The Topsy-Turvy Budget: Why the Governor Controls the NYS Budget Process and the Role of a Mobilized Citizenry

In the topsy-turvy world of New York State politics would the Assembly defeat of the state budget have been a victory for the opponents of the governor’s education agenda, or a defeat? In other words, would defeating the budget have more negative outcomes than passing the budget?

I know this sounds crazy, stick with me.

New York’s Budget Process:
In New York State, while the Legislature largely controls the drafting and passing of laws, the Executive has the authority to design and, once approved by the Legislature, implement the budget. This division of responsibility is termed executive budgeting, and is established in the State Constitution under Article VII.
Specifically, the governor has the power to:
1. Initiate budget negotiations by submitting an Executive Budget to the State Legislature, including the Executive’s own projections for spending and revenue.

2. Originate budget bills for executive branch agencies.

3. Veto any spending the Legislature added to the Executive Budget, though this veto can be overridden by a two-thirds majority in both houses.

4. Implement the enacted budget, which includes the ability to reduce the state workforce (though not to reduce spending on local assistance, which includes all aid to local governments, non-profits, and entitlement payments to individuals).

The Executive Budget … provides the basis for negotiations between the Legislature and Governor on spending and revenue. These negotiations must be concluded and a budget enacted by April 1st, the beginning of the new fiscal year in New York.

ARTICLE VII
State Finances

§4. The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose

If a budget is not approved, the fiscal year begins without a budget, the state cannot pay bills or fund programs; state employees are unpaid, school aid payments suspended, no Medicare payments, the list goes on and one.

This tactic became commonplace, from 1985 until 2004 not a single budget was passed on time. Legislators would wait out the governor until unpopular items were removed or popular items added to the budget. The two branches battled away until one side or the other caved and an agreement was reached. In 2004 a budget agreement was not achieved until August 13th; for two years following the 2004 debacle, budgets were enacted on the last day of March; however, this was followed by four years of late budgets.

The state functioned due to week-to-week temporary budget extenders, bills introduced by the Legislature and signed by the governor that allowed basic state services to continue.

Originally, the fiscal year 2010-2011 Executive Budget produced by Governor Paterson included painful cuts opposed by the Legislature, leading to delays in their enactment. On June 16th, with the Legislature over two months late in offering a final budget, Paterson delivered an ultimatum. He threatened to roll the entire proposed Executive Budget into a single temporary budget extender on June 28th if the Legislature failed to produce a budget with no borrowing. Legislators would then be faced with the stark decision of either:
A. Enacting the Governor’s budget unchanged, or
B. Rejecting the temporary funding extender, shutting down all government operations for which funding was not already in place, and waiting for the Governor to come to the table.

Patterson had spent two decades as a Democrat in the Republican controlled State Senate and was placed on the ballot to “balance the ticket,” aka, attracting minority voters in New York City. Eliot Spitzer was elected and roared into Albany, only to abruptly resign over his prostitution scandal. Patterson was perceived as a weak governor who was under attack from Democrats as well as Republicans.

Patterson’s gambit was both brilliant, and unparalleled.

It was based on the no-alteration clause of the State Constitution and two New York Court of Appeals decisions, Pataki v. New York State Assembly and Silver v. Pataki (2004), both of which reaffirmed that the Legislature cannot amend the Governor’s appropriations under Article VII of the Constitution.

The no-alteration clause in Article VII, I remind you, states that:

The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose.

In Silver v. Pataki, Judge Robert Smith of the State Court of Appeals ruled that:

If the Legislature disagrees with the Governor’s spending proposals, it is free, as the no-alteration clause provides, to reduce or eliminate them; it is also free to refuse to act on the Governor’s proposed legislation at all, thus forcing him to negotiate. But it cannot adopt a budget that substitutes its spending proposals for the Governor’s. If it could do so, executive budgeting would no longer exist.

Legislators could no longer resist the Governor’s budget agenda by refusing to approve a budget and forcing the governor to amend his appropriations.

Paterson, his authority enshrined in the Constitution and reaffirmed in the courts, realized that he could insert the same appropriations opposed by the Legislature in their weekly lifelines, the temporary budget extenders, the courts emasculated the Legislature.

The gambit sent a clear message: no more budget extenders, no more lifelines, unless you accept my terms. The incentive for the Legislature to delay enacting a budget to get better terms from the Governor disappeared.

The current budget was the fifth on time budget in a row.

You may ask why are the education initiatives in the budget? What does tenure, teacher evaluation and school “receiverships” have to do with budget appropriations? Understand that state aid to schools is critical to the functioning of schools across the state, and, the current budget includes one of the largest increases in memory. The governor linked state aid to his educational initiatives.

If the Assembly voted down the budget it would be faced with a conundrum: risk the loss of the state aid increases (the governor had only placed 300 million in his budget, the approved budget has a 1.4 billion) as well as the inclusion of the governor’s complete education agenda, or, negotiate the best deal possible.

The Assembly could have voted down the budget and challenged the addition of the non-budgetary education initiatives and live with the governor’s budget until the courts rule; the legal process takes about twelve to eighteen months to move through the three levels of the New York State (Supreme, Appellate, Appeals); and. legal experts doubt a challenge would be successful.

In January, at a UFT Delegates meeting UFT President Mulgrew laid out the complexity and limitations of the fight against Cuomo; attempting to explain the “budget extender” issue. I doubt most delegates understood. New York City has a very favorable Mayor and Chancellor, who to the extent possible will mitigate the impact of the Cuomo initiatives. The UFT sent a message to the electeds, we will fight Cuomo, do the best you can, we understand the limitations.

NYSUT, the confederation of 700 local unions scattered across the state had a more complex problem. NYSUT does not “own” any collective bargaining agreements; it is the advocacy arm of teachers cross the state. From the hundred thousand plus members in New York City, to the college teachers at both the New York City (CUNY) and state (SUNY) colleges and universities, from the other urban centers across the state (Buffalo, Rochester and Syracuse) to the urban suburbs to the hundreds of locals in the economically distressed rural neighborhoods.

New York State has one of the worst school funding formulas in the nation. Two-thirds of school funding is generated through property taxes based upon local wealth. Million-plus dollar houses generate more dollars than houses in depressed farming areas. The richest districts get the most money, the poorest the least. The one-third distributed by the state is based upon a formula that attempts to mitigate the disparities. The top decile of schools is funded more than $10,000 above the bottom decile.

While the Cuomo budget was filled with items reviled by teachers, it did provide additional funding, funding that saved teaching jobs.

NYSUT leadership has been in office for less than a year; the prior administration was in place for many years. Much of the criticism is that they were ineffective in the political arena. A professor and Cornel ILR wrote a paper explaining the NYSUT election politics in detail – a fascinating read.

NYSUT has been relentless in attacks on the governor.

Unfortunately many teachers and parents, activists on Facebook and other sites fail to understand the process. Weeks of intense negotiations ends up with a budget. Senator Flanagan, the chair of the Senate Education Committee feels the final budget made meaningful changes in the original Cuomo budget.,

“The governor’s initial proposal was very aggressive, but there have been a number of changes,” Flanagan said on The Capitol Pressroom. “The 50 percent is out.”

Flanagan said its unlikely education officials and the Board of Regents would recommend scoring bands that weight tests at 50 percent of a teacher’s performance.

“I don’t see that happening. I think the valuable part of the process is there’s some time to do that,” he said. “The intention was, clearly, not to go to 50 percent.”

The next step is the implementation phase, regulations will be set by the State Ed and approved by the Board of Regents.

Teacher and parent advocacy resulted in the changing of four members of the Board of Regents, Three of the new Regents are retired superintendents and clearly a message was sent and received. Over the next few months the somewhat vague law will be converted to regulations. Advocacy is not only a flurry of letters and emails, it’s not only a single a visit to a legislators; it’s an ongoing process.

Do you contribute to electeds? Do you actually work in campaigns? Do you write letters to local newspapers? Do you attend local forums and meetings? Do you sponsor or host local meetings?

Advocacy is more than a Facebook post.

You’re not an effective advocate until your elected knows you by name.

For many this has been their first campaign, a frustrating campaign, the next campaign, charter school caps and mayoral control is around the corner.

Teaching is our profession, we have to own it – its not a single battle, its a liftime struggle.