July 20, 2015
Hon. Eric Schneiderman
Albany, NY 12224-0341
Hon. Thomas DiNapoli
Office of the State Comptroller
110 State Street
Albany, NY 12236
Hon. Catherine Leahy Scott
Empire State Plaza
Agency Building 2, 16th Floor
Albany, NY 12223
Hon. Letizia Tagliafierro
Joint Commission on Public Ethics
Albany, NY 12207
RE: Violations of Article VII, Section 8(1) of the State Constitution by the Department of Environmental Conservation during the Development and Legislative Review of and Public Referendum on Proposal 5 for the Amendment of Article XIV, Section 1, 2011-2013
Proposal Five, amending Article XIV, Section 1, of the State Constitution was passed by New Yorkers on November 5, 2013. This was the closest vote on a Constitutional Amendment involving the Forest Preserve in over 50 years, passing by 53-47%, and over 1 million voted against it. The amendment authorized test drilling and mining activities (“mineral exploration”) by NYCO Minerals, Inc., on 200 acres of State-owned Forest Preserve lands. If mineral reserves test high enough, NYCO will be able to purchase these lands from the State after approval by the Legislature.
Amendments of Article XIV have been rare. Since New York’s Constitutional Convention in 1938, there have been just 15 successful amendments. The “forever wild” clause was drafted and proposed at the 1894 Constitutional Convention, the only provision adopted unanimously, approved by voters, and has remained unchanged ever since. Today, the Forest Preserve includes over 3 million acres in the Adirondacks and Catskills and is internationally recognized for natural resource protection of a large intact northern temperate forest landscape. It has provided innumerable outdoor recreational experiences to millions. The NYCO amendment marks the first time in State history where a Forest Preserve Constitutional Amendment was passed principally for the economic benefit of a private corporation.
NYCO Minerals, Inc., has maintained an open pit wollastonite mine bordering the Jay Mountain Wilderness Area of the Forest Preserve in the Town of Lewis, Essex County since the 1950s. NYCO operates a processing plant 10 miles away in the Town of Willsboro. It has regularly expanded its open pit mining operations and has received a number of permits from the Department of Environmental Conservation (DEC) and Adirondack Park Agency (APA). In 1998, NYCO was given permission for a second open pit mine in Lewis on Oakhill, less than two miles from its existing open pit mine. The new Oakhill mine was opened so that NYCO could eventually transfer operations there once the supply of wollastonite in the Lewis mine bordering the Forest Preserve was exhausted.
NYCO began making inquiries into securing mining rights on Forest Preserve lands in the 1970s and in 1981 a draft Constitutional Amendment for NYCO to mine Forest Preserve lands received first passage in the Legislature, but never received second passage (Exhibit 1). NYCO did not make another serious effort to enlist political support from local leaders until 2011-2013 (Exhibit 1). Under the State Constitution a draft amendment must be passed by two separately elected Legislatures: “first passage” and “second passage.” Then it must be approved by the electorate. The NYCO amendment received first passage in 2012, second passage in 2013, and as noted above was approved by voters in the 2013 election.An aerial of the NYCO Minerals, Inc., mine that has long bordered Forest Preserve lands. 200 acres. known as “Lewis Lot 8″, will be transferred from the Jay Mountain Wilderness area to NYCO so that it can expand its open pit mine. Picture by Nancie Battaglia.
Through documents obtained through the Freedom of Information Law, Protect the Adirondacks has found that the leadership of the Department of Environmental Conservation violated the Constitution during its advocacy for the passage of the NYCO amendment. From its initial draft of the amendment to final passage by the voters on November 5, 2013, DEC leadership advocated strenuously for and intervened at critical points to assist in the advancement and passage of this amendment. DEC improperly and illegally utilized all of the machinery of State Government to advocate for this amendment. DEC devoted hundreds of thousands of dollars, if not millions, in staff time to supporting the NYCO amendment.
The courts have most emphatically held that “partisan activities” by State agencies, including activities of the sort at issue here, violate Article VII, Section 8(1) of the Constitution, prohibiting gifts or loans of State monies to or in aid of any private undertaking. A Constitutional Amendment is different from a proposed revision to the Environmental Conservation Law, for instance, or other type of legislation. The fact that the public must vote on a proposed Constitutional Amendment requires that state agencies must be neutral actors and provide only technical information impartially without any bias, favoritism or advocacy for a particular position.
While the actions revealed in the FOIL request provide significant documentation of legal violations, Protect the Adirondacks was denied extensive correspondence between DEC staff on the NYCO amendment due to their alleged “internal” nature, which DEC argued shields them from public review. Correspondence between the DEC and other state agencies, such as the Board of Elections, was also withheld.
PROTECT’s research has found six critical areas where DEC’s advocacy violated the State Constitution because it acted for NYCO’s benefit and because far from providing only factual information on a proposed Constitutional Amendment, the DEC aggressively advocated in support. Far from being even-handed, the DEC acted as a de facto private lobbyist for NYCO Minerals, Inc., in support on this amendment.
In each of these six areas, events are reported in chronological order and exhibits submitted herewith are referenced.
1. DEC negotiated the terms of the Constitutional Amendment with NYCO Minerals, Inc., and structured a draft amendment that it believed had the best chance to be approved by the voters in a general election.
DEC worked with NYCO in the spring of 2012 to draft a Constitutional Amendment that it believed would pass muster with the Legislature and State voters. While DEC supported NYCO’s overall goal of obtaining 200 acres of Forest Preserve for mining, it also pressured the company on how the draft amendment would be structured. DEC leaders pressured NYCO to agree to a clause that after it had purchased the 200 acres of Forest Preserve lands and completed mining them it would return the lands to the Forest Preserve.
On May 14, 2012, at 10:20 AM, Kenneth Hamm, a DEC attorney who specializes in Forest Preserve law and issues, emailed Peter Goodwin, then the NYCO CEO. This was followed by emails at 2:05 PM from Robert Davies, Director of the Division of Lands and Forests, and at 3:35 from Julie Tighe, DEC Director of Legislative Affairs. These emails followed phone conversations between DEC staff and Mr. Goodwin on May 13, 2012. DEC then shared these developments with the key leaders in the Legislature. These emails document DEC’s close working relationship with NYCO, its lead role in negotiating this amendment, and its leadership role in organizing two passages in the Legislature. The DEC dedicated vast amounts of State employee time to this work.
From Mr. Hamm:
“Good morning, Peter. Attached is a slightly revised draft of the NYCO amendment for your review, incorporating the concept we discussed last week whereby Lot 8 would be conveyed back to the State at the end of the useful life of the mine. Rob Davies and I tried unsuccessfully to reach you this morning on both your office and cell phone to discuss this new draft and to ask your help in moving this forward. After you have read the revised language, please give either me (518 402-9188) or Rob (518 402-9405) a call to discuss. Thank you. Kenneth.” [Exhibit 2]
From Mr. Davies:
“Peter – Thank you for discussing this last change with me on the phone. I appreciate your position and understand this is not a minor concession on your part to allow the 200 acre Lot 8 to revert back to the State. I especially appreciate your willingness to go along with this last change given your concerns. I forgot to ask you during our discussion, but it would help speed the process if you could let Sen. Little and Ass. Sayward know of your agreement with this latest change. Julie Tighe, who is copied on this e-mail, will then send the final draft to both Little and Sayward for final processing. Thank you Peter.” [Exhibit 3]
Mr. Goodwin responded to Mr. Davies’ email minutes later at 2:46 PM: “Yes Rob that would be helpful if Julie sent a final version. Regards Peter” (Exhibit 4).
At 3:35 PM, Ms. Tighe sent attachments of new draft bill language drafted by DEC staff to Mr. Goodwin. She wrote: “I’ll send them the attached right away. Thanks. Julie” (Exhibit 3).
At 4:25 PM on May 14, 2012, Ms. Tighe sent the draft language, discussed earlier with the NYCO CEO, to Elizabeth Wolters, Legislative Director for Senator Betty Little, and Deb Capezzuti, Legislative Director for Teresa Sayward, whose districts include the NYCO mines and processing plants. Ms. Tighe wrote:
“The NYCO provision essentially has the land reverting to the state after NYCO is done mining the property and has reclaimed it. We have discussed the change with NYCO and I believe that they are ok with that provision, although we asked that they reach out to you directly. I intend to share this language w the environmental groups this afternoon to make sure they are ok with the revisions. Please let me know if you have any questions, concerns or issues with these adjustments. Thanks – Julie.” [Exhibit 5]
On May 15, 2012 at 12:02 PM, Ms. Tighe emailed a list of environmental groups (“Adirondack NGO’s 12”):
“As I indicated yesterday, attached is the markup to the NYCO Constitutional Amendment, including the requirement that the land revert to the state after the mine has been reclaimed if the land exchange occurs. Again, we look forward to addressing any questions, comments or concerns with the amended language. Thank you for your review of both of these proposals and for your consideration. Julie”. [Exhibit 6]
This email thread shows that DEC was the principal drafter of the NYCO Amendment legislation, negotiated the details of the amendment, lobbied bill language and scheduling with key legislative sponsors (Senator Little and Assemblymembers Teresa Sayward and Dan Stec), and lobbied the various environmental non-profit advocacy groups. These activities necessarily reflect significant expenditures by the State in employee salaries for the time to draft bill language and negotiate terms of the amendment with NYCO and key legislative leaders.
2. During first and second passage, DEC drafted legislation and bill memos, revised legislation and bill memos, and aggressively lobbied in support of the NYCO amendment.
On May 3, 2012, Ms. Tighe emailed draft NYCO amendment bill language to Neil Woodworth at the Adirondack Mountain Club, with copies to many at DEC and offered to “walk you through the proposal.” She stated “We have met with Senator Little, Assemblymember Sayward and Assembly Central staff regarding proposed 2 constitutional amendments” (Exhibit 7).
On May 6, 2012, Ms. Tighe sent an email to Assembly environmental policy staff thanking them for meeting with DEC Commissioner Joe Martens and sending them draft amendment language written by DEC for both NYCO and the other Forest Preserve Constitutional Amendment that appeared on the November 2013 ballot – the “Township 40” amendment:
“Thank you for taking the time to meet with the Commissioner, Ken and me on Thursday. We really appreciate your time and consideration for trying to address these two matters. As discussed, attached are the three drafts that we shared with you – constitutional amendments to address NYCO and Township 40 as well as the implementing language for Township 40. I spoke to Steve [Steve Liss of the Assembly Conservation Committee] on Friday and offered a briefing for Assemblyman Sweeny and him; he is going to get back to me. We are meeting with the environmental groups and the resident committee for Township 40 tomorrow afternoon to walk them through the proposal. Please let us know if you have questions or need additional information. I will be out of the office until Thursday for a family matter so please cc Ken in the interim if you have questions.
Thank you – Julie.” [Exhibit 8]
On May 11, 2012, Ms. Tighe followed up with emails to legislative staff transmitting maps and more detailed information (Exhibit 9).
On May 14, 2012, DEC attorney Mr. Hamm emailed Mr. Goodwin with new draft bill language for the NYCO amendment (Exhibit 2) and later that day Ms. Tighe sent different bill language to NYCO (Exhibit 3).
Later on May 14, 2012, Ms. Tighe wrote the following to the legislative staff of Senator Little and Assemblymember Sayward, which shows that DEC was clearly the lead author of this legislation:
“The NYCO provision essentially has the land reverting to the state after NYCO is done mining the property and has reclaimed it. We have discussed the change with NYCO and I believe that they are ok with that provision, although we asked that they reach out to you directly.
I intend to share this language w the environmental groups this afternoon to make sure they are ok with the revisions. Please let me know if you have any questions, concerns or issues with these adjustments.” [Exhibit 5]
On May 15, 2012, Ms. Tighe sent the NYCO amendment bill language to DEC staff and various unnamed environmental groups (Exhibit 6).
On May 15, 2012, Ms. Tighe emailed Deb Capezzuti with new language for the NYCO amendment (Exhibit 10). On May 15, 2012, Elizabeth Wolters, legislative director for Senator Little, emailed Ms. Tighe asking for the ok to send bills drafted by DEC to Senate Bill Drafting.
I spoke to Chris last night but I wanted to check with you as well. Would you mind if I started sending them over to bill drafting just to get the ball rolling?
Elizabeth A. Wolters
Senator Elizabeth Little.” [Exhibit 11]
On May 14-16, 2012, Ms. Tighe and Ms. Wolters emailed about strategy and various bills drafts (Exhibit 12, Exhibit 13, Exhibit 14). Later on May 15, 2012, Ms. Wolters emailed Ms. Tighe that she will “wait until I get the all clear from you” before sending DEC’s draft legislation to Senate Bill Drafting (Exhibit 13). Clearly DEC is directing the legislative process.
On May 18 and May 22, 2012, Mr. Hamm emailed a number of environmental groups and the Adirondack Association of Towns and Villages with newly revised “close to final” draft bill memo language for the NYCO amendment (Exhibit 15, Exhibit 16).
On May 21, 2012, Ms. Tighe emailed new drafts of NYCO amendment to Assembly Program and Counsel staff. On May 24, 2012, she sent an email briefing Assembly staff on questions around NYCO amendment (Exhibit 17). On June 11, 2012, she emailed Ms. Wolters a new version of the NYCO amendment (Exhibit 18).
On June 12, 2012, Ms. Tighe wrote that she is tracking bills and sees that the NYCO amendment as well as Township 40 amendment and Township 40 implementing legislation are all in. “I see we have all 3 bills in. fabulous” (Exhibit 19). Later that day she writes Assembly Conservation Committee Chairman Bob Sweeney’s staff to state that “the Commissioner [DEC] really appreciates” his help in advancing the NYCO amendment (Exhibit 20).
On June 14, 2012, Ms. Tighe lobbied and provided various materials to Michael Johnson, Counsel to the Assembly Ways and Means Committee, at the suggestion of Governor Cuomo’s staff:
“Attached is the bill which sets forth the proposed settlement arrangement.
Also attached is the letter I mentioned that Commissioner Martens sent to The Adirondack Council in response to their letter on the NYCO Minerals proposal.
I understand from Bob Rosenthal [Cuomo staff] that you also have questions regarding the type of mining that would occur. It would be an open mine, consistent with their current mining operation. However, they undertake what is know[n] as concurrent reclamation so that they are reclaiming portions of the mine while they continue to mine other parts. To ensure that reclamation takes place, the ECL requires the posting of a bond and the development (which DEC approves) of a reclamation plan for the site.” [Exhibit 21]
On June 19, 2012, Ms. Tighe emailed Ms. Wolters “You in the chamber?” referring to the Senate Legislative Chamber (Exhibit 22). Ms. Wolters responded that she had heard that Democratic Senator Liz Krueger planned to debate the NYCO amendment bill, an impediment to passage in the Senate. Ms. Tighe responded “we can come talk to her” (Exhibit 23).
In 2013, DEC stepped up its lobbying of the Legislature on behalf of NYCO.
In January 2013, Ms. Tighe emailed with Ms. Wolters about second passage of the NYCO Amendment, and other matters, in the 2013 Legislative session. Ms. Tighe wrote “(btw just ran into senator and told her I’d like to get together later this month/early march to discuss constitutional amendments and briefing the new involved electeds). Will give you a call in the next day or so. Thanks” (Exhibit 24).
Bill memos and legislation prepared for “first passage” in 2012 were used for “second passage” in 2013. The record is clear that DEC took the lead in drafting the NYCO amendment, making revisions to drafts, and drafting and revising the accompanying bill memos.
3. During first and second passage, DEC lobbied legislative leaders, committee members and chairs, and legislative staff. DEC drafted and distributed “Fact Sheets” and “Talking Points” to assist lobbying efforts.
DEC developed various lobbying materials, such as “NYCO Land Exchange” fact sheet and a 19-page Position Paper that made arguments in favor of the legislation. These lobbying materials document efforts by DEC to frame the legislative and public debate as well as to convince the Legislature to vote according to DEC’s recommendation.
In the closing days of the legislative session, on June 13, 2012, Ms. Tighe, among others, distributed “Fact Sheets” on the NYCO amendment around the Legislature, telling bill sponsors’ staffs: “here are the fact sheets ken [Kenneth Hamm] and I are going to shop w/ assem dems” (Exhibit 25).
On November 7, 2012, Assemblymember Sayward’s staff emailed Ms. Tighe: “NYCO is looking for talking points for the video they are preparing” (Exhibit 26). On November 27, 2012, Ms. Tighe responded with new DEC “Talking Points” (Exhibit 27).
In May 2013, Mr. Hamm provided an account of the substance of the “Perkins Clearing” Forest Preserve land swap amendment from the 1980s to staff of the Sierra Club (Exhibit 28) and Ms. Tighe provided an account of the state of NYCO’s second mine at Oakhill to staff of Environmental Advocates (Exhibit 29).
In early June 2013, DEC released and widely circulated a 19-page “Position Paper on the Proposed Article XIV Constitutional Amendment Authorizing the Swap of the Lot 8 Parcel to NYCO” (Exhibit 30).
On June 4, 2013, DEC Division of Lands and Forests Director Robert Davies emailed Teresa Sayward, now a retired Assemblymember replaced by Dan Stec:
“Hi Teresa – attached please find a 19 page information package on the potential properties that could come to the State from NYCO as swap pieces for Lot 8. The second document provides talking points on the highlights of the proposal. Please do not hesitate to call if you have any questions or concerns. Appreciate your interest in this project. Best, Rob.” [Exhibit 31]
In addition to its “Talking Points”, “Fact Sheets” and its “Position Paper,” as documented above, DEC also drafted, revised, and circulated proposed language and bill memos for the NYCO amendment. Again, these expenditures in staff time constituted a commitment of significant resources in illegal lobbying by the DEC.
4. DEC pressured environmental non-profits to either support or at least not oppose the NYCO amendment. It successfully pressured one group that had opposed first passage to withdraw its opposition and to reverse course and support second passage; pressured another group that had opposed first passage to take no position during second passage; recruited groups that had taken no position during first passage to support second passage. DEC also recruited support from trade associations and unions.
In 2012-2013, DEC made a great effort to recruit the support of environmental groups and trade associations for passage of the NYCO Amendment during the legislative reviews of both first and second passage. DEC also, successfully as it turned out, applied considerable pressure to certain groups to change their positions from opposition to support or from opposition to no position. DEC organized hundreds of meetings, phone calls and emails to lobby these organizations for support. The information below contains the highlights from a record of hundreds of pages of correspondence.
DEC garnered strong support for the NYCO amendment in 2012 and 2013 from the Adirondack Mountain Club. On May 3, 2012, Ms. Tighe emailed to Neil Woodworth, Adirondack Mountain Club (hereafter ADK) Executive Director, offering to “walk you through the proposal” (Exhibit 7). Mr. Woodworth responded later that day, agreeing to keep the draft amendment “in confidence” so that he could bring it to his Board meeting (Exhibit 32). ADK recommended lands to DEC that could be replacement lands for the Forest Preserve lands NYCO sought (Exhibit 33). In May 2012, ADK staff asked DEC for a “rationale” (Exhibit 34) for the amendment and in response, DEC sent a “close to final” bill memo, noting it had not yet been released to legislative leaders (Exhibit 15). On June 13, 2012, ADK sent a memo of support to DEC officials and legislative staff (Exhibit 35). On June 18, 2012, ADK staff reported to the DEC staff that Assemblymember Sayward had circulated ADK’s memo of support to members of various important Assembly committees (Exhibit 36). In May 2013, DEC worked closely with ADK staff on “second passage” (Exhibit 37, Exhibit 38, Exhibit 39). DEC also widely circulated in its lobbying efforts a “VOTE AYE” piece authored by Commissioner Joe Martens that was published in a debate forum in the May-June 2013 issue the ADK’s magazine Adirondac (Exhibit 40).
DEC also attempted to recruit support from Adirondack Wild: Friends of the Forest Preserve. On May 7, 2012, DEC held a meeting with representatives of Adirondack Wild. On June 4, 2012, David Gibson, a Partner at Adirondack Wild, emailed DEC officials about his meeting with NYCO’s Peter Goodwin, where Mr. Goodwin stated that if the amendment failed it would “move its operations to Oak Hill.” Mr. Gibson urged DEC to seek other ways to assist NYCO, rather than selling Forest Preserve lands (Exhibit 41). On May 6, 2013, Mr. Gibson emailed a memo of opposition to the NYCO Amendment to DEC and legislative leaders (Exhibit 42). On May 15, 2013, Mr. Gibson emailed DEC staff following a meeting with DEC the previous day. Mr. Gibson commented in the email on his conversations with NYCO CEO Peter Goodwin where Mr. Goodwin stated that the supply of wollastonite in NYCO’s second mine was as good as the mine that bordered the Forest Preserve and that if NYCO was unable to mine Forest Preserve lands it would move to its second mine, not shut down (Exhibit 43).
DEC also sought to enlist support from Protect the Adirondacks. On May 15, 2012, John Caffry, a Board member with Protect the Adirondacks, emailed DEC officials about the NYCO amendment (Exhibit 44). On June 5, 2012, John Caffry emailed Marc Gerstman, First Deputy Commissioner at DEC, a memo of opposition to the NYCO amendment. Mr. Hamm emailed Mr. Caffry that “miracles don’t happen all the time” (Exhibit 45).
DEC also solicited support from the Business Council of New York. On June 13, 2012, Ms. Tighe emailed Darren Suarez, its chief lobbyist, and asked “You around to discuss? We are hoping for some help. Thanks” (Exhibit 46). This was a direct appeal for support and lobbying help from the Business Council. Ms. Tighe then sent NYCO amendment bill information, DEC “Talking Points” and included a memo of support from the Adirondack Mountain Club (Exhibits 47). DEC’s solicitation resulted in the Business Council’s strong support for the NYCO amendment.
DEC also solicited support from the Adirondack Council. On May 31, the Adirondack Council, an Adirondack environmental group, submitted a letter opposing the NYCO amendment to DEC Commissioner Joe Martens (Exhibit 48). Mr. Martens responded on June 6, 2012, stating he “was surprised and disappointed” to receive the May 31st letter and urged the Council “to reconsider its position” (Exhibit 49). On June 15, 2012, Mr. Martens sent a second letter to Adirondack Council, asking them “to reconsider and reverse its opposition to first passage” (Exhibit 48). Also on June 15th, Mr. Davies sent Adirondack Council Executive Director Brian Houseal an email chiding the Council for its apparent flip flop as it apparently supported the NYCO amendment earlier in 2012 in a letter to Robert Hallman of Governor Cuomo’s staff. Mr. Davies stated that he looked “forward to hearing from you later today” (Exhibit 50). On June 18, 2012, Mr. Houseal wrote to Commissioner Martens stating that the Council’s “Board has agreed to reconsider its position on the proposed amendment” (Exhibit 48). DEC met with Adirondack Council staff in early June 2013 (Exhibit 51). By mid-June 2013, the Adirondack Council supported the amendment (Exhibit 52). On June 11, Ms. Tighe emailed Scott Lorey, lobbyist for the Adirondack Council, upon receipt of the Council’s memo of support “Fabulous! Thanks. WE really appreciate the Council’s support and Willie’s [Council executive director Willie Janeway] strong posture at this morning’s meeting [with Assembly Environmental Conservation Committee Chair Robert Sweeney]. Please let me know if you need anything else” (Exhibit 53). The Adirondack Council changed its position from opposition to support.
DEC also sought support from Environmental Advocates. On June 13, 2012, Ms. Tighe emailed Environmental Advocates, which had put in a memo of opposition against first passage, stating “We are of course disappointed that you have chosen to oppose and memo the NYCO proposal.” She sent them the June 6th letter from Commissioner Joe Martens to the Adirondack Council, urging reconsideration (Exhibit 54). Environmental Advocates opposed first passage in 2012, but took no position on second passage in 2013.
DEC made an even stronger push in 2013 to build support from across the environmental community during the legislative review leading to second passage. In May and June 2013, the DEC tried to rally support for the amendment through meetings attended by a half dozen or more DEC staff with Environmental Advocates, Sierra Club Atlantic Chapter, Adirondack Wild, the Adirondack Council, and reached out to other groups such as NY League of Conservation Voters and Nature Conservancy (Exhibit 55, Exhibit 56, Exhibit 57, Exhibit 58, Exhibit 59, Exhibit 60, Exhibit 61).
DEC also sought support from the Sierra Club Atlantic Chapter in 2013. On May 5, 2013, Mr. Hamm emailed the Sierra Club, which had opposed first passage of the NYCO amendment in 2012 (Exhibit 62), and thanked them for meeting. Mr. Hamm attached the “VOTE AYE” piece authored by Commissioner Joe Martens, published in Adirondac magazine (Exhibit 40). On May 8, 2013, Mr. Davies emailed his thanks to the Sierra Club for meeting with the DEC (Exhibit 63). On May 10, 2013, Mr. Hamm provided more information to the Sierra Club (Exhibit 64). On May 12, 2013, Roger Downs, Director of the Sierra Club, emailed the DEC and remarked about the level of attention it showered on the Sierra Club to get them to support the NYCO amendment: “Thanks Ken, Rob, and Julie. I’ve had a few days to process our meeting and I appreciate the follow up. Clearly the NYCO deal is of great importance to DEC as is evident by the amount of staff outreach. Admittedly this level of focus is curious to me in consideration of the universe of other issues facing DEC…” (Exhibit 65). On May 13, 2013, Ms. Tighe responded to Mr. Downs that DEC was working “to gain your support or at least remove your opposition” (Exhibit 66). The Sierra Club opposed second passage, despite DEC overtures. On June 10, 2013, Ms. Tighe was still emailing the Sierra Club seeking support (Exhibit 67).
Yet again, it will be seen that DEC invested extraordinary amounts of staff time to set up meetings with advocates, often bringing a half dozen staff members or more to them. Some groups changed their positions based on DEC pressure.
5. DEC coordinated closely with NYCO Minerals, Inc., assisted in its lobbying efforts by helping it craft their message, and directing NYCO executives to contact and enlist the support of various legislators and other powerbrokers.
Throughout the campaign to pass the NYCO Amendment in the Legislature, DEC maintained an extremely close working relationship with NYCO leaders.
On June 5, 2012, a meeting was set at DEC headquarters in Albany attended by Commissioner Joe Martens, NYCO leaders, legislative leaders and two environmental groups (Exhibit 68). The environmental groups asked that Mark Behan, of the public relations firm Behan Communications, not attend (Exhibit 69). Behan Communications was hired by NYCO Minerals, Inc., and paid over $600,000 to develop a public relations campaign to support the NYCO Amendment.
On June 6, 2012, Mr. Behan emailed Commissioner Martens with a packet of materials, “Why Lot 8 Not Oak Hill” making the case that NYCO needed Forest Preserve lands and should not have to transition to and utilize its second mine nearby at Oakhill for wollastonite mining. He wrote “Good to talk to you Monday” referencing a June 4th phone call (Exhibit 70).
Upon attaining first passage, Mr. Goodwin wrote to Commissioner Martens and Mr. Davies:
“Dear Joe and Rob,
On behalf of all NYCO employees “THANK YOU”! This could not have been accomplished without your support and efforts on our behalf. I know there is a long way to go, but it is encouraging that we passed this first hurdle. As you are aware, once completed this will pay dividends not only for NYCO but for Essex County as well as the forest preserve. Your leadership in partnering business and environment stewardship is to be commended. Thank you again for all the DEC efforts on NYCO’s behalf. Best Regards. Peter.” [Exhibit 71]
Mr. Davies responded effusively on the news of first passage at 11:58 AM on June 21, 2012:
“Thank you Peter. Yesterday was a very good day. We are all very pleased here at DEC. It was a true team effort and could not have happened without the efforts of many players, some of which I am copying on this email. We continue to work on moving this project forward and we will keep you posted on our progress. Have a great weekend. Rob.” [Exhibit 71]
At 12:25 PM on June 21st, First Deputy Commissioner Marc Gerstman wrote to Mr. Goodwin:
Thank you for your kind words. We should take a hard look at the second and third steps in the process very soon. We will be meeting internally in the next couple of weeks and it would be helpful if we could meet with you, Senator Little and Assemblywoman Sayward after that. Thanks again. Marc.” [Exhibit 72]
Mr. Goodwin responded at 1:40 PM the same day: “Marc, Yes I agree. I’m thinking last week in July. Again, NYCO certainly owes a debt of gratitude to the entire DEC organization. Best regards. Peter” (Exhibit 73).
In November 2012, NYCO began to prepare for second passage in the 2013 Legislative session, reaching out to Sayward’s staff for help with some “talking points (Exhibit 26). Deb Capezzuti, of Assemblymember Teresa Sayward’s staff, wrote Ms. Tighe on November 7, 2012:
Can you give me a call when you get a chance-I need two things:
1. Trying to set a signage meeting with Ken Hamm
2. NYCO is looking for talking points for the video they are preparing to make. Thanks, Deb.” [Exhibit 26]
On November 27, 2012, Ms. Tighe emailed Mr. Goodwin and provided him with “Talking Points” and tells him that Mr. Davies will be calling to “discuss next steps”:
Hope you had a nice Thanksgiving. Attached is what DEC has developed for talking points in follow up to our meeting. My apologies for the delay. Rob will be reaching out to set up a conference call to discuss next steps. Please let me know if you have any questions, comments or concerns. Thank you – Julie.” [Exhibit 27]
On March 20, 2013, Mr. Davies emailed Mark Buckley, a NYCO manager, inquiring about other NYCO lands that the company may be willing to covey to the State as replacement lands for the 200 acres of State Forest Preserve it seeks to mine. He asked if NYCO would consider making these lands part of the “deal” and requested “verbiage” about these lands and other replacement lands:
“Hi Mark – just received the attached map of NYCO properties from Peter Goodwin. Could you please provide me with some verbiage and good property description of the existing NYCO parcels and acres that NYCO would be willing to make as part of this deal right now? Please describe the natural resource attributes contained in those acres as well. Thanks. Rob.” [Exhibit 74]
On March 25th, Mr. Buckley responded and then provided extensive materials in early June 2013 (Exhibit 75).
At 3:05 PM on April 30, 2013, Mr. Davies wrote Mr. Goodwin: “Peter, Any word on the steel workers?” in reference to political/lobbying support from the Steelworkers Union (Exhibit 76).
At 3:34 on April 30, 2013, Mr. Goodwin responded to Mr. Davies:
“You must be clairvoyant! Just heard that we will get Steelworker support. Does Julie T have a Bill number yet? So we can pass to the Steelworkers. If she doesn’t know I’ll contact [Assemblymember] Dan Stec. We came to a working agreement with Peter S. so on that front they also will be attempting to secure an acceptable option. No word from Ward yet! Any insight on the Council letter? You were going to get details. Regards Peter” [Exhibit 76]
At 3:47 PM on April 30, 2013, Ms. Tighe emailed Mr. Goodwin and asked for a bill memo from the Steelworkers Union in support of the NYCO amendment: “Please ask the steelworkers union to get us their memo when it is available and we can see if we can leverage that” (Exhibit 77).
On May 9, 2013, Mark Behan of Behan Communications, retained by NYCO to help with promotion in the Legislature and the general election, emailed a memo of opposition from Protect the Adirondacks to Ms. Tighe at DEC (Exhibit 78).
On May 15, 2013, Mr. Behan emailed DEC leaders transmitting a letter of support for the NYCO amendment from Congressman Bill Owens to Assembly Speaker Sheldon Silver (Exhibit 79).
On May 24, 2013, Mr. Goodwin, Mr. Behan and DEC leaders exchanged emails and materials for a conference call later that day (Exhibit 80). Behan Communications had prepared various lobbying materials that would be previewed in that call. On May 31, 2013, Mr. Goodwin emailed DEC seeking guidance for how to lobby the legislature. He asks “Who is the Assembly?” Ms. Tighe emailed back “More specifically, the chair of the En Con Committee and central staff” (Exhibit 81).
Between May 31 – June 3, 2013, there was a flurry of emails from NYCO and DEC. NYCO provided maps and write-ups about lands that it owns and other lands near its Lewis mine site that could be used as replacement lands for the 200 acres of Forest Preserve to be mined. NYCO sought “guidance” from DEC and DEC sought information to develop lobbying materials for meetings with various environmental groups in the next few days where it would press them to support the NYCO amendment.
From Mr. Goodwin:
We are trying to get a formal option agreement in place by Wednesday, if we cannot would an email do or just a verbal? Can I have some guidance here. Spoke to Keith G….No interest in donation…wants state to but part NYCO would not. I think this is dead! Regards Peter.” [Exhibit 82]
From Mr. Davies to NYCO’s Mr. Buckley:
“Thank you Mark. Great stuff. Look forward to receiving some pictures of Lot 8. I also noticed we don’t have any pictures of the Ward 2 parcel. I don’t think it is terribly important. We have some good aerial and topo maps of the parcel but if you have any pictures, please send along and we will try to incorporate into the info package. We will send the draft of the info package as soon as we have it compiled. Thanks.” [Exhibit 82]
On June 3, 2013, Mr. Goodwin asked DEC for “guidance” about a purchase option on lands (Exhibit 82). He sent a draft purchase agreements to DEC for review (Exhibit 82). Ms. Tighe responded “Great. Very helpful” (Exhibit 82).
Late that day, Ms. Tighe wrote Mr. Goodwin reporting of progress in the Legislature:
“We had a good meeting today with Assm Stec and Senator Little to bring them up to speed on where things are. The Commissioner and I are meeting w Assm Sweeney tomorrow to fill them in. I am in the process of scheduling meetings with the Adirondack Council and other environmental groups for later this week. Thanks-
Julie.” [Exhibit 83]
At 4:50 PM that day, Mr. Behan emailed Ms. Tighe and others at DEC about the support of the Steelworkers Union:
“Dear Rob, Julia, Marc and Ken —
Enclosed is the United Steelworkers’ letter issued today to Assembly Speaker Silver (and copied to Gov. Cuomo, Commissioner Martens, Sen. Little and all members of the Assembly) endorsing the NYCO Adirondack land exchange. Best regards, Mark Behan.” [Exhibit 84]
Thirteen minutes later, Ms. Tighe responded “Fantastic. Thanks!” (Exhibit 85). Mr. Davies responded at 6:20 PM on that day, “Excellent. We are making real progress at the right time. Thanks” (Exhibit 85).
Also on June 3, 2013, Ms. Tighe and Mr. Goodwin exchanged emails on NYCO’s land option agreement, with Ms. Tighe responding “Fantastic! Thank you for keeping us in the loop” (Exhibit 86).
On June 4, 2013, as DEC was preparing to meet with a number of environmental groups to advocate for their support, Mr. Goodwin sent an email to Ms. Tighe transmitting the AFL-CIO letter of support and added “See below: AFL-CIO support. Good luck with the council! Regards Peter” referring to the Adirondack Council (Exhibit 87).
At 1:01 PM on June 5, 2013, Mr. Goodwin emailed DEC concerning a possible agreement pursuant to which NYCO would purchase lands of Ward Lumber for replacement for the 200 acres of Forest Preserve (Exhibit 88). One minute later, Ms. Tighe emailed Goodwin “Great News! (Exhibit 89).
At 2:50 PM that day, Mr. Behan emailed DEC leaders “Dear Rob, Julie, Marc, Ken and Chris — I enclose a letter from New York AFL-CIO President Mario Cilento endorsing the NYCO land exchange. The letter is addressed to Assembly Member Sweeney and copied to Speaker Silver. Best regards, Mark” (Exhibit 90). Two minutes later, Ms. Tighe responded “Great! Thanks!” (Exhibit 91). At 3:54 PM, Mr. Davies emailed Mr. Behan (copied widely to DEC leaders) “Thank you Mark. Very nice timing” (Exhibit 92). At 5:27 PM, Ms. Tighe emailed Mr. Goodwin to say “Fantastic!” as well as add that Assembly Environmental Conservation Committee chairman Robert Sweeney will shortly convene a meeting to discuss second passage of the amendment with DEC officials, NYCO officials, Dan Stec, and various environmental groups (Exhibit 93).
On June 7, 2013, Ms. Tighe emailed Mr. Goodwin about speaking by phone at 1 PM that day (Exhibit 94).
At 2:18 PM on June 10, 2013, a Sunday, Mr. Behan emailed DEC leaders with news that the Adirondack Council had voted to support the NYCO amendment: “Hi Rob, Marc, Julie, Chris and Ken – You may already be aware … I just received a phone message that the Adirondack Council has voted to support the NYCO land exchange amendment. Thanks for all of your help. This is a huge plus. Mark” (Exhibit 95).
The DEC also worked closely with by then-retired Assemblymember Teresa Sayward to coordinate lobbying of her former Assembly colleagues. On June 11, 2013 at 6:37 PM, Teresa Sayward emailed DEC leaders about the NYCO amendment, congratulating Commissioner Martens for his strong support in the meeting with Assembly Environmental Conservation Committee chairman Robert Sweeney that morning, and informed them that she will help lobby Assembly members:
“Please convey my congratulations and gratitude for the hard work you all did in poking and prodding NYCO to work harder on putting together the package for the Amendment. Today’s news that the Amendment passed the Senate and also went through the En Con meeting in the Assembly is a great sign. I know Joe did an outstanding job in answering questions and concerns at this morning’s meeting. I don’t have his email, but please let him know how much his and all of your efforts mean to me and to my community. I will be down next week to work the members of the Assembly to make sure both the NYCO and the T-40 Amendment get passed. KUDOS! Teresa” [Exhibit 31]
At 7:43 PM, Mr. Davies emailed Ms. Sayward thanking her for “behind the scenes counsel” on this effort, especially lobbying ex-colleagues in the Assembly:
“Thank you Teresa and I am passing your Kudos along to Joe, Marc, Julie, Ken and Kathy by this note. They all played critical roles in the DEC team with, of course, Joe’s direction and leadership on this. We also appreciate your behind the scenes counsel and work with NYCO and ex-colleagues. Best Rob.” [Exhibit 31]
On June 11, 2013, Ms. Tighe emailed Ms. Sayward seeking her help with lobbying the Assembly: “Assemblywoman – Just to clarify: The nyco bill hasn’t gone through assm en con yet. The assembly has not yet introduced the bill. Township 40 is on tomorrow’s agenda. We will definitely need your help in speaking with assm weinstein and members of the en con and judiciary committees. Thanks! Julie” (Exhibit 96). On June 12th Ms. Sayward responded: “Thanks Julie. I was getting news from Dan [Stec, Assembly Member] as I traveled home through the horrendous rain. He clarified the status last evening. I was on the phone with my friends in the Assembly last evening and will be in the Capitol next week. Again, thank you for all of your expertise and assistance with both amendments. Teresa” (Exhibit 96). On June 12, 2013, Ms. Tighe emailed Ms. Sayward “Great. Thanks for you efforts. Please let me know if there are particular members you think need me to pay them a visit. I’m going to try and hit up en con and judiciary members today. Thanks- Julie” (Exhibit 97). Ms. Sayward wrote later: “Hi Julie, I have been on the phone this morning and I too believe the Judiciary is important. I will meet personally with Helene [Assemblymember Weinstein] this coming week. She may not vote for the bill, but I believe she will work with me to get it through committee. Teresa” (Exhibit 96).
At 9:32 PM on June 12, 2013, Ms. Tighe emailed Mr. Goodwin reporting that Assembly Environmental Conservation Committee chairman Robert Sweeney had put the bill for second passage on his committee’s calendar. She suggested that NYCO submit a letter in support: “i think you guys should submit a memo/letter to the various committees. assm en con, judiciary and W&M. plus the speaker” (Exhibit 98). Five minutes later, Peter Goodwin responded “Julia What. Type of letter and Please list who? Mark Behan can draft one Regards Peter” (Exhibit 99). Six minutes after that, Ms. Tighe emailed Mr. Goodwin “letter of support explaining why its important to the company. all the dem members of the assembly en con, judiciary and ways & means committees – mark behan should know how to get those lists. Its a lot of members in the Assm. (I know b/c i have been pulling them off the Assm floor all day today to discuss this with them)” (Exhibit 99). At 9:46 PM, Mr. Goodwin responded “How about giving them the Video? A letter will take time” (Exhibit 99). At 9:46 PM, Mr. Goodwin emailed Tighe “How much time do we have?” (Exhibit 99). At 9:48 PM, Ms. Tighe emailed “En con is tomorrow. Not sure when the next cmte mtgs will be – likely next week” (Exhibit 99). At 9:51, Mr. Goodwin responded “Thanks I’ll talk to Mark [Behan] in the AM” (Exhibit 100). At 9:51 PM, Julie Tighe emailed “Sounds good.” (Exhibit 100)
On June 19, 2013, Mr. Goodwin emailed Ms. Tighe “I appreciate all your efforts on NYCO’s behalf” (Exhibit 101). After passage in the Assembly on June 19th, Dan Fitzgerald of Behan Communications emailed Ms. Tighe:
“NYCO Minerals Inc. and its 100 employees would like to thank you for taking the time to listen and understand the opportunity presented by the proposed land exchange between the People of the State of New York and NYCO. Today’s second passage of the legislation now allows New York voters to decide this fall on the proposed exchange. A press release regarding the passage is attached. Thank you for your support in helping bring this opportunity to the voters.” [Exhibit 102]
The correspondence above documents a vast expenditure of State resources on behalf of NYCO Minerals, Inc. As the legal discussion to follow shows, this naked advocacy violates Article VII of the State Constitution.
6. DEC assisted NYCO in its advocacy in the general election on November 5, 2013, even intervening to change official State ballot language.
The coordination between the DEC and NYCO did not end with second passage. DEC assisted NYCO with its promotion of Proposal 5 in the run-up to the November 5, 2013 election. It also intervened at NYCO’s request to change ballot language at the Board of Elections so that the proposal was rewritten in terms more favorable to NYCO.
On June 20, 2013, at 2:47 PM, just a day after second passage, NYCO started organizing for its advocacy campaign for the general election. It started with a request to DEC for help. Dan Fitzgerald, of Behan Communications, wrote Mr. Davies and Ms. Tighe asking for lobbying materials that DEC had developed for use in advocating in the general election.
Mr. Fitzgerald wrote:
“Rob, After reading the DEC position paper, I was impressed with the detail that it provided as well as with the fact that it showed the use of the Adirondack Council guidelines. I think that this would be a wonderful resource for interested voters who will want to be informed before casting their vote on this issue. I thought that if the position paper were already posted to the DEC website, we could simply provide people with the link. In the event that it is not or will not be posted there, is this document one that can be shared on supporters websites? Dan Fitzgerald, PMP, Senior Project Manager, Behan Communication.” [Exhibit 103]
Mr. Davies responded that day: “Hi Dan – No, we never put maps on the DEC website. We would be happy to e-mail to you whatever you need that would assist you in creating a website. Let me know if you need anything” (Exhibit 103).
On July 12, 2013, Mr. Goodwin requested cell phone numbers for Mr. Gerstman, DEC First Deputy, and Ms. Tighe; Ms. Tighe sent the cell numbers (Exhibit 104).
On July 16, 2013, Dan Fitzgerald and Ms. Tighe shared information about a Wildlife Conservation Society survey of NYCO lands by email. Mr. Fitzgerald was working on information to bolster the general election campaign to pass the NYCO amendment (Exhibit 105).
At 6:31 AM on August 1, 2013, Mr. Behan emailed his team at Behan Communications and NYCO leaders about the ballot language approved by the Board of Elections at its July 29, 2013 meeting.
We have received word from New York State Board of Elections that the NYCO and land swap amendment will be Proposition Number 5 on the November ballot. In addition, the Board of Election has proposed the following language:
In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on mining the land. In exchange, the NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved?
As you can see, the language is inaccurate, unclear and clumsy. For example:
NYCO has committed to giving the state at least 1,500 acres of land. It does not make clear that the state’s transfer of 200 acres to NYCO is temporary, while additions to the state forest preserve are permanent. While NYCO and mining are mentioned twice, the language never expresses the public benefit of the exchange: More open space for preservation and recreation. (Other proposed amendments do set forth such a benefit, as shown below.) We are working with our contacts in state government to see if the Board of Elections can be persuaded to make changes in the language and will have more to report on Monday.” [Exhibit 106]
At 11:58 AM on August 1, 2013, Mr. Goodwin emailed Mr. Davies and Mr. Gertsman conveying NYCO’s unhappiness with the Board of Elections’ approved language. “Rob, I will call you this PM around 1:00.We are VERY concerned with this language. See below [Behan’s forwarded email]. Regards Peter” (Exhibit 107). At 1:12 PM on August 1st, Ms. Tighe responded to Goodwin: “we are doing what we can on this” (Exhibit 107).
On August 6, 2013, Assemblymember Dan Stec’s chief of staff Deb Capezzuti emailed Ms. Tighe with recommended ballot language from Behan Communications:
Mark Behan reached out to us with proposed language for the ballot-Mark feels that the revised language still references mining to often and also referring to NYCO as a private company. He also suggested changing the word “assessed” to “appraised” but the CA bill clearly states “assessed”, which we need to be consistent with- as you can see he wants to include the 1500 acres which I don’t think we can do as it is not mentioned in the CA in that manner. I do like the terminology “for mineral exploration and extraction in exchange for”. Elizabeth said that DEC and Assembly signed off on this yesterday which we were not aware of-I was off last Thursday and Friday. Please let me know your thoughts-thanks Deb Below is Behan’s suggestion:
The proposed amendment to Section 1, Article 14 of the State Constitution would authorize the Legislature to temporarily convey to NYCO Minerals Inc. 200 acres of forest preserve land in the Town of Lewis, Essex County, for mineral exploration and extraction in exchange for which NYCO Minerals Inc. would permanently convey to the state at least 1,500 acres to expand and improve public access to the forest preserve and would fully restore the condition of the borrowed 200 acres and return it to the forest preserve? Shall the amendment be approved?
Deb Capezzuti Chief of Staff Office of Assemblyman Dan Stec” [Exhibit 108]
On August 5, 2013 the Board of Elections executive staff changed the ballot language for Proposal 5.
The July 29, 2013 version approved by the Board of Elections Commissioners themselves reads:
Proposition 5 In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on mining the land. In exchange, the NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved? [Exhibit 109]
The August 5, 2013 version approved by the Board of Elections executive staff and placed on the ballot reads (changed language is in bold):
Proposition 5 In Relation to a Land Exchange in the State Forest Preserve with NYCO Minerals, Inc.
The proposed amendment to section 1 of article 14 of the Constitution would authorize the Legislature to convey forest preserve land located in the town of Lewis, Essex County, to NYCO Minerals, a private company that plans on expanding an existing mine that adjoins the forest preserve land. In exchange, NYCO Minerals would give the State at least the same amount of land of at least the same value, with a minimum assessed value of $1 million, to be added to the forest preserve. When NYCO Minerals finishes mining, it would restore the condition of the land and return it to the forest preserve. Shall the proposed amendment be approved? [Exhibit 110]
In response to a press inquiry related to the six ballot amendments and to a controversy around the language of the proposed gambling amendment, the Board of Elections staff stated in pertinent part that “The Department of Environmental Conservation asked for changes to the two Adirondack land swap amendments which were accommodated and re-certified and co-signed by the two Co-Executive Directors on August 5. No changes were made to the other amendments after the July 29th meeting” (Exhibit 111). It’s important to note that Protect the Adirondacks was denied additional materials under a Freedom of Information Request by the Board of Elections, including 45 pages of correspondence with other state agencies. An appeal of this decision was also denied.
On August 26, 2013, Mr. Goodwin emailed Ms. Tighe and Mr. Davies about a new promotional website and Facebook.com page supporting Proposal 5 (Exhibit 112).
At 9:16 AM on October 16, 2013, Mr. Behan emailed Mr. Goodwin seeking help to refute criticisms of Proposal 5:
“Hi, Rob, Peter and Mark —
Among his frequent criticisms of Proposition 5 Peter Bauer says there’s no enabling legislation — therefore, no guarantee that the state will get what it says it will get. Conversely, he says, there is enabling legislation for Prop. 4. Do you know the history here? Why no enabling legislation? We want to be prepared with an answer. Thanks Mark.” [Exhibit 113]
At 9:18 AM, Mr. Goodwin forwarded Mr. Behan’s email to Ms. Tighe and asked “Please see the email below. Can you provide an answer for us on this issue?” (Exhibit 114).
At 9:33 AM, Ms. Tighe responded to Mr. Goodwin (Exhibit 115) and at 10:18 AM Mr. Hamm provided a more detailed response (Exhibit 116). The next day Mr. Goodwin emailed Mr. Hamm “Thanks Ken” (Exhibit 117) and to Ms. Tighe “Thanks for the help Julie” (Exhibit 118). Ms. Tighe emailed back to Mr. Goodwin “Any time” (Exhibit 119).
After the passage of Proposal 5 on November 5, 2013, NYCO officials and DEC staff traded congratulatory emails (Exhibit 120).
The assistance by the DEC after legislative action and in the campaign prior to the November 5, 2013 election violates the State Constitution as will be shown below. DEC staff should have refrained from any and all advocacy whatsoever with regard to the amendment’s legislative passage, the form of the ballot question, and the choice of the electorate.
As stated above, the courts have most emphatically held that “partisan activities” by State agencies, including activities of the sort at issue here, violate Article VII, Section 8(1) of the Constitution, prohibiting gifts or loans of State monies to or in aid of any private undertaking.
Below, we set forth the decisional law at length. We begin by quoting extensively from Stern v Kramarsky, 84 Misc 2d 447 (Supreme Court, Special Term, N.Y. Co., 1975), as it lays out the basic principles crisply and clearly and as discussed infra has been quoted with approval twice by the Court of Appeals:
“[T]he issue raised by the instant application is…whether it is a proper function of a State agency to actively support a proposed amendment to the State Constitution which is about to be presented to the electorate in a State-wide referendum.” (Pp. 449-450.)
Defendant Kramarsky, the State Commissioner of Human Rights, sent an interoffice memo to the members of an Advisory Council asking them to help the Division educate the public about a proposed Equal Rights Amendment. The Division was also a member of the “New York Coalition for Equal Rights,” and made supportive literature prepared by the Coalition and by the League of Women Voters available to the public in its offices.
The Court said no statute “contemplates administrative agencies engaging in promotional activities in order to secure passage of proposed constitutional amendments” (p. 450), and (id.):
“It should be noted that by lending their support to the campaign underway for the passage of the Equal Rights Amendment, defendants not only provide certain promotional and advertising assistance, but they endow that campaign with all of the prestige and influence naturally arising from any endorsement of a governmental authority.”
Slightly later it said (pp. 452-453):
” * * * The spectacle of State agencies campaigning for or against propositions or proposed constitutional amendments to be voted on by the public, albeit perhaps well-motivated, can only demean the democratic process. As a State agency supported by public funds they cannot advocate their favored position on any issue or for any candidates, as such. So long as they are an arm of the State Government they must maintain a position of neutrality and impartiality.
“It would be establishing a dangerous and untenable precedent to permit the government or any agency thereof to use public funds to disseminate propaganda in favor of or against any issue or candidate. This may be done by totalitarian, dictatorial or autocratic governments but cannot be tolerated, directly or indirectly, in these democratic United States of America. This is true even if the position advocated is believed to be in the best interests of our country.
“To educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be.
“Public funds are trust funds and as such are sacred and are to be used only for the operation of government. For government agencies to attempt to influence public opinion on such matters inhibits the democratic process through the misuse of government funds and prestige. Improper expenditure of funds, whether directly through promotional and advertising activities or indirectly through the use of government employees or facilities cannot be countenanced. (NY Const, art VII, S8; art VIII, S1.) People of all shades of opinion and belief contribute these funds from one source or another. No agency may misuse any such funds for promoting its own opinions, whims or beliefs, irrespective of the high ideals or worthy cause it espouses, promotes or promulgates. The merits of the Equal Rights Amendment are not involved herein and the court is not asked to pass upon it, but rather the right of a State agency to advocate its passage.”
A broad preliminary injunction was granted “…restraining the defendants from supporting, promoting, campaigning or otherwise acting to achieve passage [of the ERA],” but DHR was allowed to “engag[e] in activities to induce the public to vote [on the ERA], or to inform the public of the facts contained in the proposed amendment, and to otherwise educate the public concerning the proposed amendment, without advocating either a positive or a negative vote upon the amendment.” (P. 453.)
The Court of Appeals first quoted Stern’s “To educate…” paragraph in Matter of Phillips v Maurer, 67 NY2d 672 (1986). Statutes authorized boards of education to present a proposed annual budget to be voted on by school district residents. The Court first agreed with the Appellate Division that public monies could be spent reasonably on “educational and informational material to enlighten the voters,” but went on to say, at pp. 673-674:
“We cannot agree, however, with the respondent Acting Commissioner’s interpretation that the scope of a board of education’s statutory authority allows a board to disseminate information, at the taxpayers’ expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board. It has been stated in a different context that [the ‘To educate…’ paragraph from Stern was then quoted].”
The challenged advertisement, the Court said, “contains information that, standing alone, would be considered a proper attempt to educate the public so that they will be better equipped to exercise their franchise” (p. 674). However, it said, “Vote Yes” in bold letters and subjective statements caused the advertisements to “exceed[ ] the publication of information ‘reasonably necessary’ to educate the public” (id.).
People v Ohrenstein, 77 NY2d 38 (1990), involved the use of legislative employees in a political campaign. The Court there characterized Stern and Phillips as cases “deal[ing] with State agencies which sought to use agency facilities and personnel to advance a partisan point of view” (p. 49).
Judge Simons, dissenting in part and voting to modify, used even stronger language. After citing Stern and Phillips, among many other decisions, to assert that “As New York and every other jurisdiction which has addressed the issue has found, partisan political activities are private, not public functions, and the use of public funds for such purposes is improper” (p. 58), he wrote (id.):
“Some of these authorities relate to the use of public funds by State agencies to support propositions rather than candidates but the logic of applying them to legislative election campaigns is inescapable. Campaigning, whether for a cause or a candidate, is a private activity. The government has no interest in paying for partisan activity to obtain a particular election result….”
Queensbury resident Robert Schulz has brought many lawsuits, often pro se, seeking to enjoin the expenditure of State funds to sway the electorate. In Matter of Schulz v State, 175 AD2d 356 (3d Dept., 1991) lv den 78 NY 2d 862, the State respondents were enjoined from further expenditure of public funds to promote a proposed Environmental Bond Act, including distributing an “informational pamphlet,” but the Appellate Division did not agree they could be made to reimburse the State Treasury $325,000 theretofore spent.
In a non-Schulz decision, Matter of Vecchio v Department of Education, 189 AD 2d 961 (3d Dept., 1993) lv den 81 NY2d 709, the court, citing Phillips, said a brochure containing a statement “advocating an affirmative vote on [a] proposition” would be illegal, but the brochure in controversy had none (p. 962).
Mr. Schulz won big at the Court of Appeals on appeal from the granting of the State’s motion to dismiss one of his causes of action in Matter of Schulz v State, 86 NY 2d 225 (1995) cert den 516 US 944. At the direction of Governor Mario Cuomo and the Commissioner, the State Office of Economic Development printed and mailed, at State expense, “The Voice of the New, New York” newsletter. The Court found that it improperly “sought to enlist the public’s support in opposition to the alleged Republican position on the welfare and Medicaid reform issues” in violation of Article VII, Section 8(1) (p. 235). It first traced the history of the provision and its previous holdings with respect to it, then said (p. 234):
“We think it is unassailable that the use of public funds out of a State agency’s appropriation to pay for the production and distribution of campaign materials for a political party or a political candidate or partisan cause in any election would fall squarely within the prohibition of article VII, S8(1) of the Constitution. * * * Contrastingly, a governmental agency does not violate article VII, S8(1) merely by using taxpayers’ funds for the valid governmental purpose of encouraging the public to participate in the democratic process by voting in an election. Nor would that constitutional provision prevent the use of public funds to inform and educate the public, in a reasonably neutral fashion, on the issues in an election so that voters will more knowledgeably exercise their franchise.”
“In the Phillips v Maurer decision we quoted the constitutional standard articulated in Stern v Kramarssky for permissible election activities and dissemination of election literature at public expense: [quotation of the ‘To educate…’ paragraph from Stern as itself quoted by Phillips]. We are satisfied that the guidelines set forth in Phillips v Maurer express the constitutional line of demarcation under article VII, S8(1).
” * * * Although the newsletter contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support on that [welfare reform] issue, the paper undisputedly “convey[ed]*** partisanship, partiality*** [and] disapproval by a State agency of [an] issue’ ‘ (Matter of Phillips v Maurer, supra, at 674 [quoting Stern v Kramarsky, supra, at 452]).”
Mr. Schulz brought at least three more lawsuits after his Court of Appeals victory. In Matter of Schulz v McCall, 220 AD2d 984 (3d Dept., 1995), he challenged the actions of, among others, the Senate Majority Leader and the Comptroller in promoting passage of a Constitutional Amendment they viewed as much-needed fiscal reform. The court first dismissed as to the Majority Leader, saying Mr. Schulz’s petition “makes no competent factual allegation that any public funds were expended in connection with his alleged effort to sway public opinion in favor of the Constitutional Amendment” (p. 984).
The court said it agreed with Mr. Schulz, however, that rather than merely conveying information on a political issue and urging voters to participate in the democratic process (quoting Schulz v State), the Comptroller had written an article, disseminated at State expense, patently designed to exhort the electorate to make an avowed, public commitment in support of a particular position advocated by one political faction (Schulz v State quoted again) (p. 985).
The court then quoted at length from the article the Comptroller had written, which Mr. Schulz had alleged “was prepared or reproduced on official letterhead and transmitted to newspapers throughout the State on a State fax machine.” The passages emphatically urged a yes vote. As the Court of Appeals had said in prior decisions, the Third Department said: “because the article seeks to induce a positive vote on the proposed Constitutional Amendment, the mere existence of some factual information that, standing alone, would be considered a proper attempt to educate the public will not rectify a constitutional violation” (p. 986).
The case went back to the Third Department under the same caption in 1997 (235 AD 2d 944), this time on appeal by the Comptroller from denial of his motion to dismiss, made “upon a factual showing that, although $300 in public funds was expended in the dissemination of the subject article to the news media,” he was “significantly involved in the development of the proposed amendment” and the media had requested his views (p. 944). The Appellate Division said it agreed with Supreme Court’s conclusion “….that respondent’s evidentiary submissions by no means mandated a finding that he did not violate NY Constitution, article VII, S8(1) because his dissemination of public funds was merely accomplished in furtherance of the civic responsibility to speak on matters of public concern. Rather, as clearly expressed in our prior decision, our reading of the subject article leads us to the conclusion that the expenditure was incurred as the result of an affirmative effort on respondent’s part to influence the election [citation to Schulz v McCall]. Thus, we are not persuaded by respondent’s efforts to distinguish the present situation from the facts underlying [Phillips and Schulz v State].” (pp. 944-945).
Finally, Matter of Schulz v Pataki, 272 AD2d 758 (3d Dept., 2000), stands for the proposition that it is a deprivation of the public’s right to a free election under the First Amendment and Article I, Section 9 of the State Constitution if it is shown that “government funds were expended for the purpose of promoting a particular political outcome or partisan cause in an election [citations to Schulz v State, Schulz v McCall and Phillips].”
The phrases used by the Stern court to express what transgresses the Constitution – “to actively support,” “promotional activities,” “lending their support,” “campaigning for,” “advocate for the favored position,” “persuade[ing],” “convey[ing] favoritism,” “attempting to influence public opinion,” and “promoting its own opinions, whims or beliefs” – perfectly describe the actions of the DEC with respect to the proposed NYCO amendment. The court enjoined the State defendants from “supporting, promoting, campaigning, or otherwise acting to achieve passage” of the ERA in that case.
The Court of Appeals has quoted Stern with approval twice, and in Ohrenstein described it and its own decision in Phillips with approval as “dealing with State agencies which sought to use agency facilities and personnel to advance a partisan point of view.” This is exactly what happened here. Dissemination of information, not unlike the “Fact Sheets” and “Talking Points” prepared by DEC here, was held unconstitutional in the Appellate Division and Court of Appeals decisions both captioned Matter of Schulz v State.
A “vote yes” advocacy, exactly what the DEC Commissioner wrote in the Adirondack group’s magazine here, was held to be improper in Phillips, Vecchio, both McCall decisions, and Pataki.
The DEC activities revealed by the response to the FOIL request from Protect the Adirondacks blatantly violated Article VII, Section 8(1) of the State Constitution. The DEC was not a neutral actor. There was a partisan governmental thumb on the democratic scales as the DEC made vast expenditures in staff time and other resources to act, in essence, as a private lobbyist for NYCO Minerals, Inc., in its efforts to buy “forever wild” Forest Preserve lands.
On behalf of the Board of Directors of Protect the Adirondacks, please let me express our gratitude for the opportunity to submit this complaint.