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.

The swirling controversies and prognostications about the future of embattled Governor Cuomo have dominated New York headlines.  One of the big questions has been, “How will the governor and state lawmakers work together to hammer out a new state budget due by the end of this month?”

While that question remains in the minds of many, the Congress has quietly stepped in and helped pave the way for a state budget agreement.

The U.S. Senate has approved a federal stimulus package that tracks the one that the House approved.  It is expected that the President will sign off on the deal later this week.  The top-line issues of that deal have been that the vast majority of Americans will soon be receiving payments from the federal government.  The legislation provides a direct payment of $1,400 for a single taxpayer, or $2,800 for a married couple that files jointly, plus $1,400 per dependent.  Individuals earning up to $75,000 would get the full amount, as would married couples with incomes up to $150,000.  The size of the check would shrink for those making slightly more, with a hard cut-off at $80,000 for individuals and $160,000 for married couples.

The stimulus package extends unemployment benefits from the federal government through September 6^th at $300 a week on top of state benefits.  There are other provisions that provide help for health coverage, fund public health and vaccination programs, and financial support to businesses suffering from pandemic lockdowns.

Less widely discussed is that the agreement sends $350 billion to state, local and tribal governments for costs incurred up until the end of 2024.  That money is apportioned to each of the states based on their unemployment rate.

Assuming all goes well this week, New York will receive $23.5 billion through the end of 2024.  The assistance is supposed to be split between state and local governments.  Thus, it is expected that New York will receive over $12.5 billion going toward direct state aid and the rest of the funds allocated for education, transit, local governments, and other programs.  New York City will receive $6 billion.  Nearly $4 billion will go to the state’s counties and $825 million for its small cities, towns, and villages.  New York’s Metropolitan Transportation Authority gets $6 billion.  Schools K-12 will receive $9 billion. 

Moreover, New York’s colleges and universities will get $2.6 billion.  New York’s educational system – particularly its community colleges and small liberal arts colleges – have been taking a financial beating due to the pandemic and this support is desperately needed.

The massive aid package should go a long way toward helping Governor Cuomo and the legislative leaders to come to an agreement.

The federal stimulus – which has not yet been approved and the details of which are still being sorted out – is the only good news state lawmakers have received in recent weeks.

Allegations about the Cuomo Administration’s handling of information about COVID deaths in nursing homes, as well as the governor’s personal behavior toward legislators and female members of his staff have impacted the legislative process.  More and more, lawmakers and editorial pages are urging the governor to resign; he has pledged not to do so.

Time will tell how that all plays out.  But the governor and state lawmakers are sent to Albany to do a job and getting the budget in place for the new fiscal year is at the top of the list.  The controversies as well as the state’s pandemic-driven desperate financial picture had made the prospects for an agreement very dim.

But it looks like the Biden Administration and the Congress have shown up just in time.  If the stimulus legislation is approved by the President by the end of the week, state lawmakers will have two weeks to re-engineer a state budget that offsets potential cuts in important programs while providing real support to New Yorkers in need.

Hopefully, the governor and the Legislature can make it happen despite all the turmoil surrounding state government.

February was not a kind month to the governor.  Earlier, the state Attorney General issued a report that documented that the Administration had significantly undercounted COVID deaths in nursing homes.  That revelation and the Administration’s admission that they had withheld data from the Legislature and the public roiled the Capitol and became Albany’s focus. 

Last week, Health Commissioner Zucker was on the hotseat as he faced lawmakers who had been stewing over the Administration’s stonewalling on the nursing home data.  Legislators’ sensitivities had recently turned raw with Assemblymember Kim’s allegation that the governor threatened the lawmaker’s political career if he didn’t publicly back the Administration’s defense of its nursing home actions.  Instead, the Assemblymember from Queens launched his own effort to highlight the alleged bullying tactics of the governor’s office. 

As the month rolled on, more stories emerged claiming that the Administration had crossed the line even for rough ‘n tumble New York politics.  The month ended with two claims of harassment against the governor made by female former staffers of the Administration.  This past Sunday, the governor’s office requested that state’s Attorney General choose an independent lawyer to review those claims.

Everyone – from lawmakers to the media – has called for an independent investigation.  But those calls raised a serious question – why not rely on the state’s ethics watchdog – the Joint Commission on Public Ethics (JCOPE) – to launch the probe?

The reason is that no one believes that JCOPE is structured to be an independent referee.  Established a decade ago, the Commission’s membership consists of individuals who are directly appointed by the governor and the legislative leaders – the people that JCOPE supposedly monitors.  Throughout the decade, there have been allegations that Commissioners do, in fact, relay internal discussions back to their appointing authorities. 

Most recently, one member of the Commission quit over a call – supposedly from the governor’s office – to the Assembly Speaker’s office to intervene over an internal investigation being considered by JCOPE, despite a legal requirement that such internal conversations must remain secret.

But the lack of independent watchdogs in New York is not just about ethics.  When it comes to elections, the two major political parties call the shots.  That arrangement was to ensure that each of the parties monitors the other, but what happens when the parties collude?  Recently, in the race for the NY 22 Congressional seat, it emerged that the two parties grossly mishandled the vote. The two parties watching each other does not guarantee that the individuals the parties chose to run elections are competent.

In the nursing home case, the Administration felt no pressure to comply with state open records laws to release data requested by members of the public.  The Administration has a bad reputation when it comes to making public information available, yet the state’s Freedom of Information watchdog has no authority to force agencies to release data instead of foot dragging. 

The state’s budget is also hard to monitor.  While the state has a separately-elected Comptroller to oversee the its books, he can only do his job to the extent that the Administration cooperates.  A decade ago, the Cuomo Administration successfully limited the Comptroller’s review over government contracts – a change which may have contributed to the “Buffalo Billion” scandal that resulted in two top aides being convicted of corruption.

See a troubling pattern here?

Independent agencies are needed to monitor ethics, budgets, openness, and elections.  For example, New York City – and many other states – have a separate Independent Budget Office to keep an eye on city budgets, the state could use the same.  Leaving that power centralized not only can blind the public but leave public officials without an easy path to exoneration if they are indeed innocent. 

However the latest Albany controversies play out, there is one issue on which all policymakers should agree:  The state needs independent watchdogs that are free from partisan or political pressure, have adequate resources to do their jobs, and have a professional workforce based on excellence, not political connections.

Unless and until that occurs, New York will have to deal with a state government too often distracted by controversies, a distraction that keeps them from focusing on their jobs – to better the lives of the public.  The time to reform New York’s sleeping watchdogs is now.

The Cuomo Administration has been taking a beating in the media over its months-long refusal to disclose public information to reporters and watchdog groups about COVID-19 deaths in nursing homes and other similar non-hospital settings.  The Legislature, a co-equal branch of government, had also been stonewalled by the Cuomo Administration.  Republicans have called for the governor to be impeached and for a special session to be called to address the Administration’s failures.  Democrats have threatened to subpoena Administration officials and to hold public hearings on the issue.

This week’s public hearing on the governor’s proposed health budget is likely to produce significant fireworks as the Health Commissioner will face lawmakers for the first time since the Attorney General’s January report was released documenting 50 percent more nursing home deaths from COVID than had been reported by the Cuomo Administration.

While it is important for the legislative branch to get to the bottom of Administration’s apparent effort to sit on evidence of what may have been a tragic failure in COVID policy, an important additional issue should be explored as well.

In addition to identifying the previously undisclosed nursing home deaths, the Attorney General’s report found that nursing homes that scored poorly in federal reports on quality of care had the highest fatalities.  According to the AG, “Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates.”

Of course, if the federal reporting is accurate, it would not be surprising that the nursing homes with the lowest scores – and therefore the poorest quality of care – would be the ones that had the worst performance in protecting residents from COVID. 

But if the feds had been reporting that performance, why hadn’t state regulators acted prior to the pandemic?  Why did it take COVID and the Attorney General’s report to bring it into the public spotlight?

Advocates for seniors and others in care facilities were well aware of this information and had long been complaining about poor quality of care.  As one advocate for nursing home residents commented, “There’s a lot of neglect in nursing homes in the best of times and these are not the best of times.”.  But those concerns, apparently, had been ignored by state health officials.  As a result, nursing homes residents and their loved ones suffered.

Where was the Cuomo Administration’s Health Department?  The governor has been in office for over a decade, yet it appears that too little was done to react to the federal government’s reports.

Struggles with infections – not just those from COVID – are a problem statewide.  This is deeply troubling in places designed to tend to those sick and frail.  New York State hospitals tend to perform worse than the national average when it comes to infections. 

Moreover, the federal government also reports on hospitals’ quality of patient care in the same way as it does for nursing homes.  A recent review of that federal data found that New York State’s hospitals, on average, tend to perform worst in the nation.

The Attorney General’s report stated that nursing homes with the lowest scores put their residents at the highest risk of contracting COVID.  It’s fair to assume that those residents are at risk of other illnesses as well.

The same logic should apply to the performance of New York’s hospitals.  If they too perform poorly, are patients at risk of substandard care?

This raises the biggest question: Where are the regulators?  The federal government has been reporting quality failures, yet the New York Health Department appears to have not adequately responded to the concerns – certainly in the case of nursing homes as reported by the Attorney General.  Is that true for hospitals as well?

Since a huge chunk of the state’s annual budget goes to health care, this week’s budget hearing is the right time to ask whether New Yorkers are getting quality oversight and healthcare services for their tax dollars.  When the Health Commissioner faces lawmakers at the hearing, he should not only be forced to explain the Cuomo Administration’s failures to be open and accountable with respect to COVID regulations for nursing homes, but he also should detail what the Department has done to respond to years of federal reports on the poor quality of care in nursing homes and hospitals.  The answer to that question is a matter of life and death.

Last week, more than three months after the November 2020 election, a winner was finally chosen in the nation’s only undecided Congressional race.  In Central New York’s Congressional District 22, Claudia Tenney was declared the winner with a razor thin margin of victory over incumbent Representative Anthony Brindisi.  In addition to a new Representative, the race brought disturbing news to New Yorkers: The close scrutiny of the ballots identified serious flaws in the way the state runs its elections.

Originally, the tightness of the election results triggered a legal review.  The declaration of a victor last week came after a state judge ruled that Tenney won the race for the sprawling 22nd Congressional District – which includes all or part of eight counties – by 109 votes.

The judge’s ruling came after three months of ballot challenges and the revelation of a series of problems with elections administration, voter registration and vote counting.  The vote counts ping-ponged almost daily from one candidate to the other as county election officials found counting irregularities across the Congressional district.  Here are some of the reported problems:

• Oneida County failed to count votes cast by New Yorkers who had registered through the Department of Motor Vehicles.  BOE staff used sticky notes to keep track of the reasons why Brindisi and Tenney disputed dozens of ballots.  When the judge asked to review those ballots in his court, the election commissioners admitted that some of the sticky notes had fallen off ballots.  Oneida County election commissioners admitted they did not follow New York Election Law when they rejected about 1,500 affidavit ballots.

• Oswego County election officials admitted that they failed to follow state Election Law with disputed absentee ballots. 
• Herkimer County election officials admitted that they had miscalculated the vote tally for CD-22. 
• Chenango County discovered 55 uncounted ballots and found 12 ballots stuffed in a drawer. 
• Madison County lost track of disputed ballots.
• Cortland County did not tell the candidates about rejected ballots. 
• Broome County used a numbering system that did not work.  A Broome County deputy elections commissioner testified about several violations of the Election Law related to the counting of absentee and affidavit ballots.

While there is no way to know for sure, at least some of these actions resulted in voters not being able to cast their ballots, or if they did those votes were not counted.

It would be comical if it wasn’t so serious.  Why did this happen?  Since New York has voted consistently in support of the Democratic Party in statewide elections, none of the Presidential races have turned on the state’s outcome.  But the fundamental problems in the way that New York runs its elections has been a long festering problem.  It starts with who is in charge.

New York’s elections are run by the two major political parties through the State Board of Elections.  Democrats and Republicans run two essentially separate agencies at the state level and in each county that conduct and monitor elections.  This organizational structure was created so that both political parties would have equal ability to monitor the other and thus ensure fairly-run elections.  

Over the years, that system has fostered political patronage, collusion between the parties at the expense of the public, scandals, and incompetence.  Make no mistake: These failures came from the top, not from the civic minded poll workers who work long shifts on Election Day to greet and sign in voters.  If nothing else, the election of 2020 shows that the public is fed up with the long lines, disenfranchisement, lost ballots, and partisan arrogance.  They want reform.

The elections failures identified in the judicial review of the race for Representative of CD-22 cover multiple counties and not only resulted in a three-month delay in the result, but more importantly disenfranchised voters.  Moreover, these findings come on the heels of other voting problems in other parts of the state during the primary and general elections.

It’s clear that New York’s archaic system of patronage-controlled Boards of Elections has once again failed voters.  Given the number of counties involved and the sloppiness and incompetence of elections administrators in several jurisdictions, New Yorkers deserve a thorough review and the knowledge that the state’s leaders are taking these problems seriously. 

New York lawmakers are now considering the funding level of New York’s elections administration, as well as a host of reforms to improve voting.  Now is the time to take decisive action to both investigate the failures of the 2020 election and to begin to shift away from political party control over New York’s elections.