the conflict in the chamber at 10 a.m. -- but only thanks to a judge's order. In the brief moments they were there, Sen. Dean Skelos offered to negotiate in public later in the day. Smith responded by saying Democrats would hold a "regular session" at noon. Session was then adjourned. "Bullshit!" said Monserrate. He excused himself, but he was not the only senator to utter the phrase.

As senators from both sides exited the chambers, Republican Sen. Tom Libous went to the doorway of the Democratic chamber and asked to speak to Sampson. A Senate staffer waived Sampson over, and the two men entered the Democrats' lounge, talking. Maybe the senators had realized the urgency of getting back to work after all.

About 20 minutes later, chatter was heard in the Senate hallway. Staffers instructed the sergeant at arms that something would take place at noon. A table and four chairs were arranged in the center of the hall on the dividing line between the Republic and Democratic sides of the chamber. A lighting rig was set up, along with a Senate television camera and velvet ropes. It looked as though something important was about to happen.

But it didn't. A Democratic staffer called off whatever it had been. It wasn't clear who had actually called the event, and staffers from both sides disavowed any knowledge of who might have arranged it. It seemed a fitting end to a day already colored by dysfunction and posturing -- but it was only the beginning.

As press shuffled away from the conference, Democratic staff began herding their senators into the Senate chamber, telling them, "We have a quorum!" Padavan had walked through the chamber to avoid the crowd in the hall, and Democrats decided to take his presence as a sign that he was present to begin voting on legislation. With that, Democrats began steamrolling through bills. They took sworn affidavits from those who witnessed Padavan’s stroll through the chamber as Padavan countered with his own, saying he had not intended to give Democrats a quorum.

This is the absurdity that has enveloped the state capital for the last three weeks. There will certainly be more legal action, more cases and appeals filed -- and probably more farcical moments. But for New York City and municipalities across the state, the Senate’s inaction has real consequences.

In the Senate chamber on Tuesday, staff that had yet to come to terms with the likelihood that the Senate debacle might drag on over the summer contemplated the mess. Asked what he might do on the Fourth of July, one staff member said, "I was going to be cooking and eating burgers with the wife and kids." He then asked, "Are they really going to be back here?" Paterson has promised to call the Senate to session even on the Fourth of July.

Later, as Democrats churned out legislation as if they were late for a fundraiser, another staffer said in pure astonishment, "They have smiles on their faces like it's a joke, like they are getting away with something! We're gonna be here for a while."

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