Watchdog testimony to Senate on AG, Comptroller public accountability roles

Re: Role of Other Oversight Bodies Including Comptroller
and Attorney General in Anti-Corruption and Ethics Enforcement

December 9, 2021

Good afternoon Senator Biaggi and members of the Senate Ethics and Internal Governance Committee. My name is Rachael Fauss, and I am the Senior Research Analyst for Reinvent Albany. We advocate for open and accountable New York government. Thank you for holding this important, timely hearing and inviting us to testify.

We appreciate that you are continuing the conversation from the August 2021 hearing to ensure that your committee is taking a comprehensive look at ethics oversight by inviting other branches of government to testify like the State Comptroller.

First, we reiterate our point from our August testimony that New York State has a serious and ongoing corruption problem, and that the Joint Commission on Public Ethics (JCOPE) is worse than useless and must be replaced. However, today we will focus on what other bodies of state government can and should do to increase government accountability.  

In particular, we encourage the Senate to look at ways to empower the Attorney General and Comptroller. These statewide elected officials have the staffing, mission and expertise to conduct independent oversight of the activities of state government mandated by the executive and legislative branches. We underline the word “independent.”

Below are our recommendations to improve the ethics enforcement and corruption-fighting powers of these offices and state oversight bodies other than the state’s ethics commission.

Attorney General (AG)

1. The Senate should consider amending Section 63 of the Executive Law to: (a) Remove the requirement that the AG report to the Governor after the Governor makes a referral asking the AG to investigate the Executive Chamber. Currently, under Section 63(8), after the Governor makes “public peace, public safety and public justice” referrals to the AG, the Governor is provided weekly reports from the Attorney General. While this was waived by former Governor Cuomo for the recent investigation by the AG’s office, the law should specifically address this conflict but not require reports where the Governor and possibly Executive Chamber are under investigation; and (b) Broaden the Comptroller’s referral authority. The Comptroller only can make referrals directly related to matters that they “execute.” We believe the Comptroller’s authority should be expanded
2. The Senate should seek more information about the use and limitations of the standing agreement between the AG and Comptroller to grant the AG powers to criminally prosecute corruption involving taxpayer money. This will help inform discussions around the expansion of referral powers under Section 63 of the Executive Law.
3. The Attorney General’s office should prioritize and be provided additional budgetary resources, if necessary, to improve internal and external databases, including the New York Open Government (NYOG) website and the Charities Bureau Registry. These databases are important for the public, legislature, journalists and investigators to connect the dots on the flow of money in state government. NYOG in particular is a crucial tool to connect disparate databases regarding lobbying, campaign finance, charities, corporations, state contracts, and more.
4. The legislature should conduct an oversight hearing on the AG Charities Bureau to determine whether it has adequate funding and technology infrastructure to effectively regulate and oversee entities that employ 18% of the state’s private workforce. The hearing should also determine how well the AG is equipped to oversee state-chartered charities like SUNY Research Foundation and the many SUNY affiliated charities that own the public property for state campuses like SUNY Buffalo and nonprofit entities created by the Empire State Development Corporation. We view these dozens of state-chartered  entities as having among the highest corruption risk of any part of New York State government.
5. The Senate should hold a hearing assessing the role of the AG’s Public Integrity Bureau, which at our last count had only a dozen attorneys fighting corruption across the vast array of state and local governments and myriad public authorities.

Office of the State Comptroller (OSC)

1. The pre-audit authority of the Comptroller should be restored in law for state contracts. Under the Cuomo administration, the Comptroller’s ability to “pre-audit” contracts was eroded through the FY 2011 budget for agencies like SUNY and CUNY, which later proved to be disastrous due to the Buffalo Billion bid rigging scandal. The pre-audit authority has also been removed for individual appropriations in the budget, and through various emergency orders including the MTA State of Emergency Order (EO 168) and the Gun Violence Order (EO  211), as well as COVID emergency orders. While the Comptroller and former Governor signed an MOU restoring some of these powers, this agreement is limited and the law needs to be changed. The Comptroller’s review of contracts adds minimal time to the length of contract review, and is important to flag potential corruption risks. Legislation to restore these power include: The Procurement Integrity Act of 2018 (not reintroduced) and S6809 (Reichlin-Melnick)/A7925 (Zebrowski)
2. The Comptroller should be given oversight of more public authority contracts, including the MTA’s, as recommended in our Open MTA report.
3. The Senate should ask OSC how it determines the scope of activities and resources it budgets for its Investigations and State and Local Accountability Divisions as part of its review of the entities fighting corruption in the state.
4. The Senate should look at the OSC’s potential oversight of the use of forfeiture funds by law enforcement agencies – DAs and local police departments – given concerns about the corruption risk with the seizure of assets. New York State should require localities to report the seizure and use of these funds, and provide machine-readable, tabular open data about these funds.
5. The Senate should look into national best practices around transparency of settlements that are approved by state comptrollers, including for sexual harassment cases.

Inspector General (IG)

1. The Legislature should consider requiring additional qualifications for the position to create more independence, such as bars on current state government officials, lobbyists, vendors, etc from serving as IG, as well as those with such positions in the last 3 years, or a similar blackout period.
2. The Legislature should also consider requiring Senate confirmation of the Inspector General.

Authorities Budget Office (ABO)

1. The ABO’s budget should be increased to $5 million, allowing it to expand its staff beyond 12 to better fulfill its mandate to oversee more than 600 state and local public authorities. Reinvent Albany, Citizens Budget Commission, Citizens Union, Common Cause/NY, the League of Women Voters of NYS, NYPIRG, and Strong Economy for All sent a letter in October making this request to the Governor and Legislative leaders. Part of ABO’s oversight includes administering the fiduciary duty requirements for board members of authorities, and recommending model codes of ethics and conflicts of interest policies. With more resources, the ABO will be better able to oversee ethics compliance at state public authorities, and investigate potential corruption.

Doing Business Database

1. The Legislature should pass a law creating a NYS “doing business database” as maintained in NYC for its campaign finance system. Ideally, this is implemented as part of doing business restrictions on campaign contributions from lobbyists and vendors. However, this could be done as a stand-alone item. Creating this database would allow for better tracking of those seeking contracts to influence state government. Several bills would accomplish this in different forms as part of campaign finance reform, including S4135 (Gounardes).

Thank you for your consideration. I am available to answer any questions you might have.