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Vol. 2, No. 21 - NOVEMBER 4, 2013


Is NYC on the Verge of Changing Voting in America? P. 32

Q&A with Hockey Legend Mark Messier and Olympic Gold Medalist Sarah Hughes P. 35

Spotlight: Law and Lawsuits P. 18

City & State NY LLC 61 Broadway, Suite 2825 New York, NY 10006

3 Legal Battles That Could Change Education in New York State P. 26


Morgan Pehme EDITOR


e all know how commercials for federal races end: “I’m so-and-so, and I approve this message.” The requirement that candidates for president and Congress take responsibility for their ads in this form is a result of the 2002 McCain-Feingold Act, and was clearly intended to discourage vicious attacks and baseless smears under the cloak of plausibly deniable anonymity. Unfortunately for New Yorkers, our state has no such safeguards against the type of campaigning that appalls voters and turns people off from participating in the Democratic process. While TV ads for state and local office in New York are governed by federal regulations that mandate the candidate or group that purchased the airtime to take credit for the commercial, the buyer can get by satisfying this constraint nonverbally, and simply slip in a text acknowledgement in the closing seconds of a spot in a font size more appropriate for an eye chart than an important declaration. As for campaign mailers, handouts and robocalls, anything goes—and it does. As we have seen in several high profile incidents in the course of this cycle, candidates, their enemies and their agents have no compunction about exploiting this gaping hole in our election law to its most odious potential. State Sen. Daniel Squadron’s campaign concocted an insidiously informal-sounding robocall that went out the last weekend of the runoff for New York City public advocate from a woman named “Katie” who left voters a message, claiming that Councilwoman Letitia James, Squadron’s opponent, had “lost her trust and lost her vote.”

Other such instances from this year and many elections prior abound. Veterans of Fernando Ferrer’s 2001 bid for mayor still bristle at the New York Post cartoon of Ferrer on his knees, kissing a morbidly obese Al Sharpton’s posterior, which they believe was distributed without fingerprints by Mark Green’s campaign during the Democratic runoff. With the recent explosion of independent expenditures in state and local elections, it can only be assumed that the frequency and severity of anonymous mudslinging will only increase in years to come, unless the state Legislature takes immediate action to curb this vile practice. Fortunately, Assemblyman Ken Zebrowski from the lower Hudson Valley has introduced legislation (A. 8187) that would require “any candidate or political committee that makes an expenditure for a political communication, which advocates for or against a candidate, ballot measure, election outcome or issue” to identify who paid for the “communication”—which is broadly defined to encompass every possible form of media. The penalty for noncompliance would be a fine up to $10,000. If the same culprit violates the law three times, he or she could be charged with a misdemeanor. Though, regrettably, enforcement of this provision would be left to the New York State Board of Elections—which as a recent hearing of the Moreland Commission demonstrated is woeful at investigating complaints— Assemblyman Zebrowski’s bill should nonetheless become law. With voter turnout already pathetically low in this state, we must be vigilant to deter and prohibit any practices that further alienate voter participation. If candidates or interest groups want to stoop as low as they can go, at least the public should know who is actually rolling around in the dirt. I’m Morgan Pehme, and I approve this message.

61 Broadway, Suite 2825 New York, NY 10006 Editorial (212) 894-5417 Advertising (212) 284-9712 advertising@cityandstateny.com General (646) 517-2740 City & State is published twice monthly. Copyright © 2013, City and State NY, LLC 2

NOVEMBER 4, 2013 | cityandstateny.com

AROUND NEW YORK The best items from City & State’s website City & State’s website is your key source for political and campaign developments in New York. Stay on top of the news with items like these at www.cityandstateny.com.

MANHATTAN The word that came up most at the Moreland Commission hearing on Oct. 28 was resources. The hearing focused on the New York State Board of Elections. Todd Valentine and Robert Brehm, the BoE’s two executive directors, and  William McCann, its deputy enforcement counsel, argued repeatedly that problems with the agency were fundamentally the result of a lack of available manpower and money. While the commissioners acknowledged the deficiency, they clearly did not wholly buy it as an excuse, pointing

all the resources available to it. In withering questioning Moreland Commissioner Kathleen Hogan (left), the Warren County district attorney, tore into the board, asking with exasperation, “You can talk resources all you want, but isn’t it true that you didn’t want to look at these cases with a critical eye?”

NEW YORK CITY out through questioning the failure of the board to fill numerous job vacancies in a timely manner—if at all. Despite bemoaning a large backlog of complaints, the board’s officials admitted that from 2008 through 2013 the agency has voted to open just five investigations—only one since 2009. As for why the board didn’t lighten its load by using its extensive available free resources—deploying state troopers to help with investigations, for instance—the officials explained that the board did not have the resources to employ

Mayor Michael Bloomberg  has been outspoken about the risks of climate change and has taken concrete steps to address it—but with New Yorkers poised to elect a new mayor, some environmentalists want to hear more about the issue from the leading candidates. “We wanted to make sure that this issue was raised, both for candidates and for the public, because in the course of this campaign the challenges of extreme weather events ... haven’t really been part of the public discourse,” said Marcia Bystryn, the president of the New York League

of Conservation Voters, which is submitting petitions to the leading mayoral candidates on the anniversary of Superstorm Sandy as part of the environmental group’s “Show Us the Plan” campaign. The group had more than 10,000 residents sign a petition calling for Bill de Blasio (above),  Joe Lhota,  Adolfo Carrión and Jack Hidary  to share their “plans for rebuilding a sustainable, economically and environmentally resilient city.”



Howard Glaser @hglaser1: Attn NYT: Md casinos recruit for jobs paying 44-55K...apparently NYT editors think those jobs beneath them so no one else should have them

Publisher Tom Allon tallon@cityandstateny.com Editor-in-Chief Morgan Pehme mpehme@cityandstateny.com Managing Editor Jon Lentz jlentz@cityandstateny.com Associate Editor Helen Eisenbach Reporters Nick Powell npowell@cityandstateny.com, Aaron Short ashort@cityandstateny.com Associate Publisher Jim Katocin jkatocin@cityandstateny.com Director of Marketing Andrew A. Holt aholt@cityandstateny.com Events Manager Dawn Rubino drubino@cityandstateny.com Government Relations Sales Director Allison Sadoian asadoian@ cityandstateny.com Business Manager Jasmin Freeman jfreeman@cityandstateny.com Multimedia Director Michael Johnson mjohnson@cityandstateny.com Art Director Guillaume Federighi gfederighi@cityandstateny.com Illustrator Lisanne Gagnon CITY AND STATE NY, LLC Chairman Steve Farbman President/CEO Tom Allon

I am delighted to invite you to the special events that mark CUNY Month during the month of November at CUNY’s 24 colleges and professional schools. – Interim Chancellor William P. Kelly


pen houses, admissions and financial-aid workshops, sports tournaments, lectures, performances, and book talks, most of them free, panel discussions, world-class faculty, high-achieving students and honored guests.

NOV. 1-DEC. 20


NOV. 1-11


NOV. 1-DEC. 15


Commemorating 100 Years of El Diario LaPrensa Longwood Art Gallery Hostos Community College Noon-6 p.m. Free

John Jay College of Criminal Justice All Day Free

Exhibit of works by Rosemarie Koczy Queensborough Community College Tues. & Fri. 10 a.m.-5 p.m., Wed. & Thurs. 10 a.m.-7 p.m., Sat. & Sun Noon-5 p.m. Free

NOV. 7-DEC.11

NOV. 9

NOV. 10-DEC. 15


Exhibit of works by Theresa Ferber Bernstein Baruch College Sidney Mishkin Gallery Mon., Tues., Wed., and Fri Noon - 5 p.m. Thurs. Noon - 7 p.m.


Brooklyn College Student Center 11 a.m.-2 p.m. Free

National Yiddish Theater Folksbiene Baruch College 2 p.m. $50-$60

NOV. 14

NOV. 14


Adam Liptak, New York Times Supreme Court correspondent The City College of NY 5 p.m. Free NOV. 17

NOV. 18

THE HUNGARIAN STATE FOLK ENSEMBLE Lehman College Center for the Performing Arts 8 p.m. $35-$10


Explore CUNY Graduate Programs 2-7 p.m. at Grand Hyatt Hotel

MPH & MS GRADUATE STUDENT INFORMATION SESSION CUNY School of Public Health 5:30 p.m.-7:30 p.m. Free

NOV. 18


Associate Justice of the U.S. Supreme Court President Lisa S. Coico Prof. Lyn Di Iorio The City College of NY 5:30 p.m. Free

NOV. 6


NOV. 7


Physics Colloquium Prof. Lucas C. Parra The City College of NY 4 p.m. Free

Accompanied by Dominic Garcia College of Staten Island 2:30-4:30 p.m. Free

NOV. 11

NOV. 12-18



NOV. 14

NOV. 16

29th St. and 5th Ave. 11 a.m. Free


Sustainable Cities, and the Value of Knowledge Prof. Rebecca Bratspies, Dr. Robin Nagle CUNY School of Law 6 p.m. Free NOV. 18


Prof. Luis Barrios John Jay College of Criminal Justice 1:30 p.m. Free

Quality Affordable Debt-free Degrees For a complete listing of Open Houses at all CUNY colleges and details on hundreds of other events during CUNY Month visit www.cuny.edu/cunymonth

Study Abroad Programs CUNY campuses


Kingsborough Community College Performing Arts Center 10:30 a.m. For Ages 4 and up. $12

NOV. 20


UPFRONT roller



In A Landslide

“I don’t go. I’m against the death penalty, except for people who make bad movies.” —Former Gov. Mario Cuomo, when asked why so many people go to the movies, after explaining that he finally watched The Godfather after years of refusing, via The New York Times


ublic Advocate Bill de Blasio has the support of more than two thirds of voters in the New York City mayor’s race, with one poll showing a whopping 71 percent backing him. If Joe Lhota doesn’t close the gap, where would de Blasio’s victory rank in 100 years of mayoral elections in the city?

City & State’s 2013 New York City 40 Under 40 Rising Stars Celebration


Preserve 24, Oct. 22.

“It’s really a wake-up call when you open your eyes and realize that you’re an elder statesman to these young kids coming up. We’ve got Richie Torres, Antonio Reynoso, Carlos Menchaca and Victor Pichardo, all of whom I have great admiration for. Now I’ve got all of these kids who say they look up to me, which I’m grateful for.”



Ed Koch


Carol Bellamy 10.3%


Robert Christenberry 26.3%

Jimmy Walker 65.8%


Frank Waterman 30.5%

Ed Koch 64.6%


Frank Barbaro 13.3%


Henry Curran 28.5%

Fiorello La Guardia 60.2%


Jeremiah Mahoney 39.8%

Jimmy Walker 59.2%


Fiorello LaGuardia 25.1%

Michael Bloomberg 58.4%


Fernando Ferrer 39%

John Purroy Mitchel 57.1%


Edward McCall 37.3%

Abe Beame 56.5%


John Marchi 16.3%

—State Sen. Gustavo Rivera, a 2010 Rising Star

Robert Wagner Jr. 67.8%






“There is no one I can imagine who is more deserving. She’s smart, devoted and really cares, whether it’s serving constituents or on the campaign trail. … Amy was a Rising Star younger than I was.” —State Sen. Daniel Squadron, a 2008 Rising Star, on top staffer Amy Spitalnick’s selection to City & State’s 2013 40 Under 40 list








John Francis Hylan 64.2%

ROSE CHRIST * By highest percentage of voter support


NOVEMBER 4, 2013 | cityandstateny.com




One Year After Hurricane Sandy By James Slevin

One year following the devastating impact of Hurricane Sandy, there has been significant analysis and reflection on the impact of the super storm on New York. Both the human and economic tolls were devastating. In advance of Sandy, President Barack Obama and Governor Andrew Cuomo signed emergency declarations and state of emergency orders. New York’s utility workers were ready and immediately sprang into action. Even in those darkest hours leading up to and following the storm, New York’s brave and talented utility workers risked their own lives to conduct daring rescues, clear neighborhoods of life-threatening hazards, restore power and help restore some semblance of normalcy.

AN INTERVIEW WITH BRETT YORMARK By MICHAEL JOHNSON City & State reporter Nick Powell interviewed Yormark at the Barclays Center on Oct. 17. C&S: You came from NASCAR and then you transitioned to running the Brooklyn Nets. What was your motivation for moving from NASCAR to NBA basketball? BY: I don’t know if there was a motivation for moving from auto racing to basketball. I started my career in 1988 selling tickets for the Nets, and I always aspired to one day come back and run the franchise. I was given that opportunity in January of 2005 by Bruce Ratner, and it’s been a heck of a journey ever since. C&S: One thing that struck me when the Nets came to Brooklyn was how fast the fans took to the merchandise. How did you crystallize this image of “Brooklyn Cool”? BY: The transformation of our brand has truly exceeded all of our expectations. ... Much of it had to do with the delay in getting to Brooklyn. It enabled us to see the brand in Brooklyn. To create incredible amounts of anticipation. This is a borough that had been underserved in the area of sports entertainment since the Dodgers left in 1957. They were craving their own home team. And when Bruce Ratner purchased the team in 2005, we were very open and honest about our intentions of coming here to the borough and giving Brooklynites a team of their own. Obviously it happened a little later than we thought, but it gave us some traction over those years to ... get our players and management engaged in the community. ... Ulti-

mately we launched in April of 2012 ... as a little bit of a lifestyle brand. We didn’t know what type of team we were bringing to Brooklyn, so we wanted ... to give people a multitude of reasons to like us. Like us because we are Brooklyn. Like us because we are the first home team since 1957. Like us because of our alignment to the world of entertainment given Jay Z. Or just like us maybe because you are a sports fan. ... After the first couple of days of launching the merchandise here we realized we had something pretty special. What we did in sales in the first three days of our launch more than doubled what we did our last year in New Jersey. C&S: You and Bruce Ratner also just won a bid to renovate the Nassau Coliseum. What is your vision for the arena? When will it be operational? BY: Bruce and I, on the heels of bringing the Islanders here about a year ago, did a feasibility study on the viability of the Nassau Coliseum with a core tenant like the Islanders. We did some work for the county, and we realized soon after engaging in that exercise that Nassau County/ Suffolk County is just an incredible marketplace—well over 3 million people. In many respects they have been underserved when you think of a best-in-class venue. The Coliseum, and no disrespect to it, is an antiquated building. Very dated. And that county surely deserves a best-inclass venue, and that is our goal. Our goal is to bring them not only a world class venue but world class sports and entertainment. No different than what we did here in Brooklyn. The fact that we don’t have a core tenant out there gives us a lot of flexibility to pursue boxing and college sports and family

shows and concerts, amongst other things. Right now the goal is to bring the Islanders here in the fall of 2015. Shortly thereafter we will proceed with the project in Nassau. C&S: I was looking at some of the renderings of the Nassau Coliseum. It seems to be similar in design to the Barclays Center. Was that a conscious decision? BY: There are some similarities given the fact that the architect we used here will be our architect out there. But it is very transparent. We are using some glass facades. We are using a metal facade to a degree, which does resemble Barclays. We think the Coliseum needs to be reimagined and recreated, repositioned and rebranded. And I think you do that from the onset with great architecture. C&S: Full disclosure: I am a Knicks fan. Any predictions for this upcoming season? BY: Well, a rivalry is something we have always wanted, especially since our move to Brooklyn. .... If there is a great rivalry and both teams are good, it just raises the awareness of the NBA in this market in general. ... We have a lot to build on from last year. Last year we won 49 games. Made the playoffs for the first time in six years. We were happy but not satisfied, and this past summer we made some bold moves and brought in [Kevin] Garnett, [Paul] Pierce, Jason Terry, Andrei Kirilenko and some others. So from our perspective we are on a championship journey. We want to bring Brooklyn a championship; it really starts when we open up the season on Oct. 30. ... I look forward to continuing that rivalry with the Garden and the Knicks. But I am very bullish on our team this year.

The lessons learned in the aftermath have changed the way we think about infrastructure – and because we’re a coastal region, these issues will only grow more critical in time. Sandy is the first major storm to directly hit the New York City region in decades and according to NOAA, the tab for damage is about $65 billion, including business interruptions. As Sandy barreled down on us, our transit systems, schools, businesses and more were forced to close. Its aftermath left a path of destruction that further shuttered hospitals, financial markets, and power generating facilities for weeks, if not months. In a region where we rely on mass transit and work or live in office towers, tens of thousands of employers could not open for business, while millions of residents were stranded in their apartments. It was a stark reminder that our modern economy and communications systems are heavily dependent on the power grid. As we reflect on the year since Sandy devastated our region, let’s see this as an opportunity to re-invest in our electricity infrastructure. More than 80 percent of New York’s transmission infrastructure is 30 or more years old and in need of critical upgrades. In addition to fortifying our electrical grid, we must increase in-state power generation and maintain our existing power sources, including the Indian Point Energy Center in Buchanan. New York will need a world-class energy system for the long term that can withstand future disasters – natural or man-made – while supporting future growth in electricity demand as the population increases and New Yorkers expand their use of advanced energy-intensive gadgets. Electricity saves lives, powers our economy and enables the needs of modern society. James Slevin is the President of the Utility Workers of America Local 1-2 and a member of the New York AREA Advisory Board. S P E C I A L



The New York Affordable Reliable Electricity Alliance (New York AREA) is a diverse group of business, labor, environmental, and community leaders working together for clean, low-cost and reliable electricity solutions that foster prosperity and jobs for the Empire State. W W W. A R E A - A L L I A N C E . O R G cityandstateny.com | NOVEMBER 4, 2013






NOVEMBER 4, 2013 | cityandstateny.com



t a City & State panel on publicprivate partnerships (P3s) last month, the conversation ranged from the procurement process for private sector firms to the advantages of P3s as an economic development tool. But there are still a number of improvements that can be made to the P3 process, especially where public money is involved, current and former government officials pointed out. Because New York law only authorizes the “design-build” projects—in which the private sector bids either on the opportunity to design and build a new facility or for an operation and maintenance contract on an existing facility—the brunt of a P3 project’s cost inevitably falls on the backs of taxpayers. This runs counter to the common misperception that P3s are “money from the heavens,” as Seth Pinsky, the former president of the New York City Economic Development Corporation, put it. “One of the things that frustrated me at EDC was how expensive everything was,” Pinsky said during the panel discussion. “The people designing our projects didn’t actually have to build those projects. There were no consequences for the additional expenses they put into those projects that made it more difficult for those projects to be carried out.” Kenneth Adams, president and CEO of Empire State Development, added that any P3 project depends a certain amount on public trust, which requires transparency. He mentioned Chicago’s deal to privatize parking meters as an example of public trust gone awry. Former Mayor Richard Daley rammed the $1 billion deal through the City Council without releasing many details to the public. “In the case where, through a concession agreement, you are doing some lease on a public asset … you are committing a government asset to a private enterprise in order for them to finance the project,” Adams said. “For the public to support that, you’ve got to have the trust, the credibility. Government can’t do this and grab the money and spend it on something else.”

Kenneth Adams, Gov. Andrew Cuomo’s top economic development official, pointed out the benefits as well as the risks of public-private partnerships.


Some Good News on Energy Production


By Dr. Matthew C. Cordaro

New York’s electricity grid should be the envy of the nation, but right now in many respects it is a traffic nightmare comparable to the Cross Bronx Expressway during rush hour. Surplus power produced in upstate and western New York is unable to reach densely populated parts of downstate New York because of traffic bottlenecks. The losers, unfortunately, are homeowners and businesses who end up paying more for electricity than is necessary because of congestion few can comprehend. There is, however, good news on the horizon. In October, the New York State Public Service Commission green-lighted significant improvements to our electrical infrastructure when it approved more than $500 million worth of new power lines and transmission upgrades.

Col. Paul Owen (second from left), the regional commander for the U.S. Army Corps of Engineers in New York City, joined the state Department of Transportation’s Joseph Brown and New York City Housing and Preservation Development Commissioner RuthAnne Visnauskas in a discussion about the recovery from Superstorm Sandy.



year ago, Superstorm Sandy hammered a narrow stretch of Long Island’s south shore that includes Jones Beach, Gilgo State Park and Robert Moses State Park. Ocean Parkway, which provides access to the beaches and parks, was shut down for a month, but by May the state had completed a $32.2 million repair project, paving the way for beachgoers to visit the popular oceanfront recreation areas this past summer. Then, this past month, another storm washed away much of the sand brought back to reinforce the vulnerable highway, prompting some experts to criticize the rush to install stopgap measures and to call for more long-term resiliency measures. But Colonel Paul Owen, the commander of the U.S. Army Corps of Engineers’ New York District, said that while the beachfront sand restoration project didn’t entirely prevent further damage, it still prevented more serious harm to Ocean Parkway. “Even with the last storm that came through, if they hadn’t done that work, I suspect you would have lost a couple of lanes of Ocean Parkway without those measures, because Ocean Parkway was so vulnerable and damaged by Sandy,” Owen said at City & State’s Public Projects Forum in October. The state also did not immediately secure federal funding to make the highway more resilient than it had been before Sandy. After reports of the new damage to Ocean Parkway, U.S. Sen. Charles Schumer called on federal agencies to grant more funding for

further restoration projects. Moving forward, state officials pledged to ensure the highway’s stability. Joseph Brown, the New York City regional director for the state Department of Transportation, said that despite the challenges, the state was taking steps to address the problem. “There’s a tremendous amount of water that goes in and out of the Great South Bay, and the ocean has been trying to cut through in that area, including Gilgo Beach, so the hardening is very critical,” Brown said at City & State’s conference. “It’s all part of a solution that’s all connected. So getting dredging at Fire Island and allowing that water to flow easier there is important to us, of course, because we want the roadway to be secure and hardened.” Last month’s storm still caused significant erosion along Ocean Parkway, and will require additional taxpayer dollars for repairs, both in the short-term and the long-term. “It came perilously close to Ocean Parkway, and to cutting off that critical link that the Department of Transportation has in New York,” Owen said. “So we did some emergency repairs with the state to get that done, and now we’re going to look at doing more permanent repairs as our contractor progresses through that project, which will be complete in March of 2014.” In the long run, Owen said, federal disaster relief legislation passed after Superstorm Sandy will eventually provide the resources to bring much of the coastline up to conditions not seen since the 1970s— including along Ocean Parkway. “The Disaster Relief Appropriations Act authorized us not just to repair the damage from Sandy to prestorm conditions, which is usually what happens, but to go to the original design conditions, which could stretch back 30 years,” Owen said. “We lost about 6 million cubic yards of sand because of Sandy, and we’re going to be authorized to put back about 17 million cubic yards.”

Historically, this move is long overdue. The Ramapo line just approved was originally proposed for expansion more than 30 years ago. While some say things can move slowly in New York, the important thing is that this project is moving ahead now. And – if you’re in favor of markets and efficiencies – then this project is ideal. The development of new infrastructure will send clear price signals to energy investors that our markets can be price competitive and will benefit ratepayers across New York State with improved electrical reliability. The PSC, according to a Reuters report, estimates that the new transmissions lines would create $260 million in economic benefits to consumers over the course of 15 years and an astonishing $640 million over 40 years. Another development is the creation of a new power capacity zone in New York, as ordered by the Federal Energy Regulatory Commission. The zone will incentivize owners of idle and underutilized plants to ramp up production. This will have a positive economic impact and create a more reliable electric system, while countering the exporting of jobs and dollars from New York. With these developments, we now have an opportunity to move forward and simultaneously benefit consumers and the state economy. Dr. Matthew Cordaro is a member of New York AREA’s Advisory Board and former CEO of the Midwest Independent System Operator. S P E C I A L



New York AREA’s membership includes some of the state’s most vital business, labor and community organizations including the New York State AFL-CIO, Business Council of New York State, Partnership for New York City, New York Building Congress, National Federation of Independent Business and many more. W W W. A R E A - A L L I A N C E . O R G cityandstateny.com | NOVEMBER 4, 2013


EVENTS One year after Superstorm Sandy, where are we at in terms of preparing for a similar storm?


f you say a year ago before Oct. 29, there is more risk than there was on Oct. 28 of last year. Poststorm, we have done a lot of work and come back. I talked about the 6 million cubic yards that were taken away by Sandy; we’ve placed about 25 percent of that back onto the beaches of both New York and New Jersey, so we’ve gotten back to a level of risk reduction that

One year after Superstorm Sandy, where are we at in terms of preparing for a similar storm?


ertainly there’s a lot to be done. The things that we have done … from HPD’s perspective, we have built … about 15,000 units of housing a year, and prior to the storm I don’t think we had thought about the housing that houses the vulnerable populations in the city. Post-storm we’ve really honed in on making sure we really

is better than after the storm. However, I would say people are still vulnerable. And Sandy also exposed places that we previously thought were not as vulnerable: lower Manhattan, Hoboken, places that were severely impacted. Even though we’ve made some progress, and we are certainly better protected today than on Oct. 30 of last year, there’s still a lot of work to be done, at least with our coastal storm risk reduction project.” —Col. Paul Owen, commander, U.S. Army Corps of Engineers, New York District

know … what types of infrastructure those facilities have in the event of a storm and making sure they can be better prepared. That was a place where we got hit and knocked off our feet on being quite as focused on the vulnerable population. We certainly have a lot to do to be better prepared, but there are certainly some areas where we’ve spent time in the last year deeply thinking about how to be better prepared.” —RuthAnne Visnauskas, commissioner, New York City Department of Housing Preservation and Development

Build it right the first time...

Build it UNION. Local 46 Metallic Lathers & Reinforcing Ironworkers Business Manager: Terrence Moore Business Agents: Kevin Kelly, Ronnie Richardson, John Coffey and Michael Anderson President: John Skinner 1322 Third Avenue @ East 76th Street New York, NY 10021 Tel: 212-737-0500 • www.ml46.org 8

NOVEMBER 4, 2013 | cityandstateny.com

EVENTS How is the construction market in New York City?


ou’ve got a role reversal in terms of the market conditions, where the private sector is very hot. When you look at rebuilding schools, look at the [School Construction Authority’s] capital program—the mayor front-loaded a lot of that work, so it’s still fairly significant, but the growth in that capital budget is going to become flat. The city’s capital budget actually begins to decline. It still represents $9 or $10 billion, but it’s going to decline to

$7.5, $6.5 over the next couple years. The MTA’s budget is going to remain flat, but the MTA has a funding issue it will have to deal with in the next couple of years. The Legislature has not been willing to identify revenue sources to continue funding new projects at the MTA. Without that public investment, many of the commercial and private sector economic development projects … may or may not get off the ground. The public investment is critical.” —Louis Coletti, president and CEO, Building Trades Employers’ Association

How is the construction market in New York City?


his is not spending; this is not wasteful money. This is investing in our country, investing in our people. Would you rather have people unemployed and paying them unemployment or giving them a good job, giving them pride, and letting them pay taxes? It just makes no sense to me, and I don’t understand what the leaders in Washington are doing. We should be


spending, spending, spending. There’s so much infrastructure in New York and in this country that needs to be done, and this is how we have to create jobs for people and to get this economy going.” —Lawrence Roman, CEO, WDF, Inc.

City & State’s Public Projects Conference was co-sponsored by the law firm Greenberg Traurig, Parsons Corporation, WDF Inc., BNY Mellon and Local 46.


The Must-Read Afternoon Roundup of New York Politics and Government Last Read keeps its readers up-to-the minute on all the day’s top stories with an afternoon update that hits inboxes before 5 p.m. The afternoon email highlights newly released reports, crucial in-depth analysis pieces and long-form profiles, as well as calling attention to some of the day’s top tweets from city and state politicians and the reporters who cover them.

Be the first to know. www.cityandstateny.com/subscribe for more information. cityandstateny.com | NOVEMBER 4, 2013




Nov. 5 may be the beginning of a Republican turnaround— or another nail in the GOP’s coffin By NICK POWELL AND AARON SHORT


NOVEMBER 4, 2013 | cityandstateny.com

Executive Chamber


epublicans are dreaming of victory. Looking toward potential success in two key suburban counties, they’re hoping to bolster the strength of their party and their prospects for next year’s statewide races. With fundraising advantages and polls showing leads over their opponents, Nassau and Westchester incumbent GOP county executives Ed Mangano and Rob Astorino stand a good chance of staving off stiff challenges at the polls from Democrats Thomas Suozzi and Noam Bramson, respectively. “They’re our Chris Christie and Scott Brown,” said State Republican Party spokesman David Laska about the Republican incumbents. “They were our big electoral victories in 2009. The registration advantage is turning against us, so the question was, Would Republicans still be able to win in counties where we have lost the registration advantage?—and the answer appears to be ‘Yes.’ ” Still, there are signs of a shift: Recently Suozzi and Bramson both received huge endorsements from Gov. Andrew Cuomo, who is carefully measuring support in Nassau and Westchester counties as a bellwether for his own re-election campaign. Add to that former President Bill Clinton, who lives in Westchester County, helping both candidates raise money and rally support for the final stretch. Even with the Republicans favored in both races, some internal polls show both contests tightening up. After all, Democrats have been steadily moving to the suburbs in recent years. They outnumber Republicans in Westchester County and hold a slight 40,000 registration advantage in Nassau County out of about 650,000 voters with a party affiliation. After years of crushing defeats across the state, the Republican Party can ill afford to lose either seat. “The counties are a breeding ground for Republican leadership, not only for Senate candidacies but also for building back the Republican Party,” SUNY New Paltz professor Gerald Benjamin said. “New York is very much in danger of becoming like Massachusetts and being a one-party state. You can’t say that everything is riding on these two county races, but a lot is riding on them.”

Nassau County Executive Ed Mangano appeared with Gov. Andrew Cuomo at a Superstorm Sandy briefing last year. While Cuomo and Mangano have a solid working relationship, the governor endorsed the Democratic challenger, Thomas Suozzi.



n a relatively low-profile race such as county executive, it is especially rare to have two candidates who are essentially known quantities. More often than not, local elections favor incumbents, who have an edge not only in name recognition but also because they have a legislative or policy record they can fall back on to bolster their leadership credentials. Ed Mangano enjoys these advantages, but unfortunately for him, so does his opponent, Tom Suozzi, the former county executive who was defeated by Mangano in a surprise upset four years ago. Suozzi wants his old job back—and judging by the fiscal condition of Nassau County, he has picked a promising year to try to reclaim the position. Mangano rode the Tea Party wave into office in 2009, campaigning on cutting taxes and government spending. On Election Day he slipped past Suozzi, who had grossly underestimated his opponent and run a lackluster campaign, by a mere 386-vote margin. Since Mangano’s victory, however,

questions have been raised about his financial stewardship—an area that has become a principal point of attack for Suozzi throughout this year’s campaign. Mangano has traded fire by calling attention to the record of his predecessor, who had already started digging the financial hole from which the county has struggled to emerge. When he entered office, Mangano inherited a county in poor fiscal shape, with a large budget deficit that grew in part due to the countrywide recession, but also because of one-shot revenue generators that Suozzi instituted while running the county. Suozzi deferred salary increases for the county’s municipal workers, borrowed money to pay refunds to county residents appealing their property tax assessments and imposed a home heating energy tax on homeowners in lieu of raising property taxes. Mangano bears some responsibility as well. The Nassau Interim Finance Authority recently projected a $122 million budget deficit next year and projected continued deficits through 2017. Critics say that while Mangano has held the line

on spending, he has continued to borrow large amounts of money—$230 million in the proposed 2014 budget—to pay refunds on property tax assessments. Mangano’s message throughout this campaign has been simple: He didn’t raise taxes once over his four years running the county. Poll numbers show that narrative may be resonating. A recent Newsday/ Siena poll had Mangano ahead of Suozzi by 17 points among likely voters, though some insiders contend that the numbers are more favorable because the sampling was taken before Nassau residents received their tax bill, which shows that homeowners are still bearing a heavy tax burden. Suozzi has argued that Mangano’s handling of property tax assessments— Newsday reports that 85 percent of homeowners who filed challenges to their assessments won reductions last year— has contributed to boosting school taxes. Newsday also recently pointed out that Nassau County’s school tax rates are up this year by an average of 6.8 percent, on top of last year’s increase, when average homeowners saw their school tax bill

COVER over Republicans in Nassau County, and insiders note that after being accused of running a lazy campaign in 2009 Suozzi has hired several members of President Obama’s 2012 re-election team to orchestrate a targeted get-out-the-vote operation. Mangano, on the other hand, will have the help of the Nassau Republican machine—not as powerful as it was in its heyday, according to insiders, but still a significant force in getting boots on the ground. One question that remains to be answered is whether the national Republican Party brand—specifically, the Tea Party faction that helped get Mangano elected in 2009—will be his undoing this time around. The national party is polling at all-time low in the aftermath of the government shutdown. If independent voters in Nassau are fed up with the GOP, they could take their anger out on Mangano, or if county Republican voters, who are historically more moderate, are discouraged enough to stay home, the election could tilt in Suozzi’s favor.



ob Astorino has been one of the state Republican party’s biggest rising stars since his upset victory over incumbent Democratic County Executive Andy Spano four years ago. Party loyalists dream that Astorino will run for governor next year and defeat Cuomo in a David-versus Goliath-matchup that would go down in the annals of New York State history. But first Astorino has to win re-election in a tough year for Republicans. To do so, he will have to fend off a spirited challenge from Noam Bramson, who has served as New Rochelle’s mayor since 2006 and was last re-elected in 2011 with 79 percent of the vote. Republicans are confident that Westchester residents will again choose Astorino. “Rob Astorino has been a model county executive for four years,” Laska said. “He showed a Republican can win in the center of Westchester where Democrats have a two-to-one enrollment advantage. Back in 2009 voters were upset with the way Albany and Washington was being run, and you saw a real taxpayer’s revolt.” By several indicators, the outcome of the race does appear to favor Astorino. He has outraised and outspent Bramson throughout the summer, pouring nearly $850,000 into campaign ads and other efforts in October alone. With a week to go before Election Day Astorino still had about $1.4 million in his war chest, according to state campaign filings. By contrast, Bramson had only spent $345,000 over the same period and had $145,000 in his campaign account for the final stretch, according to state filings. Though there have been no public polls taken in the county executive race, an Oct. 2 Marist poll asking Westchester

residents what the top priorities of the next county executive should be showed the economy was of paramount concern, with 30 percent of adults ranking taxes as most important, followed by jobs at 21 percent. The poll also indicated that 64 percent of residents thought Westchester’s economy was moving in the right direction and 58 percent believed their families’ financial pictures would stay the same in the coming year. Still, 69 percent of adults said that Westchester was not affordable, and 24 percent expected to move out of the county at some point— half of them citing economic reasons for their anticipated relocation. Even with these numbers likely buffering Astorino from an upset, he may nonetheless have reason to be wary. While he remains popular in the county, his favorability rating of 54 percent is down from 61 percent earlier this fall. And an internal poll that Bramson’s campaign released in late October showed Astorino with only a slight 47 to 43 percent edge over the Democrat. Astorino’s camp disputed the poll, but did not release their own internal tally.

Rob Astorino via Facebook

balloon by an average of 11.7 percent. An observer of Nassau politics, who asked to remain nameless so as not to offend the county executive, said the tax bill rate was “due to the broken-down assessment system, which is the county’s charge. Mangano had promised to fix the assessment system and hasn’t.” Nonetheless, Long Island political insiders caution that as far as messaging goes, Mangano’s narrative is an easier sell to voters than Suozzi’s counterargument. “Suozzi’s had a tough time with his message,” said Mike Dawidziak, a political consultant. “He’s getting tagged with raising taxes when he was county exec, and he’s trying to hit Mangano back with raising debt. The problem with that message is twofold: Voters understand raising taxes far better than they understand raising debt; second, he’s talking at cross-purposes with his national party. The whole fight with Republicans was that they were bad because they wouldn’t raise the debt ceiling.” Also at play is the dynamic between both Mangano and Suozzi with Gov. Andrew Cuomo. When Cuomo bestowed his endorsement on Suozzi, he described him as a “personal friend”—a characterization that many political insiders find dubious at best. In September City & State reported on Cuomo and Suozzi’s long history of knowing each other, with Suozzi dating one of Cuomo’s sisters years ago and also helping out on former Gov. Mario Cuomo’s campaigns. Several sources familiar with the Cuomo-Suozzi dynamic maintain that their relationship is actually far more lukewarm, however. They also note that Cuomo has enjoyed a solid working relationship with Mangano, most notably through their coordination on the relief efforts following Superstorm Sandy. Mangano even used a sound bite of Cuomo praising him for backing his statewide property tax cap in a recent campaign advertisement. Some observers believe that Cuomo wants Mangano to win so he can push his narrative of bipartisan cooperation both in his 2014 re-election campaign and, potentially, as a key credential should he decide to run for president in 2016. Other experts assess that Cuomo’s stated support for Suozzi is intended to bolster the image of a unified Democratic Party. “Andrew Cuomo’s endorsement of Suozzi helps undercut Mangano’s efforts to portray the governor as an ally,” said Larry Levy, executive dean of the National Center for Suburban Studies at Hofstra University. “Cuomo’s popularity helps keep the Democratic Party’s generic image stronger than it was in 2009, when Suozzi was hurt by the concerns and anger that a lot of Long Island voters had about the new president and a succession of problematic governors and legislative scandals.” Regardless of the tax issue or the governor’s agenda, the election result will ultimately be driven by voter turnout. Democrats have a slight registration edge

Westchester County Executive Rob Astorino, shown here hosting a radio show last year, is ahead in the polls in his bid for re-election. Bramson spokesman Barry Caro said his candidate was “peaking at the right time,” thanks to endorsements from Cuomo and Clinton and increased media attention. “We believe we are overcoming name recognition, and we believe our message is absolutely the one Westchester voters want to hear—and the more voters hear it, the better we’re doing,” he said. “We’re confident undecided voters are breaking our way.” Throughout the campaign Astorino has emphasized his fiscal management and work to improve economic growth, repeating that he cut taxes while pounding away at Bramson’s record as mayor of New Rochelle. Bramson has needled Astorino as a Tea Party Republican who is too extreme for Westchester, particularly on social issues such as gun control and women’s rights.



ltimately, as in the Nassau County race, the outcome in Westchester will come down to who turns out to vote. Most political observers believe only about a quarter of the electorate will show up on Nov. 5. Bramson’s camp projects closer to one third or 40 percent. There’s a lot riding on the result for both parties—and for the governor. Republicans believe that if voters send Astorino back to work by a convincing margin, they will also consider voting Republican for governor next year. “If we have a strong candidate, and we will have a strong candidate, a lot of Democrats may vote Republican,” Laska said. “A statewide Republican can be competitive in 2014.” Cuomo is watching the race closely, not only to gauge his own political fortunes in the Hudson Valley but also to see whether Astorino’s rising star will dim. “Astorino was more than a little bit a fly-in-the-ointment on issues the governor cares about,” Caro said. “Tax cap, marriage equality, women’s equality, SAFE Act and on-time balanced budgets—on every single one of those issues Rob Astorino was not just a critic but an outspoken critic of the governor. He hasn’t just been opposing Cuomo, he’s been opposing him in vitriolic, harsh terms. [The governor] has been willing to work across the aisle, but he does not see it in Rob Astorino. Not one bit.” Despite the intrigue surrounding the race, some political observers said it does not matter much who wins from a statewide perspective, because Cuomo remains broadly popular in New York City and its suburbs, which alone should be enough to secure his re-election in 2014. “When it comes to county executives, the governor is interested in seeing his agenda get through Albany,” said one consultant, who declined to speak publicly so as not to anger the governor. “He’s far more concerned about the Senate. He has to go out and take a position on the Senate and the Independent Democratic Conference, and he would prefer not to have to do that.” Democratic political consultant Evan Stavisky thinks that even if Astorino wins, Cuomo should be safe from a Republican challenger. “If Rob manages to eke out a victory, he’s still fundamentally out of touch with most New York voters and unlikely to be successful if he runs statewide,” he said. “That doesn’t mean his ambitions won’t steer him into a foolish election. He’s fundamentally weak in a Republican primary—and the Republican brand is generally toxic in New York, and it’s more toxic every day. The fundamental truth is Andrew Cuomo is broadly popular and very likely to be re-elected by a comfortable margin, regardless of who the opponent is next year.” cityandstateny.com | NOVEMBER 4, 2013




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lection season in New York City is indisputably centered on the primary races. In a city that has long been a Democratic stronghold, the primaries are often the only election that matters, with the general election a mere formality, with the Democrat who wins the party’s nomination cruising into office against largely token Republican or third party opposition. While some predicted that Democratic mayoral nominee and Public Advocate Bill de Blasio might face a more difficult general election challenge than most members of his party in having to take on Republican Joe Lhota, a former MTA chair and deputy mayor, the opposite has proved to be the case. Poll after poll has shown de Blasio pummeling Lhota by more than 40 points, and de Blasio’s message of progressive change has framed the discussion throughout the race. But what of the down-ballot contests New Yorkers will vote on come Nov. 5? Will the maxim that Democrats emerge victorious in general elections hold true in City Council and boroughwide races too? Political observers identify several matchups where a Republican or third party candidate could keep things interesting. Most notable among the City Council showdowns is the crowded 48th District race in Brooklyn, which pits former state senator David Storobin, a Republican, against Democrat Chaim Deutsch, as well as Working Families Party candidate Igor Oberman and write-in candidate Greg Davidzon, a popular Russian radio host. Storobin lost to Simcha Felder in his bid for re-election to the state Senate last year, and this may be his last real shot at holding public office. Sources following the race say that Storobin was thrilled to get a nonRussian Democratic opponent in a district where Russians make up a sizable portion of the voting bloc. Deutsch has a good base of support in the district’s Orthodox Jewish community, but will need to siphon votes from Storobin’s base to keep him at bay. “In a Democratic primary turnout is very low, and you can really focus on the Orthodox, and if you turn them out in big numbers, you can win with them alone,” said a political insider closely following the race. “In a general election that’s a lot harder to do, and the Orthodox are not a majority in the district by any means, so Deutsch is gonna have to cross over and get a lot of Russians.” Davidzon and Oberman are unlikely to

Assemblyman Micah Kellner with Manhattan Borough President Scott Stringer at a gay pride parade this summer. Stringer dropped his support for Kellner’s City Council bid in the wake of a sexual harassment scandal, and instead endorsed Kellner’s rival, Ben Kallos. win, but each may play spoiler for Storobin and Deutsch, respectively. Davidzon in particular has repeatedly gone after Storobin on his radio show, famously backing Storobin’s state Senate opponent, Democrat Lew Fidler, and devoting so much air time to bashing Storobin that the latter filed a complaint with the Federal Communications Commission. Fellow Russian candidate Oberman is politically more likely to take votes from Deutsch, but could also appeal to Storobin’s base. Another race that has gained a lot of attention of late is that of the 5th Council District on the Upper East Side of Manhattan, where Democrat Ben Kallos is taking on Republican David Garland and Micah Kellner on the Working Families Party line. Kellner is the big name in the race, as the Assemblyman representing the neighborhood, and likely would have won the Democratic primary for the seat had a messy sexual harassment scandal not derailed his campaign. Boosted by The New York Times’ endorsement and defections from Kellner’s camp, Kallos defeated Kellner in the Democratic primary, and has since secured the backing of most of the labor unions and Democratic establishment. However, prior to the allegations against Kellner surfacing, Kellner had received the WFP ballot line. Though the WFP has repudiated Kellner, he has refused to relent the line, and has forged ahead under the party’s banner. In response, the party recently circulated an email urging its members not to vote for Kellner.

Sources following the race say Garland should not be discounted either. A bona fide “Manhattan Republican,” Garland is a pro-choice, pro–marriage equality candidate who worked in the U.S. Department of Commerce under former President George H.W. Bush before moving to the private sector. While it would seem unlikely for a Republican to emerge in what is typically a liberal bastion of the city, Republican political consultant Rob Ryan notes that the area has seen an influx of younger voters from outside the city who tend to be more conservative, and that the race will be decided by voter turnout. “[Garland] maxed out as far as the [public matching funds] money coming in from the Campaign Finance Board, so he has money to spend, and that’s really the sole area in Manhattan where a Republican would ever have a chance,” Ryan said. “If there’s low turnout because people think the mayor’s race is gonna be a blowout, and low turnout on the Democratic side, and Kellner and Kallos split the pot over there, there’s a chance [Garland] could squeak in if he gets the turnout from the Republicans.” Over in Western Queens Councilwoman Elizabeth Crowley is hoping to fend off Republican Craig Caruana in one of the borough’s most conservative districts. Republicans Anthony Como and Dennis Gallagher previously held Crowley’s seat, and while her incumbency and name recognition are advantages in that race, Caruana has slammed Crowley for not being in tune with her constituents’

needs and for being a “lackey” of Council Speaker Christine Quinn. Another more conservative Queens Council district is the 19th District, where Democrat Paul Vallone and Republican Dennis Saffran are vying to replace Republican Councilman Dan Halloran, who is currently under indictment on corruption charges. In 2001 Saffran lost a bid for the seat to Democrat Tony Avella by just under 400 votes, but while sources say Vallone has run a negative campaign that may turn off some voters, others believe Vallone’s name recognition—his father, Peter, was Council Speaker and his brother, Peter Jr., is a term-limited councilman—will help him among the older voters who tend to turn out in the largest number on Election Day. The Council will also lose its top Republican at the end of this year, with Staten Island Councilman Jimmy Oddo term-limited after a 13-year run, though Oddo will likely cruise into office as borough president. His chief of staff, Steven Matteo, is running to replace him and has a huge fundraising edge over his Democratic opponent, John Mancuso. Despite some growing Democratic pockets in the district, this seat figures to stay in Republican hands. Of course, the biggest name in the downballot races, and perhaps the most quixotic candidacy in the city, belong to Brooklyn District Attorney Charles Hynes. Hynes was upset in the Democratic primary by attorney Kenneth Thompson, losing by 10 points after serving as the borough’s chief prosecutor for 24 years. Instead of going quietly into the night and supporting Thompson in November, Hynes decided to relaunch his campaign, armed with the Republican and Conservative ballot lines, in a last-ditch effort to keep his seat. Hynes’ decision to run is looked at by many political observers as a play to preserve his legacy and go out on his own terms. While Hynes is well-known and a proven vote-getter, many of his bases of support, including the Orthodox Jewish community, will likely back a winner rather than support a candidate for the sake of nostalgia. “The impression I get is that he’s not mailing this in,” said political consultant Steven Stites. “Clearly there are a number of Republican pockets that will support him, but this is still a borough-wide race in Brooklyn. It takes a lot, and it’s hard to see how the math adds up for him.”


CASINO GAMBLING AMENDMENT Among this year’s ballot referenda is Proposition 1, which would allow up to seven casinos in New York. Proponents have touted the potential for job growth, school aid and lower property taxes, and they are benefiting by the inclusion of such potential rewards in the ballot language. Opponents warn of gambling addiction and crime, and criticize casinos as a regressive way to raise revenue. We asked experts on each side of the proposed constitutional amendment to explain their vote.



t’s not always easy to find bipartisan agreement in today’s hyper-politicized world. Democrats and Republicans are at odds over everything—whether it is healthcare, how to improve the economy or the direction in which to take the country. But here in New York State we know that the most important thing is to create jobs for working, middle class New Yorkers, invest in our local economies and generate additional revenues to support schools and other public purposes. That is why Proposal #1 has done something that we don’t often see today: It has brought people together to find a way to succeed. Republicans and Democrats, business and labor—we all agree on Proposal #1. Bipartisan support on this issue is so strong that even political opponents who are competing with each other are taking a break from their heated campaigns to join together and talk about the benefits of Proposal #1. Just two weeks ago Tom

Suozzi and Ed Mangano, both running to be the Nassau County executive, took a break from their contentious race to join each other on stage with local business and labor leaders to talk about the more than $60 million Proposal #1 is going to send to Long Island every year. And on Nov. 5, Democrat Bill de Blasio and Republican Joe Lhota will be checking the same box—both voting “Yes” on Proposal #1 for the more than $94 million dollars it will send to New York City every year. There is a reason we are seeing this kind of leadership coming together to advocate for Proposal #1. Elected officials and leaders from across New York recognize that New Yorkers are spending an estimated $1.2 billion a year on gaming in states that are right next door, like Pennsylvania, New Jersey and Connecticut. They know that it makes no sense to put ourselves at a disadvantage, which is why we need to pass Proposal #1 and bring that money back home. We can invest it in our schools, our local governments and to help roll back some of the property tax burden

that is squeezing people all over this state. Passage of Proposal #1 will do even more. Proposal #1 creates jobs—more than 10,000 of them. Good-paying, longterm jobs that are going to help boost the state’s economy, put people back to work and allow them to invest in their local businesses. That is another reason there is such strong, bipartisan support for passage of Proposal #1. While locations have yet to be determined, some candidate communities, like Sullivan and Tioga counties, have seen virtually no net job growth over the past 20 years. These resort casinos will bring crucial new investment, activity and jobs to these struggling communities. What’s more, the increased tourism traffic in the new casino areas is going to be a boon not just to local businesses but also to the state as a whole. As local businesses profit, they are going to be able to hire more workers and reinvest in their communities. That is going to expand our workforce, spur economic growth and create opportunities for more New Yorkers. Local politicians from both parties also

realize that their constituents have concerns about the impact of casinos in their local communities, but the reason they continue to come together in support of Proposal #1 is because they know New York State already has gambling, including racinos and Native American casinos. Proposal #1 doesn’t authorize gambling in our state; it maximizes the benefits of gambling and it ensures that we New Yorkers will have the strong local control and help for problem gaming that communities demand and deserve. In fact, it would authorize only four new casinos upstate, but every New Yorker would share in the benefits whether their communities are hosting a new casino or not. It is too rare these days to see people come together to support something that can help their state or their community. Too often political ideology trumps what is best for people, but as I said, here we know what’s right, and we’re going to stand together to support it. =Heather C. Briccetti is president and CEO of the Business Council of New York State, Inc.



irst, let me state for the record that I am a Mohawk, my wife is Oneida and I live on the Seneca Territory of Cattaraugus south of Buffalo, N.Y. In spite of my connection to all three Native gaming communities, I receive no gaming proceeds from any Native gaming, nor does my family. While I am not a fan of gaming, I will always defend the right for Native communities to be a part of the industry. And although I am opposed to casinos being the end goal to an economic development objective, I’ll concede some value to it as a means for creating revenue so other community goals can be realized. Native casinos face many of the same challenges as other non-Native gaming enterprises. But several clear distinctions need to be made between what exists now and what the governor has proposed. The reason gaming works for small populations supported by Native gaming is obvious—gaming revenue comes from outside these communities from larger populations that ultimately create revenue for smaller populations. If Seneca, Mohawk or Oneida gaming had to rely only on their own small populations for patronage, they would still only be oper-

ating tiny bingo halls. With the exception of Las Vegas and maybe Atlantic City, casinos draw 90 percent of their patronage from within a 50-mile radius of the venue. New York State will never be Nevada or New Jersey, and those New Yorkers who love jumping on a plane to Vegas will still continue to do so. Neither Vegas nor Atlantic City will lose out to the Borscht Belt. That means all the revenue projections the gaming hawks are throwing around [will not be] new money coming into an area, nor will New York State casinos head off some inflated number of gaming dollars rushing out of the state. It will be local income, which will be spent by local patrons without much disposable income but with false hopes of big wins—which will never materialize. Where will the money made by these new casinos go? Native gaming operators are local, as are their shareholders, so every dollar of profit from Native gaming is essentially funneled back into the local economies. And that includes government programs, services and any indirect or direct benefit to the Native people of those communities. By contrast, the proposed state licensed casinos and current racetrack casinos will be operated by large gaming corporations with interests, financiers, investors and

shareholders from across the globe. While the idea of outside investment coming into an area sounds nice, it is not so great when that giant sucking sound starts pulling all of that gaming revenue out of the area. And speaking of giant slurping sounds, consider this—a tax of more than 40 percent by Albany will also ensure that even more money flows freely out of the host communities. Only this carved-out portion will go into the state coffers’ black hole. I know the governor promised that portions of that revenue would return to the communities that get a casino in their backyards. But in reality, that will be a very small portion. The promise of jobs is also overstated. The vast majority of gaming jobs pay at or about minimum wage. Tips may push some of the salaries up to a more attractive level, but the funny thing about tips is that they fade away with the novelty of the venue. The first waves of gambling enthusiasts are quick to flash the cash, but as gaming losses add up—and they certainly will—the tips quickly diminish. No one has ever sought help for tipping addictions. And the big salaried jobs that have been dangled in front of us? Reality check—they will mostly be imports. The specialized skill of “player develop-

ment” and maximizing gaming profits has no room for on-the-job training. These highly skilled jobs will get filled by shuffling the deck within those lucrative gaming corps chomping at the bit for a crack at New York. So while gaming supporters claim that billions will be made off the backs of upstate gaming patrons, they fail to suggest where those patrons will materialize with billions to lose on this type of “entertainment.” Who will lose business as spending habits shift, and just what won’t get purchased so gaming dollars can materialize, will remain to be seen. It’s easy to suggest we just “build it and they will come.” But where will they come from? And where will this necessary disposable income come from? Make no mistake: It will come...and it will go. John Karhiio Kane, Mohawk, a national commentator on Native American issues, hosts “Let’s Talk Native…with John Kane,” ESPN-AM 1520 in Buffalo, Sundays, 9–11 p.m. He is a frequent guest on WGRZ-TV’s (NBC/Buffalo) 2 Sides and The Capitol Pressroom with Susan Arbetter in Albany. John’s Native Pride blog can be found at www.letstalknativepride.blogspot.com. He also has a very active “Let’s Talk Native... with John Kane” group page on Facebook. cityandstateny.com | NOVEMBER 4, 2013


POLICY A Message From Héctor J. Figueroa, President of 32BJ SEIU

A walk along the High Line park in downtown Manhattan tells a story that is playing out in neighborhoods throughout New York. A once down and out neighborhood is now bustling with life. New shops and restaurants crowd corners that were once used for illicit purposes.

Shiny glass buildings shoot up next to aging facades. Flowers literally bloom in parks that used to be heaped with garbage. But tucked between these striking sights of economic development are the people who make the luxury condos and the artisanal shops run, and their lives stand in stark contrast. The workers in these service jobs who don’t have unions cannot afford to live or even eat lunch in the neighborhoods where they work. Some of them juggle two jobs to make ends meet. Many have no health coverage. They spend half their paychecks on rent and their children go to schools where only one in ten students are considered “college-ready” when they graduate from high school. After 12 years of Bloomberg, the city is vibrant, more businessfriendly, greener and also more unequal. But more than any time in recent memory, the city is united on this inequality, which makes this political moment a hopeful one. There are hundreds of labor, community and faith groups who work every day to tackle the disparities and while we are hopeful, we also are taking nothing for granted. Policies that will benefit working families – and families that wish they had work – won’t just come from inside City Hall. Many groups worked hard to make sure extraordinary candidates like Bill De Blasio, Scott Stringer and Letitia James are likely to win on Election Day. And while we are elated at the prospect of their victories, we need to keep organizing to make sure our elected officials keep the promises they have made. For example, a new NYCHA chief needs strong tenant groups that can inform and advocate on their own behalf. A new police commissioner needs communities that are organized and communicate what they need to feel safe and respected. A new Housing Preservation and Development head needs to be informed about irresponsible developers. And a new mayor needs strong unions that are both reasonable and ready to stand up to those employers who would allow the fraying of the city’s social fabric. While government cannot fix everything, there are ways to reduce the inequities – by supporting good jobs. This means settling outstanding city contracts with fair wages, supporting airport and low-wage service workers who are fighting to join a union, and enforcing the city’s new paid sick leave law. It also means enforcing prevailing wage laws throughout the city. New Yorkers need affordable housing that is actually affordable to working families and schools that are not crammed with too many children in each classroom and not enough paper to go around. With a government that is ready to listen as well as act and a community that is ready to respond and advocate, we can make this city a place where its oldest residents and its newest arrivals can live and thrive. With 145,000 members in 11 states and the District of Columbia, including 75,000 in New York City, 32BJ SEIU is the largest property services union in the country

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NOVEMBER 4, 2013 | cityandstateny.com


JUDICIAL AGE LIMIT AMENDMENT Among this year’s ballot referenda is Proposition 6, which would raise the age limit to 80 for Supreme Court and Court of Appeals judges in New York. Supporters say it will help keep enough judges on the bench, while opponents say it benefits high-level judges and that more retirements would encourage diversity. We asked experts on each side of the proposed constitutional amendment to explain their vote. DON’T MAKE THE PERFECT THE ENEMY OF THE GOOD: VOTE “YES” ON PROPOSAL 6 BY ROBERT S. SMITH


am a 69-year-old judge of the Court of Appeals, and you probably won’t be shocked to learn that I am in favor of Proposal 6 on this November’s ballot, which would raise the mandatory retirement age for judges of my court and the New York Supreme Court. But though I couldn’t be more biased, I’m not wrong. The current retirement age of 70 was set in 1869, when not many people lived that long. (Today, New York Supreme Court Justices can be certified to sit until age 76.) Life expectancy in 1869 was below 50. The case for a change is easy to make: 1869 was a long time ago and a typical 70-yearold, or 76-year-old, is a lot healthier now

terms and for other reasons, many judges will retire before that. I would hit mandatory retirement, as it happens, at 73. I said I worry about the federal system. But today’s United States Supreme Court makes for an interesting example of how Proposal 6 might work—because at this moment there are no justices who are 81 or older. There are four over 70, three of whom are over 76. What would be bad if the age profile of the Court of Appeals looked like that? You may not love the present United States Supreme Court, or all its members. The oldest are Justices Ginsburg (80) and Scalia (77), and I bet many of you wish one of them had retired at 70 or 76—though you don’t agree on which one. But whatever their faults, can

“Under the Constitution as it stands, this state is firing a lot of talented employees at the top of their form. Maybe the most obvious example is our legendary former chief judge, Judith Kaye: She was forced to retire five years ago, was promptly hired by a large law firm, and has been practicing law full time (very successfully) ever since.  She would have happily continued to make much less money in her old job—but an age limit dating from 1869 wouldn’t let her.” than then.  Today most judges in their 70s can do as good a job as they ever did— maybe better, because judging is a job in which long experience counts. Under the Constitution as it stands, this state is firing a lot of talented employees at the top of their form. Maybe the most obvious example is our legendary former chief judge, Judith Kaye: She was forced to retire five years ago, was promptly hired by a large law firm, and has been practicing law full time (very successfully) ever since. She would have happily continued to make much less money in her old job— but an age limit dating from 1869 wouldn’t let her. Judges do, of course, eventually start to fade. I would worry about a system with a lot of judges in their 80s and 90s. (In fact, I do worry about the federal system, where judges have life tenure.) But New York will not have any 80-plus judges if Proposal 6 passes. The amendment sets an outside limit of 80 and, because of the expiration of

you say with a straight face that their age is the problem? The main argument against Proposal 6 seems to be that it should cover more judges. I agree that it should, but that seems a strange reason to vote “No”—a classic case of making the perfect the enemy of the good. I’m no political savant, but I don’t see the Legislature saying to itself: “A narrow amendment failed, so let’s try a broader one.” If Proposal 6 goes down, the idea of changing the retirement age may be dead for decades. But if it passes, there will be a strong argument for another amendment to cover more judges and correct the inequity. They tell me that City & State’s readers are highly sophisticated. I hope you’re sophisticated enough to find Proposal 6 on the ballot—it may even be on the back.  Please ferret it out, and vote “Yes.” Judge Robert S. Smith is an associate judge of the New York Court of Appeals.




New York’s Digital Health Revolution By David Whitlinger Executive Director, New York eHealth Collaborative



he proposed amendment to the state constitution allowing casino gambling in New York State has received loads of attention, yet another equally important one—raising the retirement for some state judges— has received little. The amendment, Proposal 6, has been widely discussed within the legal community, but is barely known about by the larger public. As a nonpartisan good-government watchdog organization concerned with the form and function of government, Citizens Union believes the amendment is too small and uneven a change to deserve support from the voters. Citizens Union is pragmatic in working for and achieving reform, and appreciates that reform is often achieved in increments. This too-small-a-step proposal, however, falls short because it is too selective in whose retirement age gets raised, and does so irregularly. It also fails to adequately address a central issue: Our state court system has too few judges spread over too many court systems handling too many cases that take far too long to resolve. The result is delayed justice for too many New Yorkers. All New York State judges must currently retire at age 70; however, justices of the Supreme Court (one of the state’s trial courts) can remain until 76 upon being “certificated,” which deems the justice capable of performing her or his judicial duties. A justice continuing past age 70 must undergo this certification procedure every two years until age 76. The amendment would increase the retirement age for Supreme Court justices to 80, using the certification process. The amendment would additionally permit a judge of the state’s highest court, the Court of Appeals, to remain on the bench beyond age 70—but not serve beyond age 80—without subjecting her or him to any certification process to finish out the term; if a Court of Appeals judge’s term expires after age 70, however, she or he would not be eligible for reappointment. Confused yet? That may be because even the amendment’s limited changes appear arbitrary, and there is no principled reason for raising the retirement age for only two groups of judges—who do not even constitute the majority of the state’s judges. That a certification process would be required for Supreme Court

Justices but not for Court of Appeals judges would result in unequal treatment among judges. Court of Appeals judges whose 14-year terms expire while they are in their 70s have to leave the bench immediately before reaching 80 and could not be reappointed, whereas those judges whose terms expire before they turn 66 could be reappointed and serve until 80. Their retirement age will thus be determined by the vagary of their age at the time of appointment—yet another example of the uneven application of the amendment. Proponents of this measure argue that it will provide additional judges to a court system that badly needs them. We agree that more judges are needed in the lower courts, but this amendment is not an effective way to address the problem. Citizens Union has supported much stronger medicine to simplify and modernize the state’s court system by consolidating the nine trial courts into a two-tiered system. The state Legislature also currently has the authority to create additional judgeships in many courts—particularly in New York’s family courts, where the number of judges has not kept up with the burgeoning caseload—and has neglected to use this important power. A further criticism of the proposal is that the current certification process for Supreme Court justices is ineffective. To address this concern, the chief judge has proposed improving the certification process, including providing for a public hearing process. We applaud the chief judge for these proposed changes, which should be implemented regardless of whether this amendment is adopted. This proposed amendment is wellintentioned in that it would remove an outdated retirement age requirement for certain judges. But what is good for some judges should be good for all judges. It is a shame that the state Legislature has recommended a proposal that essentially takes our state judiciary— which is tasked with providing equal justice under the law—and institutionalizes inequality among our judges by creating different retirement ages. New Yorkers deserve better. Let’s hope the voters feel the same on November 5. Dick Dadey is the executive director of the good-government group Citizens Union of the City of New York.

There’s a quiet revolution going on in New York State. While the national debate continues about Obamacare and how to reduce healthcare expenditures, New York has already taken action. Thanks to a significant investment in technology and operational capacity, New York State is building a digital network of electronic medical records that will literally transform how patient care is provided and deliver major cost savings. It’s called the Statewide Health Information Network of New York or SHIN-NY. And, it puts New York State far out ahead of all other states when it comes to Health IT. In a tech-savvy world, consumers want healthcare to be as easy to manage as banking, shopping and all their other utilities. They want to be involved and proactive about their own health. In fact, a recent survey indicated that 41% of consumers said they would switch doctors if theirs did not use electronic medical records. Now, the SHIN-NY will give patients safe and secure access to all of their records, eliminating the hassle of faxing medical records between providers, remembering their health histories and keeping track of prescriptions. Physicians and healthcare providers will be able to make better, more informed medical decisions for their patients. They will be able to reduce medical errors, avoid potentially harmful drug interactions and avoid duplicative or unnecessary lab and radiology tests that can add excessive cost to patients and insurance providers. Importantly, it will allow doctors to collaborate so they can coordinate care for patients that have more than one condition and see multiple physicians. Nowhere will this be more important than in the Medicare and Medicaid population. Based on a statewide network that connects eleven Regional Health Information Organizations (RHIOs), the SHIN-NY will be operated as a public utility so that patients and providers can access their records no matter where they are in the state. In addition to improving patient care, the SHIN-NY has numerous other uses and benefits. It will be a critical tool in emergency management during a disaster such as Hurricane Sandy, allowing for better victim tracking and access to records. It will also improve New York’s public health surveillance and public health communication that can be vital during an outbreak. Use of the SHIN-NY has already delivered tangible cost savings. In Rochester, a doctor’s use of the network in the ER resulted in 30% fewer admissions. This could translate to $52 million in savings across the state. Similarly, use of the network by a physician’s office resulted in 57% fewer readmissions within 30 days of a patient being discharged from a hospital. This could translate to $46 million in savings. The SHIN-NY has also spurred economic growth and development of Health IT— one of the fastest growing tech sectors. The New York Digital Health Accelerator (NYDHA), a project supported by The Partnership Fund for New York City and the New York eHealth Collaborative, attracted venture capital to sponsor incubator startup companies. These software developers are building apps to customize use of the SHIN-NY and make it more accessible and relevant to the public. This project, alone, is estimated to create 1500 new jobs in New York City over the next five years. The SHIN-NY is rapidly becoming a model for other states in how to deliver better healthcare. But ultimately, the SHIN-NY depends on maximum participation of patients and providers. A majority of the New York State’s hospitals are already connected, but we need many more patients, physicians and healthcare providers to participate. The more information in the network, the more valuable it becomes. Our goal is to achieve 75% of all providers within the next three years. Thanks to the support of the New York State Department of Health, we are on well on our way to getting there.

cityandstateny.com | NOVEMBER 4, 2013




A push to extend the statute of limitations on medical malpractice


f the $3.6 billion in payouts made to plaintiffs involved in medical malpractice lawsuits across the United States last year, 21 percent—in excess of $763 million— was paid here in New York, a state that’s home to just 6 percent of the country’s population, according to a 2013 analysis by Diederich Healthcare. Total payouts in the next state down, Pennsylvania, were less than half that—just over $316 million. Downstate New York also claims the highest medical malpractice insurance premiums in the country—between $170,000 and $225,000 per year for obstetricians and gynecologists practicing on Long Island and in New York City’s outer boroughs. And although collective rates for these and other practitioners fell by an average of 1.9 percent around the country in 2013—the sixth straight year they’ve decreased—premiums rose by 4.8 percent in New York. This is the backdrop for the fight over medical malpractice laws, which insurance and medical industry lobbyists, as well as tort law reformers, see as antiquated and ripe for abuse. New York is one of just 15 states with no limit on awards for

noneconomic or “emotional” damages, resulting in huge payouts to victims of malpractice. And although Gov. Andrew Cuomo’s 2011 budget included a $250,000 cap on such damages, the proposal got buried in the state Legislature. “These trial lawyers flood over $1 million into the political system every year, and they prop up a lot of bad laws,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York in Albany. “We have incredibly low standards of evidence, and they continually try to push for lowering them even further.” One factor is New York’s reliance on the Frye standard of admissibility of evidence in court, which requires that a technique be “generally accepted” in the scientific community. Stebbins wants the state to use the so-called Daubert standard, which gives a judge the power to determine whether the evidence is scientifically valid and relevant, and also requires expert witnesses to demonstrate that their conclusions are based on sound scientific methodology. While adoption of the Daubert standard in New York is a long shot, the Lawsuit Reform Alliance will be advocating for higher standards of evidence in the next legislative session, namely a rule that would require lawyers to disclose the identity of their expert witnesses at a predetermined time before trial.

“Right now there is no timing of disclosure for expert witnesses,” Stebbins said. “So if you’re defending yourself, you don’t know who will be testifying against you. You don’t know if that person is a worldrenowned physician or a disbarred physician or a physician at all … and without knowing, the defendants don’t know the veracity of the case against them, and they often move to settle bad cases.” Another tort reform initiative that is getting more attention is opposed by the medical and lawsuit reform lobbies. Currently the period during which a victim of malpractice can sue a doctor starts on the date when a medical error occurred. In 44 other states the clock starts ticking at the “date of discovery,” the time when the patient realizes he or she has a problem. Legislation that has been introduced is popularly known as “Lavern’s Law” in New York, for Lavern Wilkinson, a Brooklyn woman who died from cancer in March after doctors at Kings County Hospital failed to report a chest lesion documented in an X-ray a few years earlier. Wilkinson, the mother of a 15-year-old with autism, had no recourse to sue because the statute of limitations—two and a half years at private hospitals and one year and 90 days at city-owned hospitals—had already run out. The bill died in the Legislature last

session when its sponsor, Brooklyn Assemblywoman Helene Weinstein, put it on hold for next year. “It is inexplicable, when you apply it to a set of circumstances, that a person’s right to bring suit expired before he knew he had a right,” said Robert Danzi, a medical malpractice lawyer and president of the New York State Trial Lawyers Association. “I don’t think there is a rational argument that can be made when you put it into the equation of notice and fairness.” A recent report from the investigative journalism outfit ProPublica sheds light on a new study claiming that 210,000 to 440,000 patients die each year in the United States after suffering a preventable harm in the hospital that abets their death. They point out that if true, this would make medical errors the third-leading cause of death in the country. Still, Stebbins is opposed to “Lavern’s Law.” “What it would do really is it would allow for lawsuits, ancient lawsuits, to stay in the system for years and years,” he said. “And then if somebody 10 years after surgery decides that the surgery didn’t work, or that they have pain again, they can then move to recover for a surgery that’s been effective for 10 years. Right now there are no controls that would prevent somebody from suing, say, 10 years later.”

MANY MEDICS Some claim that doctors are leaving New York because of its high malpractice premiums. But statistics from the Association of American Medical Colleges show that New York had the third-highest number of physicians per capita in the country in 2010 (the last available year), surpassed only by Maryland and Massachusetts.


Total active physicians

1. Massachusetts 2. Maryland 3. New York 4. Rhode Island 5. Connecticut

415.5 27,550 368.7 21,153 68,042 347.5 3,515 332.6 11,678 331.1

46. Utah 47. Wyoming 48. Arkansas 49. Idaho 50. Mississippi

5,598 1,057 5,518 2,873 5,221



Physicians per 100,000 people

NOVEMBER 4, 2013 | cityandstateny.com

197.8 193.0 189.6 184.2 176.4



In battle over controversial Scaffold Law, both sides cite race as a key argument


he state’s Scaffold Law has long been a source of deep division and disagreement. The law’s supporters, including unions, trial lawyers and worker advocates, say that it is critical to ensuring the safety of construction workers. Building contractors, developers, insurers and other opponents say the legislation has dramatically raised project costs while allowing workers to avoid responsibility for any role they may have played in an accident. Now, with another battle over the law brewing in Albany, proponents on both sides of the issue have an argument in common: that the law should be kept in place or, alternately, reformed, because of race. “The fact of the matter is, this is an issue that is affecting construction workers of color—that is a fact,” said Assemblyman Francisco Moya, who strongly supports the law. “When you read about the accidents that happen, most of them are fatalities. A lot of them are immigrants. These workers come in here, they get hired,

contractors don’t provide them with any safety training or the appropriate safety equipment, and we’ve seen it time and time again.” The state law holds owners and contractors “absolutely liable” in the case of a gravity-related injury to a worker if the required safety equipment is not provided. One proposed reform would introduce a “comparative liability” standard, in which a worker could share some of the responsibility for an accident. But supporters of the law say that construction workers are often ordered to work in unsafe conditions. Immigrants and Latinos may not speak the same language as their overseers, and also face the risk of being fired if they demand a safer working environment. Moya cited the example of one immigrant injured on a construction site who was simply taken to a clinic and dropped off with a hundred dollars. The worker had no safety equipment, and an unsecured machine fell on him and injured him. “They’re afraid to complain, because then they’ll get fired, or they’ll get threatened,” Moya said. “And should we pick safety over a paycheck? That’s what’s happening right now.”

New York needs a

A new study from the Center for Popular Democracy bolsters Moya’s arguments. Between 2003 and 2011 immigrants or Latinos made up 60 percent of falls at construction sites, according to data from the federal Occupational Safety and Health Administration (OSHA). In New York City three out of four injured workers were Latino or immigrants, with higher rates in Queens and Brooklyn. In 86 percent of the cases, the employer was non-union. “The fact that smaller, non-union companies tend to whack the oversight training and equipment necessary to keep safe disproportionately endangers workers of color and Latino and immigrant workers particularly,” said Connie Razza, the researcher on the report. “The Scaffold Law is a vital stopgap to the failure of OSHA to be able oversee and prevent such accidents.” But critics argue that minorities who own small contracting businesses are also victims, since insurance costs have gone up with the Scaffold Law in place, often making it unaffordable to get involved in construction projects. In New York City the School Construction Authority has been a pioneer in awarding building contracts to firms

owned by minorities or women, or MWBEs. But Lorraine Grillo, the president of the SCA, is concerned that her agency will no longer be able to cover the rising insurance costs to continue its MWBE program. “This is, without a doubt, the most critical issue we face right now,” Grillo said at a City & State conference earlier this year. “This is a lose-lose for everyone, in the private world as well as in the public sector. If we don’t join together and get this done, and get this done right away, our MWBE program goes away, our mentor program, which I’m extremely proud of, goes away.” Like other Scaffold Law proponents, Moya is not persuaded. “When they start going around and saying this is costing us money—listen, this won’t affect any company that’s doing the right thing,” the assemblyman said. “If you’re doing the right thing, if you’re providing your construction workers, the employees that you hire, with the appropriate safety equipment and the appropriate training, there’s nothing to worry about. We’re seeing now more and more that they’re using this as an excuse to repeal the Scaffold Law.”

new plan for business

New York is the only state with the antiquated “Scaffold Law,” which mandates absolute liability on owners, businesses and contractors for injuries sustained from a fall, even if the worker was drunk or ignored safety protocols. This outdated law was originally enacted in 1885. Since then New York workers have protections from the rigorous safety requirements of OSHA and the generous benefits of workers compensation. Trial lawyers want to keep the broken Plan A because they benefit. It’s time to make New York safe from the trial lawyers.


Implement Plan B. Rebuild business and reform the Scaffold Law.

cityandstateny.com | NOVEMBER 4, 2013



THE ROUNDTABLE Richard Gottfried




Chair, New York State Assembly Health Committee

Chair, New York State Senate Insurance Committee

Chair, New York State Senate Judiciary Committee

Chair, New York State Assembly Judiciary Committee

Q: One bill that died in committee this past session is “Lavern’s Law,” which would have changed New York medical malpractice laws to start the statute of limitations from the point at which any alleged malpractice could reasonably have been known. What is your position on the bill? RG: I support it. Remember Lilly Ledbetter. For years her employer illegally paid her less than it paid men doing the same job, but she didn’t know that. When she learned what was going on, she sued. The Supreme Court ruled that the statute of limitations had run out. People were so outraged that Congress quickly changed the law. That’s what Assemblywoman Helene Weinstein’s bill would do for malpractice claims. A malpractice injury can begin to produce noticeable symptoms after New York’s very short statute of limitations has run out. It’s basic fairness that the clock shouldn’t start till the patient knew or reasonably could have known about the injury.

Q: Critics of the state’s Scaffold Law have been mounting a campaign to reform it, arguing that it raises costs too much. Supporters say it is necessary to ensure worker safety. Should the law be changed? JS: The Scaffold Law is outdated and overdue for modification. New York is the only state that holds contractors and building owners to an absolute standard of liability when a worker is injured on the job. As a result of this open-ended liability, we have seen skyrocketing general liability rates and reductions in available coverage. I am a co-sponsor of legislation (S.111) that would protect injured workers while reducing the cost of doing business in New York State. By applying a comparative negligence standard of liability for claims under the Scaffold Law—as opposed to the current absolute standard—workers whose negligence directly contributed to their injuries are held liable for their actions. As a result, we should see a reduction in general liability rates for contractors and subcontractors.

Q: In 2011 state Sen. James Alesi sued the owners of a property where he had slipped and hurt his leg—even though he was trespassing on the property. Alesi dropped the lawsuit, and lost his bid for re-election. Now “tort reform” proponents are taking aim at the state law, which they say is on the books in only one other state. Should the law be changed? RG: Whether the injured person was not allowed to be on the property where the injury happened is a factor to consider, but it should not be an absolute protection for someone whose misconduct caused the injury.

Q: Some have also called for a cap on noneconomic losses, such as pain and suffering, a cap that is in place in states like California and Texas. Is that a good idea? JS: I would be open to considering a reasonable cap on noneconomic losses. New York’s generous tort laws drive up insurance premiums. While it is important that injured plaintiffs are able to secure reasonable compensation for their injuries, lawsuits should not result in a windfall—a windfall that everyone living or doing business in New York pays for through higher insurance and other costs.

Q: Are there any other bills related to lawsuit issues that you see as a priority in 2014, bills that either should or should not pass? RG: I want to see physicians, trial lawyers and consumer representatives sit down and seriously negotiate to find changes that would work and that are acceptable to all of them. This might include some changes in tort law procedure and substantive rules, and stronger protections for patient safety. It should be possible for healthcare providers to analyze a case, discuss it with colleagues and learn how to do better, without fearing that what is said will be used in court.

20 NOVEMBER 4, 2013 | cityandstateny.com

Q: Are there any other bills related to lawsuit issues that you see as a priority in 2014? JS: Yes. I continue to be a strong advocate for real, comprehensive reform in our nofault system. No-fault fraud is rampant in New York, particularly in the New York City area, and is a primary reason that New Yorkers pay the fourth-highest auto insurance premiums in the country. The Senate, on multiple occasions, has passed legislation to crack down on runners and those who stage accidents, along with a measure to allow insurers to retroactively cancel policies taken out by those who commit fraud. I have also introduced a series of legislation that would reform the no-fault system in a more comprehensive manner.

Q: You are a strong proponent of the constitutional amendment to legalize casino gambling in the state. What is your view on the amendment to raise the age limit of certain state judges? Are there other ways to address the backlog of cases and the limited number of judges in the state? JB: I have mixed feelings. I introduced the bill in order for the people to decide. I would prefer a broader bill that increased the retirement age for all judges, but this is the only bill the Assembly would pass. We can expect the governor’s office to make many recommendations for appointments that will fill these judicial vacancies, particularly in the Appellate Division, in the next session. Q: Are there any other constitutional amendments you have an opinion on? JB: As to the other five, of course, I am strongly for casino gaming resorts, which will produce jobs, provide increased education funding and reduce property taxes. I will be voting for the remaining four amendments. Q: Some “tort reform” advocates are calling for a change in the state’s standard of evidence, arguing that the Daubert standard should replace the Frye standard. Do you agree? JB: I am in support of maintaining the Frye standard of evidence for New York. While the focus of the inquiry of experts may differ between the Daubert and Frye standards, the tests are not substantially different, and there is little evidence that the results are much different in cases. Q: Are there any other bills related to the judiciary that you see as a priority in 2014, bills that either should or should not pass? JB: Spousal maintenance standards need to be addressed. Last month I held a public hearing of the Senate Judiciary Committee regarding temporary and postdivorce maintenance calculations. Under the current laws, which were passed with the No-Fault Divorce law, there is too much uncertainty in the amount and duration of maintenance awards. The judges are advising us the current standards cause more litigation and therefore are more harmful than helpful. We need to take action to adjust the current laws to create a more reliable formula, reduce present caseloads and bring a better sense of justice to litigants.

Q: What is your view on the constitutional amendment to raise the age limit of certain state judges? Are there other ways to address the backlog of cases and limited number of judges? HW: I support the constitutional amendment. Additional judicial resources are warranted, and the amendment would accomplish this without imperiling significant priority of enhancing judicial diversity, given that no elections for Supreme Court positions would be delayed or imperiled. Many courts have too few judges to handle their caseloads, an acute problem especially in family courts throughout the state. However, unless and until additional judicial positions can be created, this constitutional amendment is the best present option for enhancing judicial resources. Additionally, the mandate of judges having to retire from the Court of Appeals at age 70 is an outdated notion and results in us losing some of our most knowledgeable jurists. We were made deeply aware of this result recently when two outstanding jurists, Chief Judge Kaye, as well as Judge Carmen Ciparick, were forced to retire at age 70. I believe that allowing Court of Appeals judges to serve their entire terms beyond age 70 would greatly enhance the court and the administration of justice. Q: Are there any other bills related to the judiciary you see as a priority in 2014? HW: There are a number of priorities, including adequate funding for civil legal services and insuring due process rights for those facing mortgage foreclosure. There were also a number of bills that passed the Assembly this year but unfortunately were not taken up for consideration in the Senate. Among the most pressing are:  1) The Consumer Credit Fairness Act (A2678) focuses on stopping abusive debt collection practices, the effects of which are harmful to consumers, and especially to domestic violence victims. 2) Interpretation of Orders of Protection (A1084) would help non–English speaking parties to better understand the essential terms of an order of protection as outlined by the court. 3) Frivolous Lawsuits Against Public Participation (Anti-SLAPP) (A856) would protect citizens from frivolous litigation intended to silence their exercise of the rights of free speech and petition about matters of public concern.

Congratulations to all the Rising Stars!

“Tim’s judgment, wisdom and strategic problem solving skills are mature and experienced beyond his years. If he is this talented and effective now, imagine how good he will be when he is top 50 under 50!” Ambassador Gordon Giffin Partner and chair of the Public Policy and International Department “This is a well-deserved honor for a rising star in the fields of business, law and government.” Eric Tanenblatt Senior Managing Director and co-chair of the Public Policy/Regulatory Affairs and National Government Affairs Group practice “Tim is an invaluable member of our team. This honor is richly deserved.” William Plunkett Partner

McKenna Long & Aldridge LLP congratulates Tim Plunkett, our own Rising Star, for his commitment and hard work on behalf of our clients. Congratulations Tim on this well-deserved recognition.

mckennalong.com Albany l Atlanta l Brussels l Denver l Los Angeles l Miami l New York l Northern Virginia Orange County l Rancho Santa Fe l San Diego l San Francisco l Seoul l Washington, DC

“Tim is a great guy and terrific lawyer with a superb understanding of the broad context in which our clients function.” Jon Ballan Partner and head of the New York Public Finance group and co-chair of the Global Infrastructure and Public-Private Partnerships practice “Tim is a wonderfully creative lawyer with great business sense and people skills.” Charles E. Dorkey III Partner “Congrats to you Tim. Well deserved.” Hon. Craig M. Johnson Managing Director and 2008 40 under 40 Rising Star “Well deserved. Congratulations, Tim.” Amy Solomon Managing Director “Congratulations, Tim. You are a tireless advocate for clients and the personification of family values in the best tradition of the Plunketts.” Mike Klein Managing Director


SCORECARD: LAW AND LAWSUITS THE PLAYERS THE LEGISLATURE Proponents of tort reforms frequently take aim at Assembly Democrats as major opponents of change in state tort law, including Assembly Speaker Sheldon Silver, who is of counsel to the personal injury and medical malpractice firm Weitz & Luxenberg. But Republican state Sen. John DeFrancisco, also an attorney, is a noted opponent of tort reforms as well. Sen. James Seward, chairman of the Senate Insurance Committee, and former committee chairman Neil Breslin are advocates for changes in the state’s laws governing automobile accidents, which make up a vast number of the state’s tort cases. THE HEALTH INDUSTRY The Greater New York Hospital Association (GNYHA) and the Healthcare Association of New York State (HANYS) are some of the most vocal advocates for caps on noneconomic damages in medical malpractice awards, a measure they have not yet achieved, which they blame on the influence of trial lawyers over the state Assembly. THE LAWYERS The New York State Bar Association and the New York State Trial Lawyers Association have both registered opposition to proposed changes in the state’s tort laws, citing defendants’ rights to trial. Implicitly the trial lawyers’ opposition to measures such as caps on damages has an element of self-preservation, as limited payouts would also limit the fees lawyers could recover in settlements or trials. Opposing the lawyers’ groups on the other side of a number of tortrelated issues is the Lawsuit Reform Alliance of New York.

CONSTITUTIONAL CHANGES The amendment to legalize casinos in New York isn’t the only constitutional question before voters this year. Here are the six amendments on the ballot this year.


Authorizing Casino Gambling: The amendment would allow up to seven casinos in New York. Proponents have touted the potential for job growth, school aid and lower property taxes, and they are benefiting by the inclusion of such potential rewards in the ballot language. Opponents warn of gambling addiction and crime and criticize casinos as a regressive way to raise revenue.


Additional Civil Service Credit for Veterans with Disabilities: The amendment would grant additional civil service credits to veterans who are certified as disabled after 22 NOVEMBER 4, 2013 | cityandstateny.com

they have already been appointed or promoted. Supporters say it would add more fairness for veterans and increase their employment opportunities.


Exclusion of Indebtedness Contracted for Sewage Facilities: This amendment would allow municipalities to exclude the costs of sewage facility construction from their constitutional debt limits. The Constitution currently has this exclusion, but it expires next year. The amendment would extend it for 10 more years.


Settling Disputed Title in the Forest Preserve:

THE ISSUES CONSTRUCTION LAWS Developers and some government officials argue that laws that hold building owners and contractors liable for gravity-related accidents on construction sites are expensive and go against the spirit of tort laws. New York is the last state in the country that still has such a strict Scaffold Law, critics say. The state’s trial lawyers argue the law protects New York’s high immigrant population working in construction since these laborers may not have safe workplace conditions or may lack sufficient safety training. AUTO INSURANCE New York State is one of a relatively small number of states in the country with some form of no-fault auto insurance, which is supposed to curb auto-accident litigation by forcing insurers to pay regardless of who was at fault. But because New York also has a threshold over which a claimant can sue for certain damages based on types of injury, the state has seen a glut of claims in court, 36 percent of which have been determined to be fraudulent, at a cost of more than $229 million per year to the state. Several lawmakers, including Sen. James Seward, have tried to pass legislation that would reform the no-fault process. MEDICAL MALPRACTICE New York City has become famous (or infamous) for the large judgments juries award plaintiffs in some medical malpractice trials. Hospitals and doctors claim the multimillion-dollar payouts are a major cost driver for their medical-malpractice insurance premiums, and lead doctors to order expensive tests they don’t need in order to avoid liability in case of lawsuits. In past budget negotiations, Gov. Andrew Cuomo supported a $250,000 cap on noneconomic damages as part of his Medicaid-reform package, but the cap lacked the support it needed to pass. Those who oppose caps on damages suggest the medical community should do more to prevent adverse events. Other proposed reforms include changing the standards for a witness to testify as a medical expert in a trial and specialized courts where judges with medical knowledge can meet with plaintiffs and defendants to see if settlements can be reached early in the trial process. JOINT AND SEVERAL LIABILITY New York tort law allows each defendant in a lawsuit to be found liable for the full amount of the damages, regardless of the degree of negligence. Proponents of reform to the law suggest this “joint and several liability” encourages a litigious climate in which parties are encouraged to sue the defendant with the most cash, instead of the entity most responsible. The amendment would resolve a land dispute in the Adirondacks, with the state giving up its claim in exchange for another piece of land to add to the Forest Preserve. Proponents say it would resolve a long-standing land dispute, while opponents say it should not be addressed through the amendment process but through the courts.


Land Exchange in the Forest Preserve with NYCO Minerals: The amendment would let the state give a mining company Forest Preserve lands in exchange for another piece of land to add to the Forest Preserve. The

company would also eventually return the land to the state. Proponents say it will preserve jobs, while opponents say it erodes the Constitution’s “Forever Wild” clause.


Increase Age Limit for Some State Judges: The amendment would raise the age limit to 80 years old for Supreme Court and Court of Appeals judges in New York. Supporters say it will help keep enough judges on the bench, while opponents say it benefits high-level judges and that more retirements would encourage diversity. SOURCE: NEW YORK PUBLIC INTEREST RESEARCH GROUP






Strategic Consulting Media Relations Brand Marketing Grassroots & Issue Advocacy Campaigns


t’s a Tuesday afternoon at W’s, and business at the local pub is slow. Autumn weather has crept into Tottenville, the air slightly more brisk, the light a little more fleeting. Yet even with the change of season, one thing has not changed—W’s patrons are still reticent to talk about the final chapter of the New York City mayoral campaign. As Democrat Bill de Blasio has surged ahead of Republican Joe Lhota in the race, a spate of lethargy seems to have washed over the city’s political consciousness. The campaign events have slowed down, the incessant robocalls dwindled, a virtual hangover from the daily activity of the primary campaign. For a conservative enclave like Tottenville, this lack of interest seems to have come to a head. Lhota, never a favorite in this neighborhood despite his politics, is a technocrat running a lackluster campaign, and despite the enthusiasm for his candidacy elsewhere in the city, de Blasio is a virtual unknown in these parts, his message of progressivism hardly resonating. Yet some, like Patrick—a carpenter with a youthful face and an earnest disposition, enjoying a late afternoon drink at the bar—view the election through a different lens. Patrick is hardly disengaged and he has at least

vague impressions of de Blasio and Lhota as candidates, but he believes that no mayor has fully grasped the issues facing Tottenville and the rest of Staten Island. This perceived neglect has led to distrust of city government as a whole. “It’s an issue of us versus the rest of the city,” Patrick said. “We’re the forgotten borough.” Patrick has no interest in the horse race prognosticating that dominates the mayoral campaign. As far as he’s concerned, the issues close to the heart of the borough’s residents fall on deaf ears in City Hall, regardless of the political affiliation of the mayor. “Party doesn’t matter,” Patrick said. “It comes down to, personally, what issues affect your life.” He lists transportation as a concern unique to the borough that he feels doesn’t get enough attention. “The MTA is a perfect example,” he said. “You increase fares, but trains are running late. The Verrazano Bridge tolls are out of control. Why come to Staten Island to set up a business or drive a truck through here? You come here, you get nailed over the head.” When asked if a candidate like Lhota would be preferable to de Blasio, considering Lhota ran the beleaguered transportation authority before entering the mayoral race, Patrick said he would weigh that in his decision,

but the constant raising of public transportation fares is irksome. Patrick adds housing to his list of issues that have not been adequately addressed under Mayor Michael Bloomberg. “Everybody comes out here to live because it’s a residential area, but there’s zoning issues out here—you could buy a nice big house on a corner lot, knock it down, build four houses there; instead of six people living on a lot, now you have 14 people living on a lot,” he said. “That comes down to borough president and councilman and stuff like that, they promise the rezoning, they promise this, they promise that...” His voice trails off, indicating a weariness with politicians’ lofty campaign promises. Patrick’s councilman is Vincent Ignizio, a popular public figure whom he respects. Ignizio is running for re-election, and while Patrick appreciates the job Ignizio has done representing the borough, he wishes there were more Vincent Ignizios to fill out City Hall and the rest of the Council. “He’s always, definitely, fighting for Staten Island and the South Shore. He brought a lot of improvements, he was around every day, every night when Sandy happened,” he said. “The [elected officials] that we have [representing us] are good, but then when you go up to the city and go up to the higher levels, it gets lost.”



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f all the issues facing New York City’s next mayor—from improving public education to creating jobs to affordable housing—who would have thoughT that one of the most talked-about subjects throughout this year’s campaign would be the fate of the Central Park carriage horse industry? The debate as to whether to ban horsedrawn carriages has been a focus of animal rights activists from the beginning of the mayoral race, with forums on the issue and vociferous protests, pitting these advocates against the Teamsters union that represents the industry. Both Democratic mayoral nominee Bill de Blasio and Republican nominee Joe Lhota have stated their opposition to the carriages—a longtime favorite of tourists and romantics alike—as well as their support for a City Council bill that would essentially end the industry altogether. In September de Blasio, who now looks increasingly likely to become the city’s next mayor given his sizable advantage over Lhota in recent polls, pledged to end the industry “right away.” There has been speculation, however, that after de Blasio received the endorsement of the Teamsters’ union in September following his victory in the Democratic primary, he might become less inclined to ban horse-drawn carriages. However, de Blasio reaffirmed his opposition to the industry in a recent debate. “I said very clearly we are ending horse carriages in New York City,” he said. ”Yes, I received support from a union that feels the other way, but that doesn’t change my opinion one bit, and I’ve made that clear to that union, so I’m moving forward on this plan.” Sources say that the Teamsters Joint Council—the larger Teamsters’ union has many local chapters in the city—went with de Blasio because Lhota was less amenable to negotiating a new contract for some of the larger local chapters. As a result Local 553, which represents the carriage drivers, was forced to fall in line. At the core of the debate is the treatment of the horses that drive the carriages. Animal rights advocates argue that the 1,200-pound horses are overworked, pounding the pavement for nine hours a 24 NOVEMBER 4, 2013 | cityandstateny.com

day, seven days a week, and are not meant to be part of midtown traffic, noting that there have been 20 accidents in the past two and a half years involving horse carriages. Advocates add that when horses get spooked they bolt in the opposite direction of whatever stimuli scares them, and when that happens they can overturn their carriages and can crash into cars. One often-cited incident happened two years ago when a carriage horse named Charlie dropped dead on his way to work in 2011, though it’s unclear if the cause of death was related to pulling a carriage. Three horses have died in accidents over the last three decades. The carriage drivers, however, assert that since tighter regulations were put in place in 2010, horses now have regular veterinary checkups and the industry goes through regular inspections by the city. Teamsters Local 553 has stated that it is committed to fighting for the jobs of the carriage drivers. As a compromise on that point, the New Yorkers for Clean, Livable and Safe Streets (NYCLASS), a nonprofit animal protection group, has proposed phasing out the carriages in favor of a new, cleaner tourist experience: electric antique replica cars. “The idea is that the drivers would transfer the medallions they have for the horse carriages, a one-for-one medallion exchange, and instead get the medallion for the electric car, and simply drive that instead, and we would take care of making sure that the horses are retired to loving homes,” said Allie Feldman, the executive director of NYCLASS. The Teamsters did not respond to a request for comment as to the union’s opinion of NYCLASS’ proposal. Feldman argues that the electric cars would allow the carriage horse drivers to keep their jobs, and that the new business could potentially be even more lucrative than the carriage horse industry. Carriage horses are a cash-only field that rakes in $15 million per year, with their rates regulated by the City Council at $50 per 20-minute ride. Feldman says the advent of the electric antique cars could potentially double the revenue for the industry because carriage drivers typically miss up to 60 days of work per year due to weather, and the cars would be able to take longer trips. “We’ve actually had a number of drivers who have contacted us and said they’re interested in making the switch to the electric cars. There’s just not consensus among the group, but they have politely and quietly contacted us,” Feldman said.

Unfortunately for NYCLASS, that lack of consensus is what will keep the electric car plan from coming to fruition any time soon. Stephen Malone, a spokesman for the Horse and Carriage Association of New York, said that the animal rights group has put out misleading information about the electric cars. Malone claims that the cost of purchasing the car will still fall on the drivers. “The prototype that’s made is supposed to cost upwards of $400,000, and every car thereafter is supposed to run between $125[,000] and 175,000 apiece, which the carriage operators would have to pay for— which is completely unconstitutional and, in our view, un-American,” Malone said. Malone also questioned the motives of NYCLASS, noting that the co-founder of the group, Steve Nislick is a top real estate executive at Edison Properties. Malone believes Nislick would like to take over the buildings that house the horse stables on

the West Side of Manhattan, close to where the Hudson Yards development is being built, which led to him founding NYCLASS and donating large amounts of money to the de Blasio campaign. Records show that Nislick has personally donated $5,500 to de Blasio’s campaign. Malone said that should the City Council bill pass, his organization would “absolutely” challenge the legislation in court. He added that NYCLASS’ claims that it will find homes for the horses are disingenuous, citing the prohibitive costs of caring for horses. He insisted that the horses are more likely to be slaughtered. “The horse is the celebrity, the horse is the star,” Malone said. “If people want to come see the park, they can take a walk through the park or a bicycle. The horse aspect is the main attraction. That’s why our business is established as a good business.”


Lost Revenue Lost Service Lost Jobs Adds Local $ Burden IN YOUR COMMUNITY

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TAXING TIMES Electric utilities face rising costs of hidden taxes and fees By JON LENTZ


ver the past year, Con Edison has become one of Gov. Andrew Cuomo’s favorite punching bags. When Superstorm Sandy shut down entire swaths of New York City, Cuomo threatened to revoke Con Edison’s license. In April the governor blasted post-Sandy bonuses for top Con Edison executives, who were pressured into returning the money. And in October the governor attacked the utility for its role in a power failure on Metro-North’s New Haven line and its performance during Sandy, concluding that its proposed $450 million rate hike should be denied. If the rate increase is rejected as the governor has called for, some question whether the utility company will be able to reinforce the grid and better protect it from future storms. One partial solution would be to reform the many taxes and fees charged to utilities, which could free up money to invest

tricity (36 percent of a typical bill), the cost of delivering electricity (33 percent) and taxes and fees from federal, state and local governments (31 percent), all of which are passed on to customers. Only a few fees are listed on a customer’s bill, however—including a systems benefit charge for energy efficiency and education projects, and the renewable portfolio standard charge, which promotes wind and solar projects. Several others, like the gross receipts tax, do not appear on consumers’ statements. Another fee is the controversial 18-a utility assessment, a 2 percent surcharge that state lawmakers renewed this year with Cuomo’s support, despite opposition from business groups. But the biggest headache for Con Edison is property taxes, which are assessed on everything from cables to substations to a steam generating station on the East River. The company’s property tax payments to New York City rose from $1.03 billion in 2009 to $1.27 billion in 2013, including a jump of more than $100 million in a single year in 2010. Along with state property taxes, the costs make up about 13 percent of a customer’s bill. “Taxes and fees drive up costs for our

The challenge is particularly acute in New York City. The city’s property tax system has four classes. Con Edison makes up most of Class 3 all by itself, an unfortunate circumstance brought about by a historical anomaly. Company officials say that leaves the utility with little recourse to successfully challenge property tax increases, because it can only be compared with itself. And while the city’s other three classes have property tax increases phased in over time, Con Edison faces immediate tax increases. Opposition at City Hall in New York City has stalled legislation to merge Class 3 with the much larger Class 4, which includes most nonresidential commercial and industrial properties. “Ultimately it’s for us in the state Legislature to pass legislation, but you really need a mayor who wants to set forth a real change in the system,” said Assemblyman Dan Quart, the sponsor of the legislation. “I don’t think there’s been a large-scale commitment by the state Legislature because the city of New York has been largely absent in taking a leadership role

in reforming the property tax system.” The Bloomberg administration argued in a memo in May that while the legislation would save Con Edison $170 million a year in tax relief, the city would have to increase taxes on other properties, including residential buildings, to make up the difference. “The sponsors’ memorandum in support of the bill claims that lower taxes on utility property will lead to lower rates for consumers, but there is no guarantee that the tax savings will translate directly into rate reductions,” the administration’s memo says. Even so, Jerry Kremer, the chairman of the New York Affordable Reliable Electricity Alliance, believes that tax reform could provide the funding that utilities like Con Edison desperately need. “Now when you’re talking about hardening the system, and taking all these preventative steps, if you provided a pool of money to some of the utility companies and lower taxes and set it aside, they could do some meaningful things and really allocate it to some very important things,” he said.

“Taxes and fees drive up costs for our customers by as much as 25 percent on the dollar—and we’re put in the position of being the tax collector,” said Kevin Lanahan, a Con Edison lobbyist. “This means less ability to pay for critical system investments necessary to guard against the next extreme weather event. The state Legislature has a direct role in helping to bring down these sometimes hidden costs in the bill.” in energy infrastructure. New York places a higher tax burden on energy companies than any other state in the country, the Public Policy Institute of New York State found in 2010. One major reason is the state’s huge property taxes, according to the report. In the case of Con Edison, New York City residents are charged for three things each month: the cost of producing elec-

customers by as much as 25 percent on the dollar—and we’re put in the position of being the tax collector,” said Kevin Lanahan, a Con Edison lobbyist. “This means less ability to pay for critical system investments necessary to guard against the next extreme weather event. The state Legislature has a direct role in helping to bring down these sometimes hidden costs in the bill.” cityandstateny.com | NOVEMBER 4, 2013





hether they know it or not, New Yorkers are currently embroiled in education battles on multiple fronts. The rollout of the Common Core and the growing reliance on testing has parents, students and educators butting heads with the New York State Department of Education in the court of public opinion. Simultaneously, the New York State Association of Small City School Districts, New York State United Teachers and several school superintendents are readying themselves for three legal battles, any one of which could have serious consequences for New York students and taxpayers. According to Dr. Rick Timbs, executive director of the Statewide School Finance Consortium, the fights are linked. “State government wants more from schools while simultaneously denying funds,” says Timbs. The following is a look at the three legal showdowns in order of when they will arise:



n the Campaign for Fiscal Equity case, the Court of Appeals wrote that all children can learn, but at-risk children need “an expanded platform of services.” The Maisto case attempts to address those at-risk students. The complaint argues that students with disabilities, English language learners and students who are economically disadvantaged have been denied the expanded

26 NOVEMBER 4, 2013 | cityandstateny.com

A Dangerous Intersection:

THE CORNER OF LAW AND EDUCATION platform promised by CFE. In practical terms, it means these kids aren’t receiving early intervention services or the help of reading specialists. “It’s a travesty,” says Terry Devine, of the Albany law firm of Devine, Markovits and Snyder, which argued the case on behalf of the New York State Association of Small City Schools until recently. “Quite frankly, these kids are written off. If you have the misfortune of being born in one of these areas to poor parents, you’re out of luck.” Maisto is informally known as the small city schools version of CFE, which focused on New York City schools. Under New York law, small city schools districts are defined as the districts of each city that according to the latest federal census have fewer than 125,000 inhabitants. There are currently 57 small city school districts throughout New York State, but because of the expense involved in suing the state, only eight cities are plaintiffs under Maisto. One of the eight is Utica. Over the past two years the school district has laid off 143 teachers. This year another 50 teachers could get pink slips. Fifteen percent of the students in the Utica City Schools are English-language learners, possibly because the city is home to one of the largest refugee centers in the U.S.

Additionally, 16 percent of students in the Utica City Schools have learning disabilities. Yet Utica has had to cut services and increase class sizes. “When you talk about Common Core, these kids are light years behind already. There’s no way to get these kids caught up,” says Devine. “This is a heartbreaking case. It really is.”



n the CFE case, the Court of Appeals defined a sound basic education as a high school education that prepares a student to function as a civic participant— which in turn requires reasonable class sizes, qualified and competent teachers, enough light, heat, space and air, and the appropriate instrumentalities of learning. Michael Rebell, the executive director of the Campaign for Educational Equity at Teachers College, Columbia University, was co-counsel for the plaintiffs in CFE. “The small cities case [Maisto] is going to present graphic illustrations about kids being hurt,” says Rebell. “If that is complemented by a statewide case that can be litigated quickly, that would make for a powerful argument before the State Court of Appeals.” As of now, there is no statewide case.

Perhaps Rebell, who also serves on the governor’s New NY Education Reform Commission, sees Maisto as a way to keep the issue alive in the public’s mind until he’s ready to file a broader suit. “As far as I’m concerned, if we don’t get a serious recommendation in the [New NY Education Reform] Commission report, and the governor’s Executive Budget proposal does not really put us back on track to obtaining adequate funding for public schools, I think serious consideration would have to be given to filing a statewide CFE type suit in January.” But Billy Easton, executive director of the Alliance for Quality Education, doesn’t see any reason to delay. “During Gov. Cuomo’s term, our schools have made classroom cuts every year,” says Easton. “Every year we can expect more cuts to art, music, academic courses, tutoring, guidance counselors, libraries and more. Something has to change.” Stakeholders on all sides of the education debate agree the state’s school funding formula is inadequate and should be reformed. “The Utica case highlights the complexity of our current school funding formula, which results in huge variations in spending per pupil across the state,” says Heather Briccetti, the president and CEO of the Business Council of New York State. However, there is no agreement among stakeholders on how to fix the problem. “When you look at New York broadly against the rest of the country, we spend 67 percent more than the national average, and yet we are not the top performing state

POLICY in terms of outcomes. We generally are not even in the top half, although what you measure can differ from study to study,” says Briccetti. “Obviously just adding more money is not the solution—if it were, we would have the best results nationally. The state average in 2007–08 was more than $17,000 per pupil, and the national average was just over $10,000 per pupil.” Maisto is scheduled to be heard on Nov. 20 in State Supreme Court. The proceeding is expected to last 13 weeks.



he second suit wending its way through the court system was brought by NYSUT. The powerful teachers’ union has filed a case challenging the state’s 2 percent property tax cap, arguing it restricts districts from raising adequate revenue for schools. Dr. Timbs argues that NYSUT’s suit wouldn’t be necessary if the state had simply kept its 2007 funding promise to begin with. “Right now the Gap Elimination Adjustment sits at $1.638 billion dollars. The cuts alone are $8.5 billion dollars over the last four years. Schools in New York are underfunded by $5 billion dollars. If all of a sudden all this money was released to school districts there wouldn’t be a tax cap problem.” The Empire Center’s E.J. McMahon, a senior fellow at the conservative think tank the Manhattan Institute, doesn’t see much merit in the NYSUT suit. Earlier this year McMahon wrote about the lawsuit on his blog, www.nytorch.org. “NYSUT has enlisted some parents of school children as co-plaintiffs, but the chief motive here is obvious: The tax cap is likely to limit future increases in teacher compensation, which is by far the largest category of local school expenditures,” McMahon stated. NYSUT makes multiple claims in its case, including that the cap’s supermajority requirement may be unconstitutional because it violates the plaintiffs’ right to equal protection under the law by diminishing voting power based on their desire to increase school funding. To this point McMahon responds, “Supermajority requirements are common across the country.” NYSUT President Dick Iannuzzi admits that supermajorities are frequently used by legislative bodies, but argues they are almost never used at the local level with individual voters. Another point made by the union deals with education and local control. NYSUT’s complaint cites the 1982 decision in Levittown Union Free School District v. Nyquist, “which held that so long as children are provided with a sound, basic education, inequality of opportunity is legal, because—but only

because—communities are free to provide their children with enhanced educational opportunities through the local control of their taxes and budgets.” The complaint continues, “The property tax cap, by design, vitiates this rationale.” Courts have ruled that it is a district’s right to go above and beyond the cost of a minimum sound basic education—which was why the Court of Appeals in CFE did not find an equal protection violation. NYSUT’s argument is that the property tax cap takes away local decision-making. Ten of 670 school districts pierced the cap in the current school year. In other words, poor districts that want to do more for students are prevented from doing so by the tax cap—a violation, it appears, of the whole rational basis behind the Levittown argument. Both the Alliance for Quality Education and the Campaign for Fiscal Equity have filed amicus briefs in the case. David Sciarra of the Education Law Center says the cap puts school districts in a bind. “On the one hand, the state is walking away from the substantial commitment on state aid it made back in 2007; and on the other hand, it’s putting in place a barrier for districts to get additional revenue off the local property tax—all of which really has a devastating impact on the quality of education that’s offered for kids in these districts.” Iannuzzi agrees. “It is so clear that the way we fund education in New York State is dysfunctional. The Legislature has effectively ignored this issue for 30 years, and I don’t think you can ignore it any further. We have two critical opportunities in court [Maisto and NYSUT] and hopefully the Legislature will not wait for the outcome but will act in the best interest of the children of New York State right now.” When it is suggested that some members of the Legislature could argue that 2007 was a very different time financially than 2013, Iannuzzi responds by changing the parameters of the question. “We are in a much better financial situation in 2013 than we were in 2010,” says Iannuzzi. “I could have accepted that argument in 2009 or 2010, but I don’t think you can accept that argument right now.” Timbs concurs. “There is no doubt that the data has revealed that state aid to school districts has not been sufficient to meet the constitutional standard of a sound basic education. The presence of state aid reductions over the past four years, and the state’s inability to fund the Foundation Aid formula—which was to mitigate the problem to begin with—has resulted in huge multitudes of kids who are living in poverty receiving substandard educational programs. It’s purely a lack of funding.” The NYSUT case will be argued on Dec. 12 in state Supreme Court in Albany.



t the nexus of inequity and the loss of local control is a pair of civil rights complaints about to be filed with the federal Department of Justice. The plaintiffs are the Schenectady City Schools and the Middletown City Schools. According to Laurence Spring, the Superintendent of the Schenectady City Schools, he is filing a complaint—as opposed to a lawsuit—because he’s not alleging racism. Instead Spring is alleging something called “disparate impact discrimination,” a controversial Obama administration policy under which governments and others, in the words of a Forbes magazine article, “can be found liable for discrimination even if they had no intent of mistreating members of minority groups.” After performing a regression analysis on the state’s own aid and student demographic data, Spring’s argument boils down to: “The higher percentage of minority students there are in a district, the more likely it is that that district will be underfunded.” That no one had ever undertaken this kind of analysis surprised Spring, but only for a moment. “I know that race makes people uncomfortable,” he says. But Spring remains surprised by the reaction he’s received. “I had a legislator say to me flat out, ‘Stop talking about this.’ He said, ‘Don’t use the race issue. It will hurt you.’ Then again, the governor’s office has had me in twice. I met with a budget analyst. They asked a lot of questions. They were trying to understand.” When asked why he is filing the complaint, Spring says simply, “The pervasive poverty here.” Schenectady has the thirteenth-highest concentration of childhood poverty in the country, which Spring says is higher than Miami or Los Angeles. It’s the kind of intense poverty that spawns clinical depression. In many instances Spring says it’s so pervasive that kids may suffer post– traumatic stress disorder. “We have kids who are 5, 6, 7, 8 years old, yet because of the conditions they are living in on a daily basis, they have PTSD,” he says. Spring shares a story about one middle school girl who was caught fighting. He recalls his notes about the girl’s circumstances, making sure that the facts are vague enough so the girl cannot be identified: “In reviewing her educational background, it becomes clear that the child has been repeatedly exposed to trauma, and she has witnessed violence being done to her mother and her sister. Additionally she has been subject to some of this same violence. She also witnessed a parent suffer a significant and life-threatening tragedy.”

For Spring this is personal. “How are we going to begin to untangle the life that some of these kids are living so that they can focus on the Common Core and become college- and career-ready when we are being underfunded by $62 million every year? We don’t come close to providing the services these kids need.” The Schenectady City Schools and the Middletown City Schools plan to file separate complaints, but the districts are coordinating in both language and timing. During the first week in November they will file their complaints with the Department of Justice office in Manhattan.



riccetti agrees there are funding inequities in the state, but doesn’t think it’s racial. “I suspect that the underlying reason for the disparity has more to do with the relative wealth of the districts than the racial composition of the student population, but I have not seen any of the data sets.” McMahon argues in all of these actions—Maisto, NYSUT and the civil rights complaints—the plaintiffs are wrong to add the taxpayer money that wealthy districts choose to pay for education. “What should matter is the state aid formula,” contends McMahon. “At the end of the day, poor districts get more state aid than wealthy districts.” Spring sees it differently. “One of the things the governor likes to say is that New York spends more per pupil on average than any other state in the nation. However, in terms of the equity of that spending, we distribute that money more equitably than only five states. We are 44th in the nation in educational spending equity.” McMahon is not swayed. “We shouldn’t have some group of self-appointed experts who consider themselves to have the purest motives to decide how to spend $20 billion of taxpayer money. In our system we elect a Legislature to do that, and again, it’s hugely in favor of the poor districts. At the end of the day Buffalo still gets about 20 times more per pupil than Scarsdale, which is as it should be.” Whether any change in school funding is mandated by a court may depend on a person who has had some past success there. Indeed Michael Rebell sounds like a man making preparations. “It’s now a decade since New York’s highest court powerfully declared that every child in New York has a constitutional right to a sound basic education,” says Rebell. “Too many of our kids are not getting it. It’s time to bring this issue to a head.” ______________________________________ Susan Arbetter (@sarbetter on Twitter) is the Emmy Award-winning news director for WCNY Syracuse PBS/NPR, and producer/ host of The Capitol Pressroom syndicated public radio program. cityandstateny.com | NOVEMBER 4, 2013






ince the mayoral race started nearly a year and a half ago ago, Republicans have looked for an excuse not to win. Anyone who’s gone to an “experts” panel has heard that with New York’s six-to-one voter registration in favor of Democrats, a Republican can’t win unless there’s a crisis. The crisis for Republicans, then, is that there is no crisis. But the GOP lets itself off the hook too easily. The Republicans’ looming loss isn’t somebody else’s fault—but it is a sign of the party’s national difficulties. New Yorkers often hear from sages how hard it is for a non-Democrat to win the city. The only fair reading of recent history shows the opposite. New York hasn’t elected a Democratic mayor in 20 years. If you’re 38 and have lived in the city your whole life, you’ve never voted for a winning Democratic mayor. (Mayor Mike Bloomberg ran three times as a Republican despite switching his personal regis-

tration to independent in 2007.) It does the voters a disservice to blame crises for voters’ fair-mindedness. Mayor Rudy Giuliani won re-election in 1997 after having cut the number of murders by 49.5 percent. Bloomberg won a third term a year after Lehman Brothers had collapsed. Giuliani and Bloomberg won once and again for a good reason. Each man was the better candidate than his opponent. Whom would you have preferred to have serve as mayor, out of the following: Mayor David Dinkins (again, 1993), then Manhattan Borough President Ruth Messinger (1997), then Public Advocate Mark Green (2001), then Bronx Borough President Freddy Ferrer (2005), or then Comptroller Bill Thompson (2009)? None of the above presented a case why he or she would be better than his opponents. The voters were smart enough to figure it out. This time around, it’s hard to make a case that the Republican candidate, Joe Lhota, has made a better argument for himself than has Bill de Blasio, the Democratic public advocate and front-runner by far. True, de Blasio is a weak candidate running on superficial ideas. And he has benefited from good luck. Many voters

strongly disliked City Council Speaker Christine Quinn, the conventional-wisdom victor. But part of de Blasio’s good luck is that Lhota has run a lackluster campaign. Lhota looked terrific on paper. He ran the city under Giuliani, and as MTA chief he did a bang-up job in getting the transportation authority running after Superstorm Sandy. And he has a great personality that often came across publicly during his MTA tenure. Not that winsomeness is a prerequisite; people always complain about Bloomberg’s alleged coldness. But Lhota has run on two platforms: fear of crime and demand for tax cuts. He seems to think people will automatically be so terrified of Dinkins-era crime rates that they won’t vote for a Democrat when reminded of this terrible history. But most voters were not living in New York, at least as adults, when Dinkins was mayor. Nor does Lhota realize that voters aren’t exactly clamoring for, say, a cut in the hotel tax. That young people and newcomers don’t remember high crime and that people don’t view corporate tax cuts as a priority isn’t an excuse for Lhota. It was a reason for him to do better. He needed ideas—any ideas. He could have seized on Bloomberg’s inattention to

quality-of-life issues like illegal construction and noise. He could have pushed for a better NYPD website so that people could look up, via a real-time map, why they or their children were stopped. He could have pushed for neighborhood-based pre-K, saying he’d work with landlords on using empty retail space for preschools so that no 4-year-old would have to take a bus. He could have seized on de Blasio’s flipflopping on the Times Square pedestrian plaza. Sure, Republicans’ toxic national reputation hurts Lhota, too, more than it hurt Giuliani. But that’s not an excuse, either. That’s a reason for Republicans to do better. Voters under 40 don’t associate Republicans with Ronald Reagan and growth. They associate Republicans with George W. Bush, a decadelong war and financial crisis. When Lhota—absent a shocking upset—loses, Republicans should care. New York isn’t an outlier. The rest of the country is looking more like New York. If Republicans can’t make it here… Nicole Gelinas (@nicolegelinas on Twitter) is a contributing editor to the Manhattan Institute’s City Journal.




want to make a contrarian case for climate change some day becoming the fundamental factor realigning American politics. In the wake of the debacle surrounding the 2011 debt limit crisis, The New York Times’ David Brooks reminded us of Samuel Lubell’s observation that American politics thrives when one party acts as a sun and the other as a moon. Brooks argued that we have two moons and no sun, as both parties are acting like minority (moon) parties. Brooks concluded that a devastating fiscal crisis would be likely to bring a political flood realigning our politics. I believe the flood precipitating this realignment could well be a real flood. I can hear the naysayers now. Polling data shows climate change is not a frontburner issue for voters. Climate change is currently dormant on the cutting edge of our politics. Nevertheless, some inconve28 NOVEMBER 4, 2013 | cityandstateny.com

nient truths may be headed our way. Our nation has been witnessing catastrophic and contradictory climate-based disruptions. In the Southwest we have had droughts and massive tornadoes, while in the far West alternating bouts of drought and horrendous forest fires have been followed by severe flooding. The Northeast has been hammered by superstorms emanating from tropical storms. Here in New York, within the span of 14 months upstate’s Hudson Valley was ravaged by Irene (which also clobbered Vermont) and Superstorm Sandy devastated the shores of New York City and Long Island (along with New Jersey and Connecticut). In the Midwest, Chicago is wisely planning for what the scientists tell them is coming: Within several decades Chicago is likely to have the climate of a southern city. That could wreak havoc through rising water levels to the communities along Lake Michigan. For the most part the political dots have not yet been connected on a national level or in our state, but at some point events could lock in not just perceptions but conclusions. Voters will ask questions not unlike those asked after Pearl Harbor,

which devastated the political standing of isolationists. This time voters will ask, “Where were you on climate change?” Woe to those elected officials with no good answer. If events lead the American people to conclude climate change is a clear and present danger to their quality of life, then the Republicans are in a deep hole. Congressional Republicans have functionally denied climate change is a problem. National Democrats are not blameless either, for they have been afraid to engage on climate change in the absence of the old bipartisan consensus on environmental issues. But Democrats could rebound, while the Republican’s congressional wing has left the Grand Old Party to stand in the political cold, if global warming catches political fire. If climate change strikes politically, it will hit with devastating force, precisely because of those communities that will be hit hardest: the American suburbs, where fully half the nation’s electorate resides. New York and New Jersey are talismans for this potential political tsunami. Irene devastated the smaller suburbs of the upper Hudson Valley, while Sandy

devastated Long Island. If suburban voters, so sensitive to market factors, shift away from the Republicans nationally over climate change, the Democrats would become a true sun party again. Just imagine the political implications of drastically altering the home values in America’s wealthiest suburban markets. The GOP has a choice to make. There was a reason that Republicans like Nixon, Rockefeller and Pataki put so much effort into building a green agenda. Smart politics would reconfigure a bipartisan consensus on behalf of a purposeful climate change agenda. Regrettably, that accord is unlikely today. We don’t know when climate change will reconfigure the contour of our nation’s political riverbed. In anticipation, the Democrats would be wise to find their courage on climate change, while the Republicans should recover their brains in what could become a political land of Oz should real floods realign our nation’s politics. Bruce N. Gyory is a political consultant with Corning Place Communications and an adjunct professor of political science at SUNY Albany.


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Bad News Bill


f the polls are to be believed, on Jan. 1, 2014, Bill de Blasio will be sworn in as mayor of New York City. If nothing calamitous happens between now and then, de Blasio may find himself in an unusual position for a newly elected executive: No major crisis awaits him. And that may prove to be his most vexing problem. Taking office absent a crisis has not been the norm for elected officials over the last few years. When Mayor Michael Bloomberg began his term on Jan. 1, 2002, the shadow of the 9/11 attacks hovered over the inauguration, and the new mayor spoke with clarity of purpose about keeping New Yorkers safe, restoring the city’s confidence and rebuilding lower Manhattan. When Andrew Cuomo was sworn in as governor on Jan. 1, 2011, New York State faced a budget deficit exceeding $10 billion, and the governor was saddled with a state Legislature that had been decried as the most dysfunctional in the nation. His mandate could not have been any simpler: Prove that state government was capable of functioning, that the budget could be balanced on time and that Albany could be something other than a punch line. When Barack Obama took the presidential oath of office, he faced the mortgage meltdown and the near collapse of the financial system. He called for nothing less than laying a new economic foundation on which to build. All three executives have been defined by their handling of the crises they confronted upon taking office. Mayor Bloomberg and Gov. Cuomo proved the

value of the Winston Churchill adage: Never let a good crisis go to waste. Arguably, President Obama did less than might be expected and suffers the consequences to this day. This brings us to Bill de Blasio and his good luck and bad fortune—or maybe it’s good fortune and bad luck. By just about any measure, New York City is in good shape. The murder rate this year is likely to fall below 300. Twenty years ago the murder rate hovered around 2,000. Robberies and other crimes of violence are at historic lows. While the economy may not be humming, things are not dire. The unemployment rate is below 9 percent and trending down, and city revenue collections are on the upswing. All this helps to explain the social issues that dominated the Democratic primary and catapulted de Blasio to victory. It would be hard to imagine the electorate getting agitated about an aggressive stop-and-frisk policy if the murder rate topped 2,000, or if the average voter had to deal with random gunfire as a daily event, or if car burglaries were so common that drivers routinely placed signs in their windows reading “No radio.” Similarly, a robust debate about income inequality and income redistribution would have seemed fanciful if unemployment were on the rise and an economic recovery, even of modest proportions, were nowhere to be seen. Under those circumstances, the issue would simply have been jobs. Come his inauguration, Mayor de Blasio will confront the issues he identified during his campaign—issues that do not lend themselves to bold executive action. For example, it is all well and good to deplore income disparity, but good luck finding a way to alter it as mayor. Further, de Blasio is unlikely to persuade Albany to pass a tax increase necessary to implement a universal pre-K plan. And the new mayor faces an exceedingly tough, potentially budget-busting negotiation with the public employee unions. All these issues, if not managed deftly, will polarize the city and make successful governing a vestige of a bygone era. Without a crisis the new mayor will not be forced to confront a looming problem requiring dynamic leadership; he will not have an opportunity to step away from the rhetoric of his campaign to confront the harsh realities of governing; he will not be able to explain to his die-hard supporters that the times require consensus and compromise. By the time Mayor de Blasio reaches the end of his first 100 days, he may realize that governing is a paradox. Good times may be hard times for a new mayor, and a crisis may prove to be your best friend. Too bad things look so good. Steven M. Cohen served as secretary to Gov. Andrew Cuomo. He is currently a partner with the law firm Zuckerman Spaeder and the executive vice president and chief administrative officer of MacAndrews & Forbes.



Council Watch




New York City Councilman Daniel Dromm at the Colombian Parade in 2011. Dromm is sponsoring legislation to expand the right to vote to non-citizens in New York City.


ossibly the most radical change in the history of the American franchise since women got the vote in 1920 is likely to be enacted in New York City next year, yet it has gone completely under the radar. A bill to expand voting in all municipal elections to anyone over the age of 18 legally residing in the city—about 850,000 people— currently has 31 co-sponsors out of 51 total members. When the new Council is seated in January the bill, Intro 410, will likely gain enough new co-sponsors to make it veto-proof. Permanent residents with green cards all the way down to holders of six-month student visas will be allowed to vote for mayor, comptroller, public advocateand members of the City Council, the same as any citizen of the United States. Passage of Intro 410 seems relatively certain. The bill’s prime sponsor, Councilman Danny Dromm of Jackson Heights, said with “confidence” that “the 32 NOVEMBER 4, 2013 | cityandstateny.com

bill will come up for a vote next year.” He added that all the likely members of the Progressive Caucus have already agreed to support voting by legal residents of the city, and Carlos Menchaca, who will replace Sara González as the Council member from Sunset Park, has publicly voiced his commitment to the bill. Moreover, the bill’s current co-sponsors who are leaving the Council at the end of this term are being replaced by probable supporters, so the bill will certainly have a majority—if not a supermajority, as Councilman Dromm believes is likely, capable of overriding a mayoral veto should the next mayor oppose the legislation. Supporters are enthusiastic about what advocate Kevin Douglas of United Neighborhood Houses describes as “a safeguard against tyranny.” Non-citizen voting was included as one of the planks of the Progressive Caucus’ “13 Bold Ideas” vision statement for transforming New York into a haven of social justice, and the approach

has been endorsed by many labor, housing and immigrant rights groups. Non-citizen voting will grant hundreds of thousands of residents here legally—the bill is very clear that the status of illegal or “undocumented” residents will not be affected by its passage—the ability to have a say in the policies that impact them as taxpayers, parents, business owners and other stakeholders in society. Councilman Mark Weprin, a co-sponsor of the bill, says that it is “only fair to let people who have a stake in the future of the city be able to choose their representatives in government.” And Dromm, at a hearing on the bill last May, spoke of American history as a gradual expansion of the franchise from propertied white men to all white men to African-Americans, women and 18-year-olds. “The demographics of voters have changed over time, and this bill would just be the natural step in our nation’s voting history,” Dromm said. Non-citizen voting is not as unusual

or unprecedented as it may sound. In the early years of the republic voting by non-citizens was permitted in many jurisdictions for local, state and federal elections. In New York State, for instance, suffrage was extended to all residents until 1804. Many other states allowed non-citizens who intended to pursue citizenship to vote. The practice was gradually phased out, until Arkansas became the last state to abolish all alien voting in 1926. New York City revived the practice of voting for all in 1969, when the Board of Education instituted local control of primary and intermediate schools. Community school boards composed of local residents were tasked with hiring district superintendents and setting school policy, following protests by black and Latino parents angered that the mostly white central board was ignoring their concerns. School board members stood for three-year terms, and elections for these seats were open to all residents of the city until 2002, when the state Legislature abolished the boards and handed control of the city’s education system over to the mayor. More recently, a number of Council members have introduced a system of direct democracy in their districts in the form of participatory budgeting, which allows all residents of the district, regardless of their citizenship status, to vote on the allocation of a portion of each district’s discretionary funding. The system has been popular where administered, although surveys do indicate fairly low interest on the part of non-citizens so far. Furthermore, there are places in the country that have institutionalized noncitizen voting, including six municipalities in Maryland. Chicago allows noncitizens to vote in school board elections, and several cities in Massachusetts await approval of their own voter expansion acts from the state’s legislature. Many countries around the world allow certain noncitizens who have established residence to vote in certain elections. For instance, residents of Chile for five years who have not committed any crimes may vote in Chilean elections, and Commonwealth citizens who reside in the United Kingdom may vote in all British elections. The rosy picture of non-citizen voting blurs a little bit, however, when one begins to consider how the system would be implemented atop the rather clunky legacy election machinery that New York City is currently stuck with—a system that The New York Times last month called “often loony.” Consider the fact that after switching to optical scanners for the 2012 election New York City reverted this year for its primaries and runoff to 1960s-era lever machines, which are based on technology from the Victorian age. The logistics of carrying out Intro 410 are daunting. To begin with, the law would allow non-citizens to vote in municipal elections, though they would still be barred from casting a ballot for state or federal

PERSPECTIVES the age of 18. Of these, approximately 850,000 are legal residents of the city and would qualify under Intro 410 to participate in city elections, thereby expanding the electorate by about one quarter. Given the tendency of immigrants to vote for Democrats, it is fair to say that the bill’s passage would likely kill the possibility of a Republican winning citywide office anytime in the foreseeable future. But that is just for starters. As regards voting for Council members, the distribution of non-citizens around

the recent immigrants to the area, who are predominantly Asian or Hispanic. What is the likelihood that Dromm, who is white, could be voted out of office in 2017 by a newly expanded electorate eager to elect a member of their own community to the City Council? After all, a member of the dominant ethnic group represents most of the City’s Council districts, the exceptions being those few districts divided among three or more ethnic groups pluralistically. If 29,000 new District 25 voters joined the rolls, the percentage of white voters in

through is voter fraud, a possibility that New Yorkers tend to discount because accusations of voter fraud are generally associated with unsubstantiated claims leveled by right wing partisans in red states trying to suppress the votes of minorities. However, it is worth contemplating what Election Day will look like in New York City if and when voting by non-citizens becomes a reality. First of all, the bill is written to encompass as many people as possible. Holders of virtually any kind of visa, except tourist visas, will be allowed to vote. There will be no check on who is allowed to register: The bar will be, as it is currently, strictly the word of the registrant that he or she is entitled to vote. Yet whereas now it is relatively easy to confirm if someone is a citizen, one’s visa status is mutable and often uncertain. Visa holders fall in and out of compliance. Both New York City’s Board of Elections and Campaign Finance Board currently perform no examination of citizenship status for voters, or even campaign contributors, though federal law permits only citizens to vote, and allows only citizens or legal permanent residents to donate to campaigns. If Intro 410 becomes law, plausible deniability for electoral irregularities will be immeasurably increased.  Intro 410 will create a massive grey area in election law where none currently exists. Even some of the bill’s sponsors aren’t entirely clear about its implications. “If you have a green card, are waiting to get citizenship and pay taxes, it seems that you should be able to vote,” said Councilman Weprin about his support for Intro 410. When told that the law is not limited to permanent residents, to people who want to become citizens, or to taxpayers, Weprin was nonplussed. “Are we talking about the same bill?” he asked. Other Council members ducked talking about Intro 410 entirely: Councilwoman Karen Koslowitz, who like Councilwoman Rose has removed her name as a co-sponsor of the bill, offered an official “No comment.” Councilmen Jumaane Williams and Daniel Garodnick, both co-sponsors of the bill, did not respond to questions about it. Attend any naturalization ceremony and you will see brand-new citizens clutching American flags and voter registration cards. The United States provides gradual steps to attaining citizenship, and it is not granted automatically, yet the country still naturalizes 680,000 people every year, more than any other country in the world. Perhaps that rate should be stepped up—dramatically so—to meet the demand of immigrants wanting to become American citizens. But should we rush to change the basic law and tradition of the nation regarding voting eligibility? Let us at least consider what citizenship will mean, if the right to vote is to no longer going to be unique to this distinction.


level offices. So in the recent primary election, for example, a non-citizen voter would have been permitted to vote for mayor, but not for district attorney, since DA is a county office, not a municipal one (judgeships would also not be covered by the law). In this year’s general election, non-citizen voters could weigh in on who they wanted to be their Council member, but not on the casino gambling referendum or any of the other five proposals on the ballot. Thus the Board of Elections will have to devise different ballots for different voters, and hand them out correctly. The mechanics of this process presents a challenge. Intro 410 very specifically precludes the establishment of any distinctions between citizen voters and non-citizen voters that could be ascertained by an observer, meaning that noncitizen voters could not legally be sent to separate polling sites, or asked to stand in a different line to vote. The law will require the collation of what it calls “municipal voters” into the same poll lists as citizen voters, yet with enough distinction built in to block those voters from voting out of their class. Advocates of non-citizen voting dismiss these logistical challenges and reference the six jurisdictions in Maryland that have successfully allowed their non-citizen residents to vote in local elections as proof that the system can be implemented effectively. However, several of the towns in Maryland, which are really just tiny suburban enclaves in Montgomery County, have roughly the population of a subway car at rush hour: Barnesville, for instance, has 176 people, 91 percent of whom are white. Takoma Park, the largest city in the United States to permit non-citizen voting, has only 436 non-citizens registered in its polls, of whom approximately 30 vote; a number of these non-citizen voters are diplomatic staff at foreign embassies. To use these hamlets as evidence that New York City could successfully pull off such a system is highly dubious. Even New York City’s 33-year period of open voting for community school boards was hardly a roaring success. Putting aside the fact that the school board elections were marked by scandal and were procedural disasters, it is not clear that many non-citizens took advantage of the opportunity to have a direct say over how their children were educated. Turnout in these elections generally ranged between 5 and 7 percent, and while certainly non-citizen voters cannot be faulted as the sole reason for these contests’ low turnout, it makes little sense to hold up these elections as models of the democratic process. The impact of non-citizen voting on elections in New York City could be massive, depending on turnout.  Estimates of the city’s non-citizen population are rough, but based upon one estimate it appears to number approximately 1.8 million people, 1.4 million of whom are over

Councilwomen Karen Koslowitz and Debi Rose have both removed their names as sponsors from Intro 410.

the city is, unsurprisingly, extremely wide. Certain Council districts, including those in Manhattan from Houston Street to 96th Street, have a very low percentage of potential new voters: Non-citizens of voting age comprise only 3.9 percent of the population of District 3 (Chelsea and the West Village), for instance. Taking into consideration that a certain percentage of these non-citizens do not have a legal residence—and thus are not covered by Intro 410—and that many people never register to vote at all, in conjunction with the fairly low turnout that is customary for municipal elections, it is fair to say that the electorate in CD 3 would probably be increased by at most 700–1,000 votes. But there are districts in New York City that have an absolute majority of noncitizens. Consider CD 25 in immigrantheavy Jackson Heights, currently represented by Councilman Dromm, the sponsor of Intro 410. Only 44.5 percent of the total population of the district is currently eligible to vote; there are about 58,000 non-citizen adult residents of the district who could potentially be enfranchised by the bill. The percentage of undocumented residents is hard to judge, but it could be as much as half of that total. Nonetheless, that would still add as many as 29,000 new voters to the rolls. Given that Dromm defeated incumbent Helen Sears in the 2009 primary by about 600 votes out of 6,600 cast, the potential impact of the non-citizen voting bill is hard to overstate. And who are these new voters? In a district like CD 25, it is safe to guess that they align demographically with most of

the district could drop below the point at which it is reasonable to expect a white candidate to be elected; not impossible, of course, but certainly improbable. Dromm is optimistic that the electorate would “remember that [he is] the one who pushed the legislation in the first place,” adding that his “district does not have a dominant ethnic group. We have diversity within diversity in Jackson Heights.” Indeed District 25 may turn out to be a pluralistic utopia, but other Council members seem to be operating more cautiously. For example, Councilwoman Deborah Rose of CD 49 in Staten Island was originally a co-sponsor of Intro 410, but quietly removed her name from the bill earlier this year. Rose’s office declined to answer questions about her decision, instead pointing to an anodyne statement she made to The Staten Island Advance to the effect that the bill needs to be more “comprehensive.” The north shore of Staten Island is ethnically mixed, and the current CVAP (citizen voting age population) of CD 49 is 46 percent white, 22 percent Latino, 25 percent black and 7 percent Asian. The district has a large non-citizen adult population of about 31,000, most of whom are of South Asian or Latino origin. Rose, who is black, won a close primary race in 2009 against the white incumbent, Ken Mitchell, and Rajiv Gowda, an Indian-American; and though she did not face a challenger this year, she may be looking ahead to a radically different electoral landscape in 2017 should all those recent immigrants be enfranchised. Another factor that needs to be thought

Seth Barron (@NYCCouncilWatch on Twitter) runs City Council Watch, an investigative website focusing on local New York City politics. cityandstateny.com | NOVEMBER 4, 2013




Campaign finance reform advocates hoped 2014 might be their year. Then the McCutcheon train blew through New York’s limit on PAC donations on its way to the U.S. Supreme Court, where federal campaign finance laws quiver on shaky ground. Of course, as always, there were many other Winners and Losers, too. Go to cityandstateny.com each week to vote.

Week of Oct. 14, 2013

Week of Oct. 21, 2013



WINNERS Rep. Peter King 40%

Joe Lhota 37%

Banksy 34%

Tom Suozzi 30%

Cas Holloway 20%

Mario Cuomo 11%

Eliot Spitzer 3% Jules Kroll 3% Cas Holloway: Water Tunnel No. 3 opens Jules Kroll: Gets Moreland Commission contract Eliot Spitzer: AG’s office doesn’t have to share Spitzer emails

YOUR CHOICE Peter King: While most Republicans were licking their wounds in Washington, the maverick congressman blamed the shutdown on U.S. Sen. Ted Cruz and the Tea Partyers in the House. In the course of the disastrous shutdown in Washington, King emerged as the voice of the GOP’s moderate wing, and he may have more fellow party members joining his chorus if they listen to the polls. You could say King is driving on Cruz control.

INTERNATIONAL MAN OF MYSTERY Banksy: The mayor might think he is a common criminal, and the mayoral front-runner has never heard of him. But the mysterious British graffiti artist has captivated the city’s attention and probably improved the property values of several buildings around the boroughs. The NYPD says they are fast on his trail, but don’t the police have better things to do than catch artists spreading creativity across the city—like chasing down rogue motorcycle gangs?


Richard Iannuzzi 11% William Pauley III 11% Mario Cuomo: Finally enjoys The Godfather Richard Iannuzzi: Most state teachers rated effective William Pauley III: Judge vents frustration at Eric Stevenson

YOUR CHOICE: Joe Lhota: He’s still trailing in the polls by over 40 points, but Lhota had his best week since the primary. He was more aggressive in the second debate, putting Bill de Blasio on the defensive. He vowed to throw out the campaign’s scripted talking points. But the biggest news was the federal court ruling that a super PAC supporting his campaign could accept contributions of any size, giving him a potential lategame boost that could make the race more competitive.

BUBBA BUMP? Tom Suozzi: Bill Clinton helped Obama win another term in office— so maybe the former president can do the same for Suozzi, who’s trying to win back the office of Nassau County executive. Clinton showed up at a Suozzi fundraiser on the heels of endorsements from Newsday and The New York Times. Of course, a recent poll had Nassau County Executive Ed Mangano up by 17 points, so any boost that comes with Suozzi’s endorsements will be sorely needed.

LOSERS Joe Lhota 37%

Judy Rapfogel 57%

Reps. Chris Collins and Tom Reed 25%

Pat Lynch 18%

Ivettelis Rodriguez 18%

Jonathan Lippman 12%

Dr. John King 17%

C. Scott Vanderhoef 11%

Eric Snyder 3% BRINGING DOWN THE HOUSE John King: Cancels Common Core forums Ivettelis Rodriguez: Appears to supports motorcycle gang biker Eric Snyder: Loses casino amendment challenge

YOUR CHOICE Joe Lhota: One name you never want to hear in connection with your campaign ad is Willie Horton—a reference lobbed at Lhota’s recent TV spot for its divisive and allegedly racially coded tone. Then Lhota stayed mum when several women accompanying him on a campaign stop to a Brooklyn synagogue were denied entry. And a pro-Lhota super PAC was initially blocked from raising unlimited amounts of cash. True, his own party sent out an email wishing him a happy birthday—10 days late.

34 NOVEMBER 4, 2013 | www.cityandstateny.com

Chris Collins and Tom Reed: House Republicans were losers for shutting down the federal government, and Collins and Reed were obstinate to the bloody end, voting against a deal to avoid a default and lift the debt ceiling because it failed to address long-term debt. It will be interesting to see if Collins and Reed are forced to answer for their vote, as both won their districts in 2012 by rather slim margins.

Thomas Richards 2% Jonathan Lippman: Cuomo opposes higher age limits for judges Thomas Richards: Equivocates on his third-party candidacy C. Scott Vanderhoef: Tax hikes and more borrowing in Rockland

YOUR CHOICE Judy Rapfogel: Dame Judy has been under fire ever since her husband was charged with stealing $1 million from the charity he ran. Now she’s lawyering up as state investigators quiz her about what she knew about the alleged schemes. Stories such as a Times account that her failed City Council campaign paid for insurance from the very company implicated in her husband’s criminal probe do her no favors. Fortunately for Rapfogel, she’s hired John Liu’s lawyer.

PAT DOWN? Pat Lynch: What’s going on at Patricia Lynch Associates? The top-tier government relations firm seems to be hemorrhaging staffers. Jim Quent, a senior director, was the latest to depart with no clear future plans. Of course PLA, which pulled in the second-biggest pot of any state lobbying firm in 2012, could just be getting leaner and meaner in a competitive field—but if so, it’s not doing a very good job managing the optics of its cutbacks.




ockey legend Mark Messier and figure skater Sarah Hughes are two of the most adored figures in ice sports in New York history. As the captain of the New York Rangers, Messier led the team to victory in the 1993–94 Stanley Cup, ending its 54-year drought. Hughes, a native Long Islander, won the gold medal in ladies’ singles at the 2002 Olympics in Salt Lake City. Now these two great athletes have teamed up to transform the landmark Kingsbridge Armory in the Bronx into a world-class nine-rink $300 million ice center. City & State Editor Morgan Pehme spoke with Hughes and Messier about navigating the politics to get this ambitious facility built, what inspired them to take on the challenge, and when the Kingsbridge National Ice Center will be open for business. The following is an edited transcript. CITY & STATE: Mark, you are the CEO of the Kingsbridge National Ice Center. How did you get involved with the project? MARK MESSIER: A good friend of mine had two boys playing hockey in the city, and recognized right away that it was not easy for his boys to get adequate ice time. … We were originally going to build a twin rink in and around the metropolitan area. That deal luckily fell through, and we were shown the Kingsbridge Armory, which has sat vacant for 20 years. It was obviously bigger and a more elaborate project than we intended, but we soon realized the need for it. C&S: Sarah, how did you get involved? SARAH HUGHES: Somebody who was doing a bunch of research for the project, his wife had gone to undergrad and then law school with my sister, and so he told the founder, “I think I know somebody in figure skating who can give us some insight into what we can include in skating.” ... So they called me, and once I heard about the project I wanted to do anything I could to help. C&S: Growing up in Great Neck on Long Island, where did you go to skate? SH: Originally—I started skating when I was 3 or 4 years old—I skated at a rink that was five minutes from our house, but it was … only open in the fall and the winter … To train for the Olympics I was going to New Jersey every single day. C&S: Mark, Borough President Ruben Díaz Jr. of the Bronx had scuttled an earlier project that was slated to be in the Kingsbridge Armory because of concerns over workers there being able to receive a living wage. How did you surmount those obstacles in order to get the Ice Center to move forward? MM: We set out to fix a problem with ice sports in the metropolitan area. What we realized was that we’re sitting on something much bigger than that. We had three things in mind: First of all, we wanted to be accepted by the community for what we stood for and what we were about to do; and what we tried to focus in on was three things: kids, community and jobs. And the living wage was taken off the table immediately, because we felt like it was our responsibility to come into somebody’s neighborhood and become partners with them to create jobs and to make the existing businesses around them better by attracting the people that will come in yearly to Kingsbridge National Ice Center. We expect anywhere from 2 to 3, perhaps 4 million people to travel through there, so the whole economic engine behind what we’re trying to create is going to benefit the whole community. We went in there first

and foremost to convince the neighborhood that these are the things that could happen, and we became very good friends and partners with the people there. They trust us now and they realize that we’re there for all of the right intentions. … Currently there are no ice rinks in the Bronx, and it is incredible to think that the Bronx [would be] the seventh largest city in the United States, without a single ice rink in it, so we feel there’s a need for it, but far more importantly than the ice sports—the ice sports are only the vehicle to create all these different avenues that will open up because of it. C&S: Ice sports are not very popular with minority communities. Will having the Ice Center in the Bronx promote enthusiasm in these groups? MM: There’s a good reason they don’t play, because there’s no opportunity to play—and if there was ... financially it would be tough. ... We’re donating $1 million of ice a year, free equipment, free coaching for these kids, ... free learn-to-skate programs. We’re giving 50,000 square feet of the Armory and $8 million to build ... whatever they deem fit for the space, ... giving the kids the opportunity to do something they’ve never done before. … Creating good civilians through sports is really what inspires me. C&S: Figure skating and ice hockey tend to be pretty expensive sports to participate in. Sarah, will the Center enable generations who would not otherwise be involved in these types of activities to get involved? SH: The first thing when we were looking at the Armory was to get accepted by the community and to work together with them. … When we went into Community Board 7 and talked about our project, just the response when we walked in and then Mark went up and spoke was unbelievable. The community has really embraced the project. … I think kids are going to be excited to come to the Armory, and not just to do ice sports but to create ... a great place to learn, ... to grow, on and off the ice. C&S: Mark, did you have any apprehensions about the political and logistical side of getting involved in a $300 million massive project like this? MM: Considering it’s a historical landmark building, there’s always challenges, but ... the importance of the project, and the scope of the project, and what it stands for, for the city, the Bronx, and the metropolitan area, always trumps that it’s difficult. You wake up every day knowing there’s hurdles to climb, but you do it because it’s a big responsibility we have for our children . C&S: Will the next generation of hockey players emerge from the New York City area? MM: I believe there’s a child in this metropolitan area, especially the Bronx, that has that talent, and given the opportunity and the coaching and the financial needs it takes to get to that level, I believe in 20 years we’ll see someone from the Bronx make it to the elite level.

To watch a video of this interview in its entirety, go to www.cityandstateny.com.

cityandstateny.com | NOVEMBER 4, 2013









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Profile for City & State

City & State, November 4th 2013 Issue  

Cover Story: The Counties Count Issue Spotlight: Law and Lawsuits Back and Forth: Mark Messier & Sarah Hughes Columnists: Nicole Gelinas, Br...

City & State, November 4th 2013 Issue  

Cover Story: The Counties Count Issue Spotlight: Law and Lawsuits Back and Forth: Mark Messier & Sarah Hughes Columnists: Nicole Gelinas, Br...