Page 1

Karim Camara unveils his one-man reform proposal.

Page 6

VOL. 2, NO. 3

Marty Connor checks in from life out of office.

Eric Massa casts himself as GOP target No. 1.

Page 23

Page 8

march 2009


andrew schwartz

Statement New Chief Judge Jonathan Lippman outlines his vision for New York’s courts

$11 billion in new Federal Medicaid funding is “not a blank check.” “These funds are intended to go directly towards helping struggling Americans keep their healthcare coverage.” — President Barack Obama, National Governors Association, February 23, 2009

ment ederal Govern United States F . .C Washington, D

February 2009

ortfall h S id a ic d e M ’s

e New York Stat

11 Billion. 00 00

Eleven Billion For Healthcare

President Obama and Congress are sending $11 billion in Medicaid funds to New York State. This funding must be used the way it was intended: to protect essential healthcare services for New York’s most vulnerable residents.

he United President of t


Albany should use these “FMAP” funds to invest in primary and preventive care, and to protect our hospitals, nursing homes and home care providers from the devastating cuts proposed by Governor Paterson.

Tell Albany: Healthcare dollars should be spent on healthcare.


MARCH 2009


In the 20th District, a Test for Paterson, Gillibrand and State GOP Hints of 2010 races seen in Tedisco-Murphy special election BY DAVID FREEDLANDER or the GOP, this was to be the moment. The Democratic tide had finally started to ebb, with the governor’s sinking poll numbers and no way out of the desert of fiscal deficits in sight. A special congressional election in a Republican stronghold pitting a celebrity of the state party against a relative unknown was supposed to be an easy shot at flipping a seat and beginning their comeback. But according to many upstate Republicans, win or lose, the race between Assembly Minority Leader James Tedisco (R-Saratoga/Schenectady) and businessman Scott Murphy to replace Sen. Kirsten Gillibrand (D) has shown that a party in freefall has not hit bottom yet. “It’s just clear that across the state Republican voters feel betrayed by the Republican party,” said one GOP insider. “Tedisco may still eke out a victory, but warts have been exposed. People still don’t know what our party represents.” Republicans have a 70,000-registeredvoter advantage in the 20th Congressional district, which curls around Albany and across ten counties upstate. But the district elected Gillibrand twice and came out for Barack Obama in November. In 2006 and 2008, Republicans attributed Gillibrand’s wins to her opponent’s implosion and the albatross named George Bush that hung around the necks of all of their candidates. Now, some are wondering if a district that has acted Democratic over a couple of cycles is not, in fact, Democratic. Murphy supporters are hoping so. “If Scott wins, it just lays the groundwork for more folks to be comfortable with the Democratic Party,” said Doug Forand, the strategist who led the Democratic takeover of the State Senate last year. “It shows that Independents and Republicans who have moved away from the Republican party are joining the Democratic fold and are staying there.” According to Stuart Rothenberg, publisher of the Rothenberg Political Report, the district is seeing more and more voters who are unaffiliated with either party vote for Democrats. “I think we probably were mistaken in exaggerating the Republican nature of the district,” Rothenberg said. “If Murphy wins, it will change my thinking looking back, that under Kirsten Gillibrand it went from being a Republican-leaning district to a toss-up, and we are only realizing it now.” The most recent poll gave a fourpoint advantage to Tedisco, outside of the margin of error but a far cry from the 21-point advantage the Republican had

The race has statewide implications as well. Gillibrand has been a regular presence in campaign ads and sound bites. If Murphy wins, politicos will wonder whether the newly minted senator deserves credit for flipping the district, or if she merely showed up at the right moment when trends favored Democrats across the state. Her ascension to the upper chamber in Washington was predicated on the latter, but a Murphy win could give possible opponents— Republican and Democrat alike—reason to question this conventional wisdom. As for that other statewide race in 2010—the one for executive mansion— observers say Paterson has a lot riding on the outcome in the 20th. After all, there would be no race had he not picked a relatively unknown congresswoman from a swing district. Should the Democrats lose the seat, that would be one more knock against the governor from within his own


James Tedisco is hoping to re-activate Republicans voters in the 20th Congressional District. when the nominations were announced and a further narrowing of the 12-point gap from three weeks before. Democrats are crowing that if one of their own is able to keep the seat blue, even in the midst of the current turmoil, then the party will have solidified their gains beyond New York City and the surrounding area. Even if Tedisco wins, the closeness of the contest leaves some Democrats to make a new calculus about the future of state politics. If the Hudson Valley is a swing area, they say, then the party’s gains over the last couple of election cycles are likely to grow. “Even though Jim is a longtime Republican Assemblyman, I think over it’s over on the Senate side that they are watching this race closely,” said Assembly Member Jack McEneny (D-Albany). “They are looking at for the implications for 2010, and the 20th congressional district is going to be a bellwether. If the Republicans don’t make it back next year, they may not make it back for a generation—or more.” Many Republicans are blaming the state and county leadership for running Tedisco, noting that two popular Republicans, former Assembly minority leader State Sen. Betty Little (R-Clinton/ Essex/Franklin) and 2006 gubernatorial candidate John Faso both offered themselves up for the seat—and both, unlike Tedisco, reside in the congressional district. For an entire month of the seven-week race, Tedisco refused to say whether or not he was in favor of the federal

Businessman Scott Murphy is counting on supporters of Kirsten Gillibrand to align with him to hold the district for Democrats. stimulus package, and took a hammering from editorial boards and the Murphy campaign. “It’s preposterous,” said one Republican, who, careful to mind Ronald Reagan’s 11th commandment—thou shall not speak ill of another Republican— asked that his name not be used. “He tried to be cute and play both sides. And it was a disaster. He is just incapable of competing at this level with this kind of scrutiny, his range of knowledge of issues has never been beyond a safe Assembly seat. Heads should roll regardless of the outcome. This race shouldn’t even be close.”

party ranks. And in what does not seem a coincidence, a possible 2010 opponent, former New York City mayor Rudolph Giuliani (R) spent a day campaigning for Tedisco and has recorded robocalls in support of the candidate. Paterson has so far stayed out of it, but that could change, especially if the race continues to tighten. “This absolutely matters to David Paterson personally,” said Democratic strategist Hank Sheinkopf. “Republicans need something to give them a bump. And the Democrats can’t be the king if they lose a piece of the kingdom.”


MARCH 2009


Gearing up for 2010, New Yorkers for Growth Expands



Cox, Faso lead effort to refocus and revitalize state Republicans

Ed Cox and John Faso are hoping to pump new life into the state GOP through New Yorkers for Growth. BY SAL GENTILE ohn Faso is the wandering Cassandra of the New York Republican Party. In his uphill bid for governor in 2006, the former Assembly minority leader beat the drum on skyrocketing property taxes and generous contracts for public employee unions—two issues that have since generated considerable heat in Albany. But after his crushing defeat at the hands of then-Attorney General Eliot Spitzer (D), the state GOP brushed Faso and his fiscally conservative wing of the party aside, opting instead to maintain its ties to the unions and ignoring the middleclass squeeze. Now he is getting another chance to press the case for lower taxes and smaller government in the state. Faso and a clutch of influential Manhattan Republicans, including Ed Cox, Richard Nixon’s son-in-law and the chair of Sen. John McCain’s (R) presidential campaign in New York, have founded a burgeoning political action committee, New Yorkers for Growth. The PAC is about a year old, but is only now emerging as an ideological counterweight to groups like the Working


Families Party, which have tied vast amounts of money and influence to an aggressive liberal agenda in Albany. “The Working Families Party is heavily funded and very well organized, but that doesn’t make their positions right,” said Larchmont Mayor Liz Feld (R), whom the PAC endorsed for state Senate last year and who has recently been acting as the group’s public face. “And we are presenting an alternative, because one exists.” The group has pooled donations from some of the premier Republican donors in the state, such as Howard Rich and Martin Geller. Rich, a real estate mogul, has been the villain of unions and liberal interest groups for funding conservative ballot initiatives across the country. Geller is best known as the accountant to Mayor Michael Bloomberg (Ind.), and as the man who channeled the mayor’s infamous $500,000 check to the state GOP. With about $130,000 in seed money, the PAC dipped its toe into November’s legislative races, endorsing 10 candidates for state Senate and Assembly. One, State Sen. Michael Ranzenhofer (R-Genesee/ Erie), just narrowly beat his Democratic opponent in one of the most hotly contested races in the state. They have

spent most of the original seed money, but are raising more. Although the PAC claims to be nonpartisan, it has endorsed only Republican candidates to date, and most of their major backers are longtime Republican donors. Cox said they are looking to forge alliances with groups like the Business Council and the Real Estate Board of New York in opposition to the WFP, in the aim of stepping up in place of the state’s crippled Republican Party. “There really is a void out there,” Cox said. “We started off as a PAC in a modest way to back legislative candidates who are fiscally responsible … and now we find we need to broaden our message, because other people aren’t doing it.” Faso and, to a lesser extent, Cox are widely regarded in GOP circles as the closest to intellectual leaders in a party starved for ideas, even though both men operate outside of the Republican establishment. To some Republican activists, New Yorkers for Growth is a way for Cox and Faso to get into that establishment, with current party structure seen as weakening under state chair Joe Mondello. “I think John and Ed represent a wing of the party that has lost out on elections or

different little political battles, and they’re upset with the way things are,” said one senior party official who has a relationship with Faso and Cox. “So, if you have your think tank, and you have a couple other things that you’re really controlling, I think the hope is that you’re driving a message.” Whether that message gets through is another question. Though they have raised startup cash from some influential Republican donors, New Yorkers for Growth is still vastly outflanked on the left by the WFP and its private-sector union allies. “There’s no doubt that there are people who have the ideas, but what’s obvious is you have to have some bucks behind you,” said Carla Kerr, a Manhattan attorney and one of the PAC’s founding directors. “And so our concern is trying to bridge the gap.” Kerr and the others hope to use their pool of startup cash to attract a larger influx of money in time for 2010. They would then use those resources to promote the kind of clearly articulated message they say the state party has lacked for years. “They have a better chance of becoming more influential in the political process in New York, because they’re focused on the economy of New York and not on social issues,” said Assembly Member Brian Kolb (R-Ontario/Seneca). “It’s about money and the fiscal side, and everyone can relate to that.” If Cox and Faso do manage to nudge the Republicans, and that message proves successful in 2010, the political payoff could be substantial. Positioning themselves as the party’s de facto leaders could set them up as candidates for party chairman, when Mondello finishes his term in 2010. Both have been rumored to want the job, but neither will confirm or deny his interest. Assembly Member Michael Fitzpatrick (R-Suffolk), for one, thinks they would instantly improve the party’s standing in the state, as well as its electoral fortunes. “I think both of them would be major improvements over what’s there now,” he said. “John and Ed and others—but particularly John and Ed—have unique insight. And you never get it out of your system.”

New York State Building & Construction Trades Council “Building an Economic Ladder to the Middle Class through the Union Building Trades…” EDWARD J. MALLOY, President

Money is so tight that Governor Paterson wants to pile more health care taxes onto the backs of self-insured entities…. But at the same time……. ……Our government is willing to hand out public money for construction projects with no worker protections to ensure that New York taxpayers are awarded the work.

The working men and women of New York State deserve better. Pass A.3705 and clarify the definition of “public work.” Prevailing Wage jobs drive our economy! NY STATE B.C.T.C. 890 Third Street • Albany, NY 12206 • (518) 435-9108 Learn more at our website: WWW.NYBCTC.ORG


MARCH 2009


The Lonely Preacher BY CHRIS BRAGG ssembly Member Karim Camara (D-Brooklyn) is a Baptist pastor, and he believes in preaching, even if that means getting thrown to the lions. “The role of the prophet is to address the conditions,” Camara said, “not to think about the consequences.” An upcoming “white paper” Camara is set to release—suggesting a number of radical Assembly rule changes that fly in the face of Democratic leadership—may test his faith. While the report is not yet fully fleshed out, an outline Camara shared with The Capitol tentatively titled “How to Fix Albany”, offers seven suggestions that would increase the power of the Assembly’s minority Republicans and all of its rankand-file members. A number of academic reports from outside groups have detailed steps to improve the legislative process. Camara believes his suggestions will carry more weight. “The best kind of pressure is from members who say, ‘These are the types of changes we need to make,’” Camara said. Perhaps his most controversial proposal would place term limits on all legislative leadership positions, including 15-year Assembly Speaker Sheldon Silver (D-Manhattan). That is a step even further than a recent Brennan Center for Justice report—which nonetheless proposed enough changes to have Silver call it “nonsense”—dared to go. Modeled after the operations of


Congress, Camara’s plan also calls for equal distribution of resources among all members regardless of party, leadership position to be voted on by the whole body, for committee chairs to hire and fire their own staffs and for the open sponsorship of bills. Those changes would require internal rule revisions. Camara also says he will introduce a bill requiring the spending of all state funds to be posted on the Internet. Reform advocates give Camara’s plan a thumbs-up. “This would absolutely change the way that Albany does business,” said Susan Lerner, executive director of New York Common Cause. But the effort is, of course, fraught with political risks for Camara, who said he has been increasingly frustrated with the status quo over the three years since he replaced imprisoned Assembly Member Clarence Norman (D-Brooklyn) in 2006. The white paper is the next step for Camara in a process that began two years ago, when he and Assembly Members Linda Rosenthal (D-Manhattan), Brian Kavanagh (D-Manhattan) and Hakeem Jeffries (D-Brooklyn) pledged to forgo fundraisers in Albany during the session, as well as to refuse soft money and donations from staffers or organizations that receive member items they oversee. That announcement, Camara said, prompted Silver to phone him and Jeffries to tell them they had embarrassed the Assembly. Silver’s office declined comment on any interaction between them. Now Camara is proposing what

amounts to a direct rebuke of leadership. So while he hopes to roll out his new plans with at least a handful of other Assembly members, he may have to go it alone. His previous partners Rosenthal, Kavanagh and Jeffries declined repeated requests seeking comment on whether they would join Camara’s effort. Camara said a number of members have endorsed his plan in private, but that a “fear factor” has prevented anyone from joining his effort publicly yet. Lawrence Norden, co-author the Brennan Center for Justice’s Still Broken: New York State Legislative Reform 2008 Update, said he believes the reasons are clear. “It means risking a lot, whether it’s chair positions on committees, or the financial resources to run an office,” Norden said. “It’s real. It’s not in any way hypothetical. Those who buck leadership in Albany get punished.” Camara said he will submit a copy of “How to Fix Albany” to Silver before he formally proposes any rule changes or introduces any legislation. A spokesperson for the speaker declined to comment before Camara’s report is actually released other than to say that “we have always done rules reform” in the Assembly. The State Senate, meanwhile, is looking seriously at many of the same kind of reforms Camara is suggesting, according to a person who has read a draft copy of a report being written by Senate Democrats on the body’s temporary Rules Reform Committee. As in what Camara has suggested for the Assembly, the Senate committee’s draft


Camara calls out for reform, but gets no response from colleagues

Assembly Member Karim Camara is standing by himself on an Assembly reform proposal. reportedly contains a provision allowing an individual member to demand an up or down vote on whether a bill is moved from the Senate calendar to Senate floor. This would reduce leadership’s control over the agenda. The Senate Democrats, however, reportedly have not tackled the issue of resource allocation in the draft report. Camara admitted he is unlikely to make much headway by himself, but said if the Senate leadership follows through on its promised reforms by the end of the year, the Assembly leadership will be pressured to follow suit. As for the effect his efforts will have on his own political career, Camara declined to speculate. “At some point,” Camara said, “it’s time to let the chips fall where they may.”

Despite Opposition to New Gun Laws, NRA Fires Blanks Group and allies keep lower profile around Capitol and in New York BY DANIEL EDWARD ROSEN ince the Democrats took over the New York State Senate majority and the suddenly gunshy Kirsten Gillibrand (D) was promoted to junior senator, the National Rifle Association’s (NRA) lobbying arm has kept relatively quiet in the first three months of 2009 and left many wondering why the group is holding their fire. Save for a few posts on their website protesting recent legislation proposed by State Sens. Carl Kruger (D-Brooklyn) and Eric Schneiderman (D-Manhattan/Bronx), the group’s Institute for Legislative Action has been mostly quiet. The bill, which aims to give state police more authority to ban firearms based on their appearance and if they are detectable by standard security devices, was deemed “dangerous” by the NRA, who said it would limit the selection of firearms in the state.


But though one State Senate insider said the NRA fears the bill moving, the organization that has had increasingly less influence since the days of Gov. George Pataki (R) also feels powerless to stop it. “Even the Republicans from Long Island and New York City would vote on the side of the cops and not the NRA,” said the insider. “The NRA is losing traction in New York.” Gillibrand, who had a 100-percent approval rating in the House, seemed like an ally, but the NRA has since seen her once-rigid stance on Second Amendment rights soften. Her first gun-related vote in February was against a pro-gun bill that would have limited the District of Columbia’s government from banning many weapons like semi-automatic guns. “She’s voted the wrong way once, so a lot of people are wondering if she’s spilling out,” says Alan Gottlieb of the Citizens Committee for the Right to Keep

and Bear Arms, a national pro-gun group that also runs the Second Amendment Foundation in Buffalo, New York. “A lot of us think she’s trying to insulate herself in time for the upcoming primaries.” The NRA remains nonplussed by Gillibrand’s vote, said Andrew Arulanadam, director of public affairs for the groups. “We’ve been around politics for a while. What we do is we adapt to whatever changes and whatever challenges we face.” According to the New York State Commission on Public Integrity, the NRA spent not one cent on lobbying fees in 2008. “I can’t say if either the [New York State Rifle and Pistol Association] or the NRA has changed their agenda or anything,” says Tom King, president of the NYSRPA, a nonprofit Second Amendment preservation organization in Troy. The NYSRPA has arguably been the most active pro-gun group in the state, as evidenced by their strong campaign against the 2007

nomination of Alexander “Pete” Grannis to be commissioner of the Department of Environmental Conservation, labeling the long-time Assembly member as hostile and unsympathetic to hunter rights, and State Sen. Martin Golden (R-Brooklyn) calling Grannis “anti-gun.” The nomination eventually went through. Now buoyed by a wide Democratic majority in the United States and a Democratic president, King says that membership has jumped by nearly 20,000 members since January. “We’re working just as hard this year as we have any other year,” he said, estimating that the group spent $10,000 in lobbying expenses in the past year. But Golden said he has yet to feel the NRA’s presence in the Capitol of late. “Not at all,” he said. “They haven’t come to this office.” Direct letters to the editor to

“This kind of innovative an example of how all our schools should be...” — President Barack Obama, Capital City Public Charter School, February 3, 2009

President Obama has made it clear: OUR NATION NEEDS PUBLIC CHARTER SCHOOLS This is why he has vowed to make public charter schools key to his educational reforms.




MARCH 2009

Republicans Take Aim at Massa, Who Eagerly Returns Fire National GOP begins assault while local GOP searches for 2010 opponent BY CHRIS BRAGG f there is one thing the National Republican Congressional Committee (NRCC) and the Democratic Congressional Campaign Committee (DCCC) counterpart agree on, it is that Rep. Eric Massa (D-Cattargus/ Allegany/Steuben) is one of the most vulnerable Democratic incumbents in the country. The DCCC has designated Massa as one of the 40 “Frontline Democrats” most vulnerable in 2010 who will receive special attention from party fundraisers, while Republicans had already put him on a list of top targets for 2010 in January, when he was still moving into his offices. And while he is actively raising money for next year’s race, complete with a letter sent to supporters claiming that Republicans “have already announced that this seat in Congress is their top target,” Massa said that he would really like to take a break from campaigning. “Is there an election in 2010?” he joked, while driving recently to a 9 a.m. tour of Monroe Community College. Massa has forbidden his staff to speak about the race or to speak with the DCCC. But in addition to the fundraising, the freshman congressman has kept a breakneck pace of town halls and press events around the district, and his press office sends out multiple press releases a day touting his efforts. Massa ran against two-term Republican Randy Kuhl in 2008 and won by a mere 5,000 votes, becoming the first Democrat since 1986 to represent the district, which runs through the Finger Lakes region and the Southern Tier. This was a rematch of their 2006 race, which Massa lost by four points. Kuhl was considered by many to be a weak campaigner, however, and had personal baggage from divorce records leaked in 2004 that described how Kuhl had once threatened to shoot his wife with two shotguns during a dinner party. David Wasserman, a Congressional analyst for the Washington, D.C.-based Cook Political Report said that Kuhl’s problems, and not anything else, were the reasons for Massa’s win. “Eric Massa won his seat in 2008 not because Barack Obama carried the district—he didn’t—but because Randy Kuhl had serious problems connecting with the voters and serious personal baggage, and because of an extremely toxic environment for Republicans,” Wasserman said. Massa himself has a strong personal story to tell. He is a survivor of lymphoma. He was a longtime naval commander and aide to then-NATO Supreme Allied Commander General Wesley Clark, a former Republican who left the party over his opposition to the Iraq War. He is also a star on the liberal blogosphere, posting regularly on Daily Kos. That helped him net over $700,000 from liberal online donors during the 2008 campaign. While the district still has a Republican voter registration advantage of 50,000, it has grown mildly less





After knocking off Randy Kuhl last year, Rep. Eric Massa is now a top target of the national Republican Party for his 2010 re-election. conservative in recent years. And especially without Obama on the top of the ticket in 2010 to help him, the NRCC seems to badly want to pick a fight with Massa. They send out press releases deriding Massa on nearly a daily basis—some of them stretching the boundaries of truthfulness. For instance, the NRCC put out one recent release claiming Massa had been “rejected” when he tried to join the fiscally conservative Blue Dog Democrat Coalition in Congress because they saw him as a profligate spender, when in fact Massa never even tried to join the group. Massa was also one of 30 Democrats in Congress targeted with radio ads condemning their support of the federal stimulus bill. Meanwhile, the NRCC has already dug up some compelling opposition research. Massa has accepted at least $7,000 in corporate PAC money since his election last November, a practice Massa criticized Kuhl for repeatedly on the campaign trail and has called “wrong.” Massa deflected this criticism, saying that he was taking the corporate money because he did not feel comfortable asking middle-class residents of his district to contribute during the recession. “I find it amusing that my opponents and potential opponents attack me for the same thing they’ve been doing for years,” Massa said. “I am not going to fight with both hands tied behind my back.” And he has, indeed, been fighting, doing his best to undercut the Republican brand.

“We’re in the worst economic downturn in 70 years, and all the Republicans want to do is attack,” Massa said. “It’s a negative diatribe of obstructionism. They listen to Rush Limbaugh at noon, and you hear the talking points on the House floor at four o’clock. It’s very sad they have surrendered to that.” Republican Party insiders believe that Massa’s temperament could eventually get him into trouble over the next two years. Massa has a tendency to get angry and rant in a condescending manner when challenged, they say, and he has reportedly butted heads with Rep. Louise Slaughter (D-Orleans/Niagara/Monroe/ Eric) and Assembly Member Joseph Morelle (D-Monroe), who also serves as Monroe County Democratic Party chair. Even so, Republicans may be hard pressed to find a decent candidate in the current political climate. Monroe County is currently split between four different Congressional districts. And some Republicans believe that if Democrats retain a Senate majority in New York in 2010, they would redistrict to create a Monroe-based district for Slaughter, while potentially eliminating Massa’s current seat. If a Republican beats Massa next year, several insiders in the area believe, that possibility would be heightened. Monroe County Executive Maggie Brooks would be the frontrunner if she entered the race, according to multiple Republican sources, given her bipartisan appeal in Monroe County, which is the more liberal portion of the district. A Monroe County candidate could likely raise more money and have a more visible presence in the media. But she reportedly is concerned about the potential redistricting. Another likely favorite would be Assembly Member Brian Kolb (R-Onondaga/Ontario/Seneca/Cortland/ Cayuga), who said he is interested in the seat, but would prefer to have the job of Assembly minority leader, if Minority Leader James Tedisco (R-Saratoga/ Schenectady) wins the special election for what was Sen. Kirsten Gillibrand’s (D) House seat. Other potential candidates include Sen. George Winner (R-Chemung/Schuyler/Steuben/Yates); Chemung County Executive Tom Santulli; Corning Mayor Tom Reed; and Conservative talk show host Bill Nojay, who lives in Rochester. Some Democrats in the district are worried that if Gov. David Paterson (D) is at the top of the ticket in 2010, his sagging popularity could hurt Massa. Also, the party in the White House has historically lost seats in mid-term elections. But Massa said none of those factors particularly worry him, insisting that he and others in competitive elections would instead be judged by whether the economy turns around and the number of jobs the stimulus package creates. “I believe political contests are defined by leadership,” he said. “People elected their leaders to make a difference in their lives. If the only thing the other guy can do is wish for you to fail, then that’s not leadership.”





Dear Fellow New Yorker: Over the past few months Mayor Bloomberg has been campaigning for pension reforms. This has resulted in a multimonth misinformation campaign designed to demonize New York City Firefighters. This orchestrated campaign has had very little regard for the truth or historical facts. They have completely glossed over the terrorist attack upon New York City, which caused the single most significant health and safety issue to affect the FDNY in its 140-plus year history. You just can’t ignore the World Trade Center attacks, but some how they have gotten away with it! In attempting to present Firefighters as loafers seeking disability pensions, the city fails to acknowledge that on the morning of September 11, 2001 members of the FDNY effectuated the LARGEST rescue operation on American soil. 25,000 lives were saved while 343 New York City Firefighters were killed. They won’t tell you that according to the New England Journal of Medicine over ten thousand firefighters lost on average over 12years lung capacity as result of the 9-11 attacks or that 9-11 disabled more than 1,000 firefighters who lost their careers and their health. Since 2002 they have failed to acknowledge that over 80 of these firefighters, who responded to the World Trade Center attack, have died from a variety of diseases, rare cancers and more. Just last year, 19 New York City Firefighters who responded to the World Trade Center Attack died. Many of these were very young men who leave behind families with school age children. Most recently City Hall has identified FDNY retirees receiving huge disability pensions, creating a false impression that oversized pensions were going to rank and file New York City Firefighters. Once again, they conveniently left out an important fact – these pensioners were in fact members of Commissioner Scoppetta’s Management Team reporting directly to the Commissioner and Mayor himself. Because of existing rules Commissioner Scoppetta’s management team’s pensions get paid from the Fire Pension Fund and not a fund dedicated to the city’s top managers. To correct another of their falsehoods, New York City Firefighters do in fact have a contributory pension, meaning firefighters pay a portion of their salary over their entire careers to fund their pensions and these costs are factored into collective bargaining. We have been forced to set the record straight because of this shameless campaign to bludgeon the good name and reputation of New York City Firefighters. To present misleading statistics as fact and act as if 9-11 never occurred is dishonorable.

New York City Firefighter Pensions Are Not Given. They Are Earned Through Sacrifice. Sincerely,


New York’s Bravest


MARCH 2009




Children’s Access to Medical Coverage Must Be Wide Ranging BY REP. CAROLYN MCCARTHY uch attention has been paid to the number of Americans, especially American children, who lack health insurance. With the recent extension of the State Children’s Health Insurance Program (SCHIP) we have made important strides in bringing insurance coverage to more individuals. Working with our new president, I expect that we will make even more progress in the coming months. While a significant amount of attention has been focused on expanding coverage to the uninsured, other aspects of insurance coverage have been largely overlooked. For millions of Americans who do have health insurance, there are a variety of serious medical conditions that fall into gaps in insurance coverage, preventing individuals from getting the care that they need. One such area lacking coverage under many insurance plans is surgery for children born with facial birth defects. Facial and cranial birth defects can be devastating to children and their families. Facial abnormalities like cleft lips or palates can have major health consequences and the surgeries that are required to correct them are far from merely cosmetic. Imagine being a parent with a child who has a cleft lip and palate or another more severe congenital facial deformity that requires reconstructive surgery to


achieve a sense of normalcy. Now imagine receiving a letter from your insurance carrier that states the following: “The reviewer determined that although the procedures listed above would enhance the appearance of the patient, the procedures listed are not necessary to correct a functional disorder and therefore do not meet the criteria for benefits as outlined in the medical plan.” Unfortunately, there are numerous examples of children and families around the country that are experiencing this kind of obstruction and denial to necessary reconstructive surgical care. In order to correct this deficiency, I was proud to introduce H.R. 1339, the Children’s Access to Reconstructive Evaluation and Surgery (CARES) Act. The CARES Act will make sure that children with congenital deformities are able to have access to the care that will allow them to lead normal, healthy lives. Examples of congenital deformities include cleft lip, cleft palate, skin lesions, vascular anomalies, malformations of the ear, hand or foot, and other more profound craniofacial deformities. According to the March of Dimes, 3 percent of the babies born annually in the U.S. (120,000) suffer from birth defects, which are abnormalities

of structure, function, or body metabolism present at birth that result in physical or mental disabilities or are fatal. Of the 120,000 children born annually with birth defects, approximately 40,000 require reconstructive surgery. On average, children with congenital deformities or developmental anomalies can expect anywhere from three to five surgical procedures before normalcy and function are achieved. Although carriers may provide coverage for the initial procedure(s), they regularly resist coverage of the later-stage procedures, claiming they are cosmetic and not medically necessary. A survey of members of the American Society of Plastic Surgeons (ASPS) revealed that nearly 54 percent of respondents indicated they had pediatric patients who have been totally denied insurance coverage or have experienced significant obstacles in obtaining approval for coverage of surgical procedures. An increasing number of insurance companies are denying access to care by labeling the procedures “cosmetic” or “non-functional” in nature. The American Medical Association

defines reconstructive surgery as being performed on abnormal structures of the body, caused by congenital defects, developmental abnormalities, trauma, infection, tumors or disease. Reconstructive surgery is generally performed to improve function and approximate a normal appearance. Cosmetic surgery, in contrast, is defined as being performed to reshape normal structures of the body in order to improve the patient’s appearance and self-esteem. The CARES Act, using the AMA definitions, differentiates between cosmetic and reconstructive surgery and requires managed care and insurance companies to do the same. The CARES Act is cosponsored by 44 Members of Congress and it has received support from the American Association of Oral and Maxillofacial Surgeons and the ASPS. The CARES Act is common-sense legislation that will improve the current delivery system and restore patients’ and families’ trust and confidence in their health plans. The struggle for insurance coverage can not end at making sure that everyone has access to an insurance plan—it must also ensure that the plans are of a quality that meets the needs of our families. Rep. Carolyn McCarthy, a Democrat representing parts of Nassau County, is the chair of the U.S. House Subcommittee on Healthy Families and Communities.

Governor’s Budget Right Prescription for Ailing Health Care System BY COMMISSIONER RICHARD DAINES overnor David Paterson has proposed a groundbreaking reform agenda to set New York on a path toward transformative change in our health care system to improve the health of New Yorkers while making our health care system more affordable and financially sustainable. Currently, New York’s Medicaid program, the state’s largest health insurance program with annual spending of approximately $47 billion, outspends other states in most categories of health care. Yet we rank in the middle or bottom nationally on health care access and quality. Our state is ranked 25th for health status, 39th for avoidable hospital admissions, 25th or worse for access and affordability, and 30th on a range of quality measures, such as appropriate receipt of preventive care for adults and children. As Governor Paterson said recently, in New York City prevention is the most beneficial but underutilized form of health care. Preventive care has the dual effect of reducing health problems and saving money. We know that health insurance reimbursement shapes the health care system through the financial incentives it provides for the delivery of various


health services. For years, the state has overpaid for inpatient care and high-tech medical procedures while underpaying for primary care, prevention and other outpatient service. So we should not be surprised that we have a high-cost health care system weighted heavily toward hospital inpatient services that focus on treating problems after they have already reached a serious stage. Governor Paterson’s proposed budget continues the process begun last year to rebalance this off-kilter health system by moving more Medicaid dollars into primary and preventive care, reducing reimbursement for overpaid inpatient and high-tech services and rewarding the provision of cost-effective, high-quality care that focuses on improved health outcomes. Specifically, his budget invests $300 million in hospital outpatient clinics, community health centers, behavioral health providers and doctors’ fees. His budget also expands New Yorkers’ access to public insurance programs to minimize the number of newly unemployed forced into the ranks of the uninsured. Separate from the health reforms, the governor’s budget proposes reductions across all areas of government spending in

order to address a projected three-year $48 billion state budget deficit. With health care representing 20 percent of state spending, it is unrealistic to think we can spare health care from the necessary cost containment measures. Yet, in timeworn and typical response, a multimillion dollar wave of health industry and labor-funded ads has filled broadcast media and home mailboxes with images of closed emergency rooms, laid-off workers and frightened patients. The truth is, no hospital will close because of the governor’s budget. From time to time, a hospital closes because of long-term financial difficulties that usually result from a hospital’s failure to downsize or restructure in response to changing community needs. The Governor’s proposed budget provides for a less than 2-percent impact on total hospital industry revenues. State agencies, businesses and families are making far greater reductions in spending to deal with the nationwide economic downturn and an historic drop in state tax revenues. What these commercials don’t tell

New Yorkers is that under Governor Paterson’s proposed budget overall spending on health care will actually increase compared to last year. What his budget does is slow the rate of growth in spending. Governor Paterson’s proposed budget continues to spend more on hospitals, more on nursing homes and more on home care than any other state in the nation. Funding from New York’s portion of the federal economic stimulus package can play a vital role in New York’s health reform efforts. But if we fail to seize this moment of opportunity to transform our health care system, we will have squandered billions of federal dollars, and the system will emerge in 2010, the year the stimulus assistance ends, no different or better than it is today. Governor Paterson’s proposed budget is the right prescription to fix New York’s ailing health care system and put us on the road toward better health at a more affordable cost. Richard Daines is Commissioner of Health for New York State.

New York’s Home Care Community Faces An Unprecedented Double Threat Devastating Funding Cuts put simply... UÊÊ$475 millionʈ˜Ê«Àœ«œÃi`ÊÃÌ>ÌiÊ>˜`Ê “>ÌV…ˆ˜}Êvi`iÀ>ÊVÕÌð UÊÊ47% of home care agenciesÊVœÕ`Ê VœÃiÊ̅iˆÀÊ`œœÀÃÊ>ÃÊ>ÊÀiÃՏ̰I UÊÊ74% of home care agenciesʺˆŽiÞ»Ê œÀʺÛiÀÞʏˆŽiÞ»Ê̜ÊÀi`ÕViÊÃiÀۈViÃÊÊ ÜˆÌ…Ê̅iÃiÊVÕÌðI

Destructive Restructuring Proposals put simply... UÊÊ,iVŽiÃÃÊ>˜`Ê՘Ài>ˆÃ̈VÊ«œˆVˆiÃÊÊ Ì…>ÌÊ«Àœ…ˆLˆÌÊÃÕLVœ˜ÌÀ>V̈˜}ÊܜՏ`Ê eliminate or disrupt careÊvœÀÊÊ Ì…œÕÃ>˜`ÃÊ>˜`ÊV>ÕÃiʍœLʏœÃÃÊ>˜`ÊÊ œLÊ`ˆÃœV>̈œ˜° UÊÊ1˜ÌiÃÌi`Ê>˜`ʈ‡Vœ˜ViˆÛi`ÊÊ Àiˆ“LÕÀÃi“i˜ÌÊV…>˜}iÃÊܜՏ`ÊÊ reduce careÊvœÀÊ̅iʘii`ˆiÃÌÊ«>̈i˜ÌÃÊ >˜`Êw˜>˜Vˆ>ÞÊ`iÃÌ>Lˆˆâiʅœ“iÊÊ V>ÀiÊ«ÀœÛˆ`iÀð

For more information, read HCA’s On the Edge report at

Fortunately, New York Lawmakers have two simple solutions to protect home care and retain jobs... UÊÊ*\ʺii«Êi`ˆV>ˆ`Ê œ>ÀÃÊÊ œÀÊi`ˆV>ˆ`°» UÊÊ7œÀŽÊ܈̅Ê Ê̜ÊÃÌÀi˜}̅i˜]ʘœÌÊÊ Üi>Ži˜]Ê iÜÊ9œÀŽ½Ãʅœ“iÊV>ÀiÊÃ>viÌÞʘiÌ°Ê

*From the HCA/NYAHSA Unstable Ground report, available at www.hca-nys. org/Unstable.pdf


MARCH 2009




The Recession Is the Right Time To Move on Health Insurance Costs BY ASSEMBLY MEMBER RICHARD GOTTFRIED xcept for the current economic crisis, health coverage may be the single most important issue facing New York. It affects everyone whose health plan tries to avoid paying for care, individuals and employers burdened by the high and growing cost of health


coverage and, of course, the uninsured. The recession makes this even more urgent. Health insurance costs are a major obstacle to doing business in New York. Many people expect sweeping reform from Washington, but I’m skeptical. New York and some other states may be able to do better. For example, my New York Health Plus proposal would

make comprehensive coverage, based on New York’s Family Health Plus and Child Health Plus, available to everyone, without regard to income. It would be funded fairly, through revenue based on ability to pay, not through regressive premiums, deductibles and co-pays. But right now, New York State is about to offer an extraordinary opportunity to

Meeting the challenge Nurses united for a healthy New York At a time when a ďŹ nancial crisis threatens our state and our nation, registered nurses reafďŹ rm their commitment to safe, cost-effective patient care. We are concerned that cuts in healthcare funding will lead to cuts in healthcare stafďŹ ng. That’s why removal of support from acute care facilities must be accompanied by a system to monitor RN stafďŹ ng levels, which are crucial in preventing complications, hospital-acquired infections, and incidents of “failure to rescue.â€? We urge lawmakers, community advocates and other healthcare professionals to join us in supporting legislation that will ensure high standards of care in all healthcare settings.

Require safe staffing in hospitals Establish standards for safe stafďŹ ng in hospitals through mandated patient-to-nurse ratios.

Protect the future through educational advancement As the healthcare environment becomes more complex, advanced educational requirements for RNs will beneďŹ t both nurses and patients.

Address violence against nurses in the workplace Violence in the healthcare workplace endangers both nurses and patients. Increasing the penalties for assaults on nurses will deter these crimes.

Keep nurses in nursing with patient handling programs Many nurses are forced to leave bedside care before retirement age because of debilitating back and neck injuries. Safe patient handling will keep experienced nurses on the job longer.

New York State Nurses Association Annual Lobby Day April 21, 2009 Empire State Plaza Convention Center


employers and their employees. In July 2007, my bill creating the Family Health Plus Employer Buy-In became law. Family Health Plus is ordinarily available only to low-income New Yorkers who earn too much for Medicaid. Itâ&#x20AC;&#x2122;s paid for by New York State, with federal funds covering half the cost. Under the Employer Buy-In, employers can offer Family Health Plus to all employees, regardless of income eligibility, and their family members, including Child Health Plus benefits for kids. The employer would pay at least 60 percent of the premium, with employees paying the rest. Chances are, youâ&#x20AC;&#x2122;ve never heard of this extraordinary program, because the state has moved very slowly to implement it. But now the State Health Department says it will be available this fall, when employers and employees will be making health coverage choices for the coming year. The big obstacle has been setting the appropriate premium for employers to pay. First, the premium has to include the state fees that conventional health plans have to pay but which ordinary Family Health Plus is exempt from paying. The state is assuming that covering the general population will be more expensive than covering low-income people. People tend to earn more later on in their careers, so higher-income people will be older, and presumably therefore more expensive to cover, than people now on subsidized Family Health Plus. But on the other hand, higher-income people tend to be healthier than low-income people. So figuring out the right premium is not simple. A reasonable estimate is a premium between about $3,850 and $4,500 a year for one adult. Employer-sponsored coverage for that same adult now typically costs well over $5,100 a year, and a lot more for small employers. You might ask, â&#x20AC;&#x153;How can Family Health Plus deliver comprehensive health coverage for so much less than commercial health plans?â&#x20AC;? My answer is: Itâ&#x20AC;&#x2122;s doing it. Let the commercial health plans explain why theyâ&#x20AC;&#x2122;re charging so much more. Governor Paterson and the State Health Department must make sure that the Employer Buy-In is on the market for New York employers this fall. Letâ&#x20AC;&#x2122;s not miss the chance to save a small business and its employees tens of thousands of dollars a year. Richard Gottfried, a Democrat representing parts of Manhattan, is the chair of the Assembly Health Committee.



MARCH 2009



The State Senate Will Make Fundamental Reforms in Health Care Finance BY STATE SEN. THOMAS DUANE


lthough economic circumstances have made this a difficult time to assume the helm of the New York State Senate Health Committee, I am grateful to be in a position to influence how the inevitable cuts to New York’s health care spending are made. We must ensure that these cuts are done carefully in order to minimize the harm done to individuals and institutions in the short term, as well as to create a blueprint for a stronger health care infrastructure for the long term. Working with Governor Paterson, the health care industry, interest groups and consumers, the Senate plans to support several fundamental reforms in how health care is financed in New York State. We will take this opportunity to update Medicaid reimbursement and bring rates into the 21st century. Managed-care providers will have to look at how their data is collected and made available in order to ensure that public dollars are maximized and truly benefit the goal of high-quality care. We will also improve funding for primary care, preventative care and community health, and address longstanding racial disparities in health care access and outcomes. And we will work with health care providers every step of the way to avoid severe across-the-

board cuts that make no sense and potentially hurt patients. In the past month and a half, both health care organizations and advocates have come to me with the same message: We provide essential services, and our programs cannot be cut. And it’s hard not to agree with them. But the simple fact is that to maintain them, we need new sources of revenue. Towards that end, I am fighting to ensure that federal stimulus dollars and new funds from the temporary increase in the Federal Medical Assistance Percentage (FMAP) are wisely spent on health care projects that have the dual benefit of improving coverage and creating jobs. However, I continue to solicit new ideas, particularly from the large institutions that are unhappy to be targeted with cuts. They and their supporters and benefactors must step up and support revenue enhancement, otherwise their fight against cuts appears disingenuous. I must note that many health care stakeholders also have children in schools whose funding they want preserved; take mass transit whose fares they don’t

want increased; drive on roads that they want to see maintained; and enjoy cultural institutions and events whose availability they don’t want curtailed. As weakened as New York State’s economy may be, the Senate is committed to strengthening our health care system in the long term. As chair of the Senate Health Committee I will promote sound health care policies and seek to expand health care eligibility and coverage. The latter is now more crucial than ever, as a growing number of New Yorkers are finding themselves jobless and without employer-provided insurance. Among my priorities is passage of legislation, originally conceived by my wise colleague New York State Assembly Health Committee Chair Richard Gottfried, that establishes a New York Health Plan. In its updated form, it would create a comprehensive system of access to health insurance for all New York State residents. Another bill that I hope to see enacted quickly is the Healthy Teens Act, which was voted out of the Health Committee last year. Republicans and Democrats

alike recognize the urgent need to provide New York’s children with information that can protect them from sexually transmitted diseases and help them avoid unwanted pregnancy. I will push to bring this bill to the Senate floor this Session. I will also work with my colleagues in both houses of the Legislature and the Executive branch to increase enrollment in our publicly-funded health coverage programs for low-income New Yorkers and to pass legislation that would promote mandatory offering of HIV testing in most health care settings, streamline written, informed consent and customize posttest counseling to reinforce prevention. I was pleased to help draft this latter legislation with New York State Health Commissioner Richard Daines, New York City Health Commissioner Thomas Frieden, Assembly Member Gottfried and Senator Kemp Hannon, the highly respected former chair of the Health Committee upon whose wisdom I rely. There is much more policy work to be done, even in these difficult times, and so while now is not an easy time to take the reins of the Health Committee, I welcome the challenge and the opportunity. Thomas Duane, a Democrat representing parts of Manhattan, is chair of the Senate Health Committee.

Reject Regressive Budget Threat to Home Care By Joanne Cunningham New York’s home care community faces an unprecedented threat to its survival. This double threat – in the form of historic proposed funding cuts and structural changes to the home care delivery system – comes at a time when individual patient health, efforts to mend the state’s economy, and health care system reform all depend upon the delivery of cost-efficient services to patients in their homes. According to a recent HCA/NYAHSA report, entitled Unstable Ground: The Fiscal Instability of Home Care in New York State (available at www.hca-nys. org/Unstable.pdf), nearly half of home care agencies indicate they would seriously consider closing their doors under a 10-percent Medicaid cut. Seventy-four percent indicate they would “likely” or “very likely” reduce services under the same conditions. Yet Governor Paterson’s $475 million (combined state/federal shares) in proposed state budget funding reductions to home care would cut Medicaid reimbursement by 12 to 25 Paid for by the Home Care Association of New York State.

percent for most agencies and programs, decimating needed services for vulnerable patients and leading to health care job losses that would further destabilize New York’s already fragile economy. ‘Medicaid for Medicaid’ Recognizing the economic importance of health care, Congress and the President have provided extra Medicaid relief to states through the recently passed stimulus package, under which New York State is slated to receive approximately $11 billion in additional FMAP (Federal Medical Assistance Percentage) monies. Since this funding is more than enough to avert all of the Governor’s proposed home care cuts and sustain other public health priorities, the home care community strongly urges legislative leaders to apply FMAP funding as intended by the federal government – for New York’s Medicaid program, and not for other budget purposes. Destructive Restructuring Proposals In addition to the proposed cuts, Governor Paterson’s budget also includes several home care restructuring proposals which yield few substantiated savings to the state and yet further threaten the survival of programs that serve the elderly, disabled, chronically ill, medically frail children and post-acute-care patients.

One proposal would require agencies to directly provide all home health aide services rather than retain the current flexibility permitted by law to subcontract for aide services. This rigid, unrealistic policy would eliminate care for thousands of patients and result in staggering workforce layoffs. Home health agencies are certified for the primary responsibility of assessing, managing, providing for and overseeing the care of the patient. These “certified” agencies typically contract with “licensed” agencies for aide services since licensed agencies are specifically structured for the specialized tasks of recruiting, training, certifying, employing, scheduling, deploying and supervising aides. It would be enormously inefficient, costly and unrealistic to force one type of agency to wholly perform both functions and would needlessly and recklessly cause both service and job dislocation throughout the state. A second proposal would, prematurely and without exploration of alternatives, dramatically overhaul the home care reimbursement system to emulate a model for Medicare that took years to activate at the federal level.

home care reimbursement system, but not within the fast-track of state budget negotiations and not without the needed level of pre-testing, provider/patient impact analysis, modeling and transition, especially considering the potential dramatic impact on patient care. As it is, 75 percent of home care programs for the chronically ill and 53 percent of programs for post-acute home care patients in New York State are already saddled with operating losses, due to past funding reductions and rising costs. This latest round of cuts and structural overhauls will only further endanger services which keep patients out of costlier health facilities, supporting the individual’s quality of life. To learn more about home care, as well as HCA’s own policy-oriented solutions for making the Medicaid program more efficient, read our state budget special publication On the Edge: Unprecedented State Budget Cuts Threaten NY’s Home Care System, available at www.hca-nys. org/Edge.pdf. Joanne Cunningham is President of the Home Care Association of New York State (HCA)

The home care community supports the idea of examining and improving the


MARCH 2009



By Edward-Isaac Dovere

Statement New Chief Judge Jonathan Lippman outlines his vision for New York’s courts

et us hypothesize that your state already faces a multibillion dollar budget shortfall in the current fiscal year and the forecast is even worse for next year,” Jonathan Lippman wrote in the first sentence of an article published in the Summer 2004 edition of the American Bar Association’s Judges’ Journal. Back then, the gaping shortfalls created by the economic crisis and New York’s outsize spending in recent years was, if anything, an apocalyptic nightmare, all but unimaginable at a time when Lippman was calling the bursting of the dot-com bubble “one of the worst fiscal crises in memory.” But already, five years before he was confirmed as the state’s new chief judge and before there was a $14 billion hole to stare into, Lippman was preaching to other states’ judiciaries the wisdom of following the lead he and Judith Kaye had taken cutting costs and negotiating productively with the governor and Legislature to preserve their budget. Of the seven options the Commission on Judicial Nominations gave Gov. David Paterson (D) for picking Kaye’s successor, none came close to rivaling Lippman’s administrative experience and knowledge. He is, as he and just about everyone who knows him says, a man who knows where every penny of the state court system is being spent, as well as how and why. He is the man who, before he topped off his career of climbing the ranks of the courts system—to ascend to his dual role as chief judge of the Court of Appeals and chief judge of the New York State courts system—spent 11 years as Kaye’s chief lieutenant, translating her theory into application on jury reform and problem-solving courts and earning her quiet support to be her successor. He is the only one of the seven finalists whom Assembly Speaker Sheldon Silver (D-Manhattan) reserved a seat for at the State of the State in January, though Lippman refuted the suggestions that Silver had a hand in his selection, capitalizing on their closeness from childhood. “Contrary to what people think, that make it that we were such great friends—the families knew each other, but we were not friends,” he said. “He was a little bit older than I am, he was more the age of my middle brother. But they were not friends either.” Paterson is a man who knows a thing or two about rocky transitions. In picking Lippman, he ensured a seamless one at the Court of Appeals, even while fanning the flames of dissent about the all-white, all-male list given to him by the Commission. No one was more involved with the work Kaye did in truly recreating the court system, from the reforms that put one million more people on the jury rolls to the creation of the 171 drug treatment courts and 109 community and problem-solving courts focused on domestic violence, mental health, youthful offenses and sex offenses. “My background as a court reformer, as someone who’s not just going to let the parts function every day, I think fit into his view of what a chief judge should be,” Lippman said, reflecting on the conversations he had with the governor in advance of his nomination. As in the Manhattan chambers he took over from Kaye, where Lippman has switched the judge’s personal office from the front, by the door, to the back for the sake of what he believes is a more logical flow, Lippman looks at his plans both for the system he will manage and the bench he will lead as a logical progression from Kaye’s. There may not be any more room for portraits among those that line the carved-wood walls of the Court of Appeals chambers, but Kaye still very much hangs over Lippman and the Court. Lippman is not a revolutionary, at least not when presented with the system he already helped Kaye revolutionize. He is a streamliner, out to preserve the revolution and make it an even better bargain. The process has already begun. Just two weeks after his official investiture, he cut the number of deputy chief administrative judges from five to two and created an Office of Policy and Planning, charged with facilitating access to justice and supporting the hundreds of problem-solving courts around the state. He then placed the problemsolving courts under direct supervision by each district’s administrative judges. Lippman is sure the problem-solving courts work, but he is also sure these changes—and others to come—will make them work better and more efficiently. “The idea is to institutionalize the things that we learned at the local level and bring those lessons into the large economy-of-scale jurisdictions,” Lippman said.



THE CAPITOL Not that he is only focused on the larger picture. Every detail of the court system, from creating staggered calendars to keep lawyers from having to wait all day in court to try their cases, to periodically rotating judges in search of some variety out of specialized problemsolving courts, is on his mind. He takes the idea of access to justice literally, down to the actual doors of the courts. “After 9/11, we did all these magnetometers and security precautions. Well, people are coming into our courthouses now walking in through a magnetometer,” he said. “Wouldn’t it be nicer if they walked in to a person at a desk who said, ‘Can I help you, sir (or madam)?’” Kaye was an associate judge of the Court for 10 years before becoming chief, but before that spent 20 years as a commercial litigator in a white-shoe firm. Lippman went straight from law school into the court system. That, he said, will inform his plans, for now still in his

MARCH 2009

head, to create a more bottom-up approach to managing the courts than Kaye’s. “People teased us as being joined at the hip—and although we were and are,” Lippman said, “we’re very different people and we come from different perspectives. She was an outsider to the court system. I was the ultimate insider.” n the process of becoming the ultimate insider, Lippman worked with judges in just about every division of the state courts. But he is the first chief judge in a century without previous experience on the Court of Appeals and had just three years as a judge, writing few decisions, before getting the call from Paterson. But though he has not been directly adjudicating, Kaye said, his experience more than prepares him for this aspect of the job. “When you administer the courts, you are administering how cases proceed through the court system,” she said. “So it’s not like the two are detached.” There is not a long record of judicial decisions to help predict what kind of judge Lippman will be, but few expect a major shift in direction now that he is on the Court. Like Kaye, Lippman is seen as a moderate liberal, though he describes his own judicial philosophy as simply pragmatic, and his location on the ideological spectrum as “the broad center,” which he represents by holding his hands high above his head and far apart. Also like Kaye, he presides over a court with a majority of judges appointed by Gov. George Pataki (R), who keep decisions anchored on the center right. In line with fellow Democratic appointees Carmen Beauchamp Ciparick and Theodore Jones, he will still need at least one other judge—most likely Robert Smith or Eugene Pigott—to be in the majority. But that does not mean the Lippman Court will be the same as the Kaye Court. The handful of decisions Lippman wrote over his three years as an associate justice of the appellate court and as presiding justice of the appellate division of the Supreme Court are not enough to illuminate his thinking on many issues, but they do provide some clues. In criminal cases, his commitment to holding everyone who comes before the court to each technicality of the law appears less obsessive than that of Kaye, who seemed to develop her intense attention to detail out of experience managing the court system. Lippman is also expected to be more pro-plaintiff than Kaye, whose approach seemed a result both of the years she spent as a commercial lawyer in private practice before joining the Court and because of an interest in keeping the caseload of the courts as low as possible, which developed during her years managing the system as chief. New York University law professor Oscar Chase said he believes Lippman’s decisions demonstrate a judge who moves carefully, writes deliberately and avoids ideology. “It’s true there isn’t an extensive record—we’re certainly not sure how he’s going to approach many of the hot-button issues that are going to come before the court—but there’s enough to show us that this is going to be a careful judge who explains why he comes to the decisions that he does,” Chase said. Lippman’s influence on the Court, however, will not just be about how he votes, but how he leads. Like any chief judge, he has the potential to guide the kind of decisions that come out of the Court, whether through helping determine which cases the Court agrees to hear or the tone he sets in conferences. Vincent Bonventre, a professor at Albany Law and the author of the New York Court Watcher blog, said that



gauging the dynamics may be premature so long as the other judges are still getting to know him. “They’re going to have to feel him out. They’re going to have to determine how much of a leader he really is, how strong he actually is at persuading his colleagues,” Bonventre said, noting that this could be accentuated by the fact that Lippman comes in as chief without any time already on Court, despite his other experience. “You know what happens when you’re the new kid on the block: you beat him up, you test him. … He doesn’t know the ropes, and they know he doesn’t know the ropes.” The judges themselves insist that this will not happen, that they welcome Lippman and look forward to his leadership. “He’s much too wise to say, ‘Okay, I’m the new broom, you guys are going to do it my way.’ We would have been very surprised if he had done that, and he hasn’t,” said Robert Smith, a five-year veteran of the Court. If there is a notable change, Smith expects it will be in where the judges go for their meals together after hearing arguments. “I think he picks a slightly different type of restaurant,”

Paterson is a man who knows a thing or two about rocky transitions. In picking Lippman, he ensured a seamless one at the Court of Appeals. Smith joked. “I think we’ll eat a little more at steak-andchops places now.” Bonventre, Chase and other court watchers say Lippman will need at least a few years to catch up to his new colleagues in learning the intricacies of how the law filters through the Court and how to exert himself as a true force within the group. Where this may be most apparent, many believe, is in the number and shape of the decisions the Lippman Court produces. In her search for unanimous decisions, Kaye earned praise for getting the Court to speak in one voice and criticism for producing cautious decisions that rounded off the edges in search of common ground. Lippman said he would prefer unanimity when possible, though perhaps less so than under Kaye. “That’s our job: to try to come together,” Lippman said, “but I definitely do not believe that has to be in every case, or close to it.” Bonventre, who is himself among those eager to see more dissents produced by the Court, said this may be the necessary way to proceed, given Lippman’s lack of experience wrangling over the law with his colleagues on the bench. After all, Kaye was not only the chief, but the most senior member of the Court by far and one whose determination was unmatched. “Now we don’t have that,” reflected Pigott. “We’re a little bit more on our own.” But he and the rest of Lippman’s new colleagues are hardly lost, Pigott said. “If you add up all the years of the judges of the court, the fact that we’ve lost 25 years with Judith is significant, but we still have Judge Ciparick and [Victoria] Graffeo and [Susan] Read and Smith and Jones,” he said. “It adds up to a pretty significant body of work.” At least for the first few years, Lippman will be hard pressed to impose his will in the same way, Bonventre argued. “He’s not going to get it anyway,” Bonventre said, “so why give the new colleagues something to rebel against?”



MARCH 2009

Jonathan Lippman continues to hold Judith Kaye close as both an administrative and adjudicative model for what he will do as chief judge. This will evolve. Lippman will come to know the quirks of the Court while beginning to rack up seniority: by the time he is aged off the bench in 2015, three of the current judges (Ciparick, Jones and Smith) will have already turned 70 and been replaced—perhaps, if Democrats retain the governor’s mansion, by judges who nudge the Court leftward. Most assume that Lippman will, broadly, also follow Kaye in the kind of decisions he produces, though no one knows for sure: unaddressed in what he has ruled on so far are the debates that have roiled the Court of Appeals of late, like gay marriage and public-education funding, and those that might soon, like child custody, search-and-seizure and the right to die. Lippman is bound not to discuss his views on cases that might come before him, but there was not even a public effort made to get any of the coded hints that judicial nominees often provide when questioned by other state legislatures or the United States Senate, like whether they believe in a right to privacy. Instead, the response to Lippman’s nomination focused almost entirely on complaints about the list of finalists produced by the Judicial Nominating Commission. Seconds were spent on inquiry and review of his opinions, either at the rushed Senate Judiciary Committee hearings or the full confirmation vote, which was recorded as a 59-0 voice vote. Senate Judiciary Chair John Sampson (D-Brooklyn) defended the approach he and his fellow senators took to the Lippman nomination. “His record is his record. We know what his record is,” Sampson said. “Chief Judge Lippman is in the middle. To me he’s a centrist. We know what his politics are. The public is aware of it.”

Most members of the committee knew Lippman through his appearances at hearings over the years. That made him an easy person to confirm, Sampson said. “It’s not by words or by rhetoric. It’s by deed. His deeds were exemplified when he was chief administrative judge and appellate judge and presiding justice,” Sampson said. “On every step of the way, his administrative skills and legal skills were exhibited.” Lippman would anyway not have been able to answer many questions about how he will rule, so Sampson said he saw no point to spending time on that, preferring to read Lippman’s previous decisions and shrug off those

my background, my thoughts, my qualifications, rather than just saying, ‘He’s great, but we have problems.’” Lippman is already confirmed and, unsurprisingly, is careful not to reveal too much about what will guide him on the bench. He did, however, speak a little about his general principles of legal interpretation, which look not just at the words printed on the pages of the law books. “We don’t make the law. We interpret the law,” he said. “But it’s not always as clear cut as that. What do you do when there’s nothing in the statute that gives you guidance? What do you do when the law doesn’t work anymore? What do you do when societal values have so changed? They’re not black and white issues.” At least until Lippman begins voting and writing

“It would have been better for the public and the institution to have a dialogue on the many challenges confronting the court system, and on the adjudicative side,” Lippman said of his confirmation process. “It would have been better to have a discussion about my background, my thoughts, my qualifications, rather than just saying ‘He’s great, but we have problems.’” who wanted extensive hearings on the new chief. For his part, Lippman agreed that the selection process deserves another look. Nonetheless, he agreed that a more detailed confirmation hearing could have initiated a necessary conversation about state law and where the Court of Appeals should be heading. “It would have been better for the public and the institution to have a dialogue on the many challenges confronting the court system, and on the adjudicative side,” he said. “Those are legitimate issues that people can raise, and we should be discussing the process. But yeah, it would have been better to have a discussion about

opinions on the cases he started hearing in late March, the answers to those questions remain a mystery. New Yorkers will have to wait in suspense. n none of what lays ahead, predicted Kaye, will Lippman’s job be easy. “Pushback is a word I learned to live with immediately upon my swearing in as chief judge,” she said. Lippman has seven years before he comes up on the mandatory retirement age—a remarkably short amount of time as chief, seemingly made shorter since he arrives without any previous time on the Court of Appeals to



MARCH 2009


Now on the Court, Lippman Pledges To Revisit Nomination Commission uch more time was spent complaining about the Commission on Judicial Nomination’s list of finalists to succeed Judith Kaye than on the biography or record of Jonathan Lippman, the man Gov. David Paterson (D) nominated off that list for the job. The day after it was released, Paterson and Attorney General Andrew Cuomo (D) joined to express their dissatisfaction with the all-white, allmale group of choices presented to the governor by the Commission. They announced that they were exploring options to do something about it. Nothing ever came of this. But the outrage continued through Lippman’s confirmation hearings with the State Senate Judiciary Committee and on to the floor of the Senate. “We can put a black man in the White House, but we cannot put a black man in black robes,” said State Sen. Eric Adams (D-Brooklyn), addressing his colleagues on the Senate floor Feb. 11 before voting to confirm Lippman, whom he praised. “The dream that Judge Lippman is living is a nightmare for blacks and Hispanics.” Adams finished by calling for the Legislature to commit to making changes, even though they were putting one of the Commission’s choices on the bench. “What I’m hoping is that out of all this madness is an opportunity,” he said.


lower his learning curve. But he comes in with the running start of his familiarity with the Court and most of the other six judges, as well as the imperative to move quickly, given the deadline looming over him. With the number of things to do and the amount of power he has, Kaye said, there is more than enough time to make a significant impact. “Whether you have 15 years, as I had, or seven years or less than that, I think when you’re sitting in that office, you just look at today and look at tomorrow,” Kaye said. “Especially today, when who knows? Have we hit the bottom? You can’t make these long-range plans, your five-year, 10year, 15-year plan. You have to think about what you can do today.” The standard administrative and adjudicative responsibilities would be enough—Kaye used to joke that she spent 80 percent of her time on each, and Lippman said he expects to follow suit. But the to-do list is much longer than that. The circumstances of his ascension to the court have made reforming the nominating process a priority, but not above the festering problem of judicial salaries, which have been frozen for over a decade. Three lawsuits geared to force the state into approving raises are working their way through the court system, with Lippman’s name replacing Kaye’s as the lead plaintiff. Helping resolve the salary issue and achieving a more diverse judiciary were main topics of conversation with Paterson before he was nominated, Lippman said, and he pledged to accomplish both goals before his time on the court is done. But he does not stop there: the town and village court system in the state will finally be untangled, he said, and there will be major changes in indigent defense, civil legal services and probation. Pigott, who was also a finalist, said he put his name into consideration

Judiciary Chair John Sampson (D-Brooklyn) vowed to continue the fight. “I want the selection process to take into consideration what the entire state of New York looks like,” Sampson said. “When you have a process that really disregards the people of the State of New York, people do not have the faith, the trust or the respect of the courts.” New York’s current system is fairly new. Prior to 1974, chief judges were elected, much like any other statewide official. When the process was changed to give governors nominating power, the Commission on Judicial Nominations, made up of appointees of the governor and legislative leaders, was created to screen applications and produce a list of seven names that the governor is legally bound to adhere to in making his choice. As Sampson looks to what may be next, he said he does not want to get rid of the Commission on Judicial Nominations entirely. “I’m looking at this situation as an aberration,” Sampson said, referring to the all-white, all-male list which resulted in Lippman’s nomination. “I don’t want to throw the baby out with the bathwater.” Sampson said he is working on several proposals to change the system that he plans to pursue either through internal changes or legislation. Some ideas in the mix, he said, would be to put term limits on the

members of the screening committee and to increase the number of finalists produced from seven to 10. Sampson said he also wants to see the Commission reach out to more bar associations and other groups, including those for women and minorities, in order to better inform their decisions about the options they present to the governor. “Their outreach needs to be more thorough,” he said. Sampson said he is eager to involve Lippman in the deliberations over the changes, adding that the new chief judge’s commitment to addressing the concerns spoke to his preparedness for the job. “He’s a person who understands what the problem is, and he’s a person who wants to solve problems,” Sampson said. Lippman said changing the process was a main topic in the conversation he had with the governor in advance of his nomination. “It’s probably 30 years since this system was put in place,” Lippman said. “It’s time to take a second look at it.” Even though he was, of course, pleased with the result of the process, Lippman said he was committed to looking at being part of the reform effort. “Not only do I think we should be involved, we will be involved,” Lippman said. “It affects the future of the judiciary, so absolutely.” —EIRD

for chief judge to expand the breadth of Paterson’s options and call attention to upstate-specific judicial concerns. He said he has already discussed these with the new chief judge. Then there is Rockefeller drug law reform. Judges’ input is essential, Lippman said, since they have seen firsthand the consequences of the current laws and should be given a role supervising whatever treatment programs are woven into rewritten laws. Lippman wants and expects to have a role as the governor and Legislature move forward. “They’re not going to move without us,” he said. With Democrats in control of the second floor and both chambers of the Legislature for the first time in decades, Rockefeller drug law reform could be just the first of several key areas of the law to be reconsidered and rewritten. At this moment of political and fiscal turmoil for New York, a chief judge who arrives justifiably bragging about knowing every nook of the state judiciary has the potential to be a critical force. What and whom Lippman knows from his long career in the courts not only puts him in the position to steer how the system is managed and the amount of money it is allocated, but also the role the third branch has in guiding the other two. Lippman has the confidence of Paterson. He has the relationships with the senators on the Judiciary Committee and in the leadership. And, of course, he knows Silver well. Lippman’s mastery of court administration and budgets was leg“There is no question that access is endary enough to inspire a mock-dictionary entry presented to important,” Lippman joked, “access to him by friends for his 60th birthday. He proudly hangs it in the justice and access to the Legislature.” Manhattan chambers he took over from Kaye.



MARCH 2009

With MTA and Budget in Crisis, Legislators Seek Public Authority Reform Brodsky pushes plan as Senate Democrats waver over approach BY ANDREW J. HAWKINS


he Metropolitan Transportation Authority is out of money, the New York Power Authority is looking to hike its already astronomical energy rates, and Industrial Development Agencies, criticized for being rife with abuse, appear no closer to reform than they were a year ago. And with the state facing a yawning budget gap, some lawmakers say now is the time to overhaul the state’s labyrinthine system of public authorities. “We have to look at ways of cutting back on public authorities and commissions,” said Assembly Member Joseph Saladino (R-Nassau), who went toe-to-toe with the Long Island Power Authority earlier this month to oppose rate hikes. “This has been an ongoing abuse of public dollars.” The state government has undertaken numerous efforts in the past to bring the state’s huge shadow government into the daylight, but several of these publicprivate authorities are still criticized for being a drag on the system and responsible for much of the debt in the bloated state government. Many members of the Legislature say they are interested in more reform. But key lawmakers are still unsure on how exactly to tackle the task, when, famously, no one even seems to know how many authorities there are in the state. Assembly Member Richard Brodsky (D-Westchester), chair of the Committee on Corporations, Authorities and Commissions, said he has tried to insert a plan to reform all the state’s authorities into the MTA bailout bill, but has been unsuccessful so far. With the entire state government under Democratic

control, this could be the year to do more, Brodsky said. Even though budget panic has stymied his efforts so far, Brodsky said he plans to keep trying. His plan would establish an independent agency to oversee authority spending and provide a “real-time look at MTA and other authority documents.” “If we’re going to give them $20 billion,” he added, “we should reform the way they operate.” State Sen. Bill Perkins (D-Manhattan), the new Senate Authorities Committee chair, agreed in principal with Brodsky’s concerns, but he added that it could wait until after the budget negotiations were through. “If we don’t get it done now, doesn’t mean we’re not going to get it done,” Perkins said. “We’ve spoken with Brodsky to find out about his process, and we’re also looking at other ideas as well.” But other legislators said that there was far too much waste and fraud in the authority system to let them continue to operate unimpeded, especially with the economic downturn as a backdrop. The widespread use of public authorities in the United States was pioneered in New York State by Robert Moses; they were originally set up to operate like public-private corporations, providing businesslike management for large projects like construction of subways and canals. But over the years they have proliferated to a size where they are now considered something of a shadow government, free of government meddling and oversight. Gov. David Paterson (D) seems aware of the concern surrounding state and local public authorities. He is publicly opposing the New York Power Authority’s rate hikes and has proposed consolidating the Empire State Development

Corporation, the Department of Economic Development and the New York State Foundation for Science, Technology and Innovation, which some Republicans oppose, saying it would disproportionately harm upstate New York. In the past four years, there have been several efforts to drag authorities out of the shadows. Then-Comptroller Alan Hevesi (D) audited 700 or so entities that borrow billions of dollars each year with little oversight or public notice. Gov. George Pataki (R) appointed a commission to look at authority reform, as did Gov. Eliot Spitzer (D). The Authority Budget Office (ABO), overseen by the governor’s office, was created in 2005, requiring hundreds of authorities, corporations and other agencies to begin releasing their budgets online to be viewed by the public. And yet problems persist. Million-dollar contracts are still given out with little oversight. Taxpayers are still left to pay more than $5 billion in debt-service payments on more than $43 billion of debt owed by the state’s public authorities. Ira Millstein, an attorney who was appointed by Pataki to head the last authority reform commission, said that the ABO should be allowed to continue their work before lawmakers rush in with any more plans. “Before we put any more burdens on these people, let’s find out whether they’re doing what they’re supposed to do under the existing law,” he said. But even though he is undecided on how to fix the authority system, Perkins said he is committed to doing something. Otherwise, these public-private entities will continue to be a drag on the system. “No one quite seems to have a handle on them,” Perkins said. “They’re like rabbits running amok.”

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Who Is Jon Cooper, and Why Does He Think He Can Run for Senate? BY SAL GENTILE n April 30, Jon Cooper and his longtime partner, Rob, will drive up to Greenwich, Conn.,to “finally take the plunge,” as Cooper put it, and get married. When they get back, Cooper will decide whether to take a second plunge: to actually enter the campaign for United States Senate that he has begun to actively explore. Cooper, the majority leader of the Suffolk County legislature and a veteran Democratic fundraiser, is weighing a challenge to Sen. Kirsten Gillibrand in next year’s Democratic primary. Some have gushed about his record as majority leader and his work with Barack Obama’s presidential campaign, for which he was the Long Island chair and raised $1 million. Others have brushed him aside as a “nobody,” dismissing his hypothetical bid as mere self-promotion. The overwhelming majority of people, though, have no idea who he even is. Cooper began to attract attention in political circles when he endorsed Obama in early 2007 and joined his national finance committee. But his county legislature district, which he has represented for eight years while also running his manufacturing business, includes just 50,000 people. Nonetheless, Cooper has begun the preliminary conversations, reaching out to major Democratic donors, gauging support among statewide interest groups. The calls have poured in, he said, from members of the Obama grassroots network. One organizer, an election lawyer by trade, has already offered to take care of Cooper’s petitions and campaign finance filings for free. “They see me, for the most part, as a true progressive on a bunch of issues that I think would be important to Democratic voters, and the typical Democratic voter in a primary,” Cooper said of the people urging him to run. “Who knows what the political landscape is going to look like in New York next year.” Cooper has attracted national attention for a few headlinegrabbing bills he sponsored in the legislature, such as a measure


banning the use of cell phones while driving, and another banning the controversial dietary supplement Ephedra. Both bills were the first of their kind in the country. He has also cultivated a political profile that has allowed him to build inroads in what has historically been one of the country’s most conservative regions, helping the Democrats there take over the county legislature. If he beat Gillibrand, Cooper would be the first openly gay senator, and likely the only gay candidate in the race. But he rarely talks about being gay, and relies on his family background—he has five adopted children—to talk about issues that resonate with white, middle-class voters, such as immigration and combating Internet predators. “He’s not a one-dimensional elected official whose only issue is LGBT rights,” said Assembly Member Micah Kellner (DManhattan), who has worked with Cooper on LGBT issues. “It shows you what a dynamic leader he is, and how far Suffolk has come, that that was a Republican stronghold, and now an openly gay man is the Democratic leader.” But gay or not, his lack of name recognition could end up being disqualifying, said Assembly Member Daniel O’Donnell (DManhattan). “There’s always discussion in any of these things about viability,” said O’Donnell, who was the only gay elected official on Gov. David Paterson’s (D) short list to replace Hillary Clinton. “I’m a state legislator for six years, and I know every single state legislator across the state. I come from New York City, which is a huge part of the Democratic primary populace. And still, it would be difficult for me to consider and make the case that it’s a viable thing to do that.” O’Donnell added: “So, in the end, if it’s not viable, or it’s highly unlikely that it is viable, then what is the point?” That is a question that will be at the heart of Cooper’s discussions with supporters and political advisers in deciding whether to run, as well as whether he can carve out a convincing rationale for his candidacy. “Basically, you need resources and you need message, and your message should be directly

tied to your rationale,” said Allen Cappelli, who ran H. Carl McCall’s campaign against thenGov. George Pataki (R) in 2002. “If there are other people who are looking at it who have a higher name recognition and a similar rationale, it’s going to be extraordinarily difficult for you to be able to get any resources.” For that, Cooper said, he will be able to rely on the connections he built as a donor and fundraiser for the Obama campaign. He hopes to bypass the traditional model of campaign-building through a combination of his own personal wealth (which is in the millions, though not enough to self-finance) and the logistical support of potentially hundreds of grassroots volunteers across the state. “Our grassroots organization on the Obama campaign has stayed intact in a way that it hasn’t stayed intact in other states,” said one upstate organizer, who requested anonymity because her day job requires her to maintain a cordial relationship with Gillibrand. The competition for that network and its resources is already ratcheting up. Obama organizers say they have already received repeated entrées from Reps. Steve Israel (D-Suffolk), Carolyn McCarthy (D-Nassau) and Carolyn Maloney (DManhattan). Maloney has already held a fundraiser at the Manhattan penthouse of Virginia Davies, one of the earliest Obama organizers in the state and a major fundraiser behind Women for Obama. If all three of them jump into the race, as well as one or two others whose names have been floated, the calculus for Cooper becomes clear: He would need only to get something like 15 percent to win, and build a campaign toward that goal. And while the Obama grassroots may consolidate behind Cooper, few regard that as enough to make his candidacy credible. He would have to demonstrate some early support among major Democratic donors, activists or interest groups, such as organized labor or the LGBT lobby. “For somebody who is a relative unknown, it’s a very daunting task,” Cappelli said. “People running for office get intoxicated by the idea.”

MARCH 2009



MARCH 2009


Race To Replace Foley in Brookhaven May Be Harbinger of Race Against Foley Both parties train sights on heated March 31 town supervisor contest BY SAL GENTILE eeling Republicans are looking to a local race in Suffolk County to see if they can mount a comeback. That race, between Republican Council Member Tim Mazzei and Democrat Mark Lesko, a former federal prosecutor, is to replace Brian Foley (D) as Brookhaven town supervisor. Foley’s upset defeat of longtime GOP State Sen. Caesar Trunzo in November helped flip the majority to the Democrats. Republicans hope that by regaining the town supervisor foothold in the March 31 special election, they can take back the crucial Long Island Senate seat that is at the top of their target list. “It would be a shot in the arm,” said Suffolk County GOP chair Harry Withers. Assembly Member Phil Boyle (RSuffolk) agreed. “It really is a bellwether as to which direction Suffolk County and other parts of New York State are going to be going,” Boyle said, adding that a victory “will energize the Republican base, it will energize the Republican volunteers. There’s a tremendous amount riding on it.”


If Mazzei is unable to win the seat for the GOP, some Republicans fear that area will fall further into Democratic hands. If they win, though, party officials think they will be able to field a better candidate against Foley, which would increase their chances of taking back the State Senate. “A potential Republican candidate against Brian Foley, if the Democrats win the supervisor’s race … might be a little disheartened, and say, ‘maybe I’m not going to give it a shot,’” said Boyle. “But if Mazzei wins, you’re like, ‘wait a minute, the Republicans are looking good.’” Boyle himself was once considered the leading candidate to succeed Trunzo, whose career in the Senate spanned more than 30 years. But after it became clear that Trunzo would not retire, Boyle scrapped those plans and moved out of the district, even though his name still occasionally shows up on Democratic lists of potential candidates for the seat. Viable Republican candidates can be hard to come by in Suffolk, where the county legislature, county executive’s office and most town boards are now controlled by Democrats. The one name that has consistently cropped up in Republican

circles is Lee Zeldin, an Iraq war veteran who got just over 35 percent of the vote against Rep. Timothy Bishop (D-Suffolk) last year. Senate Minority Leader Dean Skelos (R-Nassau), who has made reviving the Republican brand in Long Island a priority, has already reached out to Zeldin to gauge his interest in the seat. Zeldin said he is considering it. “The one thing that is very apparent is that the State Senate is very committed to regaining that seat,” he said. “I’m absolutely sure that it’s going to have all the resources.” Politics in Nassau and Suffolk have historically been dominated by white, upper-middle-class voters with conservative tendencies. But shifting political and demographic trends have allowed Democrats to build inroads there, as Latino immigrants and former New York City residents have flooded hamlets like Islip, in Brookhaven. “Brian had a much, much bigger sort of blue-collar base,” said one senior Democratic strategist, explaining what makes Foley’s re-election bid different from traditional Long Island races. The supervisor’s race will offer

Brian Foley has been actively campaigning on behalf of Mark Lesko to succeed him as town supervisor, a race that could have major implication for his re-election next year. Democrats an early test of whether those new additions to the rolls are reliable voters, or whether they came out in droves in November just to vote for Barack Obama. Even the Working Families Party, which has been trying to expand its influence beyond New York City, has poured volunteers and resources into the race. “The town is constantly changing, new people are moving into the town, and the demographics are shifting,” said Suffolk Democratic chair Rich Schaeffer. “And so our test is going to be whether we can capitalize on that and consolidate our gains.”


In Face of Deflated Economy, Hope for Consolidations Buoyed Funding shortfalls could force reforms that were for years resisted BY KAREN ZRAICK ew York ranks as the state with the third most layers of bureaucracy in the country, according to a 2007 report, and is one of the few states where a village, town and county can all tax a single homeowner. On top of that, water, lighting and other types of special districts often send their own bills. Arcane laws have foiled reform efforts for years, but some see hope for change as the full brunt of the recession hits the state. With money short, the efficiency of combining services has become more alluring: consolidation could enable adjoining towns to share municipal buildings or brush chippers, police and fire departments to combine operations and for even more school districts to merge resources that enable them to afford more specialized instruction, like Advanced Placement classes. “Sometimes a crisis can be an opportunity,” said former Lieutenant Governor Stan Lundine (D), who chaired a commission created by then-Gov. Eliot Spitzer (D) in 2007 to look at local government efficiency. “I think that now is a time when it’s possible to do some things that in ‘normal times’ would be difficult to do.” Some of the commission’s recommendations were included in the governor’s 2009 executive budget, including ending pay and perks for special district commissioners and offering incentives to municipalities that choose to merge. He added that doing a study would simply give voters data on which to base their decisions. Lundine Commission member Gerald Benjamin, a professor of political science at SUNY New Paltz, explained that the evolution of the state’s unwieldy collection of local governments took four centuries and cues from both the Dutch and English models of governance. Counties and towns were created by the state, while residents created villages from the bottom up as time passed. As the population expanded, new municipalities were added but few were ever dissolved. Whereas many New England states abolished county government earlyintheirhistory,(andConnecticut did so in 1960) New York has never


been able to significantly reform its cumbersome system. “There’s a fundamental principle underlying all local government, which is community, which is powerful and positive,” Benjamin said. “People conflate this structure or that structure with community.” The current effort to change things has gotten support from Attorney General Andrew Cuomo (D), who in December unveiled one of the most far-reaching consolidation proposals. Many of the points grew out of his office’s investigations into fraud, abuse and waste in municipal offices. Staff is currently drafting a bill that would change state law to allow a streamlined process to merge local governments and services. It would allow 10 percent of voters or 5,000 citizens—whichever is less—to sign petitions to force a vote on such plans. Local governments would also be empowered to initiate mergers. Assembly Member Sam Hoyt (DErie), chair of the Local Government Committee, hopes to co-sponsor the legislation. “When you go to some of these special districts, I think there’s a whole lot of patronage and a whole lot of waste,” Hoyt said. “This is about survival. This is about getting back to prosperity in New York State—and one way of addressing the high tax burden that the taxpayers have to deal with.” Under Cuomo’s proposal, no municipality would be forced to act, a key reason Cuomo has gotten a warm reception upstate and in Western New York. Past measures have faced opposition from small municipalities with deep-seeded concerns about retaining control over their affairs—as well as local officials loathe to eliminate their own jobs. Unions have also been wary about potential job losses and calls for cuts to pension and health care benefits. CSEA, which represents tens of thousands of workers in local government, has said the 10 percent of voters needed to force a referendum in Cuomo’s proposal is too low a threshold. But across the state, the political tide now seems to be behind the effort. Onondaga County Executive Joanie Mahoney said mergers are a top priority for her and the new intergovernmental director she has

hired in looking for ways to combine the county’s 941 government units. “The residents of Onondaga County want the local governments to work together so that we can have a more modern and efficient government,” Mahoney said. “Over the last 10 years, it’s a topic that has been talked about constantly, but we didn’t see any real concrete examples of successes until recently.” But even as more municipalities consolidate services, many would still hesitate to entirely dissolve local governments. Just ask Mahoney’s constituents in the village of Tully, 14 miles south of Syracuse, with its vast corn and sunflower fields and a population of approximately 1,000. The village has one stoplight and an annual budget of about $900,000, most of it going to maintain sewer and water infrastructure. The village board has refused to accept a $58,000 grant to fund a study on the pros and cons of merging the village with the nearby town of Tully. Scott Clark, the village mayor, has loudly argued that the village is already run efficiently, especially after already consolidating many services with the town of Tully. He said he would not trust an outsider bureaucrat to run their independent water and sewer system as well as the town does. The people close to the issue who are spending their own money, Clark said, are the ones with the incentive to keep costs low. “We talk to constituents every day,” said Clark, a firefighter who earns an extra $4,000 annually as mayor. “I can’t even go to the store, pick up my mail, put gas in my truck without somebody coming up to me to talk about some kind of issue. But can they talk to the county legislator, the county executive?” he asked. “I don’t even see them.” Clark’s second four-year term expires in March. State Sen. John DeFrancisco (R-Onondaga), who secured the grant from the New York Department of State, hopes that Clark’s successor will be more amenable to doing a study. “What held it up is the turf wars that are the main resistance between villages and towns consolidating,” DeFrancisco said, though adding, “It’s not particular to Tully.” Direct letters to the editor to

MARCH 2009



MARCH 2009


Four-Day Weeks Cause Frustrations, Cutbacks for Those with Other Jobs Part-time legislators try to juggle businesses and budgeting BY JULIE SOBEL four-day work week may not inspire pity for the legislators among the public, but for those who hold to the Legislature’s official part-time definition and have second jobs away from the Capitol, life becomes much more complicated when most of the week is spent in Albany. Lawmakers balancing two jobs credit BlackBerries, cell phones and late nights for their ability to manage the tough schedule. Others, like State Sen. Darrel Aubertine (D-Oswego/Lewis/St.


Lawrence), have farms to run. Assembly Member Michael Fitzpatrick (R-Suffolk) pulls double duty as an investment associate with UBS Financial Services in Port Jefferson. “You have to adapt,” said Fitzpatrick of the added time in Albany, noting that he talks to clients on his cell phone during legislative days when necessary. “I just make sure I have the Wall Street Journal and check in on CNBC.” State Sen. Michael Ranzenhofer (RErie/Genesee) is a partner at Friedman & Ranzenhofer, P.C. The four-day work week in Albany makes for a hectic schedule, he

For New Moms, Navigating FourDay Week Requires Extra Care

said. “I’m just working all the time,” he said. “Whether it be on Senate business or dealing with constituent work, or my business. I mean, it’s just nonstop.” Kae Warnock, a policy specialist at the National Conference of State Legislatures, noted that some legislatures are full-time: states such as Washington, Virginia and Arizona hold five-day work weeks regularly. However, for the most part Warnock said she did not think these legislators were holding additional jobs. But the New York experience of cramming in additional days is typical, she said. “At the end of a legislative session or during a crisis, most legislatures add more time on,” Warnock said. “So it’s not uncommon for a legislature to meet even on the weekends if they need to.” Some New York legislators have cut back on or given up their second jobs entirely. Assembly Member William Barclay (R-Onondaga/Oswego) is a partner of the law firm of Hiscock and Barclay, but he says he no longer practices much law while the Legislature is in session. “I used to try to get into my law office one day a week, but with the four-day work week I can’t,” he said. “I guess the four-day week puts a little more strain on it. But I wasn’t doing much before.” Some legislators are even less involved with a second job than their bios imply. Russ Haven, Legislative Counsel for

NYPIRG, notes that it can be difficult to determine what lawmakers do in their second lines of work.

“You have to adapt,” said Assembly Member Michael Fitzpatrick of balancing his duties in Albany with his work as an investment associate with UBS Financial Services. “The ethics disclosures are pathetic and generally unhelpful,” said Haven. “It’s not clear to me that this additional day is taking a huge toll on their outside work,” Haven added. “And if it is, I would argue that their first obligation is to the public and not their outside income. That’s what they signed up for.” Despite the four-day work week, whether the goal—an on-time budget—of having them will materialize remains an open question. Among the lawmakers with two jobs, many doubt whether the fourth day is a worthwhile use of their time and taxpayers’ dollars. “We could be doing a lot more in the three-day weeks that we have,” said Fitzpatrick. “I feel like a gerbil on a wheel in here sometimes.” Direct letters to the editor to

With her in Albany four days each week, freshman Assembly Member Addie Russell and her husband James walk a delicate balance in caring for their one-year-old son, Aaron. ssembly Member Addie Russell (D-St. Lawrence/Jefferson) was in session on a Wednesday during February when her first child, Aaron, turned one. She flew home for the birthday party and flew back to Albany the next morning. “They only turn one once,” Russell said. “Hopefully things will turn around and we’ll go back to a more normalized schedule.” Russell is one of two new mothers serving in the Assembly who is trying to balance a baby and the current four-day work week in Albany. Complicating things further, she and Assembly Member Grace Meng (D-Queens) are both freshmen who are still learning the ins and outs of the job. “He’s with me this week. He’s actually here in the office with me right now. He’s hanging out having fun,” Russell said happily. “Of course, I brought reinforcements,” she added, referring to her sister, who was with her in Albany to help care for the baby. Meng, like Russell, has family help for her one-year-old, Tyler. “My husband’s aunt lives with us, so she takes care of him pretty much fulltime,” she said. Though she does not worry about her son while at work, Meng said she does miss him. If the Assembly finishes early on a Wednesday she will sometimes take the Amtrak home that evening to see her family and return to Albany Thursday morning. Her son does not usually make it up to Albany. But last week his dad had a few days off and brought their son to observe session. “The speaker asked him to give a high five,” she said. “Thank God, he did.”



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MARCH 2009

The Election Lawyer in Winter BY SAL GENTILE ast fall, Martin Connor (D) was forcibly retired from the State Senate by Daniel Squadron (D-Brooklyn/ Manhattan), a well-connected 28year-old upstart who was backed by New York City Mayor Michael Bloomberg (Ind.). Now, he longs to return the favor. “I certainly don’t trust anything Bloomberg says,” said the former Senate minority leader and 31year veteran of New York politics, sipping coffee on a recent afternoon at Eamonn’s, an Irish pub just down the street from his law office near Brooklyn Borough Hall. “It just came out in The Village Voice, Bloomberg giving $1.2 million to the Independence Party,” Connor said of the recent disclosure that Bloomberg funneled money into the party’s coffers. “I don’t know how he did that. He’s not allowed to make that kind of contribution. That’s illegal. And I’m going to look into that more.” In his first extended interview since losing last September, Connor made it clear that he still longs for the life of a state senator. And he still seethes about his 8point loss to Squadron. He has still never called Squadron to formally concede. Even a question about campaign finance reform, a seemingly unrelated issue, induces a diatribe about Squadron, who was backed by the Working Families Party: “Let’s say you’re running against me for State Senate in the primary,” he said. “You know how much an individual can give to a political party, whether it’s Democrat, Republican or Working Families? $85,000. So that meant, if I’m a well-connected, wealthy candidate running for the State Senate, supported by Working Families, I can get all my wealthy friends to give me up to $6,000. But I can also say, ‘go see [WFP executive director] Dan Cantor,’ and they can write $85,000 checks. You know how much a political party is allowed to spend in your race? Unlimited.” Aside from his career in Albany, Connor has long established himself as one of the state’s most formidable election lawyers. That expertise came to bear already this year, as he figured prominently in each of three Feb. 24 special elections for New York City Council, knocking one candidate off the ballot for using the word “families” in his party name and catapulting another to the front of the field.



Marty Connor, still simmering over his loss to state Sen. Daniel Squadron last year, is eager to take on Mayor Michael Bloomberg in court this year. He made close to $10,000 just from those three Council elections over the course of a few days, according to campaign expenditure reports. “I left office after 31 years, no savings account, no investments, not a share of stock,” he said. “I was fortunate enough to be busy the first couple months of the year, probably made more in law practice in two months, definitely, than I made all last year.” He watched as Senate Majority Leader Malcolm Smith (DQueens), anxious to gain control of the chamber but inexperienced at pulling the levers of power, struggled with negotiations with three renegade Democrats. Smith weakened himself right out of the gate, Connor says, by granting concessions to the three. “I wouldn’t have done it, but I had a lot more experience than he did … he was leader for two years,” Connor said. “I would’ve said, ‘do what you’ve got to do. If we have to wait another two years … you know the demographics of this state. We’re going to take over, and then you guys will be nowhere.’” Connor said he is also disappointed with what he sees as a lack of leadership in the conference, which has so far stalled on most of its major campaign promises, ostensibly because of the fiscal crisis. “I’m really disappointed [that] there doesn’t seem to be anybody in that conference who could hold these things and push them through,” he said.

If he were still leading the conference, Connor said, he would use the knowledge he has of his old Republican colleagues’ personal opinions—collected over the years from drinking sessions in Albany bars and cloak-room schmoozefests—to facilitate the push for controversial measures, such as legalizing gay marriage. “I’d be talking to a number of my Republican colleagues who I think might be persuadable,” Connor said. “Over the years I’ve heard, ‘Come on, my nephew’s gay, he and his partner are over our house all the time.’ Little things like that, that people coming in just in the last couple years don’t know, and that those members would never confide in.” The fact that he could be using his institutional knowledge to steer the Senate through this difficult moment for the conference and state has not escaped Connor, either. Though he says he is concentrating on his law practice— and on beating Bloomberg this year, especially if hired by a client to help—he admits that political life still entices him. “I miss it,” he said, quietly and without elaboration. Even after 30 years in a largely powerless minority and a fairly undignified exit, Connor said, he would still consider running for office—even for his old seat, in a rematch against Squadron. “I wouldn’t rule it out,” he said of taking on Squadron. “If I decide to run for office, it wouldn’t really matter who was there.”






Classifieds DEPUTY PRESS SECRETARY OFFICE OF MANHATTAN BOROUGH PRESIDENT, SCOTT M. STRINGER Responsibilities: Help organize press conferences and other events; Manage media inquiries, press relationships, respond promptly to press requests for information; Draft and distribute press materials including press releases, media advisories, quotes and statements; Occasionally edit position papers and policy briefs; Oversee website postings, monitor and clip daily and weekly publications; manage photo archive, oversee interns and other administrative duties. Qualifications: Minimum of 3-5 years media relations, public affairs or communications experience, familiarity with the New York City political environment preferred; History of aggressive media outreach and proven ability to effectively manage press events; Excellent verbal and written communications skills; Knowledge of New York City government and experience working for an elected official or a city agency preferred; Knowledge of and experience working with New York City media strongly preferred. Interested candidates send resume in Word or PDF to NYC residency is required. The Office of the Manhattan Borough President is an EOE.

SPECIAL ASSISTANT TO THE DEPUTY BOROUGH PRESIDENT AND SENIOR ADVISOR TO THE BP OFFICE OF MANHATTAN BOROUGH PRESIDENT, SCOTT M. STRINGER Responsibilities: Assist the DBP/Senior Advisor on special projects and initiatives; Manage the DBP/Senior Advisor’s calendar of events; Handle incoming calls, place calls and communicate on behalf of the DBP/Senior Advisor; Maintain current directories of internal and external contacts; Prepare and disseminate correspondence, reports, and other documentation; Prepare check requests, expense reports, purchase orders and other internal and external forms; Perform other tasks as necessary or required. Qualifications: Extensive experience as an Executive Assistant, or related job; Bachelor’s degree preferred; Excellent interpersonal, verbal, and written communication skills; High level of commitment to promote Borough President’s mission; Ability and enthusiasm for working with staff at all levels of the organization; Individual initiative and strong motivation to complete projects and day-to-day tasks. Interested candidates send resume in Word or PDF to NYC residency is required. The Office of the Manhattan Borough President is an EOE.

DEPUTY DIRECTOR OF EXTERNAL AFFAIRS OFFICE OF MANHATTAN BOROUGH PRESIDENT, SCOTT M. STRINGER Responsibilities: Represent Borough President and communicate goals of the office with key stakeholders; Act as an intergovernmental liaison to all elected officials,

government agencies on city, state, and federal level; Develop outreach strategies for office events and assist in managing large scale events; Monitor legislation, government regulations and conduct research on Borough President’s legislative priorities; and Maintain Borough President’s appointments to various boards and commissions. Qualifications: Bachelor’s degree required; at least one year of experience with government, civic and policy/research; Knowledge of Microsoft Excel and Word required; Familiarity with policy and legislative issues facing New Yorkers, inner-workings of government and the legislative process on city, state and federal levels; Flexibility with working long work hours including weekends and evenings. Salary will be commensurate with experience. Interested candidates send resume in Word or PDF to resumes@manhattanbp. org. NYC residency is required. The Office of the Manhattan Borough President is an EOE.

DEPUTY DIRECTOR OF BUDGETS AND GRANTS OFFICE OF MANHATTAN BOROUGH PRESIDENT, SCOTT M. STRINGER Responsibilities: Manage the Office’s grant programs including Borough Needs and Cultural Tourism; oordinate fiscal management of Federal and State grants; Implementation of grant performance review and follow-up programs; Write bi-monthly grants newsletter and plan events to assist non-profits; Generate new policy ideas on budgetary and financial issues; Respond to internal and external requests for information; and Support and spearhead special projects as needed. Qualifications: Bachelor degree and at least five (5) years of experience with government, civic, policy/research or similar organizations; At least two (2) years of supervisory/management experience with proven motivational methods; Familiar with the City budgeting process and the City’s Financial Management System a plus; Possess strong research, writing, communication, interpersonal, and organizational skills; Flexibility with working long work hours. Interested candidates send resume in Word or PDF format to resumes@manhattanbp. org. NYC residency is required. The Office of the Manhattan Borough President is an EOE.

ASSISTANT TO THE DIRECTOR OF EXTERNAL AFFAIRS OFFICE OF MANHATTAN BOROUGH PRESIDENT, SCOTT M. STRINGER Responsibilities: Provide administrative support to the Director of External Affairs and the unit; Disseminate correspondences, policy reports, and other documentation to external partners and stakeholders; Assist in the administrative maintenance of all Borough President’s appointments to various boards and commissions; Maintain

office-wide database; Assist in all aspects of executing large scale events, including mailing invitations and other outreach, coordinating vendors, tracking and processing RSVPs, and assisting with day-of event needs; Assist with special projects as identified by the Director. Qualifications: Bachelor’s degree required; at least one (1) year of related experience with government, civic, policy/research or similar organizations; Demonstrated commitment to public service with excellent interpersonal, verbal, and written communication skills; Individual initiative and strong motivation to complete projects and day-to-day tasks; Flexibility with working long work hours. Interested candidates send resume in Word or PDF to NYC residency is required. The Office of the Manhattan Borough President is an EOE.

OFFICE ADMINISTRATOR A NEW YORK DEMOCRAT A New York Democrat is seeking to fill an Office Administrator position. In this capacity the administrative assistant would work with the District Director to develop a strategic scheduling program, including processes and procedures for the district office. He/she would also be responsible for working collaboratively with the elected official’s Executive Assistant/Scheduler and District Director to review and maintain the weekly schedule. Other duties include managing the reception area, ordering and keeping an inventory of all office supplies and maintaining all office equipment. Minimum 3 years scheduling experience or 5 years of related office experience with an elected official or within a corporate environment with strong organizational skills and a proven capacity to successfully multi-task in a fast-paced environment while adhering to established deadlines. Willingness and ability to work long hours and weekends is essential. Writing skills and ability to prepare memos and reports is integral to job performance. Position available immediately. Send cover letter, resume, references, salary requirements and two writing samples to NO WALK-INS OR CALLS PLEASE!

DEPUTY CHIEF OF STAFF OFFICE OF STATE SENATOR ERIC ADAMS Office of State Senator Eric Adams has opening for position of Deputy Chief of Staff. Please email for interview appointment. Attach your resume. Minimum requirements: • college degree (BA or BS) • minimum 1 year law school experience (law degree not required) • minimum 2 years work experience in NYS Senate or Assembly office • supervisory experience as officer in a major NYC/NYS police department, with minimum 15 years experience in law enforcement with a major police department

• certification as instructor of police science • supervisory experience in emergency management (including emergency communications) for major NYC/NYS police department • certification or experience in internet security/cyber security • experience working with offices of local District Attorneys • licensed to carry firearm • work experience as security officer for elected officials • supervisory experience in not-for-profit agency work (director, field director, etc.) • work experience as member of political advance team • training/certification in public speaking • experience in supervision of community service programs

PROGRAM ASSOCIATE NON-PROFIT ENERGY COALITION Non-profit energy coalition seeks Program Associate for entry-level role in their White Plains office. Bachelor’s degree from an accredited college or university, and the ability to work occa-

sional evenings and weekends required. Ideal candidate will possess strong communications and research skills, the ability to work as part of a team, and an interest in politics. References and writing samples required. Full health and dental benefits for employee included. Please send cover letter, salary requirements and resume to

LEGISLATIVE DIRECTOR Responsibilities will include but not be limited to writing bill memos, analysis and synthesis of bills, coordinating opinions of our legislative committee to form coherent positions on policy, and researching and updating legislative initiatives. Must respond well under pressure, turn around writing assignments quickly, and be good at multitasking. This company is a politically active statewide not-for-profit pro-consumer organization of over 4,000 members. We offer competitive salary and excellent benefits. To apply, submit resume, cover letter, and writing samples to Stephanie Wilson at


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Driving Law Puts Brakes on Medical Privacy People v. Elysee Decided by: Court of Appeals, Feb. 17 At 5:00 a.m. on Christmas 2003, Fritz Elysee was involved in a four-car accident in Brooklyn. A passenger in a small truck was killed and several others, including Elysee, were severely injured. When Elysee arrived at King’s County Hospital for trauma care, a nurse drew a vial of blood in accordance with routine hospital practice. Suspecting Elysee had been driving under the influence of alcohol, the NYPD sought a court order to draw blood. The order did not come for seven hours. By the time police obtained blood, Elysee’s blood had an alcohol content (BAC) of .05 percent, under the legal limit. Prosecutors then sought and obtained an order to get the 5:30 a.m. routine hospital test, which showed Elysee’s BAC was .23. He was charged with manslaughter, assault and driving under the influence. At trial, Elysee argued that the 5:30 a.m. sample was protected by doctor-patient confidentiality. The law protects from disclosure “any information … acquired in attending a patient in a professional capacity … which was necessary to enable the [medical professional] to act.” The trial court found the privilege inapplicable and convicted Elysee on all charges. On appeal, New York’s highest court upheld the ruling, finding that language in the Vehicle and Traffic Law allows the police to override medical confidentiality when a motorist violates the law: “any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test [of] …

blood … when … a person other than the operator was killed.” This provision, the court held, was stronger than the confidentiality provision. But the court’s ruling went further, allowing medical tests administered prior to a court order to be obtained. The court’s ruling leaves several important privacy questions unanswered, including how far back in time authorities can go to open medical records (seven hours for Elysee) by using this provision of motor-vehicle law.

Appellate Division “Sliding” Apart Trupia v. Lake George School District Decided by: Appellate Division, Third Department, March 5 Luke Stupia, a minor in Warren County, was sliding down a banister in July 2002 at a summer camp, when he fell and suffered a skull fracture. His family sued the school district that organized the camp. The trial court found against Luke, holding that he assumed the risk of his injuries by choosing to slide down the rail despite appreciating the risks he faced—in other words, Luke, in essence, “consented” to his injuries. Using this “assumption of the risk” doctrine, the

trial court ruled for the school district. On appeal, the Third Department reversed the trial judge’s decision and allowed Luke’s suit to proceed. Indeed, Luke was fortunate his injury occurred in Warren County, in New York’s Third Department of the Appellate Division—had he fallen in Buffalo, in the Fourth Department, his suit would have been barred. The Third Department revived Luke’s suit by ruling that assumption of the risk only applies to injuries sustained during sporting or recreational activities (e.g., a fan being struck by a baseball at a game). The court found that the doctrine was meant to facilitate “free and vigorous participation in athletic activities.” The court recognized that New York’s other appellate divisions take a different view on this, however. In fact, a New Yorker’s ability to sue depends significantly on where he or she is injured in the state. In pointing out the split among the appellate courts, the Third Department seemed to call on the Court of Appeals or Legislature to sort out the viability of this centuriesold legal doctrine.

Whose Sperm Are They Anyway? Speranza v. Repro Lab, Inc. Decided by: Appellate Division, First Department, March 3 Six months before his death in January 1998, anticipating adverse effects from medical treatment, Mark Speranza deposited semen specimens with Repro Lab in Manhattan. When he made the deposit, he signed a document stating

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MARCH 2009


that, in the event of his death, the semen should be destroyed by Repro. After his death, Mark’s parents, as executors of his estate, asked Repro to continue preserving the semen, saying they wished to find a surrogate mother to bear them a grandchild. The lab agreed to keep the sperm frozen, so long as the yearly fees were paid. Repro never informed the parents that Mark signed a document requesting they be destroyed. In 2005, Speranza’s parents asked Repro to release the specimens, at which time the lab refused and produced Mark’s statement. The parents sued Repro alleging that the specimens were assets of Mark’s estate to be distributed by them. But the Appellate Division disagreed with the parents’ contention, finding “no viable cause of action that would entitle them … to produce the child [Mark] did not create while he lived.” The court found the specimens were “not assets of the estate over which the administrators have possessory rights.” As with other estate property, Mark’s intent was of paramount importance. The court supported its determination by noting that Department of Health regulations would forbid the use of the specimens even if the parents were correct on the estate issue. Since New York law requires all semen to be tested for disease and irregularity, and Mark’s were not, it would be against public policy to use them now. Still, the decision of Repro to keep the sperm alive for 11 years after Mark’s death and the very existence of multi-year litigation despite Mark’s signed statement raises questions about the clarity of New York law on these issues. —James McDonald



MARCH 2009

Bills, Bills, Bills



New Jersey








New York consistently introduces the largest number of bills per year, even beating out Massachusetts, the only state in the union that allows for citizens, not just lawmakers, to introduce bills in their legislature. With New York averaging 17,000 to 18,000 per session, Massachusetts is a distant second, coming in at roughly 7,000 on average. As a sampling of other statesâ&#x20AC;&#x2122; activity demonstrates, most legislatures stay in the sub-4,000 range per session. Even this year, with the budget looming over everything, New York has far exceeded that.







New York







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The March 23,2009 Issue of The Capitol  

The March 23,2009 Issue of The Capitol. The Capitol is a monthly publication, targeting the politicians, lobbyists, unions, staffers and iss...

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