Charter Revision Commission Testimony

May 9, 2019

 

The best part of democracy is that there is always room for improvement.

When I testified to this commission on September 27, 2018, the previous Charter Revision Commission had just approved ballot language that included in part proposals I had put forth on campaign finance reform, as well as urban planners and term limits for community boards. At the time, we had no way of knowing the results to come: the adoption of all three ballot questions. Campaign finance reform received the most support, an overwhelming 80%, with 1.1 million voters in favor, almost as many as voted for Mayor on the Democrat and Republican lines combined. I commend this Charter Revision Commission for respecting the will of the voters by not revisiting the issue areas covered by the previous ballot questions and for focusing on amendments to the Charter that can only be accomplished through a vote of the people.

 

At last September’s hearing, I proposed 72 recommendations for amendments to the Charter for this Commission’s consideration. The City Council included 16 of those recommendations in our Report to the 2019 New York City Charter Revision Commission this past January. Now this Commission has identified 9 of my recommendations in whole or in part for further discussion in its Preliminary Staff Report. I will be submitting only fifteen recommendations across the following five categories: conflicts of interests, city budget, land use, elections and redistricting, and empowering the offices of the Public Advocate and Borough President.

 

Recommendation Highlights

 

Conflict of Interest

 

Post-Employment Appearance Restrictions

Americans are losing faith in government, concerns about corruption resulting from conflicts of interest at every level. Elected officials and agency heads should bring a career of expertise into government and return to their careers once their public service is complete. That is why I support the staff report’s recommendation of extending the lobbying ban in New York City from a laughably short one year, and once again call for a lifetime ban on lobbying.

 

Corporation Counsel

Conflicts of interest are a particular problem for the city’s attorney, the Corporation Counsel, who can frequently find themselves caught between the checks and balances of a city government that is their client. I support the staff report recommendation for advice and consent for this important position along with notifications of conflicts, but would go further to require renewals every 2 years and dedicated funding for outside counsel that won’t come out of an elected official or independent agency’s budget.

 

Appointment

Since the staff report is considering widening advice and consent, the Commission should also consider expansion to all agency heads or at least over the the Police (NYPD), Department of Buildings (DOB), Department of Sanitation (DSNY), Parks and Recreation (DPR), Department of Homeless Services (DHS), Administration for Children’s Services (ACS), Housing Preservation and Development (HPD), and Department of Citywide Administrative Services (DCAS).

 

Elections and Redistricting

 

I support Ranked Choice Voting as proposed by the staff report. In particular a top 5 system as proposed by Common Cause New York and implemented for citywide elections that currently require a 40% threshold or run-off, preventing costly runoff elections.

 

Land Use

 

ULURP Pre-Certification Notice and Comment

Communities must have a stronger voice in the Land Use process when it counts, not when it’s a done deal, put forth for an up or down vote. That’s why I proposed and support the staff report in beginning public engagement at the Community Board as soon as anyone files a pre-application at City Planning, Landmarks, HPD, BSA, and DOB.

 

Planning

As this Commission tackles comprehensive planning please consider providing dedicated funding for a Community Board, Council Member, or Borough President initiated rezoning complete with education, organizing, legal, and environmental experts to complete required environmental studies and applications. Along the same lines a 197(a) plan should be the start of the rezoning process, not the end.

 

City Budget

 

Units of Appropriation & Diversity in Procurement New

When managing a $92.2 billion budget, taxpayers should be able to know where every penny is being spent.  As I testified before and the staff report recommends this Commission must specify objective criteria for Units of Appropriations and empower the Council to subdivide them if the Mayor will not. We must also ensure that spending goes to communities that are reflective of our city’s diversity. The Charter must be amended to ensure diversity in procurement by mandating that those getting city money include potential or selected MWBEs prior to award.

 

Independent or Guaranteed Budgets

With money comes power. As I testified before and the staff report concurs, elected officials and independent agencies must be free of the budgetary control of one another to truly have a system of checks and balances. The Commission must codify equal budgets for all Council Members and eliminate lulus in the Charter itself to protect their independence from the Speaker. The CCRB’s budget should be set to a percentage of the NYPD and the Board of Corrections’to that of the Department of Corrections. The Comptroller should be able to set their own budget. The Public Advocate should get at least 50 cents per resident and COIB a $10 per city employee. Each Borough President should have a guaranteed budget with separate funding for heir Charter mandated Topographical Bureau, Budget Office, and Borough Planning Office. These mandated offices should be tied to a percentage of their relevant counterpart in the City budget as modified up by borough activity.

 

Borough President & Public Advocate

Together the Public Advocate and Borough Presidents remain as an additional check in government who should be further empowered in the delivery of city services, holding public hearings, obtaining document and records, and recommending capital projects. The Commission must give the Public Advocate and Borough President’s power to ask questions under oath whether at public hearings and contracts hearings as well as compel appearances and providing documents for the foregoing as well as at borough service cabinet. As the new Chair of the Contracts Committee in the City Council I am excited for the prospect of collaborating with Borough Presidents using their Contracts powers. Further, all elected officials should have an expanded right to visit any city facility.

 

TABLE OF RECOMMENDATIONS

 

Conflict of Interest:

1. Post-Employment Appearance Restrictions
2. Corporation Counsel ^New
3. Appointment: Corporation Counsel
4. Appointment: Agency Leaders

City Budget:

5. Independent or Guaranteed Budgets
6. Units of Appropriation
7. Diversity in Procurement ^New

Borough President & Public Advocate:

8. Borough Service Cabinets ^New
9. Public Hearings ^New
10. Obtaining Documents and Records
11. Capital Project Recommendations

Land Use:

12. ULURP Pre-Certification Notice and Comment
13. Planning

Elections and Redistricting:

14. Ranked Choice Voting ^New
15. Timing of Redistricting

CONFLICTS OF INTEREST

 

1. Conflicts of Interest: Post-Employment Appearance Restrictions

Last September, in recommendation 24 of my testimony, “Lifetime Ban on Lobbying,” I proposed that this Commission add to Chapter 68 § 2604(d) of the Charter a lifetime ban on lobbying for elected officials and agency heads. I cited Senator Elizabeth Warren’s (D-MA) declaration that there is a “crisis of faith in government,” which prompted the introduction of federal legislation imposing a lifetime ban on lobbying for the president, members of Congress, Cabinet secretaries, and judges. As Senator Warren explained, “our national crisis of faith in government boils down to this simple fact: People don’t trust their government to do the right thing because they think government works for the rich, the powerful and the well-connected and not for the American people. And here’s the kicker: They’re right.”

The current law only bans former officials from appearing before the City agency that employed them for one year following the end of their service. In contrast, New York State Public Officers Law § 73(8)(a)(i) prohibits state officers and employees from appearing or practicing before their former agency and from being compensated in relation to matters before their former agency for two years.

A lifetime ban would support the notion of a citizen legislature and government of people who do public service and return to their careers, not get rich as a lobbyist for special interests. Our country has been trying to guard against the influence of special interests, the modern equivalent of “factions,” since our founding. In Federalist Paper number 10, James Madison warned of the danger posed by factions, “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” In Federalist number 10, he outlined the ways in which the Constitution, then under consideration, intended to prevent these factions from gaining tyrannical control. While Madison feared that the enlightened statesman would be susceptible to corruption, the professionalization of political influence has enlarged this threat in the modern day. The founders were affluent landowners who temporarily left their interests to serve in government. They likely could not have imagined the fortunes to be made in lobbying today. Arguably, the founders would have found this financial opportunity abhorrent.

This Charter Revision’s Staff Report states, “[p]ost-employment appearance bans exist because there is a perception that lobbying by former government officials may result in undue influence, particularly when the former government official was an elected or high-ranking official. These individuals had significant power while in office and may thus have significant influence as lobbyists.” A lifetime ban is the only way to eliminate the perceived (and perhaps real) impropriety of an elected official using the powers of their office to benefit lobbyists with the understanding that they would one day cash in themselves.

If this Commission believes that a lifetime ban is too harsh, then it should consider a lobbying ban for elected officials and agency heads of four years (or at least half the length of the elected offices’ limits). This would guarantee that all or at least some of the relationships the elected official or agency head might seek to monetize would no longer be in government, reducing their power and perhaps reducing the incentive for the public servant to leave government for a career as a lobbyist.

 

2. Conflicts of Interest: Corporation Counsel

The Staff Report raised the important issue that the Corporation Counsel is meant to be the “attorney and counsel” for the entire City, including all its elected officials and executive agencies — a topic I did not covered in my testimony last year. As the Staff Report points out, while the Corporation Counsel must answer to all elected officials and executive agencies, the Mayor is solely responsible for the Corporation Counsel’s appointment and removal. Such a structure is problematic and creates the potential for bias. The Corporation Counsel must be independent to operate free from the interests of any particular elected official, including the Mayor, so that it can effectively defend the interests of the City overall. In her testimony to this commission, Manhattan Borough President Gale Brewer testified to this commission that “the capacity of the Law Department to provide unbiased, independent guidance to members of city government is compromised when its leadership, the Corporation Counsel, is appointed by a single person.” The Charter must be amended to define what constitutes a conflict of interest between City entities. This Commission should set the floor for what constitutes a conflict of interest and allow Corporate Counsel to promulgate rules to add further protections.

The Staff Report recommended that the Corporation Counsel notify opposing entities of whether or not it has found a conflict of interest in its responsibility to the parties of a suit. I support this recommendation, although this notice requirement should be covered by the New York State Bar Association’s New York Rules of Professional Conduct as adopted by the New York State Unified Court System Part 1200 Rule 1.7 “Conflict of Interest: Current Clients,” which states, “a lawyer shall not represent a client if a reasonable lawyer would conclude that … the representation will involve the lawyer in representing differing interests.” The exception is allowed if all four of the following conditions are met: (1) the attorney believes they can competently and diligently represent the client, (2) that the representation is not prohibited by law, (3) clients are not asserting claims against one another, and (4) “each affected client gives informed consent, confirmed in writing.”

Currently officials and agencies are allowed to employ outside counsel in instances where Corporation Counsel cannot represent them due to a conflict of interest. When Corporation Counsel identifies a conflict between entities if it does not do so already it should be required to notify said entities when it authorizes the use of outside counsel. Corporation Counsel should be required by the Charter to either agree that they will represent or acknowledge a conflict and provide a notice granting a right to outside Counsel.

When the Mayor or another agency seeks the representation of the Corporate Counsel, it does not come out of their budget. In fact payouts for Judgments and Claims cost the city a whopping one billion dollars per year, which is paid out of the city’s general fund, not the offending agency’s

budget. The Charter should be amended to ensure that payments to outside counsel come from an independent unrestricted fund when it involves another elected official or agency meant to be independent.

 

3. Corporation Counsel: Appointment

 This Commission seeks feedback concerning the appointment structure for Corporation Counsel, including whether the Council should have the power of advice and consent and whether there should be a set term for the position. Thank you for pursuing this recommendation, which was part of recommendation 38 in my testimony and included on page 3 of the Council’s Report. This Commission should amend the Charter to require the City Council’s advice and consent for the Corporation Counsel.

Further, the Corporation Counsel’s term should be two years. This term should be renewable and subject to the Council’s advice and consent so that their performance may be periodically reevaluated. As noted on Page 3 of the Council’s report, in case of Corporation Counsel’s resignation or premature vacancy for other reasons, a replacement could be appointed, also subject to the Council’s advice and consent, to complete the remainder of the term. At the expiration of the 2-year term, the Corporation Counsel should be subject to the advice and consent process if the Mayor chose to reappoint.

 

4. Appointment: Agency Leaders

As the Charter Commission considers expanding the City Council’s power of advice and consent for the appointment of Corporation Counsel additional agency leaders should be considered.

§ 31 of the Charter already gives the power of advice and consent to the Council for the following positions:

• Commissioners of the Art Commission,
• Board of Health,
• Board of Standards and Appeals,
• City Planning Commission,
• Civil Service Commission,
• Landmarks Preservation Commission,
• Tax Commission,
• Taxi and Limousine Commission, and
• Public members of the Environmental Control Board to include the currently excluded Chairs and the leadership and members of all other boards, commission and agencies.

This Commission should amend § 31 of the Charter to grant the City Council the power of advice and consent on the appointment to all agency lead positions, or at least to the following positions at agencies that are often at the center of controversies with a direct impact on New York City residents:

• Police (NYPD),
• Department of Buildings (DOB),
• Department of Sanitation (DSNY),
• Parks and Recreation (DPR),
• Department of Homeless Services (DHS),
• Administration for Children’s Services (ACS),
• Housing Preservation and Development (HPD), and
• Department of Citywide Administrative Services (DCAS).

As I highlighted in recommendation 38, Chairs, Chiefs, Commissioners and Board Members currently only answer to the Mayor, often ignoring and even refusing to answer questions posed by the City Council or even the press. Requiring these appointees to come before the Council for initial advice and consent would be an important screening tool, and bringing agency heads back in front of the Council every two years would make them more responsive to the Council following their appointment.
 

 

CITY BUDGET

 

5. City Budget: Independent or Guaranteed Budgets

Our system of checks and balances empowers the Mayor subject to approval from the City Council to set budgets for other elected officials and most agencies. I am glad that the Staff report identified independent budgeting as an area of focus for this Charter Revision including “independently elected officials (the Public Advocate, the Comptroller, and the Borough Presidents), the Conflicts of Interest Board, the Department of Investigation, the Board of Correction, and CCRB,” which expanded upon recommendation 26 from my testimony to include the Board of Correction and CCRB. This issue was also highlighted by the Council’s Report, starting on page 8. However, the staff omitted from its list Council Members, who must be included. Council Members are also independently elected and can face retaliation from their Speaker, which may harm not only the Council Member, but also the residents of their district through the loss of discretionary funding.

Certain budgets should be tied to a minimum percentage of the agency that they oversee. The CCRB should be tied to at least 1%, if not more, of the NYPD. Similarly the Board of Correction should be tied to a percentage of the Department of Correction.

Certain budgets should be set by the independent body, like the Campaign Finance Board and the City Council. However, all Council Members with the exception of the Speaker and Minority Leader should have equal salaries, budgets for their offices, and discretionary funding allocations. Any deviation for budget for offices or discretionary funding allocations should be the result of a transparent objective formula such as a modifier for high poverty or a need for multiple offices due to spanning two land masses or boroughs. The Council’s budget should be no smaller than that of the Comptroller’s.

Certain offices such as the Public Advocate and Conflict of Interest Board responsible for serving specific constituencies could have a dollar amount per constituent indexed to inflation. The Public Advocate serves 8.6 million constituents throughout the five boroughs. Setting the budget at 50 cents per resident would bring the budget from $3.8 million to $4.3 million, protecting the office from retaliation from the Mayor or the Council. The Conflict of Interest Board is an independent agency tasked with training, interpreting, advising, disclosure and enforcing Conflicts of Interest Law under Chapter 68 of the Charter. To that end, they are responsible for some 325,000 city employees. With a cost allocation of $10 per employee, their budget would see an increase from $2.33 million to $3.25 million after years of stagnation.

This Commission should also amend the Charter to provide guaranteed budget set-asides for  Borough Presidents. For example $3 per resident would yield $25 million to split roughly equally among the five boroughs with modifiers for higher populations not to exceed a standard deviation. Additionally, the Charter mandates that the Borough President maintain certain offices and positions which must also be explicitly funded. These mandated offices should have designated funding tied to a percentage of their relevant counterpart in the City budget as modified up by borough activity. These offices established in the Charter include:

 

• Topographical Bureau — §82(3) requires the Borough President to maintain a Topographical Bureau and appoint the director will also serve as construction coordinator and consulting engineer and monitor capital projects in the borough and shall be available to serve as an expediter on construction projects in the borough and provide technical assistance with respect to construction projects. This could be tied to the budget for the Department of Buildings modified up to reflect construction.

• Budget Office — §82(7) requires the Borough President to establish and maintain a budget office for the borough to assist the borough president in the preparation of budget proposals, review and analysis of proposed budgets, departmental estimates, budget modifications and other fiscal matters under the jurisdiction of the president of the borough. Similar to the Independent Budget Office, this budget could be tied to a percentage of OMB budget as modified to reflect spending in the borough.

• Planning Office for the Borough — §82(9) requires the Borough President to establish and maintain a planning office for the borough to assist the borough president in planning for the growth, improvement and development of the borough and performing such other planning functions as are assigned to the borough president by this charter or other law. Funding for this office could be tied to a percentage of the Department of City Planning

6. City Budget: Units of Appropriation

New Yorkers deserve a budget that anyone can review with a transparent presentation of budgeted amounts, actual spending, and planned spending for the future. This Commission must create a mechanism to provide an independent and transparent budget. Further, residents have a right to know how their tax dollars are being spent, down to the last penny. I was proud to author and pass Local Law 218 of 2017 to upgrade the Charter by removing floppy disks and replacing them with a requirement to post the budget online. Doing so has already empowered residents to find a $791 million error in the budget. However, the city’s budget still remains too opaque for residents to see how money is really spent. Thank you for pursuing budget transparency and independence, which was included in recommendation 67 of my testimony and echoed on pages 14 and 15 of the Council’s Report.

In addressing units of appropriation (UA), the Charter §100(a) only requires a breakdown of units of appropriation for “personal services” (staff salaries) and “other than personal services” (everything else). However, §100(c) goes further by requiring “[e]ach proposed unit of appropriation shall represent the amount requested ... for a particular program, purpose, activity or institution.” Additionally Charter §100(d) requires “a statement of the programmatic objectives of the program, purpose, activity or institution involved.”

Unfortunately, most agencies simply list the two codes of “personal service” or “PS” and “other than personal service” or “OTPS.” When $791 million was misappropriated or mislabeled, the problem was the money was allocated in a lump sum, which was incorrectly allocated to the wrong division within the agency. Although the budget was viewable to the public, because there were no line items under the lump sum, it was unclear what the money was intended for.

As noted in the Staff Report on page 59, neither the Charter nor court cases provide any concrete definition of, “a particular program, purpose, activity or institution,” which is meant to determine the limitation on the structure and size of Units of Appropriation. This Commission has the opportunity to fix this ambiguity to reflect the intent of the 1989 Charter Revision Commission.

A plain reading of the 1989 Charter Revision Report shows the drafters of this provision meant to impose a limitation on the structure and size of a Units of Appropriation. Principally, the Units of Appropriation must be targeted for a specific purpose, clearly defined and for the benefit of a particular institution. This interpretation would prevent the Mayor from granting Units of Appropriation to a particular agency without clearly defining their purpose. As demonstrated in the Staff Report on page 59, this is not the current practice.

I support the Commission staff’s recommendation to provide the City Council with oversight over Units of Appropriation beyond the powers granted in Charter §§ 247(b) and 254(a), which provide for “recommendations for any changes in the unit of appropriation structure which the council deems appropriate.” The Council should have the ability to require the Mayor to provide transparency as to the purpose for the Units of Appropriation, the particular program the Units of Appropriation is provided for, and the activity or institution being granted the Units of Appropriation, outside the regular discussions around funding during the budget process. The Commission could set objective standards to separate Units of Appropriations such as for each Deputy or Borough Commissioner within an agency and those that they supervise. Where the Mayor fails to include adequate Units of Appropriation, the City Council could be empowered to subdivide Units of Appropriations to fulfill the Charter mandate, with the Mayor then required to reallocate funding as necessary between Units of Appropriation in budget modifications to provide ongoing transparency. I would also support the staff recommendation for the setting of the minimum Units of Appropriation ahead of the budget, provided it was coupled with currently missing oversight for the Mayor’s Management Report.

Lastly, this information should be available in a machine-readable format, prior to the beginning of the Council’s preliminary budget hearings, executive budget, and each subsequent budget modification.

 

7. Diversity in Procurement

For the past six years, this city has struggled to achieve diversity in procurement. The Mayor has attempted to fix this deficiency through the creation and appointment of a citywide MWBE director. However, as stated on page 73 of the Staff Report, there is no legal requirement that this position continue to exist going forward.

I support this Commission's recommendation to amend the Charter to mandate that the OMWBE exists going forward. As Chair of the Land Use Subcommittee on Planning, Concessions, and Dispositions, I asked every developer receiving city subsidies at every hearing whether or not they were using MWBE certified contractors and meeting their certification. On rare occasion, a developer would come prepared with their MWBE information, or they themselves were an MWBE and it was clear that they valued this priority. I was disappointed to find, however, that more often than not, the developer would only promise to follow MWBE guidelines on a project. The way to solve this is to require, as a part of the procurement process, that any time the city is involved where MWBE requirements are triggered, the action cannot be approved until the MWBE threshold is met through the identification of a restricted pool of potential or selected MWBEs as part of the project.

 

BOROUGH PRESIDENT & PUBLIC ADVOCATE

 

8. Borough Presidents: Borough Service Cabinets

The Borough President's’ power to obtain information and force agencies to meaningfully engage borough issues needs to be strengthened. Particularly, borough-level officials and divisions of agencies should be responsive to the Borough Presidents. Recommendation 38 of my testimony touched on this need in part by recommending the Charter require select agencies’ Borough Commissioners to work through Borough Service Cabinets to ensure quality service delivery.

The Borough Service Cabinet should include city agencies engaged in direct service to residents with an impact on quality of life, including:

• Police department (NYPD),
• Department of Transportation (DOT),
• Parks and Recreation (DPR),
• Department of Sanitation (DSNY),
• Department of Homeless Services (DHS),
• Department of Buildings (DOB), and
• Housing Preservation and Development (HPD).

To the extent state law does not preempt the City from requiring them to participate in Borough Service Cabinets, the Commission should also compel:

• New York City Transit (NYCT),
• Department of Education (DOE),
• School Construction Authority, and
• New York City Housing Authority.

As issues arise and needs change, the Borough President must have the ability to compel agency attendance and reports at the Borough Service Cabinet.

Further, in order to force agencies to meaningfully engage with the Borough Service Cabinet, I must reiterate recommendations 38 and 39: Borough Boards must have advice and consent on Borough Commissioners and the ability to terminate those Borough Commissioners for cause or at least subject them to a requirement of advice and consent every two years.

 

9. Borough President: Public Hearings

Public hearings of the Borough President are addressed in the Staff Report on page 37, where it is noted that no one can be required to attend, provide testimony, or answer questions, with the “quasi-exception to this is in the realm of contracts.”

 

The Commission was right to identify the power of the Borough Presidents to evaluate and monitor contract performance.

In particular, Charter §333(b) allows for Borough Presidents to recommend appropriate action to the agency head if there is reason to believe non-performance or lack of compliance in a contract for delivery of service to a specific borough. Once a recommendation is received by an agency head, they must reply within ten days with the proposed corrective action, if any, to remedy the deficient service delivery. If the Borough President is not satisfied with the proposed actions, then they may call a hearing in the borough of a contract performance panel consisting of the Public Advocate, Comptroller, Mayor, or their designees. The affected agency head or their designee do not necessarily appear but may be compelled to appear and deliver testimony at the hearing. The panel must deliver a recommendation within 30 days to the Borough President, the agency, and contractor. The agency in turn responds within 30 days to the panel and Borough President “indicating which of the panel's recommendations shall be acted upon and what, if any, alternative action will be taken.” In sum, the whole process involves a lot of correspondence, possible compliance through public shaming, but nothing binding.

I was excited to see the Staff include this provision in the Staff Report, but disappointed that it was not tied to any recommendations. As the newly appointed Chair of the City Council Committee on Contracts, I intend to collaborate with the five Borough Presidents to use this power to improve the contracted delivery of services.

As pointed out in the report, neither the agency nor the contractor is required to appear. The Commission must give the Borough President power to compel both to appear and provide any documentation or proofs requested by the Borough President, with an opportunity provided to the Borough President to ask questions of the agency and the contractor under oath. In addition, the Panel’s determinations are currently non-binding, only requiring a response from the agency in question. Should a Borough President take such extraordinary measures this process must be binding by providing the Borough President with the power to put forth the initial recommended action of “terminated for noncompliance, modified, not renewed, modified at the time of renewal, or that the existing terms of the contract should be enforced,” followed by a binding vote of the panel in favor, against or either with modifications.

Generally, for all public hearings, the Commission should give the Borough President the power to require agency heads to attend, provide testimony, document, and answer questions under oath.

 

10. Obtaining Documents and Records:  Public Advocate and Borough Presidents

Borough Presidents must currently use the Freedom of Information Law (FOIL) to access public records. However, this power should be expanded to include both subpoena power over individuals as well as documents, records, or other information relating to matters within the Borough President’s jurisdiction. The Charter could allow for the Council, Public Advocate, Comptroller, or Mayor to seek a judicial order of relief if the subpoena power is abused. Further, I agree with this Commission’s assertion that Borough Presidents should have the power to receive documents and records from agencies relating to matters such as budget and land use within their respective borough.

As I stated in my September 2018 testimony, under recommendation 40, Borough Presidents must also have an expanded right of visitation. Under Charter Chapter 25 § 627, only Council Members are specifically “authorized to inspect and visit at any time the institutions and facilities” of the Department of Corrections. This Commission must specifically empower the Comptroller, Public Advocate, Borough Presidents, and Council Members to visit and inspect all city owned, operated, leased, concessioned, or franchised properties on 24 hours’ notice, with the ability to conduct surprise inspections with reasonable cause.

 

11. Borough Presidents: Capital Project Recommendations

The Staff Report explained on page 36 that the Borough Presidents’ limited powers include making non-binding recommendations for capital projects. I argued in recommendation 41 of my testimony that there is a need for expanded powers regarding capital projects.

The City Charter allots five percent of the capital budget and five percent of the discretionary budget to the Borough Presidents to spend as they see fit. These allotments are assigned to each Borough President based on each borough's population, geographic size, and the proportion of its residents living in poverty. But this power alone is not sufficient to ensure budget decisions by the Borough Presidents are followed through. Borough Presidents should be granted the powers to report on all capital assets and projects in their borough, hold hearings on all capital assets and projects, and propose amendments to Executive Expense and Capital Budgets subject to a City Council vote.

 

LAND USE

12. Land Use: ULURP Pre-Certification Notice and Comment

The current ULURP process provides insufficient opportunity for community engagement. I highlighted this in recommendation 50 from my September 2018 testimony and it is discussed on page 29 of the Council Report. Land use items are only subject to public review once they are a “done deal” where input from elected officials and the communities they represent are not only unwelcome but not engaged. Rather than working together for the best possible use for land, communities are forced into a zero-sum fight in favor of or against a project as whole, forcing the rare community victor to throw the baby out with the bath water.

Currently, once a Community Board receives an application that DCP has certified as complete, it has 60 days to (1) notify the public of the application in a manner specified by CPC rules; (2) hold a public hearing on the application; and (3) submit written recommendations to CPC and the affected Borough President. The 2010 Council Report called for an initial community board hearing within 30 days of the filing of pre-application documents with the Department of City Planning. This 30 day period of pre-certification would increase opportunities for public engagement and revision of applications while there is greater opportunity for flexibility than during the actual ULURP process.

Currently, Community Boards are called upon to learn about a project, ask questions about the project, and vote on the project on the same night. This Commission can fix this broken process. Just like the City Council usually holds a hearing on an issue, then schedules a vote at a later date, once it has had time to get questions answers and negotiate a better outcome, so should Community Boards be empowered to hold hearings prior to a vote.

Additionally, the Commission must go further and require community notice and public hearings as soon as a city agency with land use authority begins any negotiations on any matter. For example:

• City Planning – applicants would go before the Community Board during pre-application.
• Board of Standards and Appeals – applicants would go before the Community Board during pre-application.

• Housing Preservation and Development – applicants selected for affordable housing subsidies, tax abatements or city land prior to defining initial terms would go before the Community Board and could be called up by the borough president or city council.
• Landmarks Preservation Commission – the commission should advise the Community Board of whether it would initiate a study and how long it would take.
• Department of Buildings – applicants for demolition of more than one multi-family dwelling or new construction of more than 10 units would be required to appear before the community board and could be called up by the borough president or city council.

 

13. Land Use: Planning

New York City needs a comprehensive plan to help create synergy and coordination between existing planning documents, ensure that plans address anticipated future challenges with specific indicators for measuring progress over time. I applaud this Commission for highlighting and recognizing the various planning documents needed to exhaustively review all relevant planning tools and the problem that many of them do not relate to each other. I support adding the indicators as recommended. I addressed some of these in my September 2018 testimony with recommendations 42 and 43.

The Charter mandates the funding of Environmental Impact Statements (EIS) for 197(a) plans. This should be expanded by this Commission to include funding for EAS and EIS for any community board, Council Member or Borough President initiated zoning text amendment or rezoning.

Unlike Council Members, the larger personnel budgets of the Borough Presidents allows them to hire dedicated land use professionals and weigh in on land use matters. Yet despite having this greater expertise at their disposal and being required by the Charter to render decisions on ULURPs and other land use items, the Borough President’s input on these matters is merely advisory. Without binding powers, the office cannot live up to its designs, and the voters are being denied real representation at the borough level. Similarly, Community Boards do not have binding authority, and are thus denied the ability to truly represent their neighborhoods. Community boards, jointly with their borough president and council member(s), should have the power to initiate a land use action like a rezoning through ULURP. Once an item like a rezoning is proposed, DCP should dedicate urban planners to the project to produce the EIS and other materials and, within six months, respond with all pre-application materials. A combined “no” vote by a Community Board, Borough Board, and Borough President should have a binding effect and stop a project from moving forward. No projects should be approved against such overwhelming community opposition.

While some might argue that providing such a veto could stop future progress, it would actually have the effect of forcing applicants for a rezoning to the table to negotiate with the Community Board and Borough President in the same way as they currently negotiate with the Council Member who has a vote.

This Commission must provide Borough Presidents and Community Boards with these vital powers to take proactive planning steps and have an actual vote at the table to ensure better community and citywide planning.

 

ELECTIONS AND REDISTRICTING

14. Elections and Redistricting: Ranked Choice Voting

I support the Staff Report recommendations for Ranked Choice Voting (RCV). Maine and 11 localities in the United States currently use Ranked Choice Voting, with five other jurisdictions planning implementation before 2021. Ranked Choice Voting was formerly used in New York City until 1936; it is now time to bring this system back.

I support Common Cause New York’s recommendation allowing for voters to choose the top five candidates (if available) in order to limit ballot exhaustion. I support staff recommendations that Ranked Choice Voting be implemented for citywide elections that currently require a 40% threshold or run-off. This will prevent costly runoff elections.

15. Elections and Redistricting: Timing of Redistricting

Last year, I suggested that this Commission could remove the post-census half term for City Council Members by completing the redistricting process in two months prior to June petitioning. Recent action by the State Legislature has finally consolidated the primaries for Federal, State, and City office into one June election, and moving the petitioning period up to February. Considering that redistricting data will not be delivered from the U.S. Census until March 31, 2021, my original recommendation is no longer feasible. However, given the State Legislature’s precedence of moving the primary date, this Commission should still include a clause that if the municipal election is slated once again to occur in September then the redistricting would be mandated for completion in time for petitioning with a full four-year term to follow.

Along with the above provision, I support the Staff recommendation of shifting the redistricting process by three months earlier. This adjustment is necessary in response to the State’s recent change to the Election Law in order to provide potential candidates the same amount of notice that they have had in past elections concerning the boundaries of their districts.

Not to be overlooked, § 22 of the Charter allows the City Council to increase its membership from 51 without limit. This Commission should repeal § 22 and remove the city council’s ability to add or subsequently reduce the number of council members at will.