NYSBA FALL 2009 | VOL. 11 | NO. 2 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School PPublicublic AAuthorityuthority RReformeform • RRe-evaluatinge-evaluating tthehe UUsese ooff PPublicublic • OOversightversight ooff PPublicublic AAuthorityuthority CContractsontracts AAuthoritiesuthorities DDuringuring RRecessionaryecessionary TTimesimes bbyy tthehe SStatetate CComptrolleromptroller • PPublicublic AAuthoritiesuthorities RReformeform AActct ooff 22009009 • RReformseforms ttoo IImprovemprove NNewew York’sYork’s IIndustrialndustrial DDevelopmentevelopment AAgenciesgencies • PPublicublic AAuthorityuthority CControversiesontroversies • CComplianceompliance WWithith tthehe PPAAAAAA • PPublicublic AAuthoritiesuthorities AAccountabilityccountability AActct ooff 22005005 • EEthicsthics LLawsaws aandnd tthehe PPublicublic AAuthoritiesuthorities ooff NNewew YYorkork SStatetate • RRealityeality vv.. LLegalityegality ooff ConduitConduit FinancingFinancing NEW YORK STATE BAR ASSOCIATION Annual Meeting location has been moved— Hilton New York 1335 Avenue of the Americas New York City January 25-30, 2010 Committee on Attorneys in Public Service Tuesday, January 26, 2010 Sutton Parlor North, 2nd fl oor, 2010 Annual Meeting Committee on Attorneys in Public Service Co-sponsored by the Judicial Section 2010 Educational Programs The Supreme Court: Precedents and Principles (9:00 a.m.-12:15 p.m.) The State Legislature and the State Constitution: The Path Forward (2:00 p.m.-5:15 p.m.) You and Colleagues are Cordially Invited to: 2010 Awards for Excellence in Public Service Reception Tuesday, January 26, 2010, 5:30 p.m. – 7:00 p.m. 2010 Honorees Diane F. Bosse, New York State Board of Law Examiners (ret), Buffalo, NY The Hon. Patricia D. Marks, Monroe County Court, Rochester, NY Peter H. Schiff, New York State Department of Law, Albany, NY Special Guests: The Honorable Judith S. Kaye (retired Chief Judge, State of New York) The Honorable Susan Read, New York State Court of Appeals This Awards Reception is a FREE event, and is open to all NYSBA members, friends and colleagues. RSVP by January 15, 2010 to: [email protected] or 518-487-5571. FULL PROGRAM AVAILABLE ON PAGES 130-134 OF THIS JOURNAL Register online: www.nysba.org/AM2010 FALL 2009 | VOL. 11 | NO. 2 Government, Law and Policy Journal Contents Board of Editors 3 Message from the Chair J. Stephen Casscles Peter S. Loomis Lisa F. Grumet 4 Editor’s Foreword James F. Horan Rose Mary Bailly Barbara F. Smith Patricia K. Wood 5 Introduction: Public Authority Reform Staff Liaison Scott Fein Albany Law School 6 Is the Private Sector Really a Model of Effi ciency and Independence? Editorial Board Re-evaluating the Use of Public Authorities During Recessionary Times Rose Mary K. Bailly Jonathan D. Rosenbloom Editor-in-Chief Patricia E. Salkin 15 New York State Public Authority Reform: Where We Have Come From Director, and Where We Need to Go Government Law Center Lynn Wilson and Clayton Eichelberger Vincent M. Bonventre 23 The Public Authorities Reform Act of 2009 Founding Editor-in-Chief Bringing Transparency, Accountability, and a System of Checks and Student Editors Balances to New York’s Shadow Governments Ali Chaudhry Assemblyman Richard L. Brodsky Executive Editor 25 What Happened to Authority Reform? Robert Axisa Charles Brecher Anass Chakir Jeremy Cooney 35 Public Authority Controversies: Root Causes and Lessons Learned Stephen Dushko Scott Fein Marwa Elbially Lynn Evans 41 Interpreting the Public Authorities Accountability Act of 2005 Jillian Kasow Judson Vickers Joi Kush Daniel Schlesinger 48 The Reality v. Legality of Conduit Financing by the State— Robin Wheeler Public Authorities, the Chosen Financiers Andrew Wilson George Weissman Senior Editors 59 Are New York State’s Public Authorities Performing Well? Who Knows? Editorial Offi ce Dennis C. Smith GLP Journal Government Law Center 64 Oversight of Public Authority Contracts by the State Comptroller Albany Law School Kim Fine 80 New Scotland Avenue Albany, NY 12208 68 Conduit Financing: A Primer and Look Around the Corner 518.445.2329 Kenneth W. Bond Send Address Changes to: (Continued on page 2) Records Department New York State Bar Assoc. One Elk Street Albany, New York 12207 COVER PHOTO 518.463.3200 Tappan Zee Bridge at Night, by John Hudson © 2009 [email protected] The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed or otherwise engaged in public ser- vice. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the GLP Journal, its editors, the Government Law Center, or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2009 by the New York State Bar Association. ISSN 1530-3942 (print) ISSN 1933-8414 (online). The GLP Journal is published twice a year. FALL 2009 | VOL. 11 | NO. 2 Government, Law and Policy Journal Contents Board of Editors (Continued from page 1) J. Stephen Casscles 75 Getting Past the Prisoners’ Dilemma: Transparency and Accountability Lisa F. Grumet Reforms to Improve New York’s Industrial Development Agencies James F. Horan Amy Lavine Barbara F. Smith Patricia K. Wood 87 How Public Authorities Have Complied With the Public Authorities Staff Liaison Accountability Act of 2005 (PAAA) Albany Law School Janis Fallon Editorial Board 92 Ethics Laws and the Public Authorities of New York State Rose Mary K. Bailly Karl J. Sleight and Joan P. Sullivan Editor-in-Chief Patricia E. Salkin 95 Topic Papers Director, Scott Fein Government Law Center • Selection of Public Authority Board Members Vincent M. Bonventre • Screening Ethical Confl ict for Board Members of Public Authorities Founding Editor-in-Chief • Ethics Training for Public Authority Personnel Student Editors • Increasing Racial/Gender Diversity on the Boards of Public Ali Chaudhry Authorities Executive Editor • The Big Ten: The Most Frequently Asked Questions by Public Robert Axisa Authorities About Open Meetings Issues Anass Chakir • Application of Gubernatorial Executive Orders to Public Jeremy Cooney Authorities Stephen Dushko Marwa Elbially 102 The Public Authorities Reform Act of 2009 Lynn Evans Scott Fein Jillian Kasow Joi Kush 102 Public Authorities Reform Act (PARA) of 2009 Daniel Schlesinger Robin Wheeler 106 Chapter 506 (S66012/A40012) Andrew Wilson 125 New York State Senate Introducer’s Memorandum in Support Senior Editors submitted in accordance with Senate Rule VI. Sec 1 Editorial Offi ce GLP Journal Government Law Center Albany Law School CORRECTION 80 New Scotland Avenue Albany, NY 12208 Mark Schachner authored the article Open Meetings Law “Puzzlers” for Local 518.445.2329 Municipalities which appeared in the Spring 2009 Issue of the Government, Law and Policy Journal on Freedom of Information Law. Mark’s biographical information Send Address Changes to: was inadvertently left out of the issue and appears below: Records Department New York State Bar Assoc. Mark Schachner is a principal in the law fi rm of Miller, Mannix, Schachner & One Elk Street Hafner, LLC in Glens Falls, where his efforts are concentrated in the areas of Albany, New York 12207 municipal, environmental, land use and planning/zoning law. Mr. Schachner and 518.463.3200 his colleagues represent numerous municipalities in northern New York. He is a [email protected] graduate of Brown University and Boston University School of Law. 2 NYSBA Government, Law and Policy Journal | Fall 2009 | Vol. 11 | No. 2 Message from the Chair By Peter S. Loomis This past June I was already been hard at work planning the program for this greatly honored to be asked coming January. The traditional morning Supreme Court by State Bar President Mike review will continue, with Professors Mazzone and Araiza Getnick to serve as the sixth of Brooklyn Law School, and the afternoon will focus Chair of the Committee on on timely issues involving the process and prospects for Attorneys in Public Service structural constitutional change in New York, with some (CAPS). Having been a discussion within that context of the events of the past member of CAPS for three year such as the Lieutenant Governor dispute and the years prior to my appoint- leadership crisis in the Senate. It is sure to be a winning ment, and a member of its program! Subcommittee on the Ad- ministrative Law Judiciary The CAPS Awards for Excellence in Public Service, for even longer, I was well and their presentation at an Annual Meeting reception aware not only of the re- following our CLE program, have also become a tradi- sponsibilities the job entails, but of the substantial accom- tion over the past ten years, and the Committee has been plishments of all those who have served before me. Our honored to publicly recognize the extraordinary dedica- most recent past Chair, Professor Patty Salkin of Albany tion to public service demonstrated by this diverse group Law School, has set the bar very high, and her service to of past winners. This year, the Committee awarded its the Committee was extraordinary. We are fortunate that fi rst Citations for Special Achievement in Public Service in while she now chairs the Municipal Law Section, Patty conjunction with a program on the career of Charles