Tag Archives: downsizing

Redistricting Shenanigans

19 Apr

In the “Cow Days” episode of the Comedy Central series South Park, Officer Barbrady, officially declares “shenanigans” after discovering a carnival game is rigged.  The declaration of shenanigans by an officer of the law gives the townspeople free rein to destroy the carnival with brooms.

I think its high time to declare “shenanigans” on the Erie County Legislature redistricting process.  As I understand the law, declaration of shenanigans in Erie County gives the locals free rein to turn Spaulding Lake into a flexible lawn.

Due to the approval of a referendum measure in 2010, Erie County will be downsizing the number of legislators in time for the 2011 countywide election.

With the decision, next year’s candidates will run for 11 new legislative districts, drawn to reflect census-based shifts in population. If all goes according to plan, 11 lawmakers will take their oaths of office in January 2012.

The question then became, who will draw those new legislature districts and what methodology will be used to draw them?  The existing county law requires the Legislature to create a citizens advisory committee on redistricting, but that law does not stipulate that the Legislature follow the recommendations of the committee.

That Citizens Advisory committee, advertised as “non-partisan” is filled with active members of the Republican Party apparatus and various members of the Democratic Grassroots political club and the Erie County Democratic Committee.  It also offers positions to the two Board of Elections chairmen, Dennis Ward (D) and Ralph Mohr (R).  So, partisan arguing and bickering is the order of the day, as documented by Geoff Kelly from Artvoice after he attended the first meeting of the committee in early March.

So I wondered, as I considered these and other thorny issues, if many commission members on both sides of the political fence might secretly hope that time constraints would prevent the downsizing from occurring this year at all—that, come November, we will still have 15 legislators running along the current district lines, while the reapportionment process grinds slowly forward in the courts.

As the process has slowly marched on, I’ve been copied on several communications between the members of the committee that demonstrate Kelly was right to wonder if anyone was interested in meeting the deadlines for reapportionment.  Or, these emails show that the most petty and awful among our community are spending way too much time arguing over such horrible nonsense.  I report, you decide, or something like that.

Below are a series of e-mails between the Chairman of the Reapportionment Committee/Grassroots Muckety Muck Adam Perry and Democratic Elections Commissioner Dennis Ward which then branches off to include others. The exchange stems from Dennis Ward’s request that Legislative Staff bring, and display, his “examples” of newly apportioned legislature districts at the public hearings so that they can be discussed. An objection was raised because it would give the public the impression that the maps being discussed at the hearing are official proposals and they are not. Ostensibly, the purpose of the public hearings was to get public feedback on reapportionment, not to discuss specific examples.

On to the rancorous nonsense…

From: Perry, Adam [mailto:APerry@xxxxxx.com]
Sent: Wed 4/13/2011 11:40 AM
To: Perry, Adam; ‘Jeremy Toth’; ‘bbiggie@xxxxxx.com’; ‘dboody@xxxxxx.org’; ‘chapjc@xxxxxx.com’; ‘ecolaiac@xxxxxx.com’; ‘jderosas@xxxxxx.com’; ‘jsh@xxxxxx.com’; Mohr, Ralph; ‘jondrivera@xxxxxx.com’; ‘dsovinsky@xxxxxx.com’; Ward, Dennis; ‘bwittmeyermspt@xxxxxx.net’; ‘jwilmartjr@xxxxxx.com’; ‘lamparelli@xxxxxx.net’
Cc: Davis, John; Fiume, Bryan
Subject: Public Hearing Issues

Committee Members:

First, I apologize for my early departure last night. I did advise staff and a couple of Committee members that I would have to leave early, but I should have made that clear to all members and the audience at the beginning of the hearing. I do think attendance by all Committee members at all public hearings is important, which is another reason why it is my personal preference for fewer and better attended hearings at larger venues familiar to most citizens of the County.

Second, I understand that there has been a request by Mr. Ward to have the examples, maps, or whatever we are calling them (I’ll call them diagrams), displayed at the next two public hearings. I also understand that there is a disagreement as to whether such a process should occur. I am stating for myself that I don’t currently object to showing one of those diagrams as an example in the absence of substantial objections, but I oppose showing more than one. I also personally feel that the diagrams may be misleading and I would be inclined to vote against their use if there is substantial objection and we vote on the matter. Accordingly, I intend to poll the Committee by e-mail (and verifying with anyone who does not respond by e-mail tonight) as to whether the showing should be allowed. Assuming we vote to show a diagram, I also personally have no objection to allowing Mr. Ward a very short explanation of the diagram and an opposing view — if there is one — of his explanation. However, I do intend to subject this issue to a vote before the showing will be allowed within the public hearing venue. In any case, I do think we should re-emphasize that the diagrams are available on the website to the public.

Third, I believe we need to ask for a clarification from the Board of Elections commissioners on the issue of the software availability (I thought it was available some time ago and we were just waiting for the data), and how we address the counting issues based on the opinion of the County Attorney which is directly contrary to the opinion given by the Board of Elections on prisoner populations. I feel this is an important issue to have a clear understanding of in order to defend our process. Indeed, we were being urged by some to produce and distribute maps to the public which would have counted a statistically significant numbers of ineligible people and would have to have been produced without final Census date, and without correct designation of Census tracts, and without input from the public based on actual Census data, and without the software we were told was available to prepare the maps.

Adam W. Perry, Esq.

The vote to which Mr. Perry refers resulted in a decision from the committee to not display the maps.  Of course, Mr. Ward was not very happy with that decision and rapidly took fingers to keyboard to send his indignant response.  Note that he publicly copied Jay Rey of The Buffalo News on his reply.

—–Original Message—–
From: Ward, Dennis [mailto:Dennis.Ward@xxxxxx.gov]
Sent: Wednesday, April 13, 2011 1:46 PM
To: Perry, Adam; Jeremy Toth; bbiggie@xxxxxx.com; dboody@xxxxxx.org; chapjc@xxxxxx.com; ecolaiac@xxxxxx.com; jderosas@xxxxxx.com; jsh@xxxxxx.com; Mohr, Ralph; jondrivera@xxxxxx.com; dsovinsky@xxxxxx.com; bwittmeyermspt@xxxxxx.net; jwilmartjr@xxxxxx.com; lamparelli@xxxxxx.net
Cc: Davis, John; Fiume, Bryan; jrey@xxxxxx.com
Subject: RE: Public Hearing Issues

Members of the Commission:

I have never heard such absolute hypocracy about displaying the “examples” of how the ultimate map of the county Legislative Districts can be partially drawn. What is quite clear is that certain members of the Commission – those appointed by the ruling coalition of the County (the Chair and the Republican minority) have already made up their minds that they will split towns in violation of the provision of MHRL,  Section 10 (1) and, more importantly, in violation of good public policy. It is apparent that the so-called “gerrymandering” of the drawing of lines has already begun – among those appointed to at least try to avoid that at the advisory commission stage.

The examples that I had submitted were merely suggestions of how to avoid dividing towns – assuming that the commission wishes to follow the law, and more importantly, what is good public policy. It was in no way meant to preclude any commission member from doing the same, with other groupings of towns which differ from those I included. On the day I presented them and when we decided to put them up on our webpage, the invitation was extended to all other commission members (indeed, any members of the public) to produce additional such examples of the grouping of towns, to assist the commission in its task of drawing lines. The fact that no other commission members have bothered to do any work outside of appearing at meetings it is not my concern. Maybe it should be.

At some point, this commission will be sitting down in so-called “work sessions” and reviewing whatever has been submitted to the commission for its consideration – be they maps, partial maps, examples of how drafting can be done, together with a background of what has been derived from the hearings and public comment we receive. We will need it all so that an intelligent discussion can be had and work can be done in arriving at a map (or maps) we will be recommending to the full Legislature. At least, I assume that we will have work sessions since otherwise, it will be clear that members of the commission are merely “tools” of those in the ruling “coalition” in the Legislature that has appointed them, who are only interested in retaining the incumbents.

That is not to say that commission members cannot bring maps, or partial maps, that they would like to discuss, to those commission work sessions. Any such submissions will be of help to the commission and will be the subject of discussion, in public, by the members of the commission. That is what “transparency” is all about. That will allow the public to watch the process and ensure that the rationale for any such maps is well grounded in the law and good public policy – not just a furtive effort to advance the agenda of certain incumbents.

I am particularly amused that a commission member would suggest that the displaying of such examples of how to draw the district lines without dividing towns would be “misleading”. How, pray tell, and who would be misled? And misled about what – that it isn’t possible to do? How will the public be able to evaluate the position of whether it is possible to avoid dividing towns without actually looking at examples of how it can be done?

What is quite clear is that certain members of this commission are now all weighing in on the side of not allowing the public to see something that is in the record of the commission and which apparently will become the focus of an internal debate about the legality and the wisdom of dividing towns in arriving at a “gerrymandered” legislative plan. There are members have generally remained silent throughout the proceedings, so far, but now are moved to speak (in the security of e-mail) to deny the public the right to see what will be debated by the commission. What are they afraid of?

If they have some secret “plan” that is superior to adherring to the principle of not dividing towns, let’s hear from them – and let’s see something as a work product. To this point, we have seen nothing. Are we to truly believe that a map will sometime in the future just suddenly “materialize” – and drop on to the laps of the commission – which will then simply rubber stamp it? Is there no willingness on the part of the commission members to do any work for the public to observe?

And finally, let us allow the public to see both sides of the argument. Lets have them able to comment on what is clearly becoming a major (if not the issue) of dispute – whether the age old practice of dividing towns to promote a gerrymandered plan is really a desirable tool. Perhaps people from the many towns will come in to actually request that their town to be divided – who knows? But those who do attend these public hearings ought to have the tools and the information to know the issues involved and to be able to speak on them.

As for the “permission” of the commission to display the “examples” – I don’t need that nor will I abide by that. I will simply retrieve them myself from the Legislature as my work product. Since you are apparently taking the position that they are not a part of the commission’s body of information. I will bring them to every public hearing and I will have them displayed – period. The public and the media have a right to all information available, and which will be used in the commission doing its work. That’s what “open meetings” are all about.

I am shocked that any member of this commission, and in particular the chair, would be a part of suppressing public information. That reveals a story that itself needs to be told in public. I will see all my fellow members of the commission at the next public hearing tonight at 5 PM at ECC North.

Dennis E. Ward
Commission Member

This email about hypocrisy and undermining the will of the people from the elections commissioner who worked with his partner, Mr. Mohr, to keep the downsizing initiative off the ballot last November on technicalities.  Mr. Perry replied to Ward’s email with the following:

From: Perry, Adam [mailto:APerry@xxxxxx.com]
Sent: Wednesday, April 13, 2011 2:50 PM
To: Ward, Dennis; ‘Jeremy Toth’; ‘bbiggie@xxxxxx.com’; ‘dboody@xxxxxx.org’; ‘chapjc@xxxxxx.com’; ‘ecolaiac@xxxxxx.com’; ‘jderosas@xxxxxx.com’; ‘jsh@xxxxxx.com’; Mohr, Ralph; ‘jondrivera@xxxxxx.com’; ‘dsovinsky@xxxxxx.com’; ‘bwittmeyermspt@xxxxxx.net’; ‘jwilmartjr@xxxxxx.com’; ‘lamparelli@xxxxxx.net’; Perry, Adam
Cc: Davis, John; Fiume, Bryan; ‘jrey@xxxxxx.com’
Subject: RE: Public Hearing Issues

I will not respond to Mr. Ward’s defamatory, misleading, and self-serving diatribe. I encourage others not to respond. His statements are not worthy of a response and not worthy of an individual admitted to practice law where duties of candor and civility are the rule and not an option. I intend to conduct all proceedings and communications with my colleagues in a professional and civil manner.

We’re 2200 words in, still with me?  If so, it appears Mr. Perry’s guidance to not respond to Mr. Ward was ignored by committee member Emilio Colaiacovo.

—– Original Message —–
From: Emilio Colaiacovo
To: chapjc@xxxxxx.com ; jsh@xxxxxx.com ; jderosas@xxxxxx.com ; dboody@xxxxxx.org ; Ward, Dennis; Mohr, Ralph; dsovinsky@xxxxxx.com ; bbiggie@xxxxxx.com ; Adam Perry ; Jeremy Toth ; lamparelli@xxxxxx.net ; bwittmeyermspt@xxxxxx.net ; jondrivera@xxxxxx.com ; jwilmartjr@xxxxxx.com
Cc: jrey@xxxxxx.com ; Fiume, Bryan; Davis, John
Sent: Thu Apr 14 13:55:37 2011
Subject: RE: Public Hearing Issues

I find this amusing, since you were instrumental in trying to keep the public referendum on downsizing off the ballot last year. Does this constitute suppressing the will of the public or at the very least suppressing public information? I really don’t want to get into this type of exchange with you, as I don’t have the free time to go on and on. This isn’t a contest on who can say more or the loudest. I think the process has been very deliberative and open. Many of us have concerns about your maps – my concern is I do not want the public to think that they constitute the work product of our committee, as they represent only your opinion (or the opinion of those you serve). I find the comments elicited from our public hearings important. I certainly do not wish to engage in map-drawing without first hearing from the public. While I don’t believe my comments are hollow, you need not disparage others who take a contrary opinion of what you believe to be gospel. See you tonight. Emilio

Emilio Colaiacovo, Esq.

The email chain here continues on with some explanation from Mr. Ward and another reply from Mr. Colaiacovo.  I’ve killed it here because I think we’re past the point of it being informative.

The larger point here is that this process for reapportioning our legislative districts is being undertaken by a political class which seems more interested in sweeping together and hoarding the crumbs on the table as if they were political chits to be cashed in at a future date.  Nowhere in this chain of emails does one find legitimate discussion about how to best realign our legislative districts to better represent the public and make government more efficient.  This small-minded political bickering is exactly why Kevin Gaughan had recommended outside consultants to design a reapportionment proposal for the Legislature itself to consider and vote upon.

Instead, we’ll get weeks of foot dragging, and backroom political bickering in order to avoid making a decision before petitions circulate for legislature candidates in early June.



Legislature Downsizing: On Ballot #ecleg

8 Oct

Justice Sedita ruled yesterday afternoon that the Erie County Legislature downsizing ballot question will be submitted to the voters in November.

My liveblog of yesterday’s argument is here, and my prediction that Judge Sedita would rule the way he did is here.

The #ECLeg Downsizing Debacle: Quick Thoughts

6 Oct

My impression of today’s argument before Justice Sedita is: everyone seems to be right.  I think the BOE was not necessarily mistaken in its interpretation of the relevant statutes – that Kathy Hochul is the “clerk” who is supposed to have certified the text of the proposed law.  I think, however, that the petitioners are correct that the text of the referendum  ballot question does not need to be “certified”.

On the other hand, it seems that the petitioners, and from his “where’s the beef” questions, the Judge as well, are looking to wend their way through different legal provisions to make sure of two things:

1. Is the proposed ballot question and the proposed local law it affects accurate copies and representations of what the legislature intended to do? I think the court believes that it does. Therefore,

2. Does it really matter whether it was certified by Legislative Clerk Graber or County Clerk Hochul, and shouldn’t the people should have their say on this matter?

When boiled down to that pragmatic argument, I believe that the Court will let the ballot question go to the voters in November.  Because this will be making new law, and an appeal is inevitable no matter what, the Court will have to carefully craft its decision to anticipate and prevent reversal above.  In the end, everyone in this case thinks they’re doing what the law requires them to do.  No one is wrong here.  The question then is, should substance trump glitches on technicalities?

Substance > Form on Downsizing Referendum (UPDATED)

4 Oct

The referendum to downsize the Erie County Legislature from 15 to 11 members is temporarily on hold. The EC BOE commissioners ruled that the referendum paperwork was improperly transmitted to the BOE by the clerk of the legislature, rather than the county clerk.  Under section 4-108 of the Election Law,

Whenever any … referendum … is to be submitted to a vote of the people of a county … at an election conducted by the board of elections, the clerk of such political subdivision, at least thirty-six days prior to the election at which such proposal, proposition or referendum is to be submitted, shall transmit to each board of elections a certified copy of the text of such proposal, proposition or referendum and a statement of the form in which it is to be submitted. If a special election is to be held, such transmittal shall also give the date of such election.

So, because the political subdivision at issue is the county, the county clerk “shall transmit” a certified copy of the proposed referendum.  That language seems pretty straightforward.

I don’t know what the case law says, but the argument would be that a statute such as this should be construed liberally, and technicalities having to do with procedure and form shouldn’t thwart the substantive work of the people or their representatives.

Downsizing guru Kevin Gaughan has already filed a suit to overturn the BOE’s decision, and some county legislators are expected to do the same.  I hope the courts let substance triumph over form.

UPDATE:  Erie County Legislator Ray Walter (R-LD4) adds this in comments:

Look at Municipal Home Rule Law section 25 in regards to the submission of local laws for referendum. MHRL section 2 defines the “clerk” as the clerk of the board of supervisors which is equivalent to the county legislature. Section 2.03 of the Erie County Administrative Code provides that:

“…the form and procedure for the adoption of a local law, including referendum, mandatory or permissive, shall be as provided in the New York state municipal home rule law.” Plus the BOE accepted a local law for referendum last year that was certied by the clerk of the Legislature but now that’s not good enough? If that’s not arbitrary what is?