A new bill that adds caveats to the measure signed last December by Governor Cuomo, setting aside two seats on the board of the Battery Park City Authority (BPCA), is quietly working its way through the State legislature.
The bill (if enacted, 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. 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.
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State Assembly member Yuh-Line Niou: “The list of professions in the legislation were presented as a means to ensure passage of the bill. We pushed for these categories to be broad and inclusive enough to capture a wide array of board members, and ultimately reflect the diversity of our neighborhood.”
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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.
Under ordinary circumstances, the ethical strictures that govern conduct by Authority board members are somewhat looser than those applying to paid, full-time employees.
Indeed, according to the BPCA’s annual report from 2015, “provided that board members take precautions to avoid a conflict of interest, or the appearance thereof, the New York State Ethics Commission has permitted certain activities that may otherwise be prohibited pursuant to the code of ethics provisions of Public Officers Law.”
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.”
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State Assembly member Deborah Glick: “We recommended a more expansive list of professions, including urban planning and design, architectural, government or security experience. I’m pleased that we were able to make a case for this broader range of experience.”
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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.
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Anthony Notaro
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Anthony Notaro, chairman of Community Board 1 (CB1) responded to the language in the proposed bill by saying, “we were aware that the Governor’s office asked for this qualification in the legislation. It’s important to note that the objective was to have two members be from Battery Park City, and that the Governor is the one to select, nominate, and appoint any candidate, whether they are from the neighborhood or outside. The qualifications listed in the legislation actually cover a broad range of disciplines and might be of value to the BPCA. In the end, we will have to continue to advocate for our residents.”
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Tammy Meltzer
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Tammy Meltzer, chair of CB1’s Battery Park City Committee, said, “none of these restrictions were put on Roosevelt Island residents, who have long served on the State Authority board that operates the island. I cannot understand why Battery Park City residents should be treated any differently or limited. The choice is the Governor’s and there is a vibrant diverse community residing in Battery Park City.”
State Assembly member Deborah Glick said, “currently, the members of the BPCA board all come from the professions enumerated in the Governor’s first iteration of this chapter amendment. We recommended a more expansive list of professions, including urban planning and design, architectural, government or security experience. I’m pleased that we were able to make a case for this broader range of experience and professions. In the end, the appointment is the Governor’s prerogative, but I am hopeful that the many qualified people in Battery Park City will reach out to the Governor’s representatives to make themselves known in advance.”
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State Senator Brian Kavanagh: “We should make sure the law is implemented and that residents take their place on the board as soon as possible.”
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State Assembly member Yuh-Line Niou responded, “our goal has always been to bring more local voices to the BPCA board, and these efforts were bolstered by the Governor signing into law our bill requiring two resident board members. It is worth noting that this was a compromise, given that our community has long pushed for a resident majority on the board — a push which I will continue to lead in the Assembly, along with my colleagues. The list of professions in the legislation were presented as a means to ensure passage of the bill. We pushed for these categories to be broad and inclusive enough to capture a wide array of board members, and ultimately reflect the diversity of our neighborhood. I encourage the Governor to work with our community to identify future resident board members to represent our neighborhood.”
State Senator Brian Kavanagh said, “for years, Battery Park City residents have been left out of major decisions that affect this community. Governor Cuomo signing this bill into law, with an understanding that there will be amendments that apply to the entire BPCA board, was a step forward in giving Battery Park City residents the real representation they deserve. Now, we should make sure the law is implemented and that residents take their place on the board as soon as possible.”