Wednesday, February 24, 2010

And Another One

Following on the heels of Larry’s post from yesterday about Jay Gallagher’s new blog, we’re happy to call your attention to yet another new voice on the Albany blog scene. Reboot NY, a new PAC dedicated to reforming the state senate, has a blog chronicling the chamber’s dysfunction. We don’t take a stance on the individual legislators and candidates who the group supports and opposes, but we can get behind its founders when they say that reform has to be the top priority for voters and legislators alike.

Tuesday, February 23, 2010

Better Late . . . .

We're a little late to noting this, but Jay Gallagher, one of the most knowledgable Albany reporters around, has a new blog with the League of Women Voters. No surprise -- it's great stuff. Check it out.

Friday, February 19, 2010

Questions Raised about NYC's Voting Machine Selection Process

Yesterday, Dominion, the manufacturer of one of the two optical scan machines certified for use in New York State, filed suit in federal court to enjoin New York City from awarding a contract to the manufacturer of the other certified machine, ES&S, which narrowly beat Dominion in a city Board of Elections evaluation.

In its memorandum of law, Dominion argues that the Board of Elections ignored procurement laws and procedures and established its own procurement process that did not make clear the criteria for selection. According to the memorandum, ES&S received extra points for optional features that cannot legally be used in New York.

Dominion isn’t the only one suspicious of New York City’s voting machine selection process. Last week, the U.S. Attorney’s office issued subpoenas to several elections commissioners in connection with the machine selection process, and last month one of the lobbyists hired by ES&S to further its bid was indicted on corruption charges.

It is entirely possible that there was no wrongdoing on the part of the Board of Elections, but it seems pretty clear that there could have been more transparency in the process, and, as we’ve written before, the Board could have – and still should – make its contract with either manufacturer contingent on configurations that prevent unnecessary disenfranchisement by overvoting.

Wednesday, February 17, 2010

Concerns About New York's Voting Machines: An Update

As we blogged recently, the Brennan Center, along with a coalition of other voting rights and good government groups, has called upon the State Board of Elections to take steps to prevent the alarmingly high overvote rate seen in other jurisdictions using the optical scan voting machines selected for use in New York.

Our primary objective is to have the Board require the machines’ manufacturers to reconfigure the units to automatically reject overvoted ballots – a function that at least one of the manufacturers says can be customized during configuration. We’d also like voters to receive a clearer error message when there is a problem with their ballots.

The Board of Elections spoke with our coalition last Thursday, and agreed to take the following steps:

  1. Determine whether the reconfiguration of both certified optical scanners to automatically reject overvotes requires a modification to the configuration files or to the source code.
  1. Determine whether recertification is necessary for changing the scanners’ handling of overvotes.
  1. Determine the technical requirements for modifying error messages for both optical scanners.
  1. Determine whether both optical scanners can display an error message when automatically returning an overvoted ballot.

We will follow up with the Board of Elections to learn their findings in these four areas and to continue to work toward what we understand to be a relatively easy change that could save tens of thousands of ballots. The Board will discuss this issue tomorrow at a meeting that will be webcast live on its website.

Thursday, February 11, 2010

The Monserrate Legal Battle: A Brief Primer

Tuesday’s vote to expel Hiram Monserrate from the Senate is the latest development in one of the livelier constitutional debates in New York since last summer’s Senate coup. Monserrate’s attorneys filed a request for a temporary restraining order and preliminary injunction delaying his expulsion in federal court today.

Monserrate’s supporters rely on two arguments as to why the Senator’s ouster is illegal. First, they argue that his removal denies his right to due process of law, and that only his constituents can legally remove him from office (by voting him out at the next election, as New York doesn’t have a recall process).

Black’s Law Dictionary defines due process, which is guaranteed under the New York and United States constitutions, as “[t]he conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.

Others argue that the ‘rules and principles’ in question here are codified in a section of legislative law that grants the Senate the authority to decide the case. This section reads: “Each house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made.” As followers of the Monserrate saga know, the Senate did, in fact, convene a committee to inquire into the charges against the Senator, and Tuesday’s vote conforms to the recommendations made in the committee’s final report.

The second argument against expulsion made by Monserrate’s attorney is that the Senate lacks the constitutional authority to expel a member. The attorney, Normal Siegel, argues that given that New York’s colonial charter granted the legislature the right to expel its members, when the state constitution was changed in 1821 to remove a clause stipulating that the state legislature would “do business in a like manner as the assemblies of the colony of New York,” it deliberately disallowed expulsion.

At least six members of the legislature have been expelled since 1821, including five Assemblymen accused of disloyalty on account of their affiliation with the Socialist Party in 1920. That hasn’t settled the debate over constitutional authority to expel, however. In 1987, an Assembly committee considered whether it had the authority to expel an Assemblywoman who was guilty of payroll fraud. In what is commonly known as the Lipschutz Report, the committee held the same view as Monserrate’s attorney that expulsion is not permissible in the absence of explicit constitutional authority. The Monserrate Committee disagrees, obviously, citing an 1874 legal scholar’s opinion that, “[i]n the states of Massachusetts, New Hampshire, New York, and North Carolina there being no constitutional provision on this subject, the power to expel exists as a necessary incident to every legislative body and may be exercised at the discretion of the assembly and in the normal way of proceeding.”

At the end of the day, it will be up to a judge to sort this out. Let’s just hope that the now nearly dead-even partisan split in the Senate doesn’t precipitate another thorny legal fight over legislative procedure.

Tuesday, February 09, 2010

A Closer Look at Exemptions to Disclosure Requirements

Senator Schneiderman's bill S. 6794, introduced February 8, is a vast improvement over previous attempts to craft an ethics bill.

Yesterday we described its innovations, including the creation of designating panels and greatly increased financial disclosure requirements, especially the requirement that legislator-attorneys disclose important information about their law practices.

It is fair and correct to also provide a system by which officials can request exemptions from detailed financial disclosure under extraordinary circumstances, such as an official’s part-time work on behalf of a minor concerning a sensitive subject, or the work of a physician required by law to protect patient privacy. S. 6794 provides a mechanism by which an official can request an exemption if she believes that her work “is protected by a legally recognized privilege or unreasonable hardship."

After reviewing this part of the bill, including the proposed process for granting exemptions, we are concerned that the test for granting exemptions may be too broad and should be more carefully drawn.

For example, Washington State’s rules provide: "The [Public Disclosure] Commission is authorized to allow modifications or suspensions of these reporting requirements in a particular case when it finds that "literal application" of the chapter "works a manifestly unreasonable hardship" and that the suspension or modification of the reporting requirements "will not frustrate the purposes of the chapter."

Washington also requires that any modification or suspension be narrowly tailored "only to the extent necessary to substantially relieve such hardship, and only upon clear and convincing proof of such claim." (also WA language). (PDC Interpretation 02-03)

The “deciders” of whether to grant the exemption under the S. 6794 proposal are the members of the relevant ethics oversight commission (the bill left in place the bifurcated system of ethics oversight). In a step towards independent oversight, the bill provides that the legislative leaders and executive branch officials appoint members of designating panels, who in turn appoint members of the actual commissions with jurisdiction over their branch of government. These commissions, arguably not wholly independent, should be given more direction on how to implement these decisions.

Monday, February 08, 2010

Two New Ethics Proposals

Following on last week’s veto of the legislature’s ethics bill, legislative leaders are meeting today behind closed doors to determine whether they have the votes necessary for an override.

The good news is that the bill’s sponsor, Senator Schneiderman, seems to recognize that the legislature’s work isn’t done. Schneiderman introduced two bills, one more ambitious than the other, that amend the original ethics bill to move closer to certain reforms that the governor has cited as necessary for the legislation to win his approval. The two new bills each deal with different issues in the original bill, S6457. Notably, the bill that is narrower in scope has a "same as" number in the Assembly; the more ambitious bill does not.

On Friday, Senator Schneiderman introduced S6792, a technical corrections bill that addresses some of more basic points of contention in the debate surrounding the original legislation by making the following changes:

  • Explicitly grants the lobbying commission to conduct any investigation necessary to carry out its mandate, fixing the problem we and others identified with the commission’s mandate to receive referrals but inability to investigate them;
  • Establishes a procedure for addressing tie votes on the governing board overseeing the legislative office of ethics investigations;
  • Explicitly requires each conference to appoint one legislator and one non-legislator to the legislative ethics commission;
  • Creates additional offices on the Board of Elections with deputies of opposite political parties;
  • Requires the Board of Elections enforcement counsel to report allegations that she does not deem a violation of law to the Board of Elections for a second opinion; and
  • Allows the deputy enforcement counsel to review both preliminary and final investigation files and issue a public, written concurrence or dissent.

This morning - the day that the New York Times ran its fifth editorial calling for legislators who are attorneys to disclose their clients - Senator Schneiderman introduced S6794, a more sweeping bill that consists of a series of reforms meant to strengthen the legislature’s earlier proposals, most notably with respect to the disclosure of outside income:

  • Requires officials who practice law to provide (i) the name and address of each client, (ii) the compensation for such services for each client, and (iii) a general description of the services rendered. Individuals practicing law or providing consulting services must provide a general description of the subject matters undertaken by the law firm or business entity. (Interestingly, the bill carves out a large exception for plaintiffs’ lawyers: “Do not list the value of compensation if the services rendered involve a contingency fee as provided by law.”);
  • Requires individuals who are partners or shareholders in a law firm to list every client of the firm that provides more than $5,000 in compensation to the firm in the prior year, including a description of the services rendered;
  • Establishes designating commissions for the purpose of appointing members of both ethics compliance commissions (the legislative and executive ethics commissions remain separate under the legislation);
  • Requires reporting individuals to disclose payments from an entity if the reporting individual solicited business from a third party on behalf of that entity;
  • Requires that public officials file a report with the appropriate oversight commission within 30 days of commencing a business relationship with a lobbyist. These reports must describe the nature of the relationship, the amount of compensation and are to be available for public inspection via the internet. (The last version of the ethics bill placed the burden to report business dealings between officials and lobbyists only upon the lobbyist.);
  • Increases the number of categories of income, for a total of 15, ranging from under $5,000 to “1.0 million and over" -- to give the public a better sense of the amount of income from each source; and
  • Requires filers to include assets and income of a “domestic partner.” The current form requires only disclosure of assets and income of a “spouse.”

We’re glad to see some recognition that the legislature’s work on ethics is far from finished. We’ll be gladder still if both proposals are subjected to thorough public review.

Laura Seago and Kelly Williams

Friday, February 05, 2010

Time To Give Disclosure A More Serious Look

Almost immediately after vetoing the ethics bill on Tuesday, the Governor sent a letter to legislative leaders inviting them to join him in talks intended to go back to the drawing board to produce a stronger bill. The Governor’s four priorities are independent ethics oversight, ending pay-to-play, ensuring that the new ethics system does not give an unfair advantage to the party in power, and ensuring disclosure of outside income.

While the language in the Governor’s letter is vague, the context provided by his previous statements makes it quite clear what he’s getting at, and we take “ensuring disclosure of outside income” to mean requiring lawyers and legislators in other professions deemed ‘protected’ by the legislature’s ethics bill to disclose their clients.

The Governor is in good company. As The New York Times, Capitol Confidential, and New York Law Journal [subscription required] (and, of course, ReformNY) reported on Wednesday, The New York City Bar Association has joined the chorus of legal experts who say that there is no legal or ethical justification for attorney-legislators to withhold information about their clients from the public. Moreover, the Bar Association affirmatively argues that attorneys should be subject to the same disclosure requirements as other legislators.

This argument is too carefully considered and widely supported to ignore.

Thursday, February 04, 2010

We're All Concerned About New York's New Voting Machines Now

I blogged two weeks ago about the Brennan Center's serious concern that New York's new voting machines (to be used statewide for the first time this year) may cause massive problems. In short, experiences in Florida and Wisconsin strongly suggest that the way the machines are currently configured will lead to significantly higher error rates for voters, meaning potentially tens of thousands of votes being spoiled for no good reason. Well, we've been joined in our concern by virtually every voting rights and good government group in New York that focuses on these issues, including AALDEF, CIDNY, Common Cause, the League of Women Voters, NAACP LDF, NYPIRG, New Yorkers for Verified Voting and the Women's City Club of New York. You can read a letter from all of these groups to the New York State Board of Elections here. It states in relevant part:

New York’s new optical scan machines will treat overvotes in a way that threatens the voting rights of millions of New Yorkers. As you know, unlike most optical scan systems, the ES&S DS200 and ImageCast machines purchased for New York do not automatically return overvoted or otherwise erroneous ballots to the voter for correction. . .

Overvotes are almost always mistakes and the letter and spirit of the [Help America Vote Act] requires that the state do everything it can to prevent inadvertent errors when voters cast their ballot on Election Day.

We strongly urge the Board of Elections to correct this problem immediately. The New York Board of Elections must require that the ES&S DS200 and ImageCast machines automatically return overvoted or otherwise erroneous ballots to the voter for correction.

The good news is that the fix for this potentially huge problem seems relatively simple. The Board of Elections should be able to request this change from the vendors and significantly minimize the risk of overvotes and spoiled ballots. Let's hope they make this happen, soon. We're going to keep the pressure on, and we'll keep you informed.

Wednesday, February 03, 2010

New York City Bar Supports Client Disclosure Requirement for Attorney-Legislators

By Kelly Williams

Perhaps this will finally put to rest the claims by some attorney-legislators in Albany that, as much as they would like to provide the public with full disclosure of their outside income, they are legally or ethically prevented from doing so.

Today the New York City Bar Association released a report** that did more than merely state it is permissible for attorney-legislators to disclose the source of their outside income; it explicitly called for attorney-legislators to be included in all disclosure requirements, including requirements that attorney-legislators reveal the identities of their clients. As we have reported in the past, there is no basis for the claims by some legislators that information about the part-time law practices many maintain alongside their official duties, such as the identity of their clients, is privileged and confidential. The NYC Bar report provides further support:

"There is no basis for excluding lawyers from the public scrutiny to which legislators should be held. Requiring lawyer-legislators to make these disclosures will not violate the rules governing attorney conduct and will go a long way toward restoring public confidence in New York State’s governing process and the independence of legislators."

While bar associations can be counted on to urge protection of attorney privileges to the highest degree, the New York City Bar report lays out in simple terms the limited nature of the attorney-client privilege. The attorney-client privilege is an area of the law that is not well understood by the general public; the report stresses that this uncertainty should not stand in the way of meaningful financial disclosure requirements for public officials who maintain private law practices.

The report recommends that financial disclosure reforms include requiring attorney-legislators to reveal the identity of each client, the amount of the income over a minimum threshold from each such client, and a meaningful description of the services rendered in exchange for such income (including the making of referrals). The report is especially valuable to the current controversy because it brings a deep understanding of law practices and fee arrangements. The report recommends that:

With regard to lawyers, disclosure should specify whether the fee arrangements are based on hours worked or contingency, whether a referral fee is involved, and whether any premium or other add-ons are involved.”

The actions of the New York City Bar are to be applauded – having added their voices to the growing refrain for meaningful ethics reform in New York State, we hope legislators now will do the right thing. Given that yesterday’s gubernatorial veto has increased the likelihood that the legislature will revisit this issue, the legislature has another chance to subject disclosure requirements for lawyers to serious, public deliberation. The committee notes that it is willing to assist the legislature in working through the technicalities of the final bill – yet another reason for the legislature to host an open discussion about ethics reform.

** Full disclosure: Brennan Center attorneys Larry Norden, who sits on the State Affairs Committee of the City Bar, and Kelly Williams, were among the many attorneys who contributed to this City Bar report.

Tuesday, February 02, 2010

The Ethics Bill: What Now?

This evening, Governor Paterson vetoed the ethics bill as promised. We’re glad that the legislature will be forced to revisit this important issue. But even if the governor had signed the bill, the next steps that the legislature needs to take would have been essentially the same:

  1. Fix mistakes in the bill. As we wrote last week, the legislature’s bill requires other ethics oversight bodies to refer certain violations to the new commission on lobbying, but it does not grant the lobbying commission any authority to actually investigate those referrals (or, for that matter, anything else that comes to its attention by any means other than a random audit of reports filed by lobbyists or their clients).The legislature should amend the bill to correct this error.
  1. Consider the governor’s proposals. The ethics overhaul that the governor included with his budget bills includes several very good elements that the legislature’s bill does not, including:
    1. Optional public campaign financing. While the legislature amended the election law to create an enforcement unit within the state board of elections which will investigate alleged violations of the election law, it opted not to substantively change the financing of elections.
    2. Require all legislators, regardless of profession, to disclose all sources of outside income, including legal clients. The legislature’s bill exempts attorneys from disclosing outside sources of income, even though there is no legal or ethical justification for such a blanket exemption.
    3. Establish independent oversight of the legislature. The legislature’s bill subjects the executive branch to independent oversight, but retains oversight jurisdiction over itself.
    4. Prohibit legislators, except members of the legislature or candidates whose districts are located in whole or in part within forty miles of Albany, to participate in fundraising during the legislative session. No such provision exists in our current law, and the legislature’s bill did not disturb this.
    5. Provide for the forfeiture of any member or retired member’s pension if that person is convicted of a felony or any conspiracy to commit a felony, or any criminal offense committed in another state or district. This means that Bruno and Seminerio would not be allowed to collect their pensions. Under our current law and the legislature’s bill they still can.
    6. Expand the current anti-nepotism provision of the Public Officers Law to include having knowledge of any change of a relative’s employment status. In the Governor’s bill, it is no longer enough to not participate in any decision to hire, promote, discipline or discharge a relative for any compensated position; knowledge is key.

The legislature should seriously consider these reforms and subject them to public scrutiny, even if they are not sure that they could pass both houses. These reforms could be included in the budget vote, added to the current ethics bill as amendments, or introduced as separate legislation. Regardless, they merit serious public discussion at the very least.

  1. Hold hearings on the bill. The legislature missed the boat on hearings the last time, and it led to errors in the bill and weaker reforms than public opinion would seem to support. The legislature should give experts an opportunity to weigh in on the bill, including any technical fixes or amendments, through public hearings. Any new legislation should be subject to the same level of scrutiny.
  1. Debate, remake, and improve legislation. As we noted upon the ethics bill’s first passage, we were impressed by the substance of the debate surrounding the legislation. Legislators should put those sentiments and the knowledge they gain through public hearings on the legislation into action. Legislators should discuss ideas for improving the legislation as written and work to make it better.

This post was drafted with the invaluable assistance of Amanda Rolat.