The bill (if approved by Mr. Cuomo, as appears likely) 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.”
On first reading, this codicil 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.
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.)
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But the Governor’s office extracted a 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 category 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.
The groundwork for the amended law that Governor Cuomo now appears poised to sign was laid last December, on the last day before the 2017 measure requiring that residents be appointed to the BPCA board would have become law without his signature or veto. On December 18, Mr. Cuomo approved the original bill. But his signature was accompanied by an “Approval Message,” a mechanism by which the Governor can attach legal strings to a bill’s enactment. In this case, 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 concluded with the words “this bill is approved,” followed by the Governor’s signature.
For comparison, the qualifications required for anyone seeking Governor Cuomo’s job, as outlined in the State Constitution, consist only of being 30 years of age, a citizen of the United States, and a resident of New York State for at least five years. Anyone wishing to be elected president of the United States must meet a slightly higher standard: The age requirement jumps to 35, and the candidate must be be a natural-born U.S. citizen (rather than an immigrant who gained citizenship via naturalization). An office-seeker who cannot satisfy these criteria might consider aiming instead for the United States Supreme Court, for which the U.S. Constitution does not require any legal training, minimum age, or even American citizenship. All of which may indicate that the residents who will someday be appointed to the BPCA board will be better qualified than the President, the Justices of the Supreme Court, or the Governor who appoints them.