Health Officials Extend Vaping Products Ban Amid Legal Challenge

A panel at the state Department of Health on Thursday moved to extend the state’s ban on flavored vaping products as it faces a legal challenge from an industry group.

The ban, first approved in September, was set to expire this weekend after a 90 day clock wound down. Enforcement of the ban itself has been delayed by a court order amid the lawsuit from the Vaping Association.

“So what while we remain optimistic that we’ll prevail in court, we need to have the emergency regulations approved for an additional 90 days so when we do prevail in court we’ll be able to move immediately to begin enforcing those regulations,” said Brad Hutton, the deputy commissioner for public health at the DOH.

The move was applauded by anti-tobacco advocates.

“The council’s action recognizing the dangers posed to our youth by flavored e-cigarettes is commendable,” said Julie Hart, the American Cancer Society Cancer Action Network’s senior New York government relations director.

“Flavored tobacco products are used by the tobacco industry to lure kids into a lifetime of addiction. Big Tobacco has a long history of targeting the African American community with its menthol products, so inclusion of menthol e-cigarettes is crucial. We look forward to working with Governor Cuomo and the state legislature to strengthen this measure and urge them to pass legislation to restrict all flavored tobacco products, including cigars and menthol cigarettes, to protect all New Yorkers.”

At the same time, state health officials voted to advance a proposed ban on menthol-flavored vaping products, though it is yet to reach final approval.

Door Cracks Open Further To Tax Hike For Rich

From the Morning Memo:

Middle-income earners and working class New Yorkers should not take the brunt of closing a $6.1 billion budget gap, but there’s a “discussion to be had” over whether richer people should be asked to pay more, Sen. Mike Gianaris said in an interview Wednesday on NY1’s Inside City Hall.

“I think there’s a discussion to be had about whether we want to focus on some of the wealthier individuals in the state who can certainly afford to contribute a little bit more when times are tough,” he said when asked about a potential tax increase. “But that’s something we haven’t resolved yet.”

Senate Majority Leader Andrea Stewart-Cousins this week told reporters the budget gap facing lawmakers and Gov. Andrew Cuomo is worrisome and increasing taxes on New Yorkers won’t be a first option for Democrats in her conference.

Gianaris in the interview said the burden won’t be shouldered by middle-class people.

“I know our leader has made clear that we’re not looking to increase the burden on working people in New York, but at the same time we don’t want a reduction in services,” he said. “So, that dialogue is something that’s going to unfold over the next several months.”

But talk of a tax hike has revived discussion of whether to increase taxes on upper-income earners in the state — a move that has been opposed by Gov. Andrew Cuomo. In the recent past, Democrats in the Legislature have sought tax rate hikes on people who earn more than $5 million a year.

Assembly Speaker Carl Heastie this month said he is supportive of raising new revenues in the budget as opposed to cutting spending, though did not go into detail.

But Cuomo has not embraced higher taxes for the rich, pointing to a $10,000 cap on state and local tax deductions and the ability of wealthier people to leave the state. Revenue generated by the personal income tax comes in large part from a handful of wealthy people in the state.

Lawmakers have signaled they want pass a legally required balanced budget that closes the gap while also bolstering key areas of concern — namely schools and health care spending.

“Many of us believe that there’s a great inequality in terms of who pays and the services rendered,” Gianaris said in the interview. “We actually want to increase the spending on our education and health care systems in a way that continues to provide better services for New Yorkers and when we don’t have money that means we’re going to have to try to find it somewhere.”

The budget is expected to pass by March 31.

Contractors Association Says Marijuana, Gambling Revenue Should Go Toward Roads

From the Morning Memo:

A contractors industry group is calling for New York lawmakers to dedicate revenue from sports betting and legalized cannabis to road and other infrastructure improvements.

Sports betting — currently allowed on-site in the state’s commercial casinos — is estimated to generate $75 million, while the legalization of retail cannabis would send $300 million to the state.

The Long Island Contractors’ Association wants the money put toward roads and bridges that are in need of repair.

“Through the leadership of legislators who are sponsoring these bills, we believe we can establish a positive impact by dedicating new funds towards an important need; the aging and crumbling bridge and highway infrastructure in the State of New York,” said Marc Herbst, an executive with the group. “Specifically, families on Long Island depend on safe roads, highways and bridges.”

The group is expected to present its proposal to the Assembly Transportation Committee later on Friday in a public hearing on infrastructure improvement.

Lawmakers and Gov. Andrew Cuomo in the 2019 legislative session did not agree on a plan that would set up a taxing and retail system for legalized marijuana in New York. Lawmakers and Cuomo broadly agreed revenue raised from the proposal should benefit communities affected by stringent drug laws.

The measure is expected to be under debate again when the 2020 session begins next month.

The Surprises Of 2019

From the Morning Memo:

In many ways, the past year was unchartered territory for New York’s state government.

Yes, Democrats had controlled the governor’s office and both houses of the Legislature in the recent past. But all-Democratic rule in Albany is coming amid the political crosscurrents of the Trump administration and a resurgence of progressive politics within the party here in this state and nationally.

A lot of what happened this year legislatively as well as politically was entirely predictable: Gov. Andrew Cuomo’s often truculent relationship with Senate Democrats was sustained amid the collapse of the Amazon deal in Long Island City, long-expected measures for abortion rights, climate change and election and criminal justice law changes were rapidly approved after being bottled up for years.

But 2019 still offered a handful of things I failed to anticipate in politics and government. In many ways, it’s stuff I got wrong — or at least failed to predict correctly.

1. U.S. Sen. Kirsten Gillibrand’s presidential flameout.

The anticipation: Gillibrand’s potential White House candidacy, on paper, seemed like an almost logical thing. She is a prodigious fundraiser, adept at navigating Congress and has seeded campaigns around the country in a bid to elect more Democratic women to office. She has had to contend with better-known men in statewide office, including Gov. Andrew Cuomo and Senate Minority Leader Chuck Schumer. She’s embraced issues before they were of national prominence, like combatting sexual assault and rape on college campuses and in the military, years before the national reckoning of the #MeToo movement. The ingredients were there for a potentially successful campaign.

What happened: Success in New York often doesn’t translate to the national stage. The presidential Democratic primary field is a crowded one, with few lanes to maneuver in. Gillibrand struggled to gain any real momentum in fundraising or in public polling. I also didn’t have a deeper appreciation for how some Democrats in the party’s base would be skeptical of her previous, more moderate stances held while a member of the House of Representatives on guns, spending and immigration.

2. A big deal on rent control.

The anticipation: The real estate industry exerts a lot of influence in Albany and in statewide politics as a whole. There’s a tremendous amount of money at stake, money that’s distorted the cost of using the limited space available in New York City for both housing and at the retail level. Rent control regulations — essentially emergency rules in place since the post-war era began — for years had been extended under Republican rule and barely altered since the end of vacancy decontrol. Consider it a form of muscle memory at the Capitol. Of course rent control wouldn’t die, but it would simply stagnate.

What happened: Well, only one of the most sweeping deals of the decade struck between the Assembly and state Senate. The rent package approved in June swept away a generation or so of housing policy that was largely seen as tilting the balance back to tenants. The legislation even allowed for similar measures to be put in place in other cities outside of New York City, making it truly a statewide issue. I failed to grasp the importance Democratic lawmakers in both chambers were about to place on housing affordability in 2019 and how much of a touchstone issue it is for many of their constituents.

3. The school aid fight.

The anticipation: Newly elected Democrats, especially in the state Senate, have molded their careers around more money for high-needs schools. Sen. Robert Jackson was a key player in a school funding lawsuit in the previous decade and now he’s in a position to cast a vote on the budget funding education statewide. Hey, maybe even the budget will be held up past the March 31 deadline to boost school spending by more than $1 billion in increases.

What happened: Well, the budget was approved by the start of the fiscal year. And Jackson and his fellow Democrats made a push for more spending. Education money did of course increase in the state spending plan, but not to the extent education advocates have sought over the years. Perhaps lawmakers were waiting to place all of their chips on a big rent control package. At the same time, education funding writ large is a tougher nut to crack: Changing foundation aid formula, as some lawmakers are now discussing, is needle that needs to be carefully threaded in order to avoid alienating suburban lawmakers while also aiding poorer districts. Next year, money is going to be even more scarce with a $6.1 billion budget gap.

Already next year we’re seeing fights shaping up over the gig economy, the budget gap and Medicaid spending and, of course, an election year in which progressives will try to primary incumbent lawmakers once again. What am I missing now that, in December 2020, I’ll wish I thought of today?

Ethics Commission Drops Lobbying Case Against Rape Survivor

The state’s top ethics regulator on Wednesday dropped its unregistered lobbying investigation against a rape survivor who had advocated for the Child Victims Act.

The Joint Commission on Public Ethics in a letter to Kat Sullivan wrote it “will not take further action” in the case, which stemmed from her support for the measure that is meant to make it easier for rape victims and survivors to file lawsuits.

Sullivan had hired plane to fly a banner in support the law and paid for billboards.

The commission in its investigation sought to determine whether Sullivan spent more than $5,000 — the threshold that trigger’s state’s lobbying disclosure law. Sullivan faced a fine of at least $25,000 for failing to register as a lobbyist if the commission determined she had broken the law.

Sullivan is a rape survivor from her time as a student at Emma Willard, an all-girls school in Troy.

In the letter, JCOPE general counsel Monica Stamm criticized Sullivan for “increasingly profane” emails and creating an online lobbying profile calling herself “Kat Mother— Sullivan” as well as calling the commissioners “fascists.”

The commission also alleged Sullivan wrote several members “threatening that they will be forced to resign.”

“Notwithstanding your conduct, in a case such as this, the Commission can act through guidance and further regulatory clarification, or through continued investigation and enforcement,” the JCOPE letter states. “The Commission has elected to issue this guidance letter and to review the regulations in the coming months 17; it will not be taking any further action against you regarding your attempts to influence the CVA.”

The timing of the letter coincided with the commission coming under scrutiny for a separate matter in Albany: Gov. Andrew Cuomo’s discussion with Assembly Speaker Carl Heastie about the actions of an Assembly appointee on the commission as the panel considered an investigation of Joe Percoco, his disgraced former aide.

An investigation did not make clear who shared with Cuomo information surrounding the closed-door work of the commission. The inspector general’s office last week, a day before Thanksgiving, released a three-page report that concluded the review was unable to substantiate whether information was improperly disclosed.

2019 12 4 Sullivan Guidance FINAL by Nick Reisman on Scribd

Where Albany Can Find Some ‘Revenue Raisers’

From the Morning Memo:

Assembly Speaker Carl Heastie signaled Tuesday his Democratic conference next year will seek ways of raising more revenue for the state to close a $6.1 billion budget gap.

Heastie was careful not to say this would come in the form of a tax increase, which the conference has sought in the past in the form of taxing upper income earners in New York.

As a proposal, it could mean taxing the ultra wealthy, people who earn well into the millions of dollars.

Still, there are other options for lawmakers and Gov. Andrew Cuomo to raise revenue short of a broad-based tax rate hike. Here are three of them.

Marijuana legalization:

The stalled proposal last year to legalize marijuana for commercial sale is expected to be debated again in the 2020 legislative session. The revenue from the proposal would come both in the form of licensing retail cannabis businesses in the state as well as from sales tax activity.

Officials have estimated the state could generate $300 million in revenue from legalization.

Doubts remain, however, over whether lawmakers and Cuomo can get the measure over the finish line. Suburban Democrats in the Legislature raised concerns with cannabis legalization stemming from traffic safety issues and whether kids would be able to gain access to retail purchases.

Casinos in New York City:

The commercial casinos have struggled in upstate New York as the northeastern market has reached something of a saturation point with gambling. But a the application process alone for winning the permit for a New York City-based casino alone could generate millions of dollars for the state.

Last year, casino interests — ranging from the Las Vegas Sands to MGM and Genting — sought to expedite the end to the upstate casino exclusivity set in law. They came up short, but are expected to try again next year.

An addendum to this: Allow for sports-related bets on smart devices like phones and tablets. Sports betting is currently allowed only in casinos and gambling interests have wanted to expand that, pointing to neighboring New Jersey allowing app-based bets.


Earlier this year, state lawmakers wanted to place an additional tax on multimillion-dollar second homes in New York City, a proposal that was sharply opposed by the real estate industry in New York. Ultimately, the plan was dropped amid the complexity of the plan.

But the real estate industry has an increasingly toxic place in the minds of state lawmakers and housing advocates. Add to that a budget crunch, and the tax could appear more attractive next year.

Does that get you to $6 billion?

No! Not even close. The marijuana legalization plan will take multiple years to get rolling. Casino applications and licensing can generate millions, but we’re talking billions of dollars the state needs to close the budget gap. The piede-a-terre tax could also make a distorted real estate market in New York City all the more distorted.

The budget gap is fueled in large part by a gap in the Medicaid program. Gov. Andrew Cuomo’s budget office has previously indicated it is developing a plan with the Department of Health to find cost savings. These are structural problems the state will need to tackle.

Albany has historically loved “one-shot” revenue raisers. They are relatively politically painless, but are often akin to an artificial sugar high: Eventually you still need to find more money.

As Assembly Dems Meet, Public Financing Recommendations May Stand

Assembly Democrats return to Albany today for a two-day retreat amid the recommendations of a commission overhauling the state’s campaign finance system.

The commission, whose recommendations stand to become law, backed lower contribution rates, taxpayer matching dollars for campaigns and a provision that makes it harder for political parties to maintain their ballot status.

At the moment, it’s not yet clear if lawmakers will move to overturn the recommendations. A special session this month is not required to do so.

But advocates for publicly funded elections are not pleased with the final package of recommendations and the Working Families Party feels like it is being torpedoed by a vengeful Gov. Andrew Cuomo by the ballot threshold.

Amid the complaints, the national Campaign Finance Institute praised the proposed changes as “groundbreaking” for a state government to adopt.

“What is happening in New York is of national importance,” the group said in a statement on Monday. “The program that emerges may well include precedent-setting public financing components that will be worth serious consideration by others.”

Assemblyman John McDonald, a Democrat from the Albany area, said it’s not yet clear if the Legislature will move to make any changes.

“I can’t answer that today. I’ve heard varying different aspects,” he said. “I think there’s two or three camps. Some are fine to let it go the way it is, some were fine to have it go to a commission. And there are others who want to go back and make changes.”

Gig Economy Worker Debate To Heat Up

From the Morning Memo:

A coalition of business groups and firms, including Uber and Lyft, are launching a campaign to oppose efforts to provide benefits and labor protections to workers in the so-called “gig” economy the groups say could hurt the flexibility of the work.

The coalition, known as Flexible Work for New York, also is launching digital ads this week ahead of the coming debate over how to classify workers who drive ride hailing vehicles, deliver food through apps like Door Dash and provide other on-demand services.

“New Yorkers rely on flexible work to start small businesses, care for loved ones, pursue education on their own time, and more,” the coalition said in a statement. “We urge State lawmakers to protect flexible, independent work and fight to expand protections for these New Yorkers.”

It’s the clearest sign yet the debate over contract and independent workers in the “gig” sector could be one of the more contentious ones to face state lawmakers when they return to Albany in January.

Workers who fall under the independent contractor status traditional jobs have, like access to employer-based health care, retirement benefits and other guarantees that have become a staple of post-World War II jobs.

A similar effort in California to re-classify independent contractors was successful earlier this year.

The companies have argued the work provides flexible hours to workers. The coalition pointed to a Department of Labor survey of independent workers who are satisfied with their current arrangements and few would prefer a more traditional form of employment. A 2016 national survey found most independent workers who are freelance by choice.

Gov. Andrew Cuomo has previously signaled he would be open to new labor standards for gig economy workers.

LGBTQ And Survivor Groups Back Bail And Criminal Justice Reform Measures

A coalition of LGBTQ and survivor advocacy groups on Monday pushed back against efforts to change coming reforms to the state’s criminal justice law system.

The groups in a statement backed ending cash bail for misdemeanor and non-violent felony charges as well as changes to the pre-trial procedures for access to evidence.

The push back is push back itself in part to the efforts by local district attorneys and law enforcement as well as some state lawmakers who want to delay the measures being implemented.

“We are acutely aware that too often, survivors’ experiences are exploited when prosecutors work to pass laws to give themselves broad discretion and leverage in court in order to increase convictions,” the groups said in an open statement. “Every day, we hear from survivors that what they really need is economic stability, housing, health care, and trauma-informed services.

“If District Attorneys are interested in supporting survivors, they need to listen to us and fight for emergency shelter and long-term housing, economic justice, and access to robust healthcare.”

Signing onto the statement included Girls for Gender Equity, The Lesbian, Gay, Bisexial & Transgender Community Center, New Hour for Women & Children Long Island and the NYC Anti-Violence Project.

The Odd Bedfellows Of Public Campaign Financing

The battle over public campaign financing has created some odd political bedfellows already: The Working Families Party and the Conservative Party alike separately challenged the commission in court.

In part, both questioned whether it had the authority to end fusion voting.

But ultimately, the commission didn’t recommend an end to fusion per se, instead backing a move that would make it harder for minor parties to maintain their ballot status.

Currently political parties must have their gubernatorial candidate achieve 50,000 votes every four years to maintain status. If the recommendations stand as law next year, parties on the ballot must achieve 130,000 votes or 2 percent of turnout at the top of its ticket in presidential and gubernatorial elections every two years.

The WFP in a statement blasted the change.

“The Public Financing Commission’s report makes clear that the Governor’s principle motivation was to weaken the Working Families Party: there is no other reason to raise the threshold for third parties a full four years before public financing begins,” said New York Working Families Party Director Bill Lipton.

“With the subtlety of a sledgehammer, the Governor and his allies tried to weaken New York’s progressives before he runs for office again — instead, his blatant abuse of executive power has only further energized progressives for 2020 and beyond.”

The Conservative Party, meanwhile, came at the commission from the end of politics: Taxpayers shouldn’t be footing the bill for campaigns.

“If you hate campaign robocalls now, wait till you’re paying for them yourself,” said Conservative Party Chairman Gerard Kassar.

“And you will be, ring, ring – $100 million worth every four years – if Governor Cuomo’s boondoggle of a taxpayer matching fund plan is allowed to stand. Handing hard-earned money to politicians for political ads would do nothing to slow corruption. When governments grow as large as New York’s, there are always avenues for larceny. Mr. Cuomo’s backhanded commission proved that yet again.”