Ryan Whalen

Ryan Whalen is Capital Tonight's Western New York political reporter. He covers politics in Rochester, Buffalo and the Southern Tier. Ryan was a general assignment reporter for Time Warner Cable News Buffalo for nearly five years and worked in several other markets before joining the Cap Tonight team in 2016.

Posts by Ryan Whalen

Erie County DA Won’t Prosecute Provision Of The SAFE ACT

The Erie County District Attorney’s Office will no longer prosecute a provision of the SAFE Act which makes having more than seven rounds of ammunition in a magazine illegal.

District Attorney John Flynn, D, said he recently became aware of a 2015 United States Court of Appeals Second Circuit opinion the provision is unconstitutional. The Second Circuit heard the lawsuit after a federal district court judge in Buffalo made the same ruling in 2012, several months after the New York gun control law was passed.

“I am not doing this because I believe the SAFE Act is good or bad,” Flynn said. “That’s not my role.”

The DA said as a state officer, he is only technically, legally bound by U.S. Supreme Court decisions but he pointed out the nation’s highest court declined to hear the lawsuit. Flynn said it is up to individual DAs to decide whether federal court decisions are “useful and persuasive” and in this case, he decided it was both.

“When it gets to the circuit courts, again one step below the Supreme Court, in layman’s terms, that is very useful and very persuasive,” he said. “So I am very much persuaded by the Second Circuit opinion and as such, I am going to follow their ruling.”

Flynn said right now there are 23 pending cases in which defendants are being prosecuted in connection with the provision and those charges will be dropped.

“Those 23 open cases, they’re not going to have their entire cases dismissed because the overwhelming majority of those 23 cases, they have other gun charges with them,” he said.

The prosecutor admitted, people have pleaded or been found guilty of carrying too many rounds, since 2012. While they can not appeal those verdicts, as they were not technically wrong, Flynn said they could file a 440 motion to present additional facts, and he would consider them on a case-by-case basis.

The ruling does not effect another provision of the SAFE Act which doesn’t allow for a magazine to hold more than ten rounds.

Flynn took office in January 2017.

Higgins Reiterates He Won’t Support Pelosi For Speaker

Buffalo Democratic Congressman Brian Higgins has been relatively vocal this year about his lack of support for House Minority Leader Nancy Pelosi.

The Democrats will take the majority for the first time in nearly a decade in January. Higgins said his opinion has not changed.

“It’s a preference that I have to see real reform in the House of Representatives,” he said. “I will not be voting for her but I want to see changes in the way this place operates.”

Higgins said both Democratic and Republican leaders have consolidated power while taking influence away from individual members and committees. He said the election of a new speaker is a chance to seize some of that power back.

“(There’s) a lot of buzz about Karen Bass out of California but I think there are plenty of candidates that should emerge as a potential speaker candidates that could put the votes together, given their geography, given the caucuses that their involved in. I just think we need a change,” Higgins said. “We’ve had the same leadership for 16 years and too much power has been consolidated under the leader and not enough power has been exercised by the individual members who were sent to Washington to represent 725,000 people.”

The congressman said, because whoever is elected needs a full majority, it gives lots of different caucuses leverage points. He said each of them will likely have their own priorities.


Buffalo Budget Problems?

From the Morning Memo:

The Buffalo mayor and comptroller appear to be at odds over the state of the city’s financial situation.

Comptroller Mark Schroeder released a report Thursday claiming the city operated at a $23 million loss during the last fiscal year. He said in order to fill the gap, the administration once again tapped into reserves.

Schroeder has consistently criticized the mayor’s balance for having a structural imbalance and said there aren’t anymore unassigned funds to dip into if revenues fall short for the current budget.

 “The city has squandered more than $107 million of its reserves in the past eight years,” he said. “The reserves at a such a low level right now, there won’t be enough to fill budget deficits moving forward.”

The Mayor’s Office, however, maintained the year end financials did not include any gaps or use of reserve funds that weren’t anticipated. It claimed if not for the loss of $7 million in casino revenue from the Seneca Nation of Indians, the city would have been in the black this year.

“As we have stated many times, we are confident that there will be an end to this impasse shortly and that we will receive the monies that are owed to the City. Any surplus funds will be redeposited into the Unassigned Fund Balance,” city spokesperson Mike DeGeorge said. “We also disagree with the assertion that any City funds have been ‘squandered’. We remain a stronger, smarter, safer City that continues to grow and provide quality services and greater opportunities for all of our residents.”

The Seneca Nation claimed it has fulfilled its obligation in a revenue sharing agreement with the state. It has not made a payment since Spring 2017 and the dispute is currently in arbitration.

The other cities where Seneca casinos operate, Niagara Falls and Salamanca, have also complained the loss of revenue has hurt their bottom line.

The Nation, which recently elected a new president, was not immediately available for comment.

McMurray’s Orientation Comes On Several Fronts

From the Morning Memo:

Democratic congressional candidate Nate McMurray has had a turbulent week so far.

McMurray decided to attend the congressional orientation down in D.C. after a late invite from friendly Democratic members. However, by late Tuesday, he said the Republican-led Committee on House Administration had essentially rescinded the invitation.

With the support of his own party, the NY-27 candidate sought to keep things quiet while the two sides battled it out internally. Yesterday afternoon, he confirmed he was being blocked from participating in any joint events.

McMurray blamed the decision on his Republican opponent, with whom he is still battling over the outcome of the general election.

“I am very disappointed by Congressional Republicans catering to Chris Collins’ demands, who is under indictment on 11 felony counts and spent his campaign lying and hiding from his constituents,” McMurray said. “I came to D.C. to equip myself to hit the ground running and better serve the people of Western New York once the results are official.”

“It is shameful that Collins is continuing his efforts to diminish the will of the voters and call this race before all votes have been counted. As usual, he is actively undermining the future of this district and our country.”

The public reaction to his claims appeared to have helped McMurray’s cause, as he tweeted last night that he was back at orientation.

“We shamed Mr. Collins’ buddies (who tried to kick us out) into letting us back into orientation,” McMurray claimed. “What can I say? Never quit. And…#FightLikeHell.”

A spokesperson for the House Administration Committee told the New York Post McMurray was not initially invited because he had conceded the NY-27 race on election night, and the invitation has since been extended.

McMurray, who has since insisted that his emotional speech last Tuesday was not a concession, remains down several thousand votes to Collins, but believes he has begun closing the gap as absentee ballots are counted.

Full Slate Ahead For Morelle After Tonight’s Swearing-In Ceremony

From the Morning Memo:

Congressman-elect Joe Morelle, describes today as the “relatively easy” day for him this week.

All he has to do is take part in the congressional orientation process for all new members as well as attend his own swearing-in ceremony this evening. On Wednesday, Morelle said things start in earnest.

“It’s a little surreal,” he said. “Obviously we’ve been planning this for the last couple months but you get through elections sometimes, we really focus on the campaign and then it’s over and then you have to really, especially in our case, quickly get your head sort of reoriented.”

Unlike other new members, Morelle will start voting immediately. Last week, the Democrat not only won his mid-term race but also the special election to serve out the remainder of the late-Louise Slaughter’s terms.

Morelle said he’s not sure what bills will be in front of him between now and Friday but has staff working on it.

“I have some folks that have already traveled ahead of me to Washington and they’re scoping that out and then we’ll get a rundown on the bills that are going to be before the House,” he said.

Morelle does have family members in D.C. for the ceremony. He said while the work ahead of him and the speed at which everything’s happening can make it difficult to focus, the significance of the moment isn’t lost on him.

“It’s obviously an incredible privilege and an honor to be chosen to represent anyone’s community so I’m excited by that,” he said. “I’m humbled by it and obviously the chance to finish out Louise’s last several weeks here is a very special moment.”

Morelle considered Slaughter a close friend and read a passage at her funeral in March.

Hochul Calls For Patience In NY-27 Race

From the Morning Memo:

The campaign for Rep. Chris Collins has called his Democratic opponent Nate McMurray’s refusal to concede the NY-27 race a desperate and futile exercise.

In fact, it has repeatedly pointed to the 2012 election in which then-incumbent Democratic Rep. Kathy Hochul, facing a similar vote deficit to Collins, did concede without delay.

Now-LG Kathy Hochul, however, seemed to have no issue with McMurray’s decision to wait until every ballot is counted.

“We can be patient,” she said. “No one gets sworn in as the next Congress person until January and let this process play out. It’s only fair to all the people who took the effort and the time to stand in line, often times, to get the absentee ballot.”

Hochul endorsed McMurray and campaigned vigorously on his behalf. She was asked yesterday if she was disappointed voters may have elected Collins despite the fact he faces a federal insider trading trial in 2020.

“I’m not going to question why voters do what they do,” Hochul said. “It is certainly their prerogative and that is what’s so great about America.”

“I certainly am surprised because I think this district really deserves to have someone who’s not going to be spending most of their time defending allegations of a federal crime that was committed in a very public way, literally on the White House lawn.”

The lieutenant governor was referring to video and photos of Collins on the phone at roughly the same time, the indictment alleged, he learned of privileged information about an Australian pharmaceutical company for which he owned stock, and apparently sharing that information with his son. The congressman has repeatedly called the charges meritless and said he believes he will be exonerated.

Rep. Collins Believes Mueller Probe Almost Over

From the Morning Memo:

His Democratic opponent may not yet have conceded the election, but Republican Rep. Chris Collins is already preparing for his fourth term in Congress.

Aside from his ongoing federal insider trading case, Collins will face another new challenge come January. Democrats will control the House with the party’s total gains somewhere around 30 seats and potentially rising, and he’ll find himself in the minority – assuming his lead holds.

The shift in power, along with a change in attorney general this week, has sparked speculation about the future of the Robert Mueller special investigation into Russian collusion during the 2016 presidential election. Collins, however, believes Mueller is nearly done anyway, if he hasn’t already finished.

“I think it’s concluded,” he said. “My own guess is he did not want to impact the mid-term elections.”

The congressman does not believe his Republican colleagues will pressure Mueller to release his reports while they still have control of the House, nor does he think Acting Attorney General Matthew Whitaker should make that decision.

“I believe we will let Mueller make it on his own,” Collins said. “That’s what I would support, because I’m confident there is no, was no collusion. Let’s let this play out and I think all indicators are it will be done before the first of the year.”

As for what Democrats might do with the report, Collins said that’s up to them. He pointed out House Democratic leaders like Adam Schiff and Nancy Pelosi have already threatened new investigatory efforts.

But he warned if Dems overplay their hand, they risk losing their new members in 2020 and giving the president more ammunition for his own re-election campaign.

The Problem With Conceding Too Early And Other Thoughts On NY-27

After a taxing congressional campaign, Democrat Nate McMurray came out to chanting supporters Tuesday night and told them it looked like the campaign was going to come up a little bit short.

His staff cried. His family cried. The candidate fought back his own tears.

I, frankly, was a little bit surprised. The results, which came in sporadically throughout the night on the state Board of Elections website, particularly from Erie County, seemed to indicate incumbent Republican Chris Collins was winning but it was close.

The McMurray campaign told me they hoped they were wrong but were pretty confident the race was over. Several hours later, things changed, as McMurray called for a recount with absentee votes still yet to be tabulated and just a few thousand votes separating the two candidates.

One can’t help but wonder if they might have been better off sleeping on it before they conceded the election. McMurray contended it wasn’t technically a concession speech.

To further confuse matters, the Democrat tweeted a cryptic message Wednesday morning, leading reporters to question if he’d reconsidered again.

“I know a lot of you are feeling sadness,” he said. “Please know this: It will pass. Today hurts, because our efforts were so pure. Against all odds, we worked together like family. And we did so with joy. Be of good cheer. Losses are inevitable. But goodness is not. We will fight again!”

That tweet appeared to be deleted shortly afterward. Another post assured supporters the recount would happen and the race is “not over yet.”

Regardless, McMurray will have an uphill battle. The recanvassing, which the Erie County Board of Elections pointed out happens automatically for every election, has already begun with each of the eight individual counties in New York’s 27th Congressional District counting their own. Absentee ballots still need to be counted as well.

“When you have a margin of victory or a margin of lead of around 3,500 votes, it’s going to be very difficult to overcome that margin,” Republican Elections Commissioner Ralph Mohr said. “As we see historically, the absentee ballot count usually mirrors the machine votes.”

Collins, meanwhile, has claimed victory and the campaign said in a statement early Wednesday morning, nothing has changed from its perspective. The Republican defiantly criticized the media Tuesday night for not being “kind” to him throughout the campaign.

He continues to face federal charges related to insider trading, with a trial date scheduled for early 2020.

“I’m innocent until proven guilty even though the press convicted me, dismembered me and burned me at the stake,” Collins said.

The congressman said the campaign set a strategy that did not include the media. I found it honest but unusual to hear a candidate admit he actively avoided reporters during a hotly-contested campaign.

Collins did selectively do one-on-one interviews, including ones with the Buffalo News, WIVB-TV and WBEN radio. The campaign did not respond to numerous requests from our station for an interview over the last three months.

“We answer the media when they’re reasonable,” he said.

Collins said he didn’t see a problem with the strategy but it did allow him to carefully craft his message and put the reporters who interviewed him at an immediate disadvantage. Essentially, if an outlet were to ask questions the congressman didn’t like, it could lose access.

It did allow him to run a more grassroots campaign. Rather than talk about the indictment, he generally appeared at small gatherings of supporters, often in the rural areas of the district where he saw very positive results Tuesday night.

Collins said moving forward, he plans to make his schedule public and will be available.

“You want to speak to me, you just make a call. We’ll be there.”

The Board of Elections said it likely won’t have final results until around Thanksgiving. The McMurray campaign did request a judge impound ballots on Election Day after hearing reports of issues with voting machines. That request was denied.

Gillibrand Criticizes Trump’s Decision To Pull Out Of Iran Deal

From the Morning Memo:

President Donald Trump yesterday made good on a promise to withdraw the United States from the 2015 Iran Nuclear Disarmament Deal.

The administration said the deal had failed its fundamental goal: To block the Iranian path to nuclear bombs. In its place, the U.S. has restored sanctions targeting the country’s economy – including oil exports, shipping and banks.

U.S. Sen. Kirsten Gillibrand, one of Trump’s most consistent Democratic critics and a potential 2020 White House contender, said she agreed with the president to an extent.

“We have to be strong against Iran and holding them accountable for their missile testing and for their investment in terrorism,” she said.

But Gillibrand disagreed with Trump’s decision to withdraw fully from the deal. She pointed out that it had the support of a number of European countries.

Despite early predictions the sanctions will have a negative effect on Iran’s economy and promises from the administration they will force renegotiations, Gillibrand said the U.S. would be better off not taking a unilateral stance.

“Obviously that was the way we got all the world community to the table and having those worldwide sanctions made a huge difference. We are no longer party to that, she said. “So while we can do our own sanctions, they are far less powerful than worldwide sanctions.”

Countries including North Korea and China, which are also affected by the sanctions, have been very critical of the decision as well.

Gillibrand is running for re-election today, and is widely expected to easily defeat her lesser-known and under-funded challenger, Republican Chele Farley.

Start-Up NY Success Symbol Closes, Blames Trump Tariffs

From the Morning Memo:

A Buffalo-based tablet company often held up as one of the Cuomo administration’s success stories, announced Thursday afternoon it was closing.

The 77 remaining workers at Bak USA will be laid off. The company was part of the Start-Up NY program which offered expanding businesses significant tax breaks and academic partnerships.

When critics questioned the program’s results the administration often pointed toward Bak, which not only was growing but sought to hire workers from disadvantaged communities in the Buffalo region.  However, Chairman JP Bak said the business didn’t make enough of a profit to sustain itself.

“My family started this business nearly four years ago with a bold vision: to empower American students and workers by producing computers in the U.S.,” he said. “Through the innovation and hard work of our talented team, we achieved more than we dreamed. Regrettably, the economic pressures on our young company have become too great to withstand.”

Bak actually blamed the Trump administration, at least in part, for the failure. He said the additional, unanticipated costs as a result of tariffs imposed by the White House were a deciding factor in the decision to close.

WNY Democrats found the reason easy to believe.

“I wish this federal policy was different than it is. Unfortunately, these tariffs that have been imposed have consequences and in the case of Bak USA, an American tablet manufacturer, the consequences have been devastating,” Buffalo Mayor and State Dem Chair Byron Brown said.

Erie County Executive Mark Poloncarz echoed the mayor’s sentiments, adding he spoke with the chairman about his efforts to keep the company owning as recently as Thursday morning. Bak USA opened its global headquarters near downtown Buffalo in 2015.