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NYS Senate Ethics Hearing Delayed Due To Open Meeting Law Concerns

The New York State Capitol
Jackie Orchard

A New York State Senate hearing scheduled to examine the troubled state ethics commission was postponed Monday. There were concerns that it might have been in violation of New York’s open meetings law, because too many senators were opting to participate over Zoom, instead of showing up in person.  The hearing was to feature senators grilling the chair of the Joint Commission on Public Ethics, or JCOPE, a panel that critics say is overly influenced by Democratic Governor Andrew Cuomo. But, after an hour’s delay, Senate Ethics Committee Chair Alessandra Biaggi postponed it. 

“There was a concern that was brought to our attention from the Committee on Open Government about whether the open meetings law applies to hearings,” said Biaggi.  

The Senate is one of several government bodies struggling to cope with changing rules, now that the COVID-19 pandemic seems to be on the wane.  

During the height of the pandemic, emergency rules declared by Governor Cuomo and special rules adopted by the legislature enabled most lawmakers to participate remotely during the legislative session and in committee meetings and public hearings. 

But now that the state of emergency has ended, the state’s open meetings laws once again apply. Those rules say that if a public meeting is held by video conference, then the public must be able attend in-person to listen and observe the proceedings at any site where a government official is participating. That rule can’t be followed when most of the senators are tuning in from their homes.  

Senator Biaggi, a Democrat, says she believes that the public hearing fails into a gray area of the rules, but did not want to taint the proceedings by any suggestion that they did something improper. 

“Because there is no question that we will not even give the perception of violating the open meetings law, we are postponing it until we have clarity around this issue,” Biaggi said.   

The ranking Republican on the committee, Senator Anthony Palumbo, was one of two senators on the committee who attended in-person. He waited for an hour in the hearing room before he was told of the cancellation. He says he believes the hearing, as it was structured, would not have violated the open meetings law. He says it’s another black mark on the attempt by majority party Democrats to try to fix ongoing ethics problems in state government.

“We can’t even get the public hearing right,” said Palumbo. “It’s embarrassing. It’s really unfortunate.”

Palumbo, from Eastern Long Island, has one of the longest commutes to Albany. He says other GOP senators on the committee would have come in person if they were told that was the rule. 

Palumbo says he intended to question the recently appointed executive director of the Joint Commission on Public Ethics, Sanford Berland, about what Palumbo says is the lack of transparency. He says the leader of the Senate Minority Republicans, Robert Ortt, wrote letters to JCOPE asking for an investigation into allegations that Governor Cuomo improperly offered priority coronavirus testing to friends and family, and used staff members to help him write and edit a memoir, but so far has received no response.  

The state Senate was not the only government entity that was potentially operating on murky legal ground. 

The state’s redistricting commission, which will draw new lines for Congressional, Senate and Assembly districts based on 2020 census data, said Monday that it will hold 9 public hearings virtually, through Zoom, to engage people from all across the state.  

Vice Chair Jack Martins says the members consider the hearings a “listening tour” to gather public input before making decisions and will not be taking any official actions at the virtual gatherings, so they believe that the open meetings law does not apply to them.    

He says because people can participate in the hearings from their homes, the format will increase public access and participation.  

“I see this as a tremendous positive,” said Martins. “To do the kind of public outreach that we’re supposed to do. I certainly won’t agree that we are doing anything that would otherwise be frankly inappropriate.”    

The remote-only redistricting hearings are going on as scheduled beginning July 20.  

Senator Biaggi says the questions about the hearings may in the long run be a positive development, and lead the state to change its rules to hold more events virtually and make it easier for the public to witness them.    

Karen DeWitt is Capitol Bureau chief for New York State Public Radio, a network of public radio stations in New York state. She has covered state government and politics for the network since 1990.
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