Groups Call on the Port Authority to Take Additional Steps Towards Budget Transparency

This week, members of the New York City Transparency Working Group sent a letter to The Port Authority of New York and New Jersey thanking them for publishing their budget online in a machine-readable format. Our letter also asked that they take additional steps concerning budget transparency. Senior officials responded to our letter immediately and said that they would consider our request and respond promptly.

Groups Call for Three Major State Ethics Reforms

The letter below was sent to Governor Cuomo, Senate Majority Leader Flanagan, Senate Coalition Leader Klein, Senate Minority Leader Stewart-Cousins, Assembly Speaker Heastie, and Assembly Minority Leader Kolb. A PDF version of the letter is available here.

Dear Governor Cuomo:

We write to applaud the reform proposals included in your executive budget plan and to offer our recommendations on how those measures can be strengthened.

The stunning and unprecedented scandals that have rocked the state Capitol are the direct result of the shortcomings of New York’s ethics laws and enforcement. Our organizations believe that you and the legislature need to start by doing three things to reduce the risk of corruption and restore public trust: set strict limits on outside income; close the so-called limited liability company campaign finance “loophole;” increase the transparency of lump sum and MOU appropriations in the budget.

Your package of reforms goes beyond those three important measures and while we are generally supportive of and will make recommendations on those other measures, the three mentioned above are essential to restoring public confidence and must be part of any final agreement. Failure to enact such reforms can be seen as nothing less than a failure of Albany’s political leadership.

Below are our specific comments and recommendations on your ethics legislation.

Congress-style limits on outside earned income

Your proposal goes a long way toward reducing the obvious conflicts of interest that result from allowing elected officials to have significant outside employment. However, we believe limits on earned income should apply to the legislature and all statewide offices, instead of only the legislature. Your proposal tracks the Congressional approach to limiting outside income, which was an outgrowth of the Watergate scandal and has a proven track record of being effective in removing outside conflicts. (We do note, however, that the Congressional model not only restricts the amount of outside income, but also restricts the sources of outside income, barring the types of work that create conflicts of interest, such as legal and accounting services.)

As you know, when the Congress adopted its system, it observed that,

“. . . substantial outside income creates at least the appearance of impropriety and thereby undermines public confidence in the integrity of government officials.”

We agree that this potential conflict exists in Albany and the recent convictions of elected officials underscore how lucrative it can be for lawmakers to inappropriately use the powers of their public office for private gain.

Your legislation mirrors the Congressional system and appropriately states that “royalties from the sale of a book” must be considered as income for the purposes of a cap on outside income and “that no advance fees shall be permitted.” Yet, as your legislation is drafted, it applies to the legislative branch only. We believe that caps on outside income should cover the statewide elected officials as well. Accordingly, we urge that the limitation be extended to the executive branch as part of your 30 day amendments.

Limited Liability Companies

Your legislation would close the so-called “LLC Loophole” in state election law that allows some business entities to donate much larger campaign contributions than other businesses. Moreover, under the current LLC Loophole often the true identity of the source of the contribution behind the company is shielded from public disclosure. Those weaknesses are not merely academic ones: the LLC Loophole allowed a small number of entities to give enormous amounts of campaign contributions and has been featured in the recent scandals in Albany. Your legislation would remedy those failings and we urge support.

Greater budget transparency

We appreciate that your budget proposal begins to establish a more transparent budget. Your plan allows the public to “access more information about where and how money flows from the state to private citizens.” Your budget presentation correctly points out that the state attorney general and comptroller’s office do not “coordinate” when auditing state vendors’ contracts. As a result, you propose that both of those offices and the Office of General Services develop a plan to better allow the public to track state contracts.

However, we believe that additional steps can, and must, be taken regarding the distribution of grants by elected official through lump sum appropriations and other discretionary funds. Specifically, we call for legislation that identifies the purpose for, and recipients of, all state funds allocated to be spent at the discretion of legislators and the governor to increase transparency and eliminate conflicts of interest. Ideally, all such funding should be itemized in the state budget with greater detail about the purpose of the spending and identifying the sponsoring elected official, so that spending decisions are made in full public view. In your FY 2015 30-day amendments to the Capital Budget, you proposed some reforms to require an affirmation by legislators that lump sum funds will be used for a public purpose and ensure that there are no conflicts of interest. You should expand upon this by applying this level of vetting to all lump sum funds directed by any elected official and ensure that there is full online disclosure of all lump sum and discretionary grants or contracts directed by elected officials to identify sponsors, recipients, and the purpose and subsequent usage of funding.

Campaign Finance and Enforcement

Your package advances a number of additional measures designed to strengthen state laws. In the area of campaign finance: your plan enhances disclosure by requiring that contributions that exceed $1,000 must be disclosed every 60 days; it requires the identities of campaign bundlers; it lowers campaign contribution limits; and establishes a voluntary system of public financing. All of these measures are important and we support them. However, it is a failing of New York law that the occupation and employer of contributors is not included in the information contributors are required to provide, unlike New York City and federal campaign finance law. We believe that this obvious omission should be corrected as part of your 30 day amendments.

Ethics Enforcement

In the area of ethics enforcement, your plan extends the provisions of the Freedom of Information and Open Meetings laws to the Joint Commission on Public Ethics (“JCOPE”), authorizes JCOPE to seek documents in support of information on financial disclosure statements; increases enforcement authority against lawmakers who failed to comply with JCOPE audits; and creates district attorney oversight over those who submit deceptive information. The bill also requires lawmakers to put the exact amounts of their outside income on disclosure forms (rather than ranges of income), and imposes financial penalties for all violations of the Public Officers Law regulating ethics. Finally, your proposal allows for the forfeiture of pensions by public officials convicted of corruption.

While we are generally in support of these measures, more must be done to fix the structural weaknesses in JCOPE. For example, the JCOPE board should have a smaller number (and odd number) of appointees; allow for appointments by the state Comptroller and Attorney General; eliminate the three-member minority legislative “veto” over investigations; and prohibit elected officials from sitting on JCOPE’s board since it regulates the lobbying industry, a tremendous source of campaign contributions. In addition, the executive director and other staff should not be hired directly from the executive or legislative branches. A state government employment “cooling off” period should be part of the law. We urge you to reconsider your less than complete approach to strengthening ethics enforcement. The ethics law will ultimately only be as good as it is regulated and enforced. It is a stringing rebuke to the law governing New York State’s oversight agencies that the significant recent ethics enforcement has been undertaken by the U.S. Attorney offices.

In a related area, your package included a requirement that political consultants advising elected officials register as lobbyists. We agree with this plan.

In the area of voting and elections, your plan would allow New Yorkers to vote early in all elections. We agree and support the provision of state funding to help counties institute this system. The plan proposes automatic voter registration, a concept which we vigorously support. However, your plan utilizes only the Department of Motor Vehicles (“DMV”) as the agency which would be responsible for automatic registration. We strongly believe that such a system must be expanded to all state agencies. As you know, many urban residents as well as those of modest means, do not seek the services of the DMV. The lowest voter participation rates include just those residents. We urge that this provision to be expanded to all agencies as part of your 30 day amendments.

But as we stated earlier, our view is that the way the public should measure the success of this reform effort by whether (1) the outside income of elected officials is dramatically limited, (2) the LLC loophole is closed, and (3) there is comprehensive transparency in budget appropriations.

We appreciate the steps you have taken to achieve these three priorities and pledge to work with you and the Legislature to ensure that these measures become law.

Sincerely,

Dick Dadey
Citizens Union

Susan Lerner
Common Cause New York

Blair Horner
NYPIRG

John Kaehny
Reinvent Albany

Open NY Quarterly Updates Report on State Open Data Progress

Screen Shot 2016-01-15 at 2.03.36 PMNew York State’s Open NY open data initiative continues to make great progress. Open data advocates note that Governor Cuomo’s open data initiative published its January quarterly update on the state’s open data portal last week. The Open NY team remain committed to supporting the new open data culture within state government. The quarterly public updates help maintain momentum and accountability, and allow the public to see what kind of progress Open NY is making.

The good news here is that the report reveals that Open NY has been making solid progress. The Open NY team and the NYS Department of Health continue to publish new public health and health cost data that is very useful to industry, journalists, academics and public interest groups. In addition, the Department of Transportation and the Thruway Authority have provided high-quality data in the latest update.

Open data supporters are eager to see Open NY focus its efforts on a single agency—perhaps the DEC—with the goal of following-up the open data success of the award-winning Health Department. Stakeholder groups hope to see the Open NY team and state agencies use Freedom of Information Law request logs to identify what agency data should be published.

Highlights from this Open NY Quarterly report:

  • Data is available across ten categories, and includes 1,339 data sets.
  • The number of data catalog items has increased 449% since data.ny.gov launched on March 11, 2013 with 244 data sets.
  • Open NY has increased the number of data sets browsable via Socrata’s Data Lens feature.
  • Data.ny.gov has been accessed in over 200 countries and territories, all 50 States and WashingtonD.C., and over 11,000 cities worldwide – including over 8,000 U.S. cities.

The quarterly report also highlights the success of the state’s Open Data Handbook, which was lauded by the National Association of Chief Information Officers as a national best practice. The report also cites the success of a number of civic hackathons or “App Challenges” which have used data from Open NY.

Extending FOIL to the NY State Legislature: Modest Burden, Modest Value

Summary

Reinvent Albany supports expanding the NY State Freedom of Information Law to the New York State legislature. Twenty-three state legislatures are already subject to their state FOI laws, as are local legislatures in New York, including the NYC City Council. Based on the experience of these state legislatures, and local legislatures in NY State, we believe FOIL will not impose an undue burden on the NY State Senate and NY State Assembly.

However, we also believe that extending FOIL to the legislature will do relatively little to increase the overall transparency of government in New York. Overwhelmingly, the public is interested in records produced by the executive branch, not the legislature. The executive branch is far larger than the legislative branch and is the branch that provides services and spends public funds. In New York City, mayoral agencies receive approximately 50,000 FOIL requests a year compared to fewer than 70 a year for the New York City Council.

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Background

According to the National Association of Counties, 23 state legislatures are covered by state Freedom of Information laws. Five of these states are like New York and have modeled their FOI laws on the federal Freedom of Information Act. We examined the FOIL requests to state legislatures in three of those states: Hawaii, South Carolina, and West Virginia, as well as the New York City Council and Suffolk County’s Board of Legislatures. (While New York’s FOIL does not cover the state Assembly or the Senate, it does apply to the legislatures of local governments.)

In particular, we point to FOIL in New York City, where the City Council received approximately 70 FOIL requests in 2013 compared to more than 50,000 requests for mayoral agencies. That is about 71 FOILs to mayoral agencies for each FOIL to City Council.

Legislative FOIL Will Not Create an Undue Burden

Members of the central staff of the Assembly and State Senate have expressed concerns about the burden of being subject to FOIL. However, we have spoken with a representative sampling of central staff and legislative staff members of the NYC City Council, which is a large, professional legislature of full-time legislators and well-paid, professional staff members. City Council staff have not expressed consternation about the effect of FOIL on their productivity or ability to serve the public, Council leadership, or membership. The City Council staff is probably not perturbed by FOIL requests because they get so few—fewer than 70 a year—and most of those are requests for routine information.

We also spoke to FOI litigators and advocates in Colorado. They said they hear regular complaints about FOI from executive branch agencies, but not from the state legislature, which is subject to FOI. They believe this is probably because of the small volume and routine nature of FOI requests received by the legislature.

Summary of Legislative FOIL Requests

Sources: FOIL requests for the Hawaii House of Representatives, West Virginia House of Delegates, and the South Carolina House of Representatives.

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State Legislatures Subject to State FOI Laws

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* = Resembles federal FOIA (as does New York)

 

Click here to download this fact sheet as a PDF.

Transparency Groups Thank Port Authority For Publishing Budget Data in Open Format