Home Rule, with a Few Caveats

The revised measure, which was ratified by the Assembly on Tuesday and the Senate on Wednesday, will amend last year’s legislation in two ways. First, it requires that, “all board members shall recuse themselves from matters pending before the board in the event of a conflict of interest,” in a manner consistent with applicable State law, “and relevant Authorities Budget Office guidance.” More anomalous than the first provision is a second rider that stipulates, “all board members appointed under the provisions of this section shall have relevant real estate, corporate board, financial, legal, urban planning and/or design, architectural, governmental or security experience.”

After the bill had passed, the elected officials representing Lower Manhattan in Albany — Senator Brian Kavanagh, Assembly member Deborah Glick, and Assembly member Yuh-Line Niou —  released a joint statement, saying, “Local representation is the foundation of our system of government, and this bill guarantees Battery Park City residents will have at least two seats at the table. This bill represents a compromise between the Assembly, the Senate, and the Governor that ensures residents of Battery Park City will have a formal say in how decisions that affect this community are made. In addition, it adds a sensible list of qualifications that apply to all board members.”

Both provisions added by the amendment raise questions.

On initial reading, the first of these might seem self-evident to the point of being irrelevant, insofar as all State officials are bound the laws about conflict of interest. The insertion of this passage appears to be a compromise between the office of Governor Andrew Cuomo (who controls the BPCA, by appointing its board) and State legislators.

According to one source directly familiar with the situation, the Governor wanted broad language that would have prevented board members who live in Battery Park City from voting on matters that could affect them, even indirectly. Such a provision might have, for example, required a resident board member to recuse himself or herself from a discussion about the Authority issuing new bond debt, because the ground rent paid by residents (directly for condominium owners, and indirectly by rental tenants) would be used to amortize such debt. In this scenario, a board member who lives in Battery Park City might arguably be excluded from discussing or voting on any matter other than the most routine BPCA business.

Elected officials representing Lower Manhattan in the State legislature successfully pushed back against this language, advocating instead a generic restatement of regulations about conflicts of interest, and demanding that these apply to all BPCA board members, rather than only those who live in Battery Park City. (At present, there are no BPCA board members residing within the community. The last, Martha Gallo, stepped down in April of last year.)

But the Governor’s office extracted a related concession, insisting that potential conflicts of interest for BPCA board members be determined by, “relevant Authorities Budget Office guidance.” The State’s Authorities Budget Office is run by an executive appointed by the Governor, who is likely to be responsive to his concerns.

More anomalous than the first provision is a second rider that stipulates, “all board members appointed under the provisions of this section shall have relevant real estate, corporate board, financial, legal, urban planning and/or design, architectural, governmental or security experience.”

At first glance, such language may seem innocuous. But it is a first for the BPCA, and apparently for any other State authority. The New York State Thruway Authority and the Metropolitan Transportation Authority, for example, are not governed by any statutory provision that requires the Governor to appoint only board members with backgrounds in building roads or managing commuter rail lines, or other skills related to the missions of those agencies. As a matter of practice, many board appointees at these authorities do have exactly such experience. But State law does not require it. Instead, the Governor is free to name to those boards any candidate who is, in his judgment, qualified, provided that the State Senate is willing to confirm such an appointee.

A more closely analogous comparison might be found in the Roosevelt Island Operating Corporation (RIOC), the State agency that governs the planned community in the middle of the East River. Under State law, five of the seven members of the RIOC board must be residents of Roosevelt Island. There is no legal requirement that they fall within any of the professional categories outlined in the text of the law that will govern appointees to the BPCA board. Why the Governor’s office wishes to tighten the requirements for service on the BPCA board in a way that appears not to apply to any other State authority is unclear.

What is clear is that, under this restriction, many categories of residents could either be excluded from the BPCA board, or else would fall into an ambiguous class that might (or might not) be eligible for appointment. For example, educators are not mentioned on the list of groupings that will be deemed qualified. But public school teachers and principals have played a central role in the success of the community, as have parent leaders at the local schools that have done much to burnish the reputation of Battery Park City as a desirable place to live. Similarly, creating new infrastructure that will safeguard the community against climate change and future extreme-weather events is a core competency that is likely to prove vital in the years ahead, but this is not listed as a form of expertise that would qualify a candidate for BPCA board membership.

Oddly, the Governor’s concern about qualifications of BPCA board appointments was not mentioned in the “Approval Message” he added to the signed bill in December. This is a mechanism by which the Governor can attach legal strings to a new law’s enactment. In this instance, the message read, “this bill would ensure that Battery Park City residents have the opportunity to review and vote on proposals and governance matters that impact their community. As drafted, however, there are technical concerns that would make it difficult to make sure the Battery Park City [Authority] board can function effectively. The Executive has secured an agreement with the Legislature to pass legislation in the upcoming session to address these concerns. On that basis, I am signing this bill.”

The Approval Message did not explain what these “technical concerns” were, nor it is clear how the revised bill, with its unique restrictions on board membership that apply to no similar State agency, will address them. The amended measure will now move to Governor Cuomo’s desk. He appears likely to sign it.