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NY Reform
By ReformNY – 07/28/09
In light of last week's corruption sweep
in New Jersey, it's worth taking a look at the state of ethics in New
York. While it's tough to top the allegations of kidney trafficking and
cash-stuffed cereal boxes involved in the New Jersey case, we certainly
have our share of corruption. As we wrote in our 2008 report, four
members of the Assembly alone faced corruption charges last year. One
the Senate side, former Majority Leader Joe Bruno was indicted in
January for accepting over $3 million from entities seeking state
contracts, and coup leader Pedro Espada's attempts
to funnel state money to nonprofits that he has a history of illegally
using as an extension of his political campaign are now well known.
The
state's ethics infrastructure was overhauled by the
less-than-successful Public Employees Ethics Reform Act of 2007
(PEERA). Perhaps most strikingly, the law allowed the legislature to
retain oversight authority over itself. The Legislative Ethics Commission,
the body that oversees the Senate and the Assembly, is chaired by
members of the very bodies that the Commission is intended to regulate.
Of the nine members of the Commission, four are legislators and the
other five are appointed by legislative leaders (this means that the
ethically-challenged Espada now has appointment authority).
Just
days before the Senate coup, Governor Paterson and legislative leaders
from both chambers met to discuss reforms to the state's ethics
oversight infrastructure, which PEERA failed to improve.
The Governor, Senate Democrats, and Assembly Speaker Sheldon Silver
each presented different proposals and were unable to come to an
agreement before chaos erupted in the capitol on June 8th.
The
proposals range from rolling back very modest steps toward independence
made by PEERA to separating legislators from the Legislative Ethics
Commission altogether. Silver's proposal
would create two bodies with oversight over the legislature. The first,
a Joint Legislative Commission on Ethics Standards, would look very
much like the current Legislative Ethics Commission, consisting of four
legislators and four non-legislators appointed by legislative
leadership. The second, a Legislative Office of Ethics Investigations,
would be governed by a board appointed by legislative leaders, none of
whom could have been affiliated with the legislature in the two years
preceding their appointment. The Senate proposal,
sponsored by Senator Daniel Squadron, would merge the Legislative
Ethics Commission with the Commission on Public Integrity to create a
new body with oversight over both the legislative and executive
branches; four of the nine members of the new commission would be
appointed by legislative leaders, but no commissioner could be a
current or former legislator. The Governor's proposal
is structurally similar to the Senate proposal, but commissioners would
be appointed by an independent advisory board (independent appointment
of commissioners is something that Paterson has described as a ‘deal breaker').
While
negotiations concerning the reforms were derailed by the coup, ethics
reform will likely receive consideration again before the end of the
legislative term. It's worth paying attention to the structures that
lawmakers put in place to police themselves and their peers before the
cash-stuffed cereal boxes turn up in Albany, too.
Tags: NY Reform
By ReformNY – 07/23/09
The end of the Senate Coup two weeks ago doesn't
mean that New Yorkers have to go without their daily dose of
interesting legal wrangling. Last night, a state Supreme Court Justice granted a preliminary injunction preventing Ravich from acting as Lieutenant Governor.
But
that's not the interesting part. Apparently, Governor Paterson's
argument against the motion for an injunction brought by Senate
republicans is that it would upset the balance of powers for the
judicial branch to rule in this case.
While we strongly opposed judicial intervention in the coup, we have to disagree with Paterson on this one. As the justice puts it in his ruling:
"A
controversy is not justiciable if its resolution would require the
court to ‘intrude upon the policy-making and discretionary decisions
that are reserved to the legislative and executive branches' [...] a
court may determine whether the state constitution or the legislature
has empowered the governor to act."
In
this case, the court is being asked to interpret the provisions in the
constitution and the Public Officers Law that Paterson argues grant him
the authority to appoint Ravich, not to intervene in the legislature's
internal politics. Paterson's argument is particularly baffling given
that a central part of his defense of the appointment is a 1943 court
case in which the judicial branch was asked to rule on the
constitutional authority of the executive branch to fill the office of
lieutenant governor. The case provides an interesting precedent and a
victory for Paterson will likely require the courts to rule that it
still applies today.
While the law has
changed slightly since that case, the definition of justiciability has
not. And although the coup is over and the impact of a Lieutenant
Governor may now be inconsequential, we could stand to have some
clarity on the Governor's ability to appoint the Senate's presiding
officer - after all, a return to deadlock, as Liz Benjamin so aptly put it yesterday, is "just a hissy fit away."
Tags: NY Reform
By ReformNY – 07/21/09
The Assembly may come to miss the sideshow in the state's upper chamber. With the passage of the Senate's
new rules
on Thursday, the Assembly now lags far behind in enacting reforms.
Here's a brief rundown of some of the reforms passed by the Senate last
week and how they compare to the current Assembly rules.
Impose
8-year term limits on the offices of majority leader, minority leader,
temporary president, committee chairs, and ranking members.
BEHIND THE SENATE: Nothing in Assembly rules limits the terms of any leaders.
Allow a bill sponsor to force a committee to vote on her bill within 45 days
BEHIND THE SENATE:
Assembly bill sponsors may file a request for committee consideration
on a bill, but the committee is not required to act on the request
until the end of the second year of the term. (Rule IV § 5 (b))
Allow
1/3 of the members of a committee to petition for hearings on specific
legislation (unless majority of members reject the petition.)
ON PAR WITH THE SENATE: In the Assembly, a majority of committee members can petition for a hearing. (Rule IV § 4 (a))
Require
the Finance committee and other relevant committees to produce a plan
for public hearings regarding impact of state budget
AHEAD OF THE SENATE:
The Assembly rules require chairs of each committee to call at least
one public hearing regarding the implementation of the state budget.
(Rule IV § 4 (b))
Require committees to file annual reports detailing legislative and oversight activities.
ON PAR WITH THE SENATE: The Assembly has a rule requiring annual committee reports detailing activities and legislative proposals. (Rule IV § 9)
Allow
members to move bills to the active list over the wishes of the
majority leader - bills must receive a vote within four legislative
days after a successful motion
BEHIND THE SENATE:
The Committee on Rules, which is controlled by the Speaker of the
Assembly, determines the order of the calendar. There is no mechanism
to allow rank-and-file members to force a bill onto the floor for a
vote. (Rule IV § 10(b)(1))
All senators get same base allocation for office staffing and equitable access to common resources
ON PAR WITH THE SENATE:
Assembly rules require that members get equal allocations of specific
resources, like printing and stationary, and that they should get an
equal allocation of base staff funding (Rule V, § 9). It is worth
noting, however, that despite the existence of this rule, minority
members had budgets that were 33% smaller on average than their counterparts in the majority for the period from October 2007 to March 2008.
Require
that all committee records, agendas, votes, minutes, reports,
attendance, fiscal notes, active lists, floor votes, floor transcripts,
calendars, the payroll report, and expenditure report be made available
to the public in a searchable database.
BEHIND THE SENATE:
The Assembly rules reaffirm that the chamber will comply with the
freedom of information law, but they make no attempt to go further to
make legislative records accessible to the public. (Rule VIII)
Strange
as it may sound in light of the events of the past six weeks, the
Assembly could stand to take a cue from Senate, especially where
empowering rank-and-file members (by allowing them to force committee
review and floor votes on their bills) is concerned. And if they ever
do get around to improving their rules, why not up the ante and
establish a committee mark-up procedure and requirements for committee reports?
Tags: NY Reform
By ReformNY – 07/16/09
Early this morning, the Senate passed a resolution
to substantially alter the operating rules of the chamber. The Senate
has gone a long way - certainly farther than the Assembly - to reform
their leadership-controlled legislative process.
The new rules uphold most of the good changes made by the GOP-Espada coalition on June 8th,
including distributing member resources more equitably, allowing
members to move legislation to the floor over the wishes of the
majority leader, and imposing term limits on chamber leadership. But
they also enacted a suite of new reforms that take important steps to
empower rank and file members and increase chamber transparency.
Some of the most important new reforms are:
- Allowing
1/3 of the membership of a committee to petition to hold hearings on
specific bills (subject to the approval of a majority of the committee)
- Replacing
discharge motions with a motion for committee consideration, under
which a sponsor can force a committee to vote on her bill (the new
motion doesn't require a majority vote of the chamber or the committee)
- Allowing
committee chairs to hire their own staff - although the rules only
force leadership to allocate funding for one staffer per committee.
- Requiring
the Senate to make committee records, agendas, votes, minutes, reports,
attendance, fiscal notes, active lists, floor votes, floor transcripts,
calendars, the payroll report, and expenditure reports available on a
searchable public database.
On the whole, the new rules are a significant improvement over what was passed last January. But like the June 8th
rules resolution, this one falls short on reforming the committee
process. There is still no process for reading bills in committee or
even for requiring committee members to show up to meetings. Committee
reports can still be perfunctory and lack any description committees'
work on bills (in addition to making it more difficult for other
legislative members and members of the public really understand these
bills, a lack of real committee reports -- unique to New York -- makes
it exceptionally difficult for the courts to determine legislative
intent in difficult cases). And while the new rules allow members to
petition for hearings, it does nothing to require hearings on major
legislation. All of this means that the only substantive debate on
legislation that occurs will probably continue to take place in
closed-door party conferences.
But there is some hope. In a statement
released last night before the rules vote, chamber leaders said that
the Temporary Committee on Rules and Administration Reform will report
back in December about committee reform, when they are expected to
recommend reducing the number of committee assignments for each member.
With extra time on their hands, committee members should be required to
do the deliberative work that occurs in nearly every other legislature
in the country. Specifically, the Senate should:
- Create a formal process for reading bills for amendments (otherwise known as a "mark-up") and public debate in committee;
- Make more rigorous requirements for committee reports showing the work of the committee on each piece of legislation;
- Allow committee chairs to hire more than one staff person where necessary; and
- Set requirements for committee hearings on major legislation
If they do this, they will finally earn the Brennan Center's full-throated praise.
Tags: NY Reform
By Laura Seago – 07/07/09
In a press conference this morning, Assemblyman Michael Gianaris outlined the legal argument, originally proposed
by our former colleague Jeremy Creelan, in support of Governor
Paterson's power to appoint a lieutenant governor to preside over the
Senate.
It's an interesting proposal.
Because the senate rules state that the lieutenant governor is the
president of the senate, this solution would provide the chamber with a
presiding officer without requiring the membership to agree on whom
rightfully holds the title of majority leader. The lieutenant governor
wouldn't count toward a quorum for the purposes of convening a regular
session, but in the daily extraordinary sessions which a judge has
ordered the full Senate to attend, a lieutenant governor could help end
the stalemate and facilitate the passage of critical legislation. With
a majority of Senators necessary to conduct regular Senate business,
this solution wouldn't affect in the ongoing fight to control the
chamber in 2010, and the Senate's warring factions would be free to
take as long as they need to reach an agreement about the chamber's
leadership.
But while we've been quoted as saying that Gianaris' proposal is a viable solution to the gridlock in Albany (our full statement says that the Governor may have the power to appoint a lieutenant governor), there are potentially legitimate arguments on both sides.
On the one hand, New York state law would seem to give Paterson the authority to appoint someone to the office. Section 43 of the Public Officers Law says, in relevant part:
"If
a vacancy shall occur, otherwise than by expiration of term, with no
provision of law for filling the same, if the office be elective, the
governor shall appoint a person to execute the duties thereof until the
vacancy shall be filled by an election."
On
the other hand, the 1943 state Supreme Court case cited in Gianaris'
letter to Paterson was decided based on the 1938 constitution, which
diverges from today's constitution in several important ways. The
decision focuses on whether a clause of the former constitution stating
that the president pro-tempore of the Senate shall preside over the
chamber in the absence of a lieutenant governor constitutes a provision
for filling a vacancy in the office of lieutenant governor. While the
court ruled that this provision did not mean that the senate president
assumed the office of lieutenant governor, it based its decision on the
fact that presiding over the Senate is just one of the responsibilities
of the office of lieutenant governor. The constitution used today reads
a little differently with respect to succession to the office of
lieutenant governor:
"In
case of vacancy in the office of lieutenant-governor alone, or if the
lieutenant-governor shall be impeached, absent from the state or
otherwise unable to discharge the duties of office, the temporary
president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability." [emphasis added]
We
don't have a conclusive answer as to whether this constitutes a
provision of law for filling the office of lieutenant governor (as
opposed to a provision for someone to assume the responsibilities, but
not the title of the office) but it's certainly not a slam-dunk for
Gianaris' side.
In the end, the question
for the courts would be, once the temporary president assumes all the
duties of lieutenant governor, has the vacancy in the lieutenant
governor's office been filled? If it has not, as Jeremy Creelan argued in the Daily News,
then the Governor might have the power to appoint his own choice to
temporarily fill the vacancy, pursuant to Section 43 of the Public
Officers Law. Creelan has also pointed out that, in contrast to other
offices, the drafters of both the constitution and the Public Officers
Law never explicitly exempted the lieutenant governor's office from
those that could be filled by the governor.
Despite
the potential problems with Gianaris' proposal, it merits serious
consideration. The mere possibility of ending the current gridlock that
is holding critical legislation hostage might be reason enough to take
Gianaris' theory for a spin. The courts exist to help navigate exactly
this type of legal grey area, and it seems like there would be a real
value to allowing them to weigh the merits of the arguments made today.
Tags: NY Reform
By ReformNY – 07/01/09
The
mess in the State Senate is starting to have serious consequences.
After a three-week deadlock over control of that body, the Senate today
watched a number of deadlines pass. Several jurisdictions had hoped to
extend or
increase certain taxes to fill budget holes, and there is
confusion over who controls New York City schools. Meanwhile, a bill to increase jobless benefits
cannot be passed, power rates for many local businesses are
likely to spike because subsidies have expired, and several local jurisdictions are warning that they may have
to raise property taxes and fire local employees, including police.
Various members have noted that they are
"embarrassed" and
"frustrated"
by what's happened. There is a simple solution to getting us out of
this morass, and Senator Frank Padavan may have inadvertently provided
it when he
walked into the Senate chamber
yesterday looking for a cup of coffee. Democrats claimed they had a
momentary quorum, and that all subsequent matters voted on should count.
While
nobody seems to be buying this claim, it raises an obvious question:
why doesn't one member, working with the Governor, break this logjam --
at least for non-controversial items that will allow local
jurisdictions to balance their budgets.
After all, every session
for the remainder of the month will be an extraordinary session. The
Governor sets the agenda, and article IV of the
state constitution
dictates that Senate can only vote on those items he gives them
permission to address. A member of either party, Democrat or
Republican, can simply wander over to the other side and LET them have
a quorum for the day. Important legislation that everyone agrees needs
to be passed can be passed.
In this scenario, the Senate can
keep fighting over who gets to call himself Majority Leader until next
year -- but important legislation, thousands of jobs and the economy of
the State would no longer be held hostage by the bickering factions.
Of
course, this would mean earning the wrath of one party leader or
another -- but all for the good of the people of New York, something
that
frustrated voters would certainly understand. Can we have a volunteer?
Tags: NY Reform
By Eric Lane – 06/30/09
Democratic Conference Leader John Sampson is right
that his view and the views of other Senate Democrats ought to be heard
in the debate over mayoral control of schools. And of course, the
Senate is not required to adhere to the Assembly's version of the bill
(which they passed in the dead of night with no bill hearings or public
discussion). But Sampson is wrong in his timing.
The
Democrats have done nothing about Mayoral Control since January, when
they actually did have control of the Senate. They were relying on the
same last minute, midnight politics employed by the Speaker of the
Assembly. And here they failed because they lost control of the
chamber. Now Sampson wants to hold New York City's
education system hostage for his party's failure to reform their own
House when they had a chance. To quote a famous philosopher, "that's
Chutzpah."
Tags: NY Reform
By ReformNY – 06/26/09
Salaries:
The governor
is without power to halt payment of legislative salaries. The state
constitution grants him little authority over the legislative branch,
and none in this area. (And rightly so - if a governor who disagreed
with the legislature's political positions or leadership had the power
to cut legislators' salaries to keep them in line, it would be a gross
violation of the separation of powers.) The courts might disagree, but
it won't be because of the law. If the courts side with the governor,
their reasoning will be rooted in short-sighted political payback for
the legislature's continued denial of judicial pay raises, not legal
reasoning. If the governor keeps beating on the wage drum, the senate
could introduce legislation cutting his salary for errant behavior,
something they most likely have the power to do.
Extraordinary Sessions:
While
I am not sure a court would hear the case, the Senate is probably
correct to say the Governor cannot call only the Senate back into
session. While the Constitution seems to provide for that, its aim is
to allow the governor to call the Senate back into session for things
only the Senate can do, such as confirming appointments. The problem is
that the Assembly has no interest in being called back to Albany and
the Governor knows this, so he is trying to apply the provision for
calling the Senate alone more broadly.
The
bills enacted in the Senate last week will probably have to be enacted
again to make sure they are identical to the ones past by the Assembly
and to make sure the processes comply with the N.Y. Constitution's
requirements. Even the Governor's Counsel has raised questions
about the legality of these bills, and opponents of legislation passed
during extraordinary session are sure to bring the issue to court.
The Politics:
My
prediction based on my six years as counsel to the minority and many
years thereafter studying legislatures is that the Senate will figure
some way to pause their very real and important struggle over political
power (which directly effects policies) to address the "must-pass"
bills before them. Maybe they will even enact some rules reform along
the way.
Tags: NY Reform
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