Last week, state lawmakers and Governor Cuomo finally wrapped up a budget.  As it has in the past, the agreement was days past the deadline for the beginning of the new fiscal year – April 1^st – but it was approved in time to spare state workers and the public of an interruption in services or paychecks.  In terms of the timing of the agreement, this year was not exceptional.

What was different this time around was the massive bailout sent from the federal government to Albany.  The Congressional stimulus deal wiped out Albany’s budget deficit and allowed the governor and legislative leaders to focus on the unmet needs of New York as well as establish measures to keep the state on firm financial footing while we all continue to ride out the COVID-19 pandemic.

The final budget agreement appropriated $212 billion – a massive increase from last year – and included important new measures.  For example, students at the State University of New York (and the City University of New York) will see not see an increase in tuition for the next three years, a significant change in policy. 

In addition, both public and independent college students will see the biggest increase in financial aid in memory.  Funding for water infrastructure was maintained, the governor’s plan to weaken New York’s plastic bag ban was rejected, new nursing home protections were put in place, and an environmental bond act proposal was approved to allow the state to borrow $3 billion to offset the costs of dealing with the growing threat posed by global warming.  Voters will get final say on that plan when they go to the polls in November 2022.

The state financed these proposals – and more – by raising tax rates on those making over $1 million.  Middle-income New Yorkers will see a reduction in tax rates and new help in offsetting property taxes.

Not surprisingly, it was the fight over tax hikes that was most controversial, with supporters arguing that tax hikes on the wealthy will help address New York’s needs, while opponents warning that the wealthy may pack up and leave the state.

The budget agreement was about dollars and cents; funding programs and deciding who will pick up the tab.  But the agreement also highlighted the shifting political dynamics of Albany.  It is now clear that a resurgent legislative branch has the oomph to impact budget decisions in a manner undreamed of in years.

The reasons for this tectonic shift are clear.

The governor is now deep into his third term and like other modern chief executives – from Governor Mario Cuomo and George Pataki as well as New York City Mayor Michael Bloomberg – his political power is ebbing after a decade in office.  It has not helped Governor Cuomo that a new Democratic President has taken office and is now driving national policies, and President Trump is no longer available as foil for the governor. 

Moreover, the mounting controversies surrounding the governor – allegations of inappropriate behavior, failures of his Administration to accurately report nursing home deaths, and the harsh media coverage of his multimillion-dollar book deal – further undercut the governor’s public support and policy momentum.

Lastly, for the first time in modern New York political history, both houses of the Legislature now have super majorities and were willing to flex their political muscle.  After being relegated to a junior partner in the development of New York’s budget and policymaking, lawmakers have been chomping at the bit to reclaim their role as co-equal branch of government and a powerful check on the executive.

There is no doubt that the budget that was approved last week contained measures that could not have been approved in years past – things like hiking taxes on the wealthy.  Of course, the governor was not a bit player in the budget agreement; his constitutional powers make him the main driver of the budget. Yet a resurgent Legislature clearly left a deep mark on the final product. 

It’s hard to see how the current dynamic changes in the next year.  The allegations against the governor may end up going nowhere, but the third term blues will still hang over his Administration.  And those supermajorities are not going away before the November 2022 election, if ever. 

Until then, New Yorkers will see something that hasn’t existed for many years – two co-equal branches of government making policy.  They will sometimes clash, and other times cooperate.  In 18 months, the voters will render their judgment on how well Albany as currently configured is meeting the needs of New Yorkers.

As Albany moved closer to a budget deal, a new controversy emerged.  According to reporting in the New York Times and the Buffalo News, Governor Cuomo’s pandemic leadership book deal was likely worth $4 million.  This reporting also raised a new wrinkle – that the governor’s staff was involved in pulling together the draft of that book and pitching it to publishers and the public.

The reports that the governor’s staff and state resources were used to write the book should not only force scrutiny of the allegations, but should shine a spotlight on the Joint Commission on Public Ethics (JCOPE) — the state’s ethics watchdog — as well.

The governor’s office responded by stating that the governor’s staff that were involved in the book did so on “their own time” and that the use of any state resources in the drafting of the book was merely “incidental.” 

According to media reports, JCOPE staff gave the go ahead for the governor to sign a book deal last summer.  According to letters between the governor’s office and the JCOPE staff, the precedent that had been set in the governor’s previous book deal – and other ethics opinions – gave the staff the authority to agree to the governor’s request and not seek approval of the full board of JCOPE.

A review of the correspondence shows the governor’s office never told the JCOPE staff the amount of the book agreement or how the deal was structured, which should have been information that JCOPE requested.  In its authorization letter to the governor, JCOPE specifically stated as conditions for approval that the governor could not work on the book during his “work hours,” that no staff time and no state resources could be used in the work to draft the book. 

The coverage reports that the governor either ignored those rules or believed there was a way to circumvent the agreement conditions on technicalities.  In any event, JCOPE must review the facts revealed in the media’s reporting and the governor’s defense.

This latest controversy raises serious questions about JCOPE itself.  For example, as mentioned earlier, media reports have stated that staff worked on the book during their personal time.  Did JCOPE approve of such activity?  The JCOPE staff apparently did not request information on the value of the book deal.  A book deal worth millions is incredible and knowing that seems important.  What is the rationale for not requesting such important information?

It also has been reported that the governor agreed to give a speech to a NYC law firm and that the firm agreed to buy the governor’s books as part of the arrangement.  Did JCOPE approve this arrangement? 

These reports do not mean that all JCOPE’s commissioners or all its staff have behaved inappropriately.  But this story shines an unflattering spotlight on the agency and its decade-long track record.

Almost since its creation in 2011, JCOPE has been a punching bag and punchline among state government observers.  Instead of being designed as an independent watchdog, it was set up as a political creature, structured to look out for the interests of political leaders who by law appoint the commissioners, not necessarily the public’s best interests.

So, what should happen next?  Here are some ideas:

1. The Senate and Assembly should immediately convene a joint inquiry into JCOPE.  The Commissioners and staff – and former Commissioners – should be required to submit sworn testimony about the actions of the agency. 
2. Require that all Commissioners and staff be sworn to secrecy when considering a vote on whether to commence an investigation and that they pledge a fiduciary responsibility to the public, not their appointing authorities.  Leaks have led to at least one Commissioner resigning.
3. Reforms should be acted upon.  There are measures under consideration in the Legislature right now that would eliminate some of the structural weaknesses and lack of public accountability in New York’s ethics laws.  Once the budget is done, those measures must be taken up.  (A recent report by the New York City Bar Association calling for JCOPE to be abolished and making reform recommendations can be found here.)
4. Lawmakers should act on a reform to replace JCOPE with a constitutionally established state ethics watchdog.  Such legislation has been advanced by state Senator Liz Krueger and Assemblymember Robert Carroll (S.855/A.1929). 

The lack of a clearly independent ethics watchdog undermines the public’s confidence in its own government.  For those who are subject to unethical conduct or those falsely accused, the lack of independent ethics oversight denies them vindication.

New Yorkers deserve an independent ethics watchdog, one with the resources and legal support to take on even a governor without fear or favor. 

For years the world’s health experts have sounded the alarm about the growing threat of antibiotic-resistant bacteria.  The more antibiotics are used, the faster bacteria evolve to resist them, giving rise to so-called “superbugs” – bacteria that are extremely difficult or impossible to treat with existing drugs.

According to the World Health Organization, unless something is done, by the middle of this century more people will die from antibiotic resistant infections than die of cancer.  In America, nearly three million people get sick each year from antibiotic-resistant infections.  At least 35,000 die.  The diseases they contract are difficult – sometimes impossible – to treat with antibiotics because they are caused by drug-resistant “superbugs.”

The U.S. Centers for Disease Control and Prevention (CDC) has called the growing “superbugs” menace one of the “biggest public health challenges of our time.”  A new study, published this month in the peer-reviewed journal JAMA Network Open, found more than half of antibiotics prescribed in hospitals were not done so consistent with scientific recommendations, a shocking finding that fuels the concern that inappropriately prescribing medications in hospitals is contributing to antibiotic resistance. 

Researchers found that over half the patients shouldn’t have received antibiotics based on best practice guidelines.  Those guidelines didn’t support prescribing antibiotics to four out of five patients who were treated for community-acquired pneumonia and over three-quarters of patients who were treated for a urinary tract infections. 

Studies have shown patients with antibiotic-resistant infections are at an increased risk of worse clinical outcomes, such as severe disease and death, compared with patients with infections that can be treated with antibiotics.

But the overuse of antibiotics – and the resulting increase in resistance – is not just a problem for typical health treatments.  Early in the COVID-19 pandemic, hospital officials reported that it is common for COVID-19 patients to be prescribed antibiotics.  Even though antibiotics won’t cure viral illnesses including COVID-19, physicians concerned about secondary bacterial infections may nevertheless prescribe antibiotics to COVID-19 patients, sometimes before a bacterial infection exists.

In a study that was released in February, researchers found that a majority of COVID-19 hospital admissions led to one or more antibiotics being given to patients.  Their findings strongly suggest that overprescribing of antibiotics occurred during the first six months of the pandemic.

Recently, New York started to take steps to address the rising threat posed by antibiotic-resistant “superbugs.”  Legislation has been approved that requires all nursing homes and hospitals to develop stewardship programs to reduce the misuse and overuse of antibiotics.

The overwhelming majority of New York hospitals are reported to be following the stewardship guidance set by the CDC.  Yet when it comes to nursing homes, based on the New York Attorney General’s recent report, infection control measures are inadequate.  Poor infection controls can contribute to the growth of antibiotic-resistant infections.

Mandating stewardship programs is only one step.   

Two-thirds of human-important antibiotics are sold for use on farm animals and the CDC estimates that nearly one-quarter of all antibiotic-resistant “superbugs” originate in farm settings. 

Experts warn that without swift action, these kinds of infections will become more prevalent — and one of the main causes is the overuse of medically important antibiotics in animal agriculture.  Livestock producers routinely give antibiotics to animals to help them survive crowded, stressful and unsanitary conditions.

Research shows that workers on these farms are up to 15 times more likely to harbor a strain of the antibiotic-resistant bacteria known as MRSA than individuals who don’t work with animals.

Livestock workers shouldn’t have to be our canaries in the coalmine of antibiotic-resistant infections.  Approximately two thirds of medically important antibiotics sold in the U.S. are intended for use in livestock and poultry.  But if we want to keep lifesaving antibiotics effective, healthy farm animals shouldn’t be routinely receiving human-important antibiotics.

Now that lawmakers have tackled the rise of antibiotics in hospitals and nursing homes, they need to finish the job.  Nearly one-quarter of all “superbugs” originate on farms.  It’s time to take on that problem too.

Despite the growing controversies swirling around Governor Cuomo, the mounting calls for his resignation, and the beginning steps toward possible impeachment, the state budget discussions moved forward last week.

The governor’s proposed budget released in January has been superseded by Congressional action.  The most recent federal stimulus, known as the American Rescue Plan, will result in an enormous windfall to New York.  According to U.S. Senate Majority Leader Chuck Schumer, the state will receive as much as $100 billion in benefits, including nearly $24 billion in fiscal relief funds for the state, localities, and the MTA.  Of that, $12.6 billion in direct relief will go to the state government while another $6 billion will be sent to New York City alone.

In addition to the federal stimulus monies, New York State’s revenues have been coming in higher than expected.  When the governor and the legislative leaders agreed to available revenues for the upcoming fiscal year, they estimated that there will be $2.5 billion more than the governor estimated in January.  

Last week, both houses approved their budget resolutions which, while non-binding, set the budget priorities for each house as they begin negotiations with the governor.

The state Senate and the Assembly offered similar one-house budget resolutions, with each house’s budget plan exceeding $200 billion in spending – considerably more than the governor’s January plan. 

The legislative budgets included billions in new taxes, far more than the $1.5 billion in temporary tax hikes that the governor had proposed in January.  The legislative proposals include higher income taxes for the wealthy and corporations by $7 billion, although some differences exist between the two plans.  

Both chambers have also proposed far more funding for education.  Both rejected the governor’s plan to allow tuition hikes at the State and City university systems.  Both increased the maximum tuition assistance award from $5,165 to $6,165 – that $1,000 increase is the biggest in memory.

The Assembly also approved additional 20 percent across-the board increases in the state’s higher education programs that help students in need.  Both houses rejected the governor’s plan to zero-out state support for private colleges and restored that aid in its entirety.

The legislative budgets maintained or enhanced funding for environmental programs, water infrastructure, health care, and stopped the governor’s $145 million “raid” of MTA funds.  Yet, both houses pulled back from measures that the governor opposed, most notably the effort to get the state to keep “sales tax” revenues from Wall Street trading activities (the Stock Transfer Tax).  The federal bailout made the leaders’ financial decisions a lot easier to make.

Last week, both houses began conference committees to negotiate their differences while simultaneously conducting closed door budget negotiations between the houses and the governor.  As is the case with most things in Albany, the real action takes place out of sight.

Given the tense atmosphere at the Capitol – the result of the allegations against the governor, both his personal actions as well as his Administration’s mishandling of reports of nursing home pandemic deaths – it will be a challenge for lawmakers and the governor to hammer out a budget agreement in a week and a half to be in time for the April 1^st start of the new fiscal year.

It is an agreement, though, that all want to have.  Under New York’s budget system, the governor is in the driver’s seat when it comes to shaping the state’s finances.  The governor has the power to veto line-item spending additions to his budget appropriations as well as any revenue bill passed by the Legislature, subject to an override by two-thirds of the members in each house.

What is different now is that Democrats control supermajorities in both the Assembly and Senate.  Assuming that there is a rift between the governor and the legislative leaders, the leaders have the power to force their own vision of the budget. 

How the budget plays out only time will tell.  Obviously, the fact that the Assembly is taking the first steps towards impeaching the governor, the Senate Majority Leader has called on him to resign, and a large – and growing – number of rank-and-file lawmakers have also urged the governor to pack his bags, makes the budget negotiating dynamics uniquely difficult.

But that’s their jobs.  The state’s finances have been dramatically strengthened by the Congressional stimulus and as a result, the budget deal should be easier.  Let’s hope that the governor’s controversies don’t result in a budget meltdown.  After a year of pandemic shut downs, dislocation and tragedies, New Yorkers are hurting and they need the help, now. 

This week is “Sunshine Week.”  Since 2005, Sunshine Week has focused public attention on the importance of open government and the dangers of excessive and unnecessary secrecy.

Unfortunately, Sunshine Week has brought little to the darkness that has enveloped Albany for decades.  For as long as anyone can remember, state governmental decisions are most likely the product of closed-door meetings.  Of course, that’s not to say that nothing has changed.  New Yorkers can now access more government material than ever before, and that process has accelerated under the Cuomo Administration.

But when it comes to the process of how decisions get made, little progress has been made.  The most recent example is the state budget.  Under last year’s budget deal, the state Legislature granted Governor Cuomo unprecedented powers over the state’s finances.  The rationale at that time was no one was sure how the COVID-19 pandemic was going to play out, and speed and flexibility were needed to respond to the emergency.

The agreement allowed the Cuomo Administration to “withhold” budgeted money to get through uncertain times.  Those “withholdings”—which are effectively cuts—amounted to roughly $3 billion, according to a recent state Comptroller’s report.

The Administration was supposed to alert the Legislature to the details of how state monies were “withheld” from programs and whether spending had been cut.  Yet, according to documents obtained under the state’s Freedom of Information Law, the Legislature has received only a fraction the details of how the Administration controlled state spending.

According to a coalition of civic groups, state records showed that in 2020, the Administration notified the legislature of about $700 million in specific withholdings, compared to a total of $3.1 billion in withholdings according to the state Division of Budget’s Executive Budget financial plan.  Based on those records it means that less than one-quarter of funding “withholds” have been made public.

The governor’s budget office has said that all but 5% of these withholdings reported by the governor—lumped into 10 different categories under “local aid payments”—will be restored before the state’s new fiscal year begins on April 1^st.  But without knowing the exact amounts of the withholdings, and which agencies they affected, it is impossible to verify whether those restorations took place.

One entity impacted by the “withholds” is the City University of New York, the country’s largest urban public university system, which receives most of its funding from the state.  According to the CUNY faculty union, the budget withholds has meant that 2,900 adjunct professors lost their jobs, although it looks like about 1,000 have been hired back.  

Governor Cuomo’s budget proposal would also continue the cuts made to entities like CUNY into the next fiscal year, which runs April 1, 2021 through March 31, 2022.

Recent revelations have highlighted another area of governmental opaqueness: the apparent failure to provide a full accounting of COVID-19 nursing home deaths to the public, the Legislature, and the federal government.  The Cuomo Administration had refused to comply with a watchdog group’s Freedom of Information Law request for this same data until a judge ordered that the information be disclosed. 

Both actions underscore the need for more governmental openness, not more secrecy.  When it comes to the “withholds,” how can the Legislature and public know how much the governor’s office has taken from funding appropriated to agencies, authorities, local governments, and specific programs?  Without full disclosure, the Legislature and public cannot verify that COVID budget impacts have been shared equally by all stakeholders.  How can a new budget plan be devised if legislators don’t know whether and how the money they allocated last year got spent?

More fundamentally, how can the public and the Legislature know how best to understand governmental decisions if the Administration holds back disclosure of public documents?

Our form of democracy hinges on trust.  We vote for representatives and give our informed consent to those lawmakers making policy decisions on our behalf.  This is a sacred duty to the public.  That system simply cannot succeed when important decisions and information are withheld from public access.

It’s long past time for Albany to take “Sunshine Week” to heart and move its system of governance from one of secrecy to one of openness.