Memorandum of Law of Amicus Curiae Public Advocate Bill de Blasio (00112981)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK METROPOLIT AN TAXICAB BOARD OF TRADE, OSSMAN ALI

, AYALLO HACKING CORP., BONANZA CAB CORP., BATH CAB CORP., RONDEB CAB CORP., and NEW YORK CITY COUNCIL MEMBER LEWIS A. FIDLER, Plaintiffs, -againstMICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City of New York; CITY OF NEW YORK; THE NEW YORK CITY TAXI & LIMOUSINE COMMISSION ("TLC"); DAVID S. YASSKY, in his official capacity as Commissioner, Chair, and Chief Executive Officer of the TLC, Defendants. Index No. 102472/2012 Part 52 Justice Arthur F. Engoron

MEMORANDUM OF LAW OF AMICUS CURIAE PUBLIC ADVOCATE BILL DE BLASIO IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES INTEREST OF AMICUS CURIAE BACKGROUND " , _..., " " " " _ .,. , _ "" " "."."..,"" " "" "" ii 1 2 _4 5 8 10

SUMMARY OF THE ARGUMENT 1. II. CONCLUSION

THE HAIL LAW SKEWS THE BALANCE OF POWER BETWEEN GOVERNING INSTITUTIONS SET FORTH IN THE CITY CHARTER THE HAIL LAW EVISCERATES NEW YORK CITY'S POWER OF HOME RULE AND ELIMINATES THE ROLE OF THE CITY COUNCIL · ; " ,

TABLE OF AUTHORITIES PAGE NO(s):

STATE CASES: Blood v. Bd. of Educ. of City of New York, 121 A.D.2d 128 (1st Dep't 1986) Green v. Safir, 174 Misc.2d 400 (Sup. Ct. 1997) Kay v. Bd. of Higher Ed. of City of New York, 260 A.D. 9 (1st Dep't 1940) Sharp v. City of New York, 19 How. Pr. 193 (Sup. Ct. 1860) FEDERAL CASES: Bd. of Estimate v. Morris, 489 U.S. 688 (1989) Morris v. Bd. of Estimate, 647 F. Supp. 1463 (E.D.N.Y. 1986) STATUTES: N.Y. CONST. art. IX, § 2(b)(2) OTHER AUTHORITIES Charter Revision Revs Up, 4 City. L. 1 (1998) _ .4
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The Policy and Politics of Charter Making: The Story of New York City's 1989 Charter, 42 N.Y.L. Sch. L. Rev. 723 (1998)

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INTEREST OF AMICUS CURIAE Amicus, Bill de Blasio, is the Public Advocate of the City of New York, elected by the people of the City of New York, first in the line of succession to the Mayor, and a member of the New York City Council. Charter §§ 10(a), 22, and 24(a). The Public Advocate is responsible for monitoring city agencies and officials to ensure that they act in accordance with the Charter. Charter § 24(i). As the City's ombudsman, the Public Advocate is also required to monitor, review, and investigate the effectiveness of City agency responses to citizen complaints and to recommend measures to improve such responses. Charter §§ 24(h) and (f). In these ways, the Public Advocate operates as the people's advocate as against the impersonal bureaucracies of city government, as a counterweight against the power of the Mayoralty, and as guardian of the people's will, which is expressed in the City Charter. The Charter Revision Commission, which drafted, debated, and proffered the Charter to the electorate for ratification in 1989, was also clear that the role of the Public Advocate] is to "investigate and report on compliance with the charter by city officials and agencies.t" The Public Advocate also "balance]s] the power of the Mayor," and Commission Chair Frederick A. o.

provides "regular oversight" of executive agencies.'

Schwarz, Jr. and others made these points repeatedly at the Commission's first session on
During the debates by the Charter Revision Commission, the office of "Public Advocate" was referred to by its historical name, "City Council President." After the revised New York City Charter was adopted, the title for the position was changed to "Public Advocate." Ch. 19 L. 1993 § 4. Except where quotation for the Charter Review Commission's materials requires otherwise, the title "Public Advocate" will be used throughout this brief. All references to "Ex._" are to the exhibits attached to this brief. Summary of Final Proposals. The New York City Charter Revision Commission, August 1989 at 7 (excerpt) ("Ex. A"); see also New York City Charter Revision Commission Hearing, July 31, 1989, at 260 (excerpt) ("Ex. B") ("three particular matters of importance ... highlight the roles for the council president [the Public Advocate], the issue of charter compliance, the issue of decentralization[sic] of services, and the issue of access to information"). Preliminary Proposals, The New York City Charter Revision Commission, May 1989 at 58 (excerpt) ("Ex. C").

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the office of the Public Advocate. In Chairman Schwarz's view, the Public Advocate, a member of the City Council, is a "safeguard" against unchecked executive power imbued with the obligation and power to "challenge the Mayor.?" The Public Advocate is the "watchdog over City government" and "counterweight to the powers of the Mayor." Green v. Safir 174 Misc.2d 400,403 (Sup. Ct. 1997). The Charter is the ultimate authority on the allocation and separation of powers in city government. Because the HAIL Law strips the City Council of one of its Charter mandated powers and redistributes that power to the Mayor, it profoundly threatens the most fundamental power of home rule; the power oflocal governments to distribute and allocate power. Nothing can justify such an intrusion, and here the Legislature's proffered justification for this unprecedented interference is just that-nothing. Moreover, the HAIL Law constitutes a more general and independent threat to New York City'S constitutional right to govern its own affairs and the state legislature's corresponding obligation to seek a home rule message from the City Council when legislating on matters specific to our city. As a member of the City Council, and as the elected official charged with safeguarding the balance of powers inscribed in the Charter, the Public Advocate has a vital interest in this litigation.

BACKGROUND
Prior to 1989, New York City divided executive and legislative power among three branches of government: the Mayor, the City Council, and the Board of Estimate. In 1989, the United States Supreme Court ruled that the voting apportionment among Board of Estimate representatives violated the Federal Constitution's one-person one-

New York City Charter Revision Commission Hearing, May 6, 1989 at 189 (excerpt) ("Ex. D").

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vote requirement.

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Years earlier, when the constitutionality of the structure of its

governing institutions was first called into doubt by a Federal District COUli,6the City established the Charter Revision Commission (the "Commission"), to draft proposals to conform the Charter to the Federal Constitution.' new Charter for the city. Chief among the Commission's objectives as it drafted, debated, and proffered the Charter to the electorate for ratification in 1989 were "to balance power," and ensure "fair and effective representation of all New Yorkers in city govemment.i" The Commission engaged in years of thoughtful planning informed by fact-finding hearings, legislative hearings, public debates, and local expertise." The allocation of powers and duties of the elected branches set forth in the Charter is the culmination of Commission meetings with dozens of advocates and experts, which generated 13,060 pages in meeting and hearing transcripts before the Commission submitted its proposals for public referendum.
I0

Ultimately, the Commission drafted a

In keeping with its objectives, the Charter gives a meaningful role in government to residents of the boroughs equally. Prior to 1989, residents of each borough were represented in city government directly by their Borough Presidents, each of whom had a

See Bd. of Estimate v. Morris, 489 U.S. 688 (1989). See Morris v. Bd. of Estimate, 647 F. Supp. 1463, 1478-79 (E.D.N.Y. 1986). The first Commission, called the Ravitch Commission, was established in 1986. This Commission was replaced by the Schwarz Commission in 1989; eleven of the fifteen members of the Ravitch Commission were also on the Schwarz Commission. See Frederick A. O. Schwarz, Jr. & Eric Lane, The Policy and Politics of Charter Makin_g: The Story of New York City's 1989 Charter, 42 N.Y.L. Sch. L. Rev. 723, 732 (1998). Ex. A at 3; see also Schwarz & Lane, supr!! at 752. Ex. A at 1 (stating that final proposals were adopted after thirty meetings and hearings and extensive public comments); see also Schwarz & Lane, supra at 732-734 (1998) (describing meetings, hearings, and other events between 1986 and 1989 in preparation for Charter revision).
10

Id. at 735.

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vote on the Board of Estimate.

II

In the Charter revision, the Board of Estimate was
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abolished, and its representational mission was reassigned to the City Council. objective of this reassignment was to create a "classical legislative/executive

One

model of

government," which provides for "decentralization in decisionmaking to address the alienation expressed by residents of some parts of the city.,,13 To meet this objective, the revised Charter increased the number of Council members and created new districts so that minority communities within each of the five boroughs would be adequately represented on the Council.14 It is through the Council that local interests are heard by city government. SUMMARY OF THE ARGUMENT Chapter 9 of the Laws of 20 12 ("The HAIL Law") is an unconstitutional usurpation of New York City's authority over its own affairs and, particularly, its governmental structure. The law permits the Mayor, and the Mayor alone, to authorize the issuance of up to 2,000 accessible taxicab medallions, in the face of long standing rules requiring the City Council's approval of any such increase. The City Charter, which embodies the will of the city's people, carefully delineates the powers and duties of the city's two branches of government. By assigning to the executive branch a power

that the Charter assigns to the legislative branch, the HAIL Law frustrates a co-equal elected branch of city government in its Charter-mandated mission. Most significantly, there is no asserted state interest (as required by Article IX Section (2) of the State

Final Report, The New York City Charter Revision Commission, March 1990 at 2 (excerpts) ("Ex. E").
12 13

II

See Ex. E at I; Gene Russianoff, Charter Revision Revs Up, 4 City. L. I, 3 (1998). Ex. Eat 10. lQ_, at 11-12.

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Constitution (Home Rule)), nor is there even any identifiable rationale, to justify this gratuitous transfer of authority from the local legislative body to the local executive. It is purely a political act by the state, the type of usurpation that forms the core of the State Constitution's Home Rule protections. Thus, the HAIL Law skews the delicate balance of power between and among the city's institutions as set forth in the Charter, with no regard for the objectives of the Charter, or the consequences to the city, and with no justification for override by state authority. In this way, the HAIL Law threatens to eviscerate the City Council's home

rule power which, if non-existent in this context, may disappear in virtually all other situations. The Corporation Counsel's unprecedented support for this extraordinary imposition on the city's self-government is contrary to the Corporation Counsel's duty to represent the city and its institutions as a whole. For these reasons, the Court should grant the Plaintiffs' motion for a preliminary injunction.

I.

THE HAIL LAW SKEWS THE BALANCE OF POWER BETWEEN GOVERNING INSTITUTIONS SET FORTH IN THE CITY CHARTER The Charter is the will of New York City's people. As the city's constitution, it

denominates the powers of government institutions and governs the relationships among and between them. Accordingly, the Charter determines the bounds of authority over the taxicab industry between the executive branch, acting through the Mayor and the Taxi and Limousine Commission, and the City Council. See Charter §§ 2300 et seq. Specifically, the Charter provides that "taxicab licenses may be issued ... only upon the enactment of a local law providing therefor." Charter § 2303(b)( 4). This provision gives

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the Council authority over medallion issuances because only the City Council, "vested with the legislative power of the city," can pass local laws. Charter § 21. But the HAIL Law authorizes the Mayor "acting ... alone" to issue "up to two thousand" accessible taxicab medallions. Ch. 9 L. 2012 § 8. The HAIL Law thus commandeers the authority of the City Council, and transfers the Council's power over issuance of taxicab medallions directly to the executive branch of New York City government without any state law justification for this gratuitous transfer of authority. As described above, the demarcations of governmental authority in the Charter are the product of years of careful planning informed by experts, as well as the result of local input. Through the HAIL Law, the state legislature has redrawn the line between what is executive and what is legislative in the city, with none of the hearings, planning, or local expertise that underpins the Charter's allocation and balance of power. There is no state concern in dictating that the Mayor should choose the number of new medallions instead of the City Council. There is no state interest in upsetting the constitutional balance of power that the Charter has established between its legislative and executive branches. Not only does the HAIL Law skew governmental authority dramatically in favor of the executive, it foils goals that animated drafting the Charter. Council participation in legislation and policymaking is vitally important to the Charter's goal of ensuring fair representation of all New Yorkers-and not just groups in favor with the Mayor or the

state legislature. The Council enfranchises less powerful political groups in the city, and addresses "the alienation" from city government that some residents reported before the

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Council was enlarged and empowered by the Charter revision.

IS

By removing the

Council's authority to determine when, if at all, taxicab medallions will be issued, the HAIL Law dissociates policymaking over the city from the residents of the city. This is more than just bad policy, vertically imposing state will on the city-it threatens the

horizontal foundation of separation of executive and legislative powers of New York City's representative structure of government. If the HAIL Law's unwarranted diminution of the prerogatives of one branch of city government to the benefit of another is upheld, state legislators may consider altering the rights and duties of the city's governing branches in other areas as well. The will of New York City's people, embodied by our Charter, may become irrelevant, and Home Rule non-existent. Instead of political compromises between coequal branches of

government, decisions for New York City may be made by the local governing entity which is most successful at convincing the state that a check on power provided by another branch impedes a worthy cause. If the HAIL Law is held constitutional, for example, nothing would prevent state legislators from declaring by special law that state interests would be served by authorizing the Mayor to pass other local laws, disregarding that the Charter grants that power to the City Council (Charter § 34). Likewise, there would be no barrier to state legislation authorizing the City Council, rather than the Mayor, to appoint heads of executive agencies and deputy Mayors. See Charter § § 6-7.

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Ex. E at 10.

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II.

THE HAIL LAW EVISCERATES NEW YORK CITY'S POWER OF HOME RULE AND ELIMINATES THE ROLE OF THE CITY COUNCIL The HAIL Law was passed at the behest of the Mayor, without a home rule

message from the City Council and, according to news reports, specifically to circumvent the City Council. Yet, the State Constitution is explicit that the power to provide home rule messages belongs to the City Council. See N. Y. Const. mi. IX, § 2(b )(2). This constitutional right is reinforced by the Charter, which requires the Mayor to submit proposals for home rule messages to the Council. Charter § 249(b). The City Council has repeatedly exercised that right in the past by passing home rule messages to support medallion issuances. On its own, the HAIL Law's imposition on city affairs poses a grave threat to the city's power of home rule, particularly given the City Council's long history of regulating taxicabs and liveries. But Mayor Bloomberg's position in this litigation, relayed by Corporation Counsel in Bloomberg's May 7, 2012 Motion for Summary Judgment ("Bloomberg"), would wholly eliminate the city's constitutional rights. In his Motion, Mayor Bloomberg argues tautologically that because the state legislature declared that the HAIL Law serves a substantial state interest, the structure and protections of New York City's government can be ignored. See Bloomberg at 15 ("The Street Hail Livery Law falls squarely within [the substantial state concern] exception ... [because] [t]he law has explicit legislative findings" declaring that a state concern is addressed); Id. at 17-18 (the HAIL Law '''serves a substantial state purpose' and thus does not violate the home rule message requirement" based on stated legislative findings). By taking this position, Corporation Counsel has abdicated its duty to represent the interests of the New York City as a local government. And the Mayor, 8

presumablywithoutconsidering

the' profound consequences that obviously flow from his

actions, has compromised the City's right to self-governance in order to accomplish a single political objective. The Corporation Counsel's "primary function is to represent the City." Blood v. Bd. ofEduc. of City of New York, 121 A.D.2d 128, 133 (1stDep't 1986).16 And without

doubt, the Corporation Counsel's obligation is to "represent[] the city as a whole." Kay v. Bd. of Higher Ed. of City of New York, 260 A.D. 9,12 (1st Dep't 1940) (emphasis added); see also Sharp v. City of New York, 19 How. Pr. 193, 194 (Sup. Ct. 1860) (observing that corporation counsel must not prejudice rights of the city). If Corporation Counsel and the Mayor succeed with this argument, there is a danger that the core power of home rule-the own government-will be forever eviscerated. local power to organize and structure one's Going forward, the state legislature will

only be required to assert that a substantial state concern exists to pass special laws targeting New York City-or any local government-without restriction, even laws that

reallocate the balance of power amongst local government institutions. To uphold the HAIL Law on the grounds that Corporation Counsel and the Mayor have proffered would, in effect, eliminate the prohibition in Article IX Section 2 of the State Constitution on unsolicited special laws and special laws that are only passed in a single legislative session.

Charter § 394(a) (Corporation Counsel is the "attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the city .... ")

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· CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs' motion for a preliminary injunction.

Dated: May _,2012 New York, New York

Leon Friedman 148 East 78th Street New York, NY 10075 (212) 737-0400 Attorney for Amicus Curiae Public Advocate Bill de Blasia

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Exhibit A

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S·UMMARYOF FINAL PROPOSALS
August 1989

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Frederick A. O. Schwuz.

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NEW YORK CITY CHARTER REVISION COM:MISSION
1I PaTk PlJU! Suitt 1616
Naa York, NY 10007 (212) 766-2200

TABLE OF CONTENTS'

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lntrod uction
Objectives of the Proposed Charter Revision

1 3

Summary of Proposed Powers of Gty Officials
The Council

5
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The Borough Presidents
The Comptroller

13
17

Council President
The Budget Process

15
21

Independent Budget Office
Service Delivery Land Use Review

23
2S 27 31 33 3S 37
39

and Planning

Fair Share Plan for Locating City Facilities Landmarks Contracting Designation and Procurement

Office of Economic and Financial Opportunity

Office of Labor Service-s
Civil Service Equal Employment Practices

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Franchises. Concessions, and Revocable Consents City Government in the Community

Public Access to Information

INTRODUCTION

These are the final recommendations of the New York City Charter Revision Commission for changes to the charter, New York's basic governing document. The commission adopted these proposals during public meetings on July 31/ Aug. 1 and Aug. 2,. 1989.· These were the last in a series of more than 30 public meetings and hearings held by the commission in all parts of the city over a seven-month period; the commission's final recommendations reflect extensive publie comments on the powers and st::ructw"eofN~w York City government. The commission. an independent body of 15 volunteer members, was created in November, 1988, with eleven members who were reappointed from the earlier commission. Its recommendations are intended to redesign New York City government in light of the March 22 ruling of the U.s. Supreme Court which found unconstitutional the voting structure of the Board of Estimate, one of the city's most important governing bodies. The proposals will ,e on the ballot Election Day, November 7. English copies of the complete legal language of these proposals are also available.

"Eleven of the 15 members approved the package; four voted against it.

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OBJECTI\lES OF THE PROPOSED CHARTER REVISIONS
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• To ensure fair and effective representation institutions of government. • To fix accountability for government
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of all New Yorkers in city government.

• 10 balance power m dty government by increasing competition and oversight among the
by c.l.ari.fying responsibility, procedures. in policy debates and decisions.

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• To enhance efficiency by strear.nlining government • To encourage a shift from crisis management • To build opportunity

to long-term planning.

for greater public participation

• To separate the executive and legislative branches of government with the legislature making policy and the executive carrying it out.

3

Sll1\1lVLt\RY OF PROPOSED PO""'ERS OF CITY OFFICIALS

The Mayor
• Would continue to appoint the heads of city agencies and departments. • Would continue to-propose the city budget to the Ccundl, but would be required to consult with the borough presidents; would continue to approve or veto the Council's actions on the

budget
• Would name seven members of the reconstituted 13--member City Planning Commission. Currently names all seven members of the City Planning Commission. • Could veto the Council's and the City Planning Commission's actions on zoning changes. landmark designations and other land use decisions; the Council could override these vetoes with a two-thirds majority. • Would be required to review and approve or disapprove city leases and contracts of 52 million or more. • Would name three members of a five-member procurement policy board that ~1.lJ establish contracting standards far all city agencies. • Would sit on a new committee that would review and approve or disapprove f:'a.-.diises and concessions. • Wauld be required ta issue a "strategic policy statement" every four years a;-~~.~.::r.£ the long-term issues facing the city and proposing policies to address triose issues • Would be required to make an annual report on social, economic anc e!"\\1.:2;:.-.e:'l:..L conditions in the city including proposed strategies for addressing issues :,~~e.: :'-. ~..:s analysis.

The Council
• Would have sole power to approve or modify the annual budget and ail trud-vear b~Gg:et modifications proposed by the mayor; would consider the borough presider.rs b'.l~tet

5

recommendations majority.

and could override mayoral budget vetoes with a two-thirds

• Would be responsible for oversight of all city agencies, • Could review and appro'Ve, modify, or disapprove all decisions oi the .Ciry Planning Commission approving zorung changes, most dispos: dons of o ry-owned residential property, urban renewal plans and plans for the development of the city. • Wo.uld review other City Plaaning Commission approvals of land US€ matters subject to tTLtJRP, if the affected borough president and community board object, or if a majority of the Council's members vote to undertake such a review.

Borough Presidents
• Would work with the mayor in preparing the annual dry budget would constitute five per cent of the city's capital budget and five per cent of the non-mandated increases in the expense budget.

-their recommendations

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Council would have to consider and act on unresolved between the mayor and the borough presidents.

differences

• Would work with agency heads to deterr.ni.ne allocation of personnel and resources in key agencies in their boroughs. • Would oversee boroughwide city services. programs to monitor complaints about delivery of

• Would make borough wide strategic policy statements once every four years. • Would each appoint one member to the City Planning Commission. • Could each propose changes in the zoning resolution. • Would review and make recommendations boroughs. on all li'1.VRP applications in their

• Could, together with the affected community board, appeal to the Council decisions 0: the City Planning Commission to approve applicancns for special permi e. locations of ci ty facili ties and 0 the:r ULURP ma tters. • Could participate in "seeping" sessions for projects requiring environmental impact statements in their boroughs. • Could have legislation introduced in the Council.

• Could review contractor performance in their boroughs and request contract modification, termination or non-renewal if they produce documented evidence of poor contractor performance.

6

• Would have a representative on the committee that approves franchises and concessions when the committee is considering awards in their boroughs. • Would establish planning and budget offices to assist the borough president in fu.lfilling his/her duties and to provide technical assistance to community boards. • Could recommend sites for city facilities.

The Comptroller
• Would be the city's chief fiscal officer.

• Would have auditing duties clarified, with a requirement to report to the Council annually on major audits, giving attention to recurring problems. • Would be required to report on the state of the city's economy and finances and analyze the mayor's proposed budgets. • Would be empowered to stop agencies from entering into contracts if he or she has reason to believe corrupt practices attended the awarding of the contract and then to require clearance by the mayor. • Would sit an the committee that reviews and approves the award of franchises and concessions.

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• Would name two members to the five-member procurement policy board that will establish contracting standards for all city agencies.

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The Council President
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P:-e:.:idt>.",over th.<:! ouncil C

and votes in case of a tie.

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• Stands first in line of succession to the mayoralty in case of disability or death. • Would, as the dry's Public Advocate, assist individuals in resolving complaints involving dty agencies and suggest systemic solutions to such problems. • Would assess the delivery of services to the public by city agencies and recommend reforms when problems are discovered. • Would chair a new commission on public information and communication intended to facilitate public access to information. • Would investigate and report on compliance with the chatter by dry officials and agencies. • Would appoint one member to the Oty Planning Commission.

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Th~n

~e ha~e

chosen

to

lOCUS

on

7 8 9

highlight president, the and issue the

the the

roles issue

for

the

council compliance, services

of desensitiz~ion issue of access

c..1,..v....C~tl...,

of charter

...-~''

of

10
11 12

of the

information, function advocate, of, I

We think

ha~e

retained

we now

call

it public

which who to an~

13
14

is essentially looks help then at

operating

as a person tries

individual redress

complaints, those

15
16

citizens tries

complaints, those are

to generalize as to whether to the problems

from there that

17
18 19
20

complaints solutions
ha v e .

systemic

citizens

We that

ha~e

had heving

a lot been

of

testimony very Council

about

21
22
23 24

function

played

usefully presi"nt.

by the

office

of City

The hearings on

oppor~unity important

for occasional matters is an added

25

COH?'J":'E:RIZED

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p:-oceedings opportunity other t~at to the ones to call scrutiny. which exist in

2 3
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offices, deserve

at:ent~on

to ~hing5

.I

~1
.;;

I
to insert elements process or agency that way of responsibility to the the affected in the

7 8

hearing person

notice about

9 10 11
12

proposed for services of the

requirements change being cost
by

the suggestions of

of improvement

accompanied implications It's

by an analysis of doing it.

13

14
15

obviously focused

a mdtte= on

which

is, an and

since extent,

we

have

it to such

16 17
18 19 20

is worthy and

of e x ce n s Lv e debate, I think people in my can
the

=eflection, Judah, subje~t, have only been been

judgment, differ on the th~t have not

reasonable and put well

I believe forward

arguments side are

on your but

21
22 23

articulated

reasonable

argument. to personally side view the

I happen arguments and w~th on

24

the other them

as reasonable, mind,

25

balancing

in my own

COH?~:2?:ZED RE?O~T!NG SER~:CES
111 BPDr-.D!"';';, N~'''; YO?:', N.Y. 10006 (212) 732-5555 --------.--------------~

1
2 3

PrOC~~Gings obviously have come out to where
I

2~2 I do, c e r t a ini y of

COMXISSIONER
I

GRI8ETZ: questions

, .., I I
c: ~

know

that

nobody

the sinceri~:

I ·1

:3
7

dc a

t

t,

que s

t

Lc r.

the

sincerity

of the

people

that

feel

i:

8
9

should

be retained. I think it's central me, in what we have me

10
11

done,

and

if you

permit

it worries

in two key moment

respects,

in respons~

at this

12
13

to your If on~

remarks. wants an additional place for

14
15

people citywide should

to aspire basis,

to be elected once they way

on a there the

are there, to judge

16 17 18
19
20

be a meaningful of that

performance anyone crucial with since

person

and without land use,
t wo

in the things

bu d q e t and that

we have

been coping the power, the Board the

in terms we have

of redistributing decided there there to abolish

21
22

of Estimate, abilities earlier, process and

is no way

to judge

23
24 25

is, as I stated legality about of the when we

a danger that

to the

we are

speaking

COM?UTER:ZEO RE?ORTINC
III 9P.C;..S'· ... 'i\':',
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(2!2l 732-5566

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PRELIMINARY PROPOSALS

May 1989 The New York City Charter Revision Commlssion ..

THE CORNCIL PRESlPENT

I.

~oa15

A.

There should be a sufficient number of city-wide elected officials to represent diverse interests and perspectives, and to balance the power of the Mayor.

B.
_.I ~. e.
,.;

There should be reqular oversight ot the executive by independent, accountable officials.

.!.

,
r.

C.

Citizens should be abl. to bring complaints about service delivery to an official able to inquire about them, to recommend solutions, and to analyze any underlying syste~ic problems.

II.

The citizen

A.ssistance role of the Council Presid-en~ .,QuISl

be clarified on~ strepgthened.

A.

The Council President would be required to inform and educate the public a. to the nature of hig/her ombudsman aubmitting responsibilities complaint •• and the procedure. for

B.

The Council President would be emp~wer.d to receive,

" investigate,

and otherwise attempt to resolve

58

individual

complaints

related to the administraLive

acts of city agencies.

C.

The Council President would bc required to refer complaints resolution. to the appropriate city agencies for

o.

If a complaint

is not resolved by the appropriate city period of time, the council to investigate and make

agency within a reasonable President specific
,<

would be authorized recommendations

for the resolution of the

r

.r

r
".

' i;

J .. ,
,'
/

..

problem.

E.

It, within a reasonable completion taken to President authorized findings

period of tim. following the action has not been determined by·,the Council

of an investigation, resolve a complaint

to be valid,' the Council President would be to issue a public report presenting his/her for

and making such recommendations or legislative

administrative necessary

actions aa he/she deems

to resolve the individual complaint or to problems discovered during such

addre •• underlying inve.tiqation.
"

Such a report would be required to

include a copy of the agency's response to the Council President'. findings and racommenda~ions.

S9

--IIi.

lhe 'Qversight

role

of the

Council

President

V/ould

b@

clarified

and strengthened.

A.

The Council President performance

would be required to conduct of executive agencies including

evaluations

annual evaluations the administration requirements delivery, ,
I .:~

of (1) the effectiveness with which is implementing the charter of service

relating to decentralization

(2) the effectiveness

of the city's citizen

;.

information

and aervice complaint programs, and (3) the of city agencies to requests for from individuals and groups. The performance evaluations must offer

, , -: ,
'.,

responsiveness data/information council concrete

President's suggestions

for addressing the problems

identified

and must set forth the fiscal implications

of those suggestions.

B.

The council President would be required, except in cases of suspected fraud, to send a draft report to the

agency involved, to give the agency opportunity to comment re.ponse on the findinga, and to include the agency in the tinal report •

..

60

/

,
"

"'l.:":;

..

oJ-,

IV.

The

CQIJDCil

pres id,ent

IS

accel',!s

to

reI evant

docum.ents

,",auld

be enhanced.

A.

City agencies would be required, within a reasonable period of time, to provide the Council President with and documents necessary to complete such

the records

investigations.

B.

In addition,

the Council President would be authorized Council

to file a request with the appropriate committee
I
/ ,~

for the issuance of a subpoena for documents for the completion
of an investigation

t
'" ;.,~, r

necessary

which

an agency has not voluntarily
'The .council Ftesid'ent

supplied.

V.

would be resPQDslbl'e· ,tor lnQbitorJing

and reporting

on charter compliance.

A.

The Council

President,

on the request of a taxpayer,

communi ty ',board, Council member, or borouqh president, or on his/ber inquire own motion, would be authorized to

into the extent of the compliance and/or of any city officer or aq,.ncy with any In the cas. of any the Council President would

noncompliance provision substantial b. r.qu~r.d findings

of 'the charter. noncompliance,

to i••u_ a ~eport which present. hia/her

and includes a copy of any explanation or

..
61

other response provided by the agency or officer involved.

VI .~nnual

Report ot the council

President

A.

The Council President would be required by October 31 of each yaar, to present an annual report to the council outlining his/her activities during the prev~ous fiscal year.

,
I
,',

e.

(

t.
"

..,.

i

B.

This report would include: the complaints categorized response,

(1) a statistical summary of

received during such fiscal year,

by agency, type of complaint, agency. and such other factors as (2) an

mode of resolution,

the Council President deems appropriate, analysis

of recurring complaints together with the recommendations for administrative,

council President's legislative underlying

or budgetary

actions to resolve the (3) a

problems causing such complaints,

summary of the findings and recommendations performance evaluations

ot the

conducted during the year,

(4) a summary of the charter provisions which, as ot the tim. of such report, are not being complied with by the city officers or agencies coverad by 3ucb provisions,

extent of agency or o-fficer noncompliance,

..

includinq a description

of the nature and and a

summary of the reasons offered by the ageneias/officers
62

involved

for such noncompliance,

(5) a summary of identified in

those areas of charter noncompliance individual

reports issued during the previous year, and identified in the previous no longer exists.

those areas of noncompliance

annual report, vhere noncompliance

VII.

Laod Use

A.

The Council president vould be required to appoint two of the elev~n members of the city Planning Commission

,
/

r .~
~ ~

vhich vould be authorized ,
J

to make many tinal land use'

decisions.

VIII.

Cootracting

A.

The council president

would be required to designate

one of the three members of the contract performance panel called by a borough president to review the performance of a service contr~ct.

IX.

Records

A.

The council president complete transcript available reasonable president

would be required to make a

of his/her public hearinqa

tor public inspection tr•• ot charq. within a time atter the hearing. The Council would also be required to provide a copy of
63

any- requested pages to any citizen or taxpayer at a-.reasonable fee to cover copying and, if relevant,

mailing costs.

x.

Succession

and Council Rolg

A.

The council president would continue to be first in line of succession to the mayoralty. He or she would

I

~

,
"

also continue to preside over meetings of the Council with the right to participate
J
(

~
,

.~,

in its discussions but

without a vote except in case of a tie.

64

Exhibit D

ORIG,INAL
Mu~iNlI ~~

and

RECEIVE~

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... CHf.I.,~:'\S ff f~[ET I'{tw YOR'K C!1't

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MINUTES OF NEW YORK CITY CHARTER REVISION COMMISSION

BROOKLYN LAW SCHOOL 250 Joralemon Street Brooklyn, New York 11201 Saturday, May 6, 1989 9:30 o'clock a.m.

NATIONAL
cunf1ED

REPORTING

INC.

NEW YORK. N.Y.

71 HUDSON STREET (212] 732·3120

Si'lORniAND REPORTUS

10013

..
1

5-6-89 EXECUTIVE I got it. THE CHAIRMAN: COMMISSIONER no. THE CHAIRMAN: Tho: motion Any abstentions? twelve to one. recess All opposed. RICHLAND: I haye already voted DIRECTOR LANG: Yes, counting.

188

2
3
4

5 6
7

t8

carries

II

t:
2
3

We -will take a five minute (Biief recess THE CHAIRMAN: taken.)

NOw, I wanted

to introduce

for

discussio~,: the issue of the City Council and the issue of the Vice Mayor, either regard as related which

Presidents, can

people

A
'15 6 7

or not related.

I think

some people regard

regard

it as related,

and some people

it ~5 not related. 11m ~oing to introduce it again with my own

8
:: "

views,

which

are as follows: we should opt to keep the City Council

I think President, right

0

although

I'm not sure the name is the

.'J.
.2
"

name • There is a loss of the vote on the Board of

3
s-

Estimate, office. citywide

and that does affect

the nature

of the'

But, it seems to me that to have another elected official, who

is mandated

to try and

NATIONAL REPORTING INC.

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I

I

I t I

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5-6-89 focus on policy, in addition to the Mayor, and,

189

therefore,' is a challenge questions, is desirable.

to the Mayor

on policy

Secondly, the changes

it seems to me, that we, in making which are substantial we should in

we are making,

the Government

of New York city,

not play on the the on the the about

into the argument Mayor.

that we are reducing

checks

In fact, I think we are putting I think we are, in a number

through of ways

Mayoralty, budget, checks

for example, through

substantially

increasing

devises

like the ones we talked

ten days ago. But, I still argument Mayor, think we should not play into the

that we are reducing another

the checks Citywide

on the person, is

and to remove

elected

who can make the case against appropriate delivered on the ground that

the Mayor, services

if that

are not being

properly, there

it seems

to me is a desirable

thing to have

as a safeguard. of city Council then I think in

If we do keep the office President, which

is my view we should, some art to develop

we need to exercise which that office

a way

can operate

positively,

as well as

negatively.

NATIONAL

REPORTING

INC.

(212) 732-3120

1 :2 3 4 5

5-6-89

190 I

Absent

the vote

on the -- and by negatively, positively, and

don't mean badly, creatively,

I mean critically,

as well as critically. the

With the vote on the Board of Estimate, City Council President, historically,

has been able cases, to of the

7 8
9

not only to disagree, support, Citywide and, thereby,

but in important bring

that perspective That vote is not

needs to the table.

gone -- it

is now gone.
on the assumption that we do keep the some to not

I think City Council imagination

President, to give

we need to exercise

incentives which

to that office the record showed

only do the ombudsman, fourteen times, matters, hearings, check or 24,000

people

being helped who are helped

in recent on ordinary

ordinary

citizens

but also the opportunity which, it seems to me,

for critical is an additional
"

on the Mayor. But

I'd like to see us, if we do keep the
find ways

,

}"

~

,

office, increase office

as I do recommend, the opportunity

in which we can
in that critic,

for that person

to show that they're

not only a good

but they are also a good I would say that

builder. could be a secondary

NATIONAL REPORTING INC.

(212)

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.;

:

f,l
discussion, office. COMMISSIONER secondary? I would

5-6-89

191

if we conclude

that we should

keep the

t:
5
6 7 8 9

TRAGER:

Why would

it be

.'

like to hear okay.

some ideas. David is

THE CHAIRMAN: correct,
I think

I think

that should

be part of the

discussion. Amy. COMMISSIONER BETANZOS: I would like to ask

you why you separated THE CHAIRMAN: COMMISSIONER the -THE CHAIRMAN: in that paper, that

one and three. What is one and ~hree? In this paper of

BETANZOS:

I haven't

separated

anything

is not my paper. BETANZOS: about,

COMMISSIONER

on.

Well,

assuming be what we

that's what you talked received our packet

that would

yesterday? GRIBETZ: options for oversight

COMMISSIONER Bill. COMMISSIONER from? THE CHAIRMAN: distributed by Eric.

MURPHY:

Where

did the paper

come

It was one of the things

NATIONAL

REPORTING

INC.

(212)

732-3120

5-6-89

192

COMMISSIONER COMMISSIONER Staff. But I think essentially, many

FRIENDLY: BETANZOS:

Gene~ated

by who?

By the Commission

what was talked of the things

about was doing,

that was listed here, --

.. 7

and if we look at this piece THE CHAIRMAN: I would

of paper

.
II"
'1"0<

like to, on the to do more that are

9

positive creative.

side,

find incentives

~o

II

COMMISSIONER agreement with that,

BETANZOS: but what

Fine. I would

I would

be in

like to see is, than

a combination

of 1 and 3, Option involves,

1 and 3, rather having

1, 2 or 3, which Council President,

really,

the city him

as the ombudsman, of the office I would

plus giving where

the oversight "without phrase,

functions

it says,

the ombudsman." without reference

take out that I would

to the ombudsman.

like to see them do both. THE CHAIRMAN: option paper that There are some things personally, think in this are

j

I don't,

desirable, think one

like specific individual

subpoena

power.

I don't

ought

to have. I'm worried In listening about them'

COMMISSIONER not having subpoena

BETANZOS: power.

to the

NATIONAL

REPORTING

INC.

(212)

732-3120

5-6-89

193

testi~ony that we heard in Queens, when we had the discussion with the staffperson, and they talked about the fact that they have -- very often make requests to agencies, and they can't find out what is happening, and they don't get any response for months, makes me want to give them, at least, some strength to get reports back expeditiously. THE CHAIRMAN: Could I make the suggestion,

Amy, that we first discuss the threshold question' of the office, and then, depending on how that comes out, we then need to address the sort of question that we were just discussing. COMMISSIONER BETANZOS: doing that.
THE CHAIRMAN:

Okay, fine, no problem

Aida -- sorry.

COMMISSIONER TRAGER: .My question was, I don't think I can decide the issue unless I hear some ideas COMMISSIONER ALVAREZ: some other views. 22 23 COMMISSIONER TRAGER: This is being somewhat I would like to present

over simplified, but my view is, the position without the Board of Estimate, is a position of power without responsibility. You don't have to execute and you

24
25

NA~IONAL REPORTING INC.

(212) 732-3120

,

1 2
3

5-6-89

194

don't have to fund.

In contrast

to what, in my view, given aside

we have done with the Borough responsibility,

President,

..
5

but know power, but putting

that issue -- I mean, it's very nice to go and criticize and do this and do that, but if you don't you don't have to sell, I problem. Plus,

6 ;
8
9

have the paperwork,

think -- I have a real institutional I think it undermines the Council, oversight which

the whole notion of the role of to conduct and their programs . feel -I

10 11

is, in effect,

.
_

over over the agencies ALVAREZ:
I I

12

COMMISSIONER THE CHAIRMAN: COMMISSIONER

13 14 15

recognize

TRAGER:

One last point.

will

never accept a notion that one person have subpoena person power,

-- and I do

and have had it -- that one have subpoena power.

alone, unreviewable,

It is one thing to give him a power to get approval by the Council, but the notion that one

person, on its own, can hand out subpoenas to qet
recorda, potential i. one that, I think, is so fraught with

for abuse, that I just find it -- it is

mind bogqling. THE CHAIRMAN: subsidiary question. It seems to

me

that is a

We really ought to decide

NATIONAL REPORTING INC.

(212)

732-3120

';

1

5-6-89

224

2
3

COMMISSIONER with By, but really,

BETANZOS:

I would tend to agree in

I come down very strongly City Council

4
5 6 7

favor of having

an elected

President. functions

I think it's important as ombudsman,

that whoever

must have an independent

constituancy.

THE CHAIRMAN: word to the technical, function. COMMISSIONER

Amy, Do you mean to limit the ombudsman, or the broader

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

BETANZOS;

The broader

fUnction.

What I really mean having an appointed

is, to reject the idea of because
I

ombudsman, Citywide

t~ink there

must be an elected what's
do that

official

who looks at

happening

in the agencies,

and the best way to and

is through the vehicle
if there is a pattern

of complaints
I

seeing

to them.

think that council

is a very President.

important

role of an ombudsman-City

I'm persuaded, subpoena powers

not being

a lawyer, that the

is probably

too strong.

THE CHAIRMAN: COMMISSIONER

Why do you begin to laugh? BETANZOS: Well, because most of This

the time I'm very happy that I'm not a lawyer. is one of the times that you persuaded perhaps, you're right. me that,

NATIONAL

REPORTING

INC.

(212) 732-j120

1 2 J 4 5 6

5-6-89 THE CHAIR!1h."': I think you people lawyer can have in your that is something you're
"'"j'ol:::!-,

gut, whether

a

or not, COMMISSIONER BETANZOS:
I really

do feel, at to put 8gency

the

same

time,

that we are going th~t really

to have

something
8 9

in there

mandates

response

to the City Council I was very disturbed

President. by that testimony that

10
11

they ask

don't

get reports I think

from the ~gencies there

when they

for them.

has to be a mechanism

12
13

for that.
I

feel very cannot that

strongly have power

that whoever just

is the

1<: 15 16 17 18 19
20

ombudsman, ombudsman,

from being their gives

they have

to have

own elected them power.

constituancy, That,

and that, makes

in effect, people

in effect, listen person.

listen,

and it makes nature of

the Mayor the o~er

because

of the political

So, therefore, seeing person. that ombudsman that

I would

be very much

opposed

to

21 22 23 24 25

as an independent just won't I would I think work.

appointed

I think THE

CHAIRMAN:

like to say for the some people in another. are using The

clarity ombudsman

of the record,

5~ on4 sense,

and some

NATIONAL REPORTING INC.

(212) 732-3120

'. Exhibit E

·

.

FINAL REPORT :_, OF THE . NEW YOR'K CITY CHARTER <: ..:REVISI'ON, COMMISSION
JANUARY 1989 -

'.> __

NOVEMBER 1989

March 1990

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J
dard Imppsed Amendment. constitutional by the equal protection deficiency clouse of the Fourteenth a pion to cure the A month later to the mayors of all Home Rule. speed.· granted The court ordered the City to develop "wtth all deliberate

.j

Mayor Edward I. Koch, pursuant to authority appointed On October a charter revision commission.

62 of New York State's cities by the New York State Municipal chaired

by Richard Rovitch. for the Second setting six

8, 1987, the United States Court of Appeals the Morris decision and ordered

Circuit affirmed

a remedy.

months as a target and one year as a deadline. Commission diction voted election was beginning Its final deliberations

However, In April of 1988 on Its choir's plan for the

after months of public hearings and discussion, and just as the Rovitch revision of the Charter, the Supreme Court of the United States took JurisIn Morris. Accordingly, to defer consideration on AprU 14. 1988. the Ravltch Commission of all proposals relating to the method officials until the SUpreme with Its work on other B for a to the voters at the November proposals (See Appendix approved by the votof

and powers of the city's elected Its recommendations The Commission's

Court's declslon In this case. Issues and presented 1-988general summary tence. election.

It then proceeded

of these proposals) were overwhelmingly

ers. On election proceeded

day, the Rovitch Commission formally went out of exiswith his earlier stated intention, a new commission the Mayor then and four new mem1989, consisting of all the members of

In accordance to apP9lnt

the Rovitch Commission who were wllUng to continue bers to replace Commission Commission Frederick A. O. Schwarz, Jr. agreed Chair and On January was formally appointed. on January 20, 1969 a schedule to replace

those who chose not to do so. In December

Richard Rovitch as the

19, 1989 the new Charter Revision

At Its first meeting November

was established to

allow the commission the' U.S. Supreme

to place Its proposals before the voters at the Two months later on March 22, 1989. affirmed

1989 general election.

Court unanimously

Morris.

3

SAVING THE BOARD OF ESTIMATE: THE BASIC QUESTION
As previously Indicated. the MorriS decision held that the practice
according Estimate. even though the bOroughSvary In size from approximately 350.CXX> people (Staten Island) to 2.2 million (Brooklyn). violated tutlonal principle of one person. one vote. the consn-. of all five borough presidents the some vote on the Boord of

Under the system which existed prior to the 1989 revision of the charter. the board shared legislative power In the budget process with the 35member although City Council. It also had final authOrity over land use decisions.

If it failed to act on a land use matter within 60 days the prior deCision of the City Planning commIsSion was deemed final. The board
also had the power to approve franchises. and exercised authority over agency contracting In certain cases.

One of the most fundamental decisions In the charter revision process was whether to change the voting structure of the Board of Estimate or to Institutions. Both the Ravitch extensive study to this question. pOytransfer Its functions to other governmental and Schwarz Commissions devoted Ing particular attentIon

to whether any change In the voting structure of preclearance pursuant to Section 5 of the Act. under

the Board of Estimate could survive scrutiny under Section 2 of the Voting Rights Act and obtain Both commissions the constitutional whether also examined principle the Implications of such a change

of one person/one vote. and considered By the time of the

it was desirable from a poliCY perspective.

Supreme Court's decision to grant review In Morris. the Rovltch Commission had begun to consider these altematlves and an Informal that the Board should be abolished. adopted The formally this position on May 2.1989 by a consensus had developed Schwarz Commission vote of 13- 1. The Ravitch CommissIon Act ImplIcatIons solicited opinions concerning All concluded the Voting Rights

of weighted

voting

on the Board of Estimate from six that there is a SUbstantial

noted scholars and practitioners.

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riskthat any weighted voting arrangement would run afoul of Section 2 of the Voting Rights Act and hove difficulty obtaining preclearance under Section 5. Of particular concem was the historic difficulty encountered by members of racial and language minority groups in winning election to the Board of Estimate. Of the eight positions which constitute the Board. five hove stiD never been held by members of protected minority groups. this Includes two of the three citywide positions and the borough presidencies of Brooklyn. Queens and Staten Island. Indeed. until 1989.when David Dinkins was elected mayor, minority group members had failed on numerous occasions to win election to any citywide position. Thus,until 1989. only the Manhattan and Bronx Borough Presidencies had. at times. been held by members of protected minority groups and. even in those boroughs, minority candidates were by no means assured of success. The only other political office now elected boroughwide is that of district attorney. Only one black has ever been elected to this position in any of the five boroughs (in the Bronx in 1986),and no Hispanic has ever become a district attorney. Fro(Tl1964-B3,eoch borough had two city councj members at-large: during those 20 years only one minority, group member wosever able to achieve election to the post and that was on only one occasion. Since April 1987the Board of Estimate has Included two members of minority groups. From April 1987through December 1989.the borough presldents of Manhattan and the Bronx and since January 1990.the mayor and the borough president of the Bronx. Together the two borough presidents held 18.2%of the votes on the l l-vote body. Only once before in the Board's history (1966 through 1969), had minority voting strength reached even that level. From 1954through 1965, 1970through 1977. and from 1986through Aprll 1987,the board had only one minority member (9.1% of the votes), the borough president of Manhattan. From 1978 through 1985,the board was all white. According to the 1980Census, the citywide minority population of New York City was 48.2% and the citywide minority voting-age citizen popula-

Jl ~

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tlon was 37.9%. Only In the Bronx,where the minority population was 66.2% and the minority voting-age citizen population was 57.7%.did racial and language minorities have a strong chance of winning contested boroughwlde elections. The figures for the other boroughS were: Brooklyn, 51.2% and 40.9%:Manhattan. 49.7% and 39.1%;Queens. 37.9%and 26.8%; and Staten Island. 14.8%and 11.1%. Moreover. estimates based upon the 1987 edition of the annual New York City Housing and Vacancy Report show an Increase In the clty's non-white population. but not a large enough Increase to have altered minority electoral opportunities In citywide and boroughwlde elections to a slgnlflcant extent. The Schwarz CommiSSionalso examined the Impact of the one person. one vote doctrine upon weighted voting schemes for retaining the Board of Estimate, and determined that weighted voting would not remedy the violation of that doctrine identified byttle Supreme Court In Morris. The Commission concluded that no system of simple proportional weighted voting could be used since such pions have bee'n found by the New York Court of Appeals to be violative of the one person, one vote requirements of both the United States and New York State Constitutions. The Commission"also found that the one type of weighted voting permitted by the New York,courts (weighted voting which resultsin each member's share of the power to Influence the body's decisions. as measured by a complex calculation known as the Banzhaf Method, being equal to the share of the total population represented by that member) could not be applied to the Boord of Estimate without changing the balance of power between the citywide representatives and some or all of the borough representatives: virtually disenfranchising Staten Island; and/or creating substantial population deviations.' For the Schwarz Commission. however. all of this became relatively moot after the Supreme Court's Morris declslon in which the Court rejected the Banzhaf method for use In evaluating the Board of Estimate's compliance with the one person. one vote standard. The Supreme Court in Morris found the Banzhaf method to be unrealistic and impractical and agreed with the Court of Appeals that this approach was "seriously defective· The Commission also felt. as a matter of policy. that weighted voting COUld. at best. weight votes but could not weight the ability of elected

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officials to otherwise represent and se~e their districts. In view 'of these Voting Rights Act and one person, one vote concerns, the Schwarz Commission determined that weighted voting would perpetuate unrepresentative government and was therefore an inappropriate response to Morris. Furthermore. members of the Commission and various witnesses raised policy Questions about the govemmental value of the Board of Estimate. Elected officials rarely participated In person at its meetings, and an examination of voting records revealed that the Board Infrequently functioned as an effective check on the Mayor. The Board's role in the contracting process was a special focus of critiCism. The Commission heard testimony confirming a 1987report of the Institute of Public Administration that the Board's involvement at the end of the contracting process rarely allowed for changes In policy. and caused agencies to focus on Board approval and to pay lessattention than Is deslrable to choosing approprtate methods for soliciting and selecting contractors In IndMdual cases. Drawing on this criticism and experience, the Commission sought to restructure the processes In which the Boord of Estimate played a role. Its basic goals were: (1) to achieve a more classlcolleglslative/executive model of government with the opportunity for expanded policy debate In the legislative branch by more and varied people, Increased efficiency In the executIVe branch and the corresponding checks and balances that generally attend such systems,(2) to encourage policy debate at the beginning of the process rather than on a case by case basis at the end, (3) to enhance effective minority group Influence In the government, and (4) to provide for additional decentralization In decisionmakIng to address the alienation expressed by resldents of some ports of the city.

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ENHANCING .

MINORITY REPRESENTATION .

The present City Council has 35 single-member districts. Among the largest American cities. New York's 35-member Council ranks second In sizeto the 5O-member ChlcagC?City Council. In terms of size of Council districts. however, New York has the largest districts ranking first '. with Slightly over 200.(0) persons In each district. In the ten largest American cities. other than New York.with single member districts. the average district population Is 112.600. Since 1901. Ne~ York City's legislative body has had as many as 78 and as few as 17 members. The average number of constituents per member has ranged from 47M to almost 316M.

Of all the major political Institutions of the City. It isthe local legislature
that has been most regular1y subject to alteration. Itssize and structure. and Its electoral processes and dlstrlcting hove all seen changes. Until 1945.the term of office for members was two years. At different times, the city's legislative power has been vested In both bicameral and unicameral bodies; members have been elected from single member districts. atlarge In boroughs and by a combination of these two methods; and both single and multi-member districts have been employed. To assure the representation of minority parties In the Council. a borough at-large limited nomination-limited voting sYstemwas used between 1963and 1983to elect a portion of the Council's members. And the experiment with proportional representation (from 1938to 1949)was among the most controversialln the history of the City.
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The Commission believed that a large Council. with smaller single-member districts. was needed to provide enhanced electoral opportunities for the City's minority groups. It therefore proposed a City Council of 51 members, thereby reducing the overage population per district from approximately 2021XXJ 139.(Xx)' In arriving at this decision the to Commission sought to balance four goals: (1) to enhance opportunities for minority voters to elect candidates of their choice. (2) to increase the

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number of minority Councllmembers, (3) to maintain a Council of man" ageable sizein which all members can meaningfully participate and (4) to increase Councllmembers' responsiveness by making their constituencies smaller, without making those constituencies sa small as to foster parochialism. In the Commission's Judgement a 51-seat Council, conservatively based on the resultsof the 1980Census, but dlstrlcted to maximize minority • opportunities, would Increase the proportion of districts with more than 80% minority population from 25.7%on the present Council (9 of 35 districts) to 35.3%(18 of the 51 districts); and the proportion of districts with 75-79%minority populotlon from none on the present Council to 5.9% (three additional districts). The proportion of dlsttlcts with 70-74%minority population would decrease from 8.6%on the present Council (3 of 35 districts; none of which hove elected minority group Councllmembers) to 2% (1 of 51 districts). (Neither the old nor the prototype 51-district Council hove any districts with 65-69%minority population.) Even if only the 18districts with 80% or more minority population elected minority Councllmembers, the Commission's plan would double the number of such Councllmembers from nine to 18-a 100%expansion of minority representation on a Council expanded In size by only 45.7% (from 35 to 51). The result would necessarily be a vast Increase In the power of the Council's minority bloc. The Commission's prototype of a 51-district system, based upon 1980 Census data, was prepared for informational purposes only to Illustrate that even under the 1980Census. a Council of this sizewould Significantly enhance minority group electoral opportunities. The actual districts will be drawn by a dlstrlctlng commission on the basis of 1990Census data, which will further enhance opportunities for minority representation. There was some controversy over bath the Cornmlsslon's proposal to enlarge the size of the Council and the particular size it chose. Initially same Councllmembers, Including minority members, argued that an enlargement of the Council would not result in an Increase In the proportion of districts In which members of mlnortty groups would have the opportunity to elect Councllmembers of their choice. However. most of

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the representatives of minority communities were In favor of Increasing the size of the Council. and some critics were won over by evidence presented during the course of the charter revision process. In considering the final structure of the city government. the Commission also evaluated the possibility of creating a bicameral City Council with a 19-member upper house. However. that plan was offered only on the condition that It would enhance the opportunities for minority voters to ' participate In and Influence the political process. The Commission heard considerable opposition to this proposal. and its own analysis found that the smaller second legislative body might. In fact. dilute minority representation. The Commission also briefly considered adding the borough presidents to the enlarged Counca. but abandoned the Idea out of the concern that boroughwlde elected Councilmembers (I.e. borough presidents) would dominate the Council and diminish the power of the district members.

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