As 2021 heads toward its conclusion, Governor Hochul faces a public health decision deadline.  Under New York State law, legislation that was approved during the 2021 legislative session must be sent to the governor for her approval by the end of the calendar year.  Nearly 900 bills were approved by both houses of the Legislature during the 2021 legislative session and this week many bills moved to the governor’s desk for her consideration.

There are critically important issues that remain undecided as of mid-December.  One example is legislation to better monitor the state’s drinking water supplies.

Lawmakers approved legislation to close a longstanding federal loophole that excludes public water systems serving fewer than 10,000 residents from having to test for emerging contaminants.  

Emerging contaminants are unregulated chemicals that the US Environmental Protection Agency (EPA) believes may have negative health consequences and are suspected to be in drinking water supplies.  A recent analysis of EPA data by the NY Public Interest Research Group found that 176 water systems, impacting 16 million New Yorkers, detected one or more emerging contaminants.  Every region in New York State had been impacted.

However, this is based on limited data.  Over 2,000 water systems, serving nearly 2.5 million New Yorkers, have not had any emerging contaminant testing of toxic chemicals on the most recent federal emerging contaminant testing list.

In response, state government vowed to close the loophole that exempts small water systems from testing for emerging contaminants.  In 2017, legislation was approved that directed the Department of Health to create an emerging contaminant monitoring list for New York and require testing in all systems regardless of size.

Four years later, the law hasn’t yet been fully realized.

This past month, EPA announced that PFOA and PFOS, two toxic chemicals that have polluted drinking water across New York, are far more dangerous than the agency previously thought.  PFOA and PFOS are just two out of over 9,000 chemicals in the PFAS family, many of which are linked to similar harmful health effects, persist in the environment, and build up in the human body. 29 PFAS are currently detectable in drinking water using EPA-approved methods.

After reviewing the latest scientific evidence, EPA determined that safe levels of exposure to PFOA and PFOS are actually thousands of times lower than their current health advisory level.

Yet despite the risk to public health, New York only requires testing and notification for two PFAS chemicals in drinking water (PFOA and PFOS).  There are no drinking water protections for the other 27 detectable PFAS, despite well-documented risks to human health from these chemicals as well. 

New York learned about the testing loophole the hard way.  In 2015, it became public knowledge that a small community in upstate New York, Hoosick Falls, had unsafe levels of the chemical PFOA (perfluorooctanoic acid), exposure to which has been linked to developmental effects to fetuses, thyroid disorders, ulcerative colitis, high-cholesterol, preeclampsia, and kidney and testicular cancer. 

Hoosick Falls has a population of approximately 3,500 residents – so it didn’t learn of the toxic chemical in its water supply that was making residents sick as a result of EPA or New York State required testing.  Instead, Hoosick Falls discovered this chemical because of the initiative of a private citizen concerned about illnesses in the community.

The longer New York goes without statewide emerging contaminant testing of public drinking water supplies, the longer residents remain in the dark about the quality of their water, and the greater the chances residents get exposed to unsafe levels of contaminants.  (By the way, to see what contaminants are found in drinking water supplies, NYPIRG offers that information on its website, https://www.nypirg.org/whatsinmywater/.)

The state Department of Health could require testing of these chemicals, but it has failed to use its existing authority to comprehensively do so.  As a result, this past June the State Legislature approved legislation that requires every water utility to test for the remaining 27 PFAS chemicals as well as testing for 13 other contaminants identified by the US EPA as posing risks to human health.

Governor Kathy Hochul has not yet signed this bill, but the legislation was delivered to her office last week.  The clock is now ticking on that drinking water testing legislation.  It’s clear that the longer New Yorkers are exposed to PFAS or other contaminants in their drinking water, the greater the likelihood that such exposure could make them sick.  Requiring comprehensive testing is the first step toward protecting New Yorkers.  If you don’t know you have a problem, you can’t address it.  Let’s hope that first step is taken.

The expanding investigations into the actions of former Governor Cuomo and his top staff continue to dominate the news.  Just when we thought we knew all there was to know, last week’s release of the sworn depositions of the governor and his top staff gave new insights into how the former Administration handled harassment complaints and how the governor and his top aides acted.

Those insights are not pretty.

A report by the Albany Times Union illustrated just how the former Administration viewed oversight by the state’s Inspector General.  According to the deposition of Linda Lacewell, previously a top lawyer to the former governor and then head of the state’s Department of Financial Services, the New York State Inspector General cannot investigate complaints against the governor or his top aide.  That’s a breathtaking position for a top government lawyer.

First, some background.  What is New York’s Inspector General? 

Under New York State law, the Inspector General is empowered to receive and investigate “complaints concerning allegations of corruption, fraud, criminal activity, conflicts of interest or abuse in any entity under the Inspector General’s jurisdiction.”  In short, the IG is supposed to investigate things like harassment of staff or misuse of public resources for personal

gain – just the types of allegations leveled against the former governor.

Inspectors General are common across the nation.  At the federal level, they have similar responsibilities.  As you may recall, they did their jobs so well that former President Trump fired some for being too honest.

States and municipalities have IGs too.  New York has more than one – there is one for the Metropolitan Transportation Authority and the state’s Medicaid program, for example.  Yet, New York’s law creates a wrinkle.  New York State’s Inspector General is chosen by the governor and reports to the governor’s highest-ranking aide – known as the Secretary to the Governor.

Since the IG is chosen by and effectively reports to the governor, according to Lacewell, that person has a conflict of interest and therefore cannot investigate the governor.  That legal logic may contribute to the failure of the IG’s office to compel the former governor to testify about how he learned of a secret conversation by the members of the state’s top ethics watchdog, the Joint Commission on Public Ethics.  While Lacewell’s opinion may not be legally binding, as a practical matter that’s the way it plays out.

And given their relationship, Lacewell’s thinking mattered a lot to the governor.  In the criminal trial of another former top Cuomo aide who was subsequently convicted of corruption and sent to prison, Lacewell was described as the “Minister of Defense” – charged with protecting the former governor from scrutiny.

Again, Lacewell’s opinion is just that, opinion.  The IG under former Governor Paterson was incredibly active, leading scores of investigations including allegations against Paterson and his aides.  That inconvenient fact was not part of the apparent worldview of the Cuomo team.

But the revelations highlight a problem in state law:  The Inspector General is simply not independent of the governor and his or her aides. 

A review of “best practices” nationwide shows that New York’s law falls far short of what the public should expect.  Such “best practices” call for IGs to be structurally independent of the entity they are responsible for monitoring, strict standards for who can be selected (no former top aides to the governor for example), and guaranteed funding to ensure that the agency is financially secure enough to do its job without fear of budgetary repercussions.

Of course, that rule should apply to all state-funded watchdog agencies. 

Government officials are public servants.  They are not royalty or dictators.  They take an oath to serve the public.  In order for the public to have confidence that tax dollars are being used appropriately and that public servants are behaving ethically and professionally, there must be independent oversight of all public servants – even the governor, and for that matter, even the President. 

Accountability is key to maintaining public trust in democracy.  State ethics agencies and inspectors general are central to maintaining that accountability.  The public expects that government officials are accountable for efficient, cost- effective government operations and to prevent, detect, identify, expose and eliminate fraud, waste, corruption, illegal acts and abuse.  You won’t trust the outcome when the umpire is beholden to the home team.

The depositions released last week show that New York has strayed too far from these basic principles.

It’s now up to Governor Hochul and the state Legislature to establish “best practices” for ethics enforcement.  The most obvious first step is to ensure that IGs are not directly accountable to the governor or his or her top aides. 

New York’s colleges and universities have seen the state slashing support for years.  That systematic disinvestment coupled with a declining number of college-aged students has brought colleges and universities to the financial brink.  The financial squeeze has left many colleges – both public and independent – forced to reduce student services and hike student costs.  The impact of the COVID-19 pandemic has, not surprisingly, made it all worse.

The State University and City University of New York systems have endured about $56 million in cuts since 2017.  Funding to the independent sector has been effectively cut as well.  Despite substantial federal government support due to the pandemic, New York’s higher education sector continues to struggle.

That struggle, however, reveals a tale of two higher educational institutions:  The well-financed, largest universities are weathering the storm, while smaller four-year colleges and two-year community colleges are getting hammered.

For example, over the past decade, enrollment at SUNY four-year colleges and universities fell a total of nearly 20%, including a loss of 92,000 students.  That impact was accelerated by the pandemic, which saw an enrollment decline of nearly 5% alone since Fall 2020.

A closer review shows significant differences within the vast SUNY system.  Community colleges have suffered huge enrollment losses.  At last count, there were over 50,000 fewer full-time SUNY community colleges students at the end of the decade as compared to the beginning.  And without exception, every SUNY community college lost population, some with catastrophic enrollment declines.  According to SUNY, community college enrollment is down by more than a third.

In SUNY, there are several types of four-year colleges – those that are considered “comprehensive colleges,” others that are considered technology colleges, and still others university centers.  Technology colleges suffered modest declines over the past decade, a bit more than 7%.  But the four-year “comprehensive colleges” have suffered a big enrollment decline of nearly 20%.

SUNY’s four university centers, on the other hand, have seen their student populations grow by more than 12% over the past decade. 

The pandemic has made all these numbers worse, but by looking at a decade-long trend, one can see that the combination of the loss in state aid and a shrinking college-age population have forced a shrinking of the SUNY system.

The trends followed to their logical conclusion may result in colleges – both two and four year – being forced to close.  The ones most likely to face such a threat are in areas of the state that have suffered the most economically.  Any public official that considers such a move would have to ignore the benefits such institutions have in their communities.

According to SUNY, for every $1 invested in the system, New York derives $8 in economic benefits.  Examining that impact on a regional basis, SUNY can be an outsized economic driver.  In one hard-hit area of the state, Central New York, SUNY estimates that it contributed 10% of all economic activity in the region.

In terms of driving economic development, there are few programs in New York that can compare in terms of payoffs.

Similar analyses exist documenting the positive economic impacts of the City University system and independent colleges and universities.

One of the many challenges Governor Hochul faces is separating the economic programs for which the rhetoric meets the actual reality from those that are more hype than fact.  There have been too many examples of much ballyhooed economic strategies that have ended with taxpayers on the hook yet little or no financial benefits and far too much corruption.

New York’s institutions of higher education, on the other hand, have consistently delivered the goods despite being starved for state resources and being forced to charge more and more to college students and their families.

In about fifty days Governor Hochul will have to propose her first executive budget.  How well she separates the economic development “wheat” from the “chaff” may well determine the fate of upstate regions and could affect the governor’s political future.

When it comes to budgeting, betting on a sure thing makes more sense than relying on rhetorical flourishes.  Investments in colleges are a sure bet.

Three months ago, former Governor Cuomo resigned from office after a devastating report issued by the Attorney General. The Attorney General had been asked by the governor to investigate allegations that he, the governor, had harassed women in government.

The report that was issued by the AG found that the allegations against the governor were in fact true. Moreover, the AG’s report described a toxic political culture within the Cuomo Administration that created a climate of fear and hostility among those working for the governor and his top aides.

The former governor’s troubles did not end there. Local law enforcement officials are investigating whether some of those harassment claims constitute criminal behavior. The Attorney General is also continuing her investigation by examining other topics, including whether the former governor misused public resources in the writing of his book, titled “American Crisis: Leadership Lessons from the Covid-19 Pandemic.” The U.S. Attorney and the Manhattan District Attorney are reportedly looking into the ex-governor’s handling of the pandemic.

The former governor received $5.1 million for the lessons-from-the-pandemic book. The book was the governor’s opportunity to “cash in” on his celebrity as a fact-based-counterpoint to the incompetence by the then-Trump Administration’s response to the COVID-19 pandemic.

New York State’s governor is the highest paid in the nation and is considered a full-time employee. He had to receive approval from the state’s ethics watchdog, the Joint Commission on Public Ethics, in order to receive outside income.

In this case, the outside income was staggering – millions of dollars for a book that was based on then-Governor Cuomo’s actions as a public employee, written during the pandemic while he was still a public employee. The former governor was asking for approval of a massively lucrative book deal that was based on his work as governor.

That alone should have given JCOPE pause.

Moreover, the former governor used public resources to do the legal work to request the approval. His full-time public employee subordinates researched and wrote up the legal request for the book approval. JCOPE should have stopped the request right then and there.

But instead, the JCOPE staff decided not to alert the agency’s Commissioners and to green light the governor’s book deal, but with one caveat:  He could not use public resources in the writing of the book.

However, it has now become clear that the former governor did just that.

Last week, the JCOPE Commissioners took the extraordinary action to rescind the agency’s approval of the book deal. That action puts in jeopardy the former governor’s multi-million-dollar payday.

And then today the Assembly released its long-anticipated report on the former governor’s actions that confirmed the findings in the AG’s report and provided more detail that the JCOPE decision to rescind its approval of the book deal was warranted.  The Assembly Committee’s investigation found that Governor Cuomo “utilized the time of multiple state employees, as well as his own, to further his personal gain during a global pandemic – a time during which the former Governor touted the ‘around-the-clock’ state response to the crisis.”

In comments to the Times, Assemblymember Phil Steck, an attorney who represents Colonie, N.Y. and a member of the Assembly Committee, said that “it would be a very reasonable inference” that there was some correlation between former Governor Cuomo’s $5.1 million book deal and his Administration’s manipulation of nursing home death data.

That damning report, if true, that turns up the heat in the already hot water that the former governor currently finds himself in. It is bad enough for the former governor to use public resources to enrich himself personally, but it is another altogether to manipulate nursing home COVID deaths in order to land or protect the lucrative book deal.

Of course, the former governor is presumed to be innocent as he claims to be.

Yet, the allegations of harassment, unprofessionalism, unethical actions, and personal enrichment continue to pile up, putting the former governor in deeper legal troubles.

In addition to the former governor’s legal woes, there is the question of whether an aggressive ethics watchdog would have prevented such behaviors. The former governor was the driving force in the creation of JCOPE early in his governorship and it was widely viewed as controlled by his Administration.

In a previous book deal, JCOPE had allowed the former governor to use his government staff attorney to request approval for that book. The agency more or less rolled over back then and had done little to check the actions of the former governor and his staff. Those failures may have emboldened Governor Cuomo to believe he could do what he wanted.

We will see how these overlapping proceedings play out for the former governor. But what is clear is that New York’s ethics laws have failed and that comprehensive reforms are needed. Governor Hochul will have to figure out how to address that in the coming weeks.

New York State’s bottle deposit law, also known as the Bottle Bill, has been around for so long, it’s hard to imagine it remains controversial.  You buy certain containers, you place a nickel deposit, return it, and get the nickel back.  Less junk for the landfill, more recycling of wastes.

It’s worked that way for nearly four decades, and it’s been extremely successful.  Over its 40-year history, New York’s Bottle Bill has proven highly effective at reducing litter and increasing recycling rates.  In 2020, nearly two-thirds of all covered containers were redeemed by New York consumers.  The Bottle Bill has reduced roadside container litter by 70%, and in 2020, 5.5 billion containers were recycled in the state.

When it first passed in 1982, the Legislature articulated its policy goals stating that “requiring a deposit on all beverage containers, along with certain other facilitating measures, will provide a necessary incentive for the economically efficient and environmentally benign collection and recycling of such containers.”  And those policies have been realized and the law has created thousands of jobs for those collecting and recycling the containers.

What doesn’t make sense is how the state determines which containers are covered by the deposit and which ones are not. 

Despite the addition of wine coolers (remember them?) and water bottles a decade ago, the basic coverage of the law remains in place.  The nickel deposit enacted in 1982 is still a nickel and the containers that are covered is still a short list – with many containers left outside the scope of the law.

Think about America circa 1982.  Global warming was a topic limited to scientists, the Internet was a military application, “Physical” by Olivia Newton-John topped the music charts, disco was still on the dance floors.  Ronald Reagan was halfway into his first term as President.  And Hugh Carey was New York’s Governor.  

Since that time, the world has changed in so many ways, but not the basic architecture of the Bottle Law.  While some new containers have been added to the beer and soda containers that were originally covered in 1982 (most notably water bottles), the deposit is still a nickel, and many popular beverages – some of which that did not exist forty years ago – are not covered.  For example, sports drinks and other plastic containers that clog our parks and streets are not covered.  There are some old products outside the scope of the law too – while wine coolers are in, wine bottles are out.  How does that make sense?

It’s time for the Bottle Law of the late 20th Century to join the 21st.

Last week, over 100 environmental and community organizations sent a letter to Governor Hochul urging her to use next year’s Bottle Bill 40^th anniversary to modernize the law.  Other states have improved their laws – Connecticut just made major improvements this year.  Thus, a blueprint for improvements exists.

In their letter to the governor, the groups identified two major changes to the law that should be considered:

1. Expand the types and number of beverage containers covered by the Bottle Bill.  Other states from Maine to California include a diverse range of non-carbonated beverages, hard cider, wine, and liquor to great success.
2. Increase the amount of the deposit to a dimeand directa portion of the additional revenues collected by the state to ensure better compliance and enhance access to redemption entities in currently underserved communities.  As you can guess, a nickel in 1982 isn’t worth the same as a nickel in 2021 (more like 15 cents).  States like Michigan and Oregon that have increased their deposit to a dime have seen increases in recycling and container redemption rates.  The groups identified areas of the state that they called “bottle bill deserts” (mainly in low-income urban areas) that need support in order to make it easier for consumers to redeem their deposits.

The groups argued that modernizing the Bottle Bill will reduce litter, increase recycling rates, reduce carbon emissions, and bring thousands of additional jobs to New York. 

40 years is a long time.  Modernizing the Bottle Bill is an important way for Governor Hochul to move the state forward in its efforts to reduce waste and to enhance recycling.