Zack Fink

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Mayor Gets Rolled in Speaker Race

From the Morning Memo:

On Nov. 20th, NYC Mayor Bill de Blasio announced that he would be traveling to Iowa on Dec. 19th to make a speech.

According to the Daily News, he defended the trip during a discussion with reporters by claiming,

“I’ve had this conversation with you for a year or two. This is who I am. This is what ‘m going to do. When there is something that I think is important, I will do my best to do it.

The mayor has been criticized for leaving town at critical junctures before. This time around, a backroom deal was taking hold in his absence to secure the votes for who would be the next NYC Council speaker.

Nothing is complete until the Council members actually vote next month, but Manhattan’s Corey Johnson appears to have reached the threshold of support necessary to succeed the outgoing speaker, Melissa Mark-Viverito, also of Manhattan.

Johnson had the strong support of Bronx Democratic Chair Marcos Crespo and Queens County Chair/Rep. Joe Crowley. Throughout the fall, sources say, de Blasio stayed in touch with Crowley about who the best speaker candidate would be. But sources also say that when Crowley found out the mayor was leaving town, he pounced.

On the night of the 19th, while the mayor was in Iowa showing reporters he could literally walk and chew gum at the same time and meeting at a hotel bar with members of the NYC PBA who has followed the him to Des Moines, Crowley convened a meeting of New York’s Democratic congressional delegation.

A handful of Congressional representatives each had votes in the Council that they could help bring over for Johnson. Rep. Hakeem Jeffries was able to deliver a couple in Brooklyn, so was Rep. Nydia Velasquez. The deal was done by late Tuesday night.

Catching wind that this was happening, one insider says they reached out to de Blasio’s political team to inform them that the deal was getting finalized. This person was told by Team de Blasio: “Impossible. Joe Crowley promised he’d let us know first.”

Sigh. Politics can be so tricky.

If we look back on recent history, it’s really not all that surprising Crowley was able to emerge as the big winner here (besides Johnson, of course).

Four years ago there was another speaker race, and Crowley was also aligned with the Bronx, although at that time the Democratic chair in the borough was current Assembly Speaker Carl Heastie.

Crowley and Heastie felt that as county Chairs their combined borough delegation votes should be enough to play kingmaker. But Mayor-elect de Blasio, coming into office with a lot of goodwill and clout, outmaneuvered the two party leaders.

He was able to work with Brooklyn Democratic Chair Frank Seddio to install East Harlem Councilwoman Viverito in the speaker’s chair. Crowley never forgave or forgot what happened. And with his star on the rise in 2017 as his name is frequently invoked as a possible next House speaker, Crowley was not going to let what happened in 2013 repeat itself.

Crowley stuck with his Bronx allies, and left Seddio out of the process this time. He was able to win Manhattan’s Keith Wright over by standing with the chair in his fight with Mark-Viverito over who would be the Manhattan appointee to the NYC Board of Elections.

Wright won that battle Tuesday in court after Crowley and Crespo had worked with him to deny Mark-Viverito a quorum when she tried to corral the votes for her friend Andy Praschak to the board.

Maybe the lesson here is to choose more wisely when you’re planning to go out of town and know when to stay home and fight. Or, at the very least, don’t announce a trip a month in advance – a friendly reminder that nobody is your friend in politics…unless they are getting what they want.

Ugly Post

Most of us use some form of social media these days, and elected officials are no exception. It’s actually a great way for them to communicate with supporters and even engage communities in a healthy debate on particular issues. But like every form of communication, it can take a nasty turn.

Democratic Assemblywoman Yuh-Line Niou was posting the other night about the Alabama Senate Race, when someone wrote a comment that seemed not only out of left field, but was also wildly inappropriate. See the Last comment on this thread. https://www.facebook.com/yuhline

Facebook 121517

So, this person Warren Chan managed to achieve a double whammy of being both racist and sexist in the same post. But it doesn’t quite end there. Turns out Chan is politically active and served on the transition team of incoming Democratic New York City Councilman Justin Brannan, who just won a tight race in Bay Ridge Brooklyn last month. Reached by phone, Brannan said that after this comment was posted and brought to his attention Chan was fired from the Transition Committee.  In a statement Jonathan Yedin, the Director of Brannan’s transition team says,

Warren’s comments are reprehensible and vile. We have removed him from the Transition Committee effective immediately.

Chan did not immediately return a voicemail message.

 

 

Pro-Unity Forces to Cuomo: Great, Now What?

Governor Cuomo has been working behind the scenes to make the deal for Democratic unity between the mainline Senate Democrats and the Independent Senate Democrats, or IDC, stick. Sources say as far as the IDC understood, the deal that was emailed to supporters Monday evening was not supposed to be made public until after the budget was settled in late March or early April. But the State Party pulled the trigger a little early and now the IDC is in the uncompromising position of working with the Senate Republicans for the next several months to help deliver the budget only to publicly undermine them a few weeks later when special elections are called to fill two vacancies. assuming Democrats are elected to those two vacancies, it would give elected Democrats 32 votes, presumably enough to form a majority or at least try to do so by changing the Senate rules.

Because it became public so swiftly, some members of the IDC have floated the idea of remaining a separate conference but splitting off from Republicans to join a new coalition with mainline Democrats in January .That would mean sucking it up a bit and being in the minority for at least a few months. Proponents of this strategy argue the Executive Chamber has left the IDC no choice here, since Senate Republicans are not likely to want to work with them any longer. The reasoning goes that the IDC should simply make peace with Democrats on their own terms and not because they have been expelled.

There are a some problems with this strategy however, the first being the issue of the Senate rules, which may not allow it. Second, there is certainly nothing in the Senate rules calling for dual Minority Leader duties to be split between Democratic Leader Andrea Stewart-Cousins and IDC Leader Jeff Klein. Third, and probably most importantly, Governor Cuomo wants the IDC-Republican coalition ( or status quo ) to stay intact through budget so there is no chaos. He is hoping to get congestion pricing through the State legislature and if the IDC isn’t working with Republicans to make that happen, he may have a problem. Why would Senate Republicans, already irked about a future plan for Democratic unity that leaves them on the sidelines, vote for congestion pricing in Manhattan when they represent the very suburbanites who will be paying those fees? Answer: They won’t. And now some are wondering how the Executive Chamber didn’t see that when they went public with the unity ultimatum, while at the same time failing to win the support of progressive groups like the Working Families Party.

Finally there is just no guarantee that either side can adhere to a deal. Senator Michael Gianaris is attending an anti-IDC True Blue event tonight at 7pm on the Upper West Side. Some pro-unity forces see that as unnecessarily provocative at a time when the IDC and Senate Dems are trying to make peace. True Blue has been advocating for primaries against the IDC members no matter what. Part of the detente between the warring Democratic factions would also call for approval of each other’s deputies, a clear swipe at Gianaris. Team Cuomo has floated the idea of getting Gianaris elected District Attorney of Queens County next year when Richard Brown retires.

Primaries Move Forward Anyway

Sources say Jessica Ramos, who currently works for Mayor Bill de Blasio, will run a primary challenge in her Queens Senate District next year against IDC member Jose Peralta. Ramos gave notice to City Hall two weeks ago, her last day is Friday. Reached by phone Ramos would only say,

I am leaving City Hall in order to pursue opportunities in public service.

Ramos currently has $5,061 in her campaign account, “Friends of Jessica Ramos,” which is left over from when she served as District Leader in her Jackson Heights neighborhood from 2010 – 2014. in 2015 she went to work as a communications adviser for the Mayor. De Blasio created a new position for Ramos inside the administration which was Director of Latino Media, but the job title also encompassed all ethnic and community media. Ramos also spearheaded the Mayor’s popular town halls ( which got held at a much livelier pace as de Blasio closed in on re-election this year ), and City Hall in Your Borough which brings the administration to hold court in one of the five boroughs for a full week.

Peralta left the mainline Democrats earlier this year to join the Independent Democrats or IDC. More so than some of the other recent defectors Peralta has faced an intense level of backlash for his decision. Insiders say that’s likely due in part to his once closeness with the Queens Democratic County brain trust of Senator Michael Gianaris, Consultant Evan Stavisky and Chair Joe Crowley who were rather displeased with Peralta’s surprise decision.

Others who know the district say the opposition to Peralta’s decision has been more grass roots with Democrats in the district feeling “betrayed.” The 8-member IDC currently holds a power sharing arrangement with Republicans for control of the State Senate. While the average New Yorker probably had little notice or care about what that even meant two years ago, with Donald Trump getting elected President people have taken a new stance in their local communities to resist all things Republican and Trump.

Ramos is now in a more precarious position however, since an ultimatum was laid down Monday night by the state Democratic Party with the support of Governor Cuomo. Under the imposed deal the IDC and mainline Dems would reunite ( 5 months from now ) in exchange for no Democratic primaries against members of the IDC. That means someone like Ramos, who took a real risk here, could end up with no institutional support from the party should this deal go through. One Democratic insider says it’s still too early to know what will happen, and points out that petitioning to get on the ballot is still 6 months away.

Even with all the uncertainty many potential challengers to IDC members have decided not to sit on the sidelines. A Primary is expected against Senator David Valesky, former City Council Member Robert Jackson is challenging Senator Marisol Alcanatara in a rematch of 2016 minus Micah Lasher, and Attorney Zellnor Myrie is forging ahead with his challenge of Senator Jesse Hamilton. Reached for comment, Myrie said of Hamilton,

The question from day one has been is Hamilton a good Senator. The answer is no because he broke an agreement. We are pressing ahead with my campaign.

 

A Long Way to Go for Democratic Unity

From the Morning Memo:

On Monday night, Gov. Andrew Cuomo more or less broke up with the IDC-Republican coalition by text message.

Sources say neither the Independent Democratic Conference nor the Senate Republicans were given any heads up it was coming. They read the ultimatum for Democratic reunification from the state Party at the same time everyone else did, which was when it hit their inbox.

Members of the so-called “regular” or “mainline” Senate Democrats on the other hand, knew it was coming.

The alliance between Cuomo, the IDC and Senate Republicans has served the governor well up to this point. The Republicans allowed Cuomo to keep a lid on damaging taxes that could hurt him in the suburbs, while Cuomo simultaneously huddled up to IDC Leader Jeff Klein and his fellow renegade Democrats on progressive initiatives like the $15 minimum wage and Paid Family Leave to pull those same Republicans leftward.

But that was before Donald Trump got elected president.

Now, a fever has gripped the progressive left to resist all things Trump, and that begins by breaking any accommodation with members of Trump’s party locally. As a result, the Cuomo-IDC-Republican alliance, like most relationships, has run its course.

But the timing here seems peculiar. For example, an awful lot has to happen before the two warring Democratic factions can come together for control of the chamber. First off, any stab at reunification can’t take place until after a special election is held to fill two vacancies that won’t even materialize until January.

Those vacancies will occur when Democrats George Latimer and Ruben Diaz Sr. resign to take their new jobs – Latimer as Westchester County executive and Diaz as a NYC councilman. State Democratic Chair Byron Brown stated in his letter Monday night that he “anticipates a post-budget election to fill those seats.”

That timeline was immediately dismissed by progressives as unacceptable, since it would come too late and continue to allow Republicans to have an outsized hand in crafting the all important state Budget, due April 1.

Then there is the matter of 38 votes. According to Senate rules adopted earlier this year a 3/5 vote of all sitting senators is required to make a rule change. That means changing who controls the chamber cannot simply be done when the 23 Dems, 8 IDC and 1 Simcha Felder decide it is time – assuming Felder even would even go along with them.

In the best case scenario – and it’s still entirely possible they lose the Latimer seat in the special election to a Republican – the Democrats would stand united at 32 seats, not the requisite 38.

Democratic insiders reject the 3/5 rule claiming that the courts, which is where this issue would likely end up, have ruled that the Legislature can do essentially whatever it wants, and that includes changing the rule with a simple majority.

Moreover, Democratic LG Kathy Hochul has the constitutional authority to preside as Senate president. If there is a motion to change the rules of control, she can overrule anyone in the chamber who objects. So, while the courts could slow down the process, they are likely to stay out of the Legislature’s affairs as a simple matter of respect for the constitutional separation of powers.

A Republican source was less sure, arguing that if an attempt was made to change which party holds the reins of power mid-session it would be “chaos to an extent we have never seen before,” making the Senate coup of eight years ago “look like a picnic.” And we all know Cuomo doesn’t want that.

So, again, I get back to the timing here. Cuomo is saying that he will inevitably support throwing Republicans out of power. Only not in early March, which is the earliest it could be done if Latimer and Diaz resign Jan. 1, but after the budget instead. That could be April, or it could be set up to coincide with the May 15 school board elections, which would make holding the special election much cheaper for taxpayers.

So, what would the incentive be for Republicans to acquiesce to Cuomo at all during the budget negotiations if they know their days of control are numbered, and it’s Cuomo who has put that number on them? GOP sources say if the relationship with Cuomo goes south, there is plenty they can do to make his life difficult in the interim.

As for the Democrats and Cuomo, perhaps they will reconcile but then mournfully reflect back on lost opportunities these past several years. It’s almost tragic when you think about it – a little like that movie “The Remains of the Day.”

The bottom line is this: if a decision has indeed been made to change the power structure in the Senate, it might have made sense to do so as soon as possible. Unless the actual play here is to run out the clock and see how the 2018 elections play out before Cuomo really makes a commitment.

If the GOP makes gains in those elections or holds, Cuomo can plausibly say he would never break up with anyone by text message, so he obviously he didn’t really mean it.

Andrew Gounardes for State Senate, Take Two

This morning, Andrew Gounardes will send an email to supporters informing them that he intends to run for Senate in the 22nd District representing Southern Brooklyn. This is the seat held by Republican incumbent Martin Golden who was first elected in 2002. Gounardes Challenged Golden back in 2012 and garnered 42% of the vote to Golden’s 57%, losing by slightly more than 10,000 votes. But according to Gounardes, this time around is different because the district has changed.

“It has changed demographically with new, younger families moving in, even though it has always been two to one Democratic,” says Gounardes, who adds that Golden stays in power “because no one ever challenges him.”

According to Gounardes, “most people don’t realize that what happens in Albany has more of a direct impact on people’s lives than anything the City Council could ever do.” He also points to the”Blue Wave” that swept across the mid-Atlantic states and the northeast as a sign that the pendulum is swinging in Democrats’ favor.

Gounardes is not the only Democratic candidate in the race. In September former journalist Ross Barkan announced that he is running for the seat. At the time, Barkan said he was hopeful to get institutional support from Senate Democrats, but he certainly did not expect it. The Gounardes announcement confirms that premonition. Gounardes is expecting to host a fundraiser next Thursday in Bay Ridge. Gounardes, who currently serves as Counsel to Brooklyn Borough President Eric Adams, also worked for City Councilmember Vincent Gentile.

Asked for comment, a senior adviser to Golden says, “Marty is very comfortable running for re-election on his record. He always assumed he would have a challenger.” The source also points out that “The Senator has run against Gounardes before and he comfortably beat him.”

As for 2012, at least one Republican believes Golden would have done better in the race had it not been for Hurricane Sandy, which only a week before had walloped parts of the district displacing reliable Golden voters from their homes.

Senate Democrats have been actively recruiting candidates to take on Republicans holding seats they consider in play for 2018. That includes not only Golden’s seat in Brooklyn but also Hudson Valley and Long Island seats that can sometimes swing red to blue. What remains to be seen is if Democrats run primaries against members of the Independent Democratic Conference or IDC, something Governor Cuomo does not want to see as he publicly calls for the two warring Democratic factions to come together in a show of party unity.

Democrats currently have 32 members in the Senate, enough to form a majority if the IDC, Mainline Democrats and Brooklyn Democrat Simcha Felder joined forces. Felder who also won on the Republican line, conferences with the GOP. But come January when the legislative session begins, the Democrats are expected to lose two members – Ruben Diaz of the Bronx who won a City Council seat, and George Latimer of Westchester who beat Republican incumbent Rob Astorino for County Executive as part of that previously mentioned “Blue Wave.” That would leave even a reunited Democratic Party with just 30 seats, not enough to form a majority.

The earliest Cuomo could call for a special election to fill the two vacancies is March, which is already halfway through the 6-month session with fresh elections looming later that year in November.

In a statement, Ross Barkan says,

“A robust and issue-focused Democratic primary will play an important role in ensuring that Senator Marty Golden is finally defeated. I look forward to a spirited debate over the coming months on the issues that affect our communities.”

 

Westchester County Smackdown

From the Morning Memo:

With just two weeks to go until Election Day, more personal information about Democratic state senator, and county executive candidate, George Latimer continues to spill into the headlines.

The latest revelation is that Latimer owns a previously undisclosed third home in Warren County. The house in the Adirondacks sits on nearly 10 acres in the town of Thurman. It was purchased by Latimer and his wife, Robin, for $152,000 in 2002, according to Warren County property records.

The revelation comes as Latimer has been playing defense over a second property he and his wife inherited in 2012. On that property located 60 Roosevelt Ave., the Latimers owe more than $46,000 in delinquent property taxes over the last five years.

The county executive race this year has taken a nasty turn, with charges of marital infidelity, a hushed car accident and lots of ink about Latimer’s failure to pay the one thing everyone in Westchester hates: property taxes.

Most of the nasty and personal allegations have been leveled against Latimer as he faces the Republican incumbent county executive, Rob Astorino, who wants to win this race and possibly turn around and launch a second challenge to Democratic Gov. Andrew Cuomo in 2018.

Astorino needs not only to win here, but to win big and show that his popularity in blue Westchester County has remained strong. But in the age of Donald Trump, that’s not easy to do, with anger at the president at a fever pitch in New York City and its surrounding suburbs – including Westchester.

Let’s remember, Astorino was approached by Trump in 2014 about a joint ticket to take on Cuomo. Trump wanted to be the Republican at the top of the ticket with Astorino running for lieutenant governor. The plan was then for Astorino take over as governor once Trump abandoned the post to run for president in 2016.

This was all predicated, of course, on the GOP ticket defeating Cuomo and his running mate, former Buffal-area Democratic Rep. Kathy Hochul, which was by no means a guarantee. Astorino ultimately declined The Donald’s offer.

Most of next month’s voters probably don’t even remember that story, and don’t really need to in order to hate Trump. But regardless of how rational the anger is in Westchester against Trump and the Republican party, Astorino is no doubt worried about the residual effects.

As for the Adirondack property, the Latimers took out a $129,200 mortgage in 2002 with Countrywide Home Loans. There are no tax liabilities on file for the property with the Warren County Clerk. Latimer did not disclose the property on his 2016 financial disclosure form, but it does not appear as though he needed to since the document specifically says not to list primary or secondary residences. This is what the house looks like.

FullSizeRender

For his part, Latimer has countered that Astorino has inflated job numbers in Westchester. Asorino claims 44,000 jobs have been created, whereas Latimer insists it’s closer to 21,000.

In a statement, Jonathan Greenfield a spokesperson for Latimer says,

“Rob Astorino will spread any lie to distract from his own poor record as county executive. He’s lied about the 20% tax cut he promised the county and he’s lied about his relationship with Donald Trump.”

“Out of desperation, the Astorino campaign is focusing solely on personal attacks. With each attack, Astorino slips a little more in public esteem. His candidacy is reduced to nothing more than mudslinging. His stature as a possible governor shrinks with each passing day.”

Nevertheless, it has a been a campaign of surprises, and it remains to be seen what else will surface in this bizarre local race that has become much more interesting than even the mayor’s race in New York City, which is putting everyone to sleep.

And who knew Latimer owns as many homes as J Lo. Fascinating.

Defending Vance

For nearly eight years, Cy Vance has served as district attorney for New York County. He was preceded by legendary Manhattan DA Robert Morgenthau, who served in the position for nearly 45 years, and was often described as “beyond reproach.” Those were no doubt tough shoes to fill.

And now Vance is arguably facing the worst crisis of his tenure.

At issue are two cases in which Vance failed to prosecute, and both are absolutely explosive. The first involved two of President Trump’s adult children: Ivanka and Donald Trump Jr.

The second revolved around Harvey Weinstein, one of the most powerful movie executives in the nation, or at least he was until this week when several actresses and former employees accused him of sexual harassment and unwanted sexual advances, some of which may have been criminal.

But sources, including current and former Vance employees, say they have the utmost confidence in the DA’s legal ethics. They do not believe there was any impropriety, and also insist this was not an example of Vance giving anyone special treatment. They say Vance has “tremendous confidence in his career prosecutors” who do the day-to-day work of bringing cases against Manhattan’s criminals – even the high profile ones.

In the Trump case, WNYC Radio, ProPublica and the New Yorker reported last week that Vance’s office failed to prosecute the Trump offspring after they were accused of misrepresenting the success of the Trump SoHo Hotel and Condominium to investors.

Trump’s lawyer, who was granted a meeting with Vance, had also contributed more than $50,000 to Vance’s campaigns. Those donations have since been returned.

This week The New Yorker Magazine revealed an NYPD wiretap where Weinstein appears to admit to groping an Italian Actress, Ambra Battilana Gutierrez, in 2015.

The forcible touching incident was investigated by Vance and his office, and they ultimately declined to prosecute Weinstein. In light of all the new information that has come out about Weinstein’s serial behavior, that would seem to be the wrong decision.

But one former Assistant District Attorney, or ADA said: “I never would have gone forward on just that tape.”

The former prosecutor, who is “not a fan” of Vance, claims the tape did not provide enough evidence to prosecute. Vance also said as much, through Karen Friedman Agnifilo, the chief ADA, or the number two in the Manhattan DA’s office.

Agnifilo would have overseen any investigation related to Weinstein. She also previously served as the deputy chief of the Sex Crimes Unit, so she arguably knows a thing or two about the burden of proof in such cases. 

Martha Bashford is the current head of the Sex Crimes Unit, and would have made the initial determination on whether to move forward against Weinstein in 2015. Bashford was described as someone who has “the highest scruples,” and also someone who “does not care at all” about politics and would not have been intimidated by a boldface name like Weinstein’s.

When the audio of the NYPD sting involving Weinstein and Gutierrez surfaced, Agnifilo said that her “seasoned prosecutors” were not afforded the opportunity to “counsel investigators” on what was necessary to prove a crime under New York Law before the audio was captured in a sting.

An NYPD source then told NY1’s Dean Meminger that the investigators has handed prosecutors a solid case, and this was a complete failure by the Manhattan DA’s office to “protect women from a known predator.”

While it is unusual for this type of dispute to play out in public, prosecutors say this happens all the time between their office and the police department.

A common refrain from police officers is: “I answer to the Captain, not to you.” In essence, cops care about an arrest, and prosecutors care about a winnable case. Those two distinct goals come into conflict all the time, and that is because the standards for each differ greatly.

“Probable cause that a crime has been committed” is the standard for an arrest. “Reasonable Cause a felony has been committed” is the standard for an indictment, and “beyond a reasonable doubt” is the standard for a conviction. The gulf between an arrest and a conviction can sometimes be as wide as the “grand canyon.”

The International Business Times also reported that Attorney David Boies, who is working with Weinstein’s legal team had donated tens of thousands of dollars to Vance’s campaigns, including $10,000 after Vance failed to prosecute Weinstein in 2015.

Other lawyers connected to Trump have also made donations to Vance, so while there may not be any impropriety, some acknowledge there is at least the appearance of one, and the Manhattan DA’s office needs to be super careful about that.

No mater how you cut it, the timing looks awful.

Two stories within a week suggesting Vance dropped cases. One against Weinstein, who is arguably the most vilified man in America right now, and the other against Trump, who is perennially vilified in New York progressive circles.

But Vance’s supporters say it’s wrong to see a pattern here. Vance is a “very ethical man,” they insist, and both cases were independently investigated by two completely separate units within the DA’s office by the career prosecutors Vance trusts and relies upon. A lot of factors go into whether a case can be prosecuted successfully.

As for campaign contributions that look suspicious, they should always be scrutinized and reported, but it doesn’t necessarily prove corruption here or in any other case.

In fact, that’s the whole crux of the debate on campaign finance reform. What’s legal doesn’t always look right.

Vance also came from the private practice, which is a small community in New York of high-powered attorneys who know each other and raise money for various causes.

Is it a bit too nauseatingly chummy? Probably. But it’s hard to tell someone who their friends should be. And certainly Vance should be smarter about granting a meeting to a friend with business before his office like he did with Trump’s attorney Marc Kasowitz, because I think we all know that attorneys for most defendants in Manhattan are not granted that same privilege.

The 13-Hour Rule

Last night The New York State Department of Labor posted emergency regulations urging that home healthcare providers continue being paid for a 13-hour day in cases where that worker is providing 24-hour live-in care. The guidance was consistent with the Labor Department’s 2010 policy which reasoned that in essence, workers should not be paid for the time they are sleeping and eating, even if one is sleeping and eating somewhere not of their choosing in order to provide care.

Last month, a State Appellate Court ruled in favor of two home healthcare workers who filed suit claiming the 13-hour rule violated New York State’s minimum wage laws, since they were made available to work 24-hours a day by being live-in home health workers. The story was first reported here by Politico’s Dan Goldberg.

New York’s health care providers are concerned about the court’s ruling since they could be on the hook for an additional 11 hours of payment per day for each worker. Moreover, the court opened the door to 6 years of back pay for each those workers who have previously been paid under the 13-hour rule. To put that in perspective there are 125 providers statewide representing 350 offices, according to the New York State Association of Health Care Providers. The ruling could affect thousands of their workers potentially bankrupting the industry. In a statement HCP President Claudia Hammar says,

“The emergency regulation upholds the State’s position that home care workers should be paid for 13 hours of a 24-hour lift-in shift, provided allowance is made for sleep and meal time. While we appreciate that the State issued this guidance, HCP and the home care industry need the State to take immediate steps to ensure that home care providers that have followed previous State Labor 24 hour live-in payment guidance in good faith will not be held liable for six years of retroactive payments. These retroactive payments will bankrupt a significant number of home care agencies, jeopardizing essential care for New York’s most vulnerable populations.”

For now, the Department of Labor seems to be telling the industry to just ignore the court’s ruling. A spokesperson for the Department of Labor could not immediately be reached for comment.

**UPDATE**

George Gresham, President of 1199SEIU United Healthcare Workers East issued a statement disagreeing with the Cuomo Administration’s continued policy regarding the 13-hour rule. Gresham says,

“While we understand the significant cost of complying with the recent court rulings overturning decades of New York State policy on 24-hour homecare cases, we strongly believe that it is unfair to continue to ask home care workers to bear the financial burden of providing needed round-the-clock care.”
 In a statement, Cullen Burnell, a spokesperson for the Department of Labor says,

The amended regulation adopted by the Department of Labor on 10/6 codifies the Department’s longstanding interpretations of the statutory requirement to pay for “each hour worked”.  These interpretations are also consistent with well-established federal standards that have been on the books for years.  The amendment clarifies the regulation the Appellate Court relied upon to reach its decision.

The Great Experiment

You know how when you are looking to watch movies on television there are several different options? For example if you are watching HBO and the movie is boring, there are other HBO channels to peruse such as “HBO Family” and “HBO Signature.” Well, my friend had this brilliant idea to add “HBO 80s.” All day and night it would play 80s classics such as “Wargames,” “Sixteen Candles,” “Club Paradise,” “Ghostbusters,” “The Goonies” and of course the most brilliant movie ever made, 1983’s “Trading Places.”

There is a comfort and complacency ( for me at least ) in watching these movies. The jokes hold up. The scenes are non-threatening because I know what’s going to happen next. And just about always there is some kind of neatly wrapped up happy ending that won’t sour your mood that night. It’s honestly much less stressful than watching sports.

When I first got to Albany in 2012, it felt a little like being stuck in a movie people have seen a thousand times. Same old issues, same old script. Same old spending increasing every year as predicted with all of those numbers getting agreed upon behind closed doors under a cloak of secrecy. But then along comes Preet Bharara. He’s wielding the billy club of the powerful U.S. Attorney’s Office and he is threatening to change the script of that 80s movie you’ve seen one too many times. He decides to build cases against two of the three most powerful politicians in Albany – Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos. The public eats this up. The editorial boards applaud Bharara and lavish him with praise. The hype of shaking things up and taking on the system becomes the story.

Only it doesn’t really work that way. We’ve all heard the popular prosecutor refrain that they can “indict a ham sandwich.” Sure they can. They can also probably build a case against many of the big players in Albany. They might even be able to put that person in front of a cynical jury and win a conviction ( after dragging that politician in front of the cameras in handcuffs ). But that doesn’t mean the case will hold up. And as we have seen in the last three months both verdicts in the Preet Bharara crusade to take on Albany have now been vacated.

One can certainly point out that after the Skelos and Silver convictions the definition of the law known as “Honest Services Fraud” was greatly narrowed by the U.S. Supreme Court in the corruption case of former Virginia Governor Bob McDonnell. The high court found that “official acts” can be just about anything a politician does and that raises significant constitutional concerns. So in some respects, that’s not really Bharara’s fault. But here’s the thing. In August of 2015 the U.S. Supreme Court announced that it would consider hearing the McDonnell case and whether or not Honest Services Fraud would hold up. That was months before Silver and Skelos were prosecuted. Bharara had predicated both cases on charges of Honest Services Fraud which the high court was signaling were in trouble. Moreover, Honest Services Fraud had already been taken up by the Supreme Court and unanimously thrown out as far back as 2010 in the case against former Enron Executive Jeffrey Skilling. So it wasn’t a secret the judges weren’t nuts about the statute, and it could not have been a secret to Bharara that if the cases were indeed strong against Skelos and Silver it might make more sense to stick to good old fashioned corruption charges like bribery and mail fraud only. I mean, they got Al Capone on tax evasion, for crying out loud.

So, look, I’ve said this once and I’ll say it again, Bharara made a good effort. Albany needs a wake up call. They gotta actually change the way things are done, otherwise you are following the plots of the same movies over and over again. And who knows? Perhaps retrials on different charges using some of the same evidence will yield better results. My personal belief is the Skelos case is a lot stronger than the Silver case, but we shall see what happens. However, no matter how you cut it, a great opportunity in state history to take on corruption was lost here due to self inflicted wounds. It’s never a good day when prosecutors and former prosecutors are saying and tweeting things like “We will get them next time!”