Publius.nyc

Thinking about at how New York City government works

Tag: Government

QUIS  CUSTODES?

March 28, 2024 /

Who Guards the Guardians?

            One lens through which New York City government in the 20th Century has been viewed is the decades long clash between elected officials who were products of political machines and self-styled “reformers” The classic discussion of this history is Sayre and Kaufman’s “Governing New York City: Politics in the Metropolis.” Today, there seem to be no reformers – no public voices who advocate for what they regard to be in the best interest of all New Yorkers. They have been replaced by advocates for particular communities and personal interests. How did that happen and is it important?

The machines were political operations built up from neighborhood organizations that whipped votes for their candidates in exchange for patronage and contracts. Jimmy Walker, William O’Dwyer, Robert Wagner and finally Abraham Beame were products of the city’s organization political clubs. The machines generally dealt in ethnic politics and rallied around Irish, Italian and Jewish candidates. The machines were regarded by reformers as corrupt, inefficient and exclusive – particularly excluding Black and Hispanics from power. The most famous reformer was, perhaps, Fiorello LaGuardia. Both John Lindsey and Ed Koch came up each through reform ranks. Reformers saw themselves as advocates of merit hiring, competitive contracting and professional public administration. Before LaGuardia, New York was exclusively a machine politics town. 

            The reformers had supporting them an array of political and civic organizations. There were “reform” as well as “organization” neighborhood political clubs that gathered nominating petitions and supported their own candidates in elections. But also, importantly, there was a range of “good government” civic organization, the boards of which were dominated by the city’s commercial and social elite, like the City Club, the Women’s City Club, the Municipal Art Society, the Regional Plan Association and the Citizens Budget Commission, among a dozen others, that advocated for merit hiring, competitive bidding of contracts and high-quality service delivery of government programs. [It is interesting to note that among the most high-profile reformers of the first half of the 20th Century, at least at the beginning of his career, was Yale graduate, Robert Moses]. There was a kind of yin and yang between machine and reform control of city government throughout the second half of the 20th Century in mayoral elections. The electorate went back and forth between choosing mayoral reformers and organization candidates. 

However, this began to break down with the election of the city’s first Black mayor, David Dinkins, who came up through a parallel Black political organization – and was not part of the conventional white ethnic political clubs. With the advent of media driven mayoral campaigns, the strength of the machine and reform organizations broke down, with advertising replacing organizing in turning out the vote. While many of mayor Michael Bloomberg’s initiatives mirrored the priorities of earlier reformers, he was independent of political organizations (in part because he was able to finance his own campaigns) and didn’t come out of reform political clubs (and ran as a Republican, as did Lindsey). But Rudolph Giuliani and Bill DeBlasio and would be difficult to locate on a machine/reform scale.

            Our current mayor, Eric Adams is a product of a multi-racial Brooklyn old style political machine which has continued to function into the 21st Century. He is also, importantly, a former city employee and union member. But significantly, there is no reform counterbalance to his old school political policies. Like previous machine operatives he places loyalty and ethnic politics ahead of reform type of “professional” government. An interesting argument that Mayor Adams occasionally makes is that there isn’t much evidence that “professionally” managed government was actually more responsive to local communities or delivered better services than did community embedded local political club driven machines. I am unaware of anyone today, either elected officials or visible civic organizations, advocating for traditional good government policies. Criticism of Mayor Adams is either political or personal. 

Where are today’s “reformers.” There aren’t any, as far as I can see. I would argue that just about everyone involved in local government today has a vested interest in the way things are. There are no serious voices that advocate in “the public interest” in local politics. While there is an important argument that the past promoters of reform were actually advancing the interests of the white, privileged New York establishment (aka “the ruling class”), and there is nothing besides self-interest governing politics and government, I am not so totally cynical. I do believe that there is a place for merit and professionalism in public administration. This absence of activism for professional local government has created a troubling vacuum in our discussion of how local government best might function. 

            Public spirited individuals came into high profile during the city’s fiscal meltdown of the 1970’s, when people like Felix Rohatyn (an investment banker) and Richard Ravitch (a real estate developer), wealthy, white, Jewish men from prominent families, pretty clearly selflessly got involved in attempting to rescue city government from bankruptcy – with not much in it materially for them. They were willing to take the risk of the possibility of failure and diminished reputations. They were prepared and able to speak truth to power. At that time there were other high-profile leaders who were in it to advance themselves, and who were, by contrast obsequious to power. But there were also a number of individuals who, in my judgement, were selfless and brave in their efforts. Perhaps that’s a difficult distinction to draw, or even bad form to do so, but after decades of work in and around city government, I think I’m in a position to make such an important judgment fairly – between the good guys and the bad guys.  I would venture to say that there isn’t anyone around today who could or would want to play that “good guy” role. 

            Some of this lack of civic leadership has to do with corporate globalization, which has produced business managers who tend not to feel a connection with any particular place. Just for example, while Chase Bank is headquartered in New York, I suspect its CEO, Jamie Dimon, would likely tell you that he is a citizen of the world, and is concerned with national and international issues affecting the bank. This is in contrast to David Rockefeller, a previous Chase CEO (although it was at the time a much more local and smaller enterprise) who was in the 60’s and 70’s active in New York affairs and founded the civic organization, The New York City Partnership. The leaders of the two great New York City universities also, I would guess, regard themselves as world citizens, and likely couldn’t name the Borough President of Manhattan. There are some people today who style themselves as local civic leaders, but I can’t think of one who isn’t using the public sphere to attract attention to themselves, is concerned about staying on the good side of the powerful and seeks principally to advance their personal or institutional interests through their civic involvement. They all have an agenda. They aren’t Rohatyn or Ravitch.

In the past, the boards of civic organizations were very much a creature of the business and institutional elite. Their leadership were personally and financially independent of city government and in a position to be critical of its operations. I might note that I believe essential to being able to play the role of independent public citizen is/was a certain amount of independent wealth. One needs to be in a position to not care about what powerful people in government and the media think about you. 

Today, strikingly, the boards of those organizations, while they include a few corporate leaders, have a disproportionate share of lobbyists who very much have a stake in the status quo, and not running afoul of those in power locally, who are the object of their lobbying on behalf of various commercial interests. For example, the highest profile civic organization in New York today is probably the Citizens Budget Commission – which sets itself out as a private sector monitor of the city’s fiscal probity. My recollection is that in the 1990’s its board was composed of representatives of entities with a stake in the business of municipal finance, investment banks and law firms. They had an interest in the fiscal integrity of local government, particularly as an issuer of tax-exempt debt. Today the chair of the CBC is a corporate lobbyist, and I count 11 other such lobbyists on the organization’s board. Because of the nature of lobbying, staying on the good side of elected officials is essential to the business. The same is true in the real estate industry, which is deeply reliant on local government and has about 26 members on the CBC board. It seems unlikely that CBC can be effectively critical of government operations given its governance.

It is worth noting, though, that recently, when Mayor Adams thought that the city was likely to face a serious shortfall of revenues, his first impulse to cut the budget in order to get it into balance. This was not how Mayors Lindsay and Beame operated (that is, deficit spending was seen as a legitimate policy) – and mayoral fealty to balanced budgets is a significant advance in the institutional culture of local government. 

Some of the retreat of civic organizations from controversy also has to do with the twelve years of Mayor Bloomberg’s time in City Hall. Mayor Bloomberg came from the business and social world of the boards of civic and cultural organizations – and, importantly, he shared their values of merit-based, data-driven public administration. As a result, the boards of those groups were made up of many friends and social acquaintances of Mayor Bloomberg and were loath to criticize him. This was most visibly true of the Municipal Art Society, which prior to the Bloomberg administration, had been in the business of suing city government when municipal actions were at odds with its advocacy of good public design, intelligent zoning, and historic preservation. MAS fired its in house attorney and dissolved its law committee early on in Bloomberg’s tenure are mayor. 

Now, when we have returned to a form of machine politics, there seem to be no prestigious voices articulating the public interest – no contemporary analog to Rohatyn and Ravitch. The city’s personnel and procurement systems are highly dysfunctional. There is no powerful group with the ability and interest in identifying those problems and offering solutions that would require a major overhaul of local government (structural challenges that Mayor Bloomberg, who was professionally ideally suited to address, may have chosen not to take on because they appeared so intractable to him and his team. Bloomberg seemed to be focused on addressing problems he was confident his team could solve during a mayor’s ordinary tenure). The groups that now exist on the public scene have extremely narrow agendas, like the present incarnation of the City Club, which is anti-development and anti-institutional and is exclusively involved with using litigation as a tool to advance its positions.

The diminishment of local press coverage is also a part of the problem. The New York Times, long a bastion of local good government opinion articles, also sees itself playing on a world stage. Most of its voices on local issues have narrow, “progressive” agendas. Certainly, there is no one at the Times with any knowledge (or interest) of the nitty gritty of how local government operates. The Post isn’t a serious newspaper, as actual facts seem to not be a priority in its reporting.  The Daily News is both resource constrained and consumed with mayhem and scandal. NY1 relies on a coterie of New York City lobbyists with vested interests to offer opinions on local politics and is oriented towards personalities and horse races. There are a number of independent websites now covering local government in a sophisticated way, like The City and Gothamist. But they have a limited audiences and even more limited resources. 

The worst part of this situation is that I don’t see a solution. Almost everyone who cares about New York City government today is someone who has an interest in it and doesn’t want to antagonize it. One of the things I learned mid-career is when there is government dysfunction it is not because public officials are incompetent, it is because those systems are the way they are because it is in someone’s interest for them to be that way. There is always someone or an interest group to oppose almost any change in the status quo. Those who don’t have a direct interest, aren’t interested. 

Translatio Erici Adams

March 14, 2024 /

Translating Eric Adams

            In the circle of white Manhattanites among whom I travel, Mayor Eric Adams is an enigma. He doesn’t seem to advance their interests, as they perceive them, and as a result they don’t understand what motivates him politically. Having had the rewarding experience of spending more than a decade working in the Southeast Queens community in which he grew up, I thought it might be something of a public service for me to attempt to explain the world view of that community and how the Mayor represents it, as best I can. Doing so requires generalizing about a community of which I am not a member, which risks, at best, inaccuracy, and at worst pejorative stereotyping – but I am willing to hazard doing so to attempt to make matters clearer to those who are perplexed. 

            Jamaica, Queens is said to be one of the largest communities of African American homeowners in the United States. Two of its zip codes have among the highest income levels in Queens. It includes the neighborhoods of St. Albans, Hollis, Springfield Gardens, Laurelton and Rochdale, unfamiliar to most white residents of Manhattan south of 125thStreet. Not only are these the neighborhoods that shaped Mayor Adams, but they are also represented by City Council Speaker Adrienne Adams (the City’s second most powerful public official) and Congressman Gregory W. Meeks. Congressman Meeks is the Queens County Democratic Chair, the ranking minority member of the House Foreign Affairs Committee, and the Chair of the Congressional Black Caucus. While Queens member of Congress, Alexandria Ocasio-Cortez,’ name may be more familiar to Manhattanites, Congressman Meeks is a far more influential and powerful figure. Arguably, southeastern Queens is New York City and State’s most politically formidable community – one about which most white Manhattanites know next-to-nothing. 

            Southeast Queens has been home to many notable New Yorkers. Congressman Meek’s predecessor, former Member of Congress, the Reverend Dr. Floyd Flake, was long the pastor of one of the city’s largest churches, Allan A.M.E Cathedral (succeeded by his spouse Dr. Elaine Flake). Former Citicorp CEO Richard D. Parsons also grew up here. In the past, a large group of well known, successful jazz musicians made Jamaica, particularly St. Albans, their home. 

            Mayor Adams represents and advances the interests of his constituency well. Many neighborhood residents are government workers – postal employees, teachers, transit employees, police and corrections officers. Among the higher income neighborhood residents are school principals and other senior administrators (and, in fact, Mayor Bloomberg’s schools Chancellor, Dennis Walcott, continues to live there and is now President of the Queens Public Library). The largest private sector employer in the community is jetBlue, whose personnel work at airports run by quasi-governmental entity, the Port Authority of New York and New Jersey. These folks care about the compensation and benefits received by government and union workers – and the Mayor has gone a long way towards bringing to closure a large number of public employee union contracts that had expired. Residents of Jamaica also care about public safety – both in terms of preventing violent crime, but also in terms of averting the random stopping of Black men by police. Most are car owners and are less invested in public transit. Bike lanes are not their issue. 

            What they also care less about are the public space issues in midtown and downtown that so bother us Manhattanites – like litter, street homelessness and sidewalk vending – which white Manhattan residents view as being “out of control” and where City government is viewed as failing. Not to say that they these issues don’t matter to residents of southeast Queens and Central Brooklyn, but they are certainly less important than other things. The most important issue to southeastern Queens residents, in fact, is the flooding of the basements of their homes by a rising water table in the decades since the closure of the Jamaica Water Company – a multi-billion-dollar problem with which Greenwich Village residents are entirely unfamiliar. 

            Mayor Adams is serious when he refers to himself as a “working class mayor,” and when he notes that he neither has nor needs a “degree from Harvard” to be a successful leader of New York City. He has appointed to city positions people whom he trusts with whom he has had long relationships, and individuals who are proven vote getters in areas across the city, presumably with the idea that this will be beneficial in his campaign for re-election. This has been standard operating procedure for New York City politicians for generations, particularly those of the first half of the 20thcentury who came up through political machines. While Mayors have appointed people to senior positions with prestigious academic credentials and/or high-level private sector experience, this has been a more recent and occasional practice. And I would note first, that it hasn’t been obvious that those Ivy Leaguers have proven to be more effective public servants and second, that the Mayor’s Commissioner of the Sanitation Department, on which many of the complaints I hear from my social set are focused, is an Upper East Side resident with three degrees from Harvard. 

            The Mayor is also focused on directing government contracts to Black-owned businesses previously excluded from the benefits of government largess. Some of these efforts have come under scrutiny and questions have been raised about them in the media. But pushing public dollars to Black-owned businesses, to which government lip service has been extensively paid in recent years, is definitely part of the Mayor’s agenda. Similarly, I think it can be safely said that some of the practices in which the Mayor and his campaign have engaged that have raised journalistic and white eyebrows, are, in the view of Black folks, practices in which whites in power have long conventionally engaged without public comment. It is only when people of color have taken up the levers of government, in their view, that these have become issues. 

            It should also be acknowledged that Mayor Adam’s prior position in government was as the Borough President of Brooklyn. Borough Presidents preside over small operations. Much of their time is spent cheerleading for their boroughs, attending public events, making announcements, and issuing press releases on matters of public concern. So, it shouldn’t be surprising that Mayor Adams continues to view these to be central components of his mayoralty. In any event, there is less to mayoral control of city government than might be otherwise obvious because of the decades of accreted bureaucratic structures the constitute city government, particularly in matters of contracting and employment, that tremendously constrict the effectiveness of any mayor. Mayors have all announced great sounding programs that never happen.

            It can be accurately said that Mayor Adams is fairly representing his constituency, the folks who voted for him. Further, it should be noted that we Manhattan liberals have long taken pride in our advocacy of empowering people of color and working people – giving them a voice in the deployment of government power. There is something hypocritical about complaining about how they are exercising it now that they have it. 

SPATIO IMPERIUM

June 22, 2021 /

            Our business unit dealt with issues involving hundreds of millions of dollars – a scale that would make decisions about them be deemed to be major in an organization of any size – even one with an almost $100 million operating budget like the City of New York. The revenue in this operation was generated in a highly technical complex markets, and our staff had years of deep expertise as to the operations and regulatory environment of those markets. Some of the important questions with which we dealt rose to the level as having to be made by the Mayor. However, between the individual with the subject matter expertise on the problem and the Mayor there are five or more layers of intermediate executive levels.

First, we would be briefed by our staff on, and have to make an initial determination regarding, the decision. Often times, we would bring a level of knowledge, expertise and experience that the line supervisor lacked to the analysis, and we were able to add some value to the evaluation of the issue. That decision would then be required to work its way up through the layers above us in the Agency, ultimately going to the agency’s Commissioner for review and decision. Generally, the Commissioner would need to be fully briefed on the question, with which he or she frequently was previously unfamiliar.

            The Commissioner would then brief the Chief of Staff of the Deputy Mayor, who would in turn brief the Mayor’s Chief of Staff, who would then set up a meeting with the Commissioner and the Deputy Mayor to brief the Mayor. The Deputy Mayor may also consult with other effected agencies, particularly the Office of Management and Budget, when there are revenue implications, and the Corporation Counsel, when there are legal issues involved or there is a possible outcome of litigation to be considered, to both get their perspective and make sure they were on board with the recommended decision. The Mayor usually has a very limited amount of time to be briefed, has very little prior knowledge of the circumstances, and is required to make a decision before the conclusion of the meeting. Generally, a recommendation is brought to the Mayor; occasionally, the Mayor is forced decided between competing agency interests and views. 

            As the question percolates upward through the bureaucracy, ideally each level should bring a broader perspective and additional information to the analysis. At the Commissioner level, across the agency. At the Deputy Mayor level, across agencies, which may have competing interests. At the Mayoral level, the decision must be considered with a citywide view. The Mayor, being the only official in the chain of command actually elected by the voters, brings the very important political perspective to the process – assessing the impact on the City Council’s members, and the vast array of competing interest groups across the City. But at each level of review going up the chain, the decision maker gets further from the person with the deepest knowledge of the facts and probably the most subject matter expertise. 

            Generally, at each level a briefing memo is prepared for the decision maker. In the lower orders of review, often the subject matter expert is consulted to look over the memo prepared for each level as the decision moves up the chain. Once the decision leaves the agency, though, the analysts preparing the memos for the Deputy Mayor and the Mayor are within each of their offices, with a review by the Commissioner’s staff before being forwarded to the principal. Also, as the decision rises more closely to the Mayor, the briefing memos get shorter – as the higher up you go the more demands there are on the decision maker’s time. Often, the Mayor gets a “one-pager” that breaks the facts and interests down into a small number of bullet points. My understanding is that the Mayor is generally handed the “one-pager” at the beginning of the meeting at which the decision is made. 

            Sometimes, as a decision rises through the bureaucracy, there are briefing meetings for each decision maker, and up to the Deputy Mayor level all of the executives at the lower levels are present to answer questions. If multiple agencies are involved, each agency sends a number of subject matter experts to the meeting. Some of these “inter-agency” meetings can have as many as fifty people present – as no one wants the decision to be made without their at least being present, and better yet putting in their two cents. As cumbersome as these meetings can be, we believe they are certainly superior in informing the Deputy Mayor and her staff about the complexities of the issue than a two page, or even a longer memo. But at the meeting with the Mayor there are generally only the commissioners involved, the Mayor’s Chief of Staff, an attorney or two, and on rare occasion the front line person with the most complete and sophisticated understanding of the facts.

            This is not a situation that is unique to big city government, as it occurs in all very large organizations; money center banks come immediately to mind as very large institutions with a wide range of operations. The challenges are to i) make sure that the final decision maker has access to the right set of information presented to them and ii) to determine at what level it is appropriate to be made, so as to maximize the efficiency and effectiveness of that official’s time. To exaggerate, having the CEO of multi-billion dollar concern make decisions about which copier paper to buy is not a good use of that person’s time, and won’t necessarily result in the best decision outcome (as the CEO is unlikely to know much about copiers or copier paper unless the company is Xerox or International Paper). Also, optimizing the level at which decisions are made should improve the quality of decision making – maximizing the amount information available to the executive and the minimizing the use of more senior executive’s time. 

            What we have found in City government is that the authority to makes decisions tend to drift upward. At one time in our agency, the Commissioner’s style was to make the final decision on just about every decision. Why would this happen? The Commissioner is likely to think that this minimizes his or her downside risk. If he or she signs off on every issue, he or she will then know about everything that is going on in the organization. If they have confidence in their analytical abilities, they will feel assured that the right decision is being made in each case. Commissioners are often parachuted into agencies with which they have no prior relationship, even if they have deep subject matter expertise. They have no way to judge, particularly at the outset, the quality of staff members’ decision making, or the depth of their support for the new Commissioner’s agenda. Most often, “the outset” is all there is, as Commissioner’s tenure is probably usually about three years. But working in this manner may feel like it is in the political or short-term career interest of the official, but it is certainly not in the best interest of the agency or the City. 

This kind of thinking permeates City government – an unwillingness to delegate and a lack of trust in the decision-making capacity of other administrators. The result is that some more ministerial issues (but still important to government functions) get lost in a pile. More importantly, it means more time spent preparing memos to fully inform the executive who may have little to no knowledge of the context of what they are being asked to decide. Even with the best materials and extensive briefing, it also results in the person making the decision not necessarily being the one with the most relevant information to making an informed decision. The further up the chain unimportant decisions get, the more likely they are to get clogged in the system, and for the wrong decision to be made – as a lack of understanding of the facts and context. Managers need to feel that successful agency operations are in their personal interest – which is particularly difficult to do in the absence of the profit motive and flexible compensation systems. 

            Decisions finding the appropriate level at which they should be made is another issue that requires culture change. It’s a management issue and it has to come from the top down. Government officials, particularly those in elected office, need to work to push decision making down to the lowest possible level that has complete information regarding the content and context of the issue. This takes a long term view. Incentives have to be created to encourage high and mid-level managers to do the same. Getting decisions made at the correct level makes the process move faster and the outcomes better. Doing so, also makes the jobs of those in the lower orders more rewarding – as they have more control over their work and feel like their expertise and experience matter and are being appreciated. Devolving decision making authority within City bureaucracies would go a long way to unclogging the sclerosis that afflicts government. 

            We have been asked why this type of systemic managerial problem wasn’t solved during the administration of Michael Bloomberg. Mayor Bloomberg known to be a successful manager of a large organization. His administration drew heavily on appointees from the ranks of top-class management consulting firm McKinsey. Our sense is that Mayor Bloomberg made a very reasonable determination that these institutional problems were intractable – and that if his Mayoralty was going to be successful, his administration would have to work around these problems and avoid these structures to the greatest extent possible. As a result, though, these systems and practices remain, and become even more difficult to improve as they accrete further layers.

PRIMUM EST FACIEMUS: ET OCCIDIT OMNEM SCRIPTOR ADVOCATORUM

May 18, 2021 /

            Look, we were the Chief Justice of the Supreme Court of the United States, we get it, but the City of New York has too many damn (not my first choice swear word) lawyers. The City’s Law Department has a thousand lawyers. You read that right. And each agency also has its own legal department. We would doubt that the City even knows how many attorneys it has filling attorney positions (and the position we occupied, was a managerial, non-legal, position, as we were frequently reminded by our legal colleagues). There are about 60,000 lawyers practicing today in New York City (it was much more pleasant when we started practicing in the 1760’s and there were only a couple of dozen of us. Even Aaron Burr, wasn’t that bad a guy). Let’s say there are 2,000 lawyers working for the City – that’s over 2% of the total number. And the City tends to lose. For example, the City paid out over $600 million in tort claims in 2019 alone. That’s a crazy number.

            There are and have been some tremendously talented, dedicated and productive attorneys working for the City. Len Koerner, who was, for many years, the City’s chief appellate lawyer, was the most effective legal advocate it has ever been our privilege to observe in court. Working without notes, Len’s command of the law (and ability to cite particular cases) and deft ability to respond to judicial questioning were remarkable. He admirably represented the City for decades. We have worked with attorneys with expertise in real estate, telecommunications, condemnation, zoning and housing law, for example, who are/were the top practitioners in their respective fields of expertise and who were deeply dedicated to public service. 

            But the culture of the Law Department is bizarrely dysfunctional and given the number of attorney positions and the City’s limited ability to compete in the market for legal talent, there are a lot of simply not very smart people practicing law in positions of responsibility for the City. While the Law Department and its chief, the Corporation Counsel, are, in theory, the City’s lawyers, the institution of the Law Department, has its own interests which often trump those of the City’s legal, financial and policy interests. But on legal issues facing city government is the last and final word. 

            City attorneys travel in packs. It is impossible to go to a meeting in City government where legal questions are at issue where fewer than two attorneys are present. Often there can be as many as ten. And City lawyers frequently complain that they are understaffed. If they sent half as many bodies to meetings and shortened the length of those meetings by half, they would quadruple their output. The large numbers of lawyers at big meetings are the result, in part, of the expertise within the City’s legal cadre being sliced razor thin, as well as no one’s being willing to defer or delegate to anyone else. City lawyers suffer from the worst case of FOMO (fear of missing out), we know of – and they were doing so decades before FOMO became a thing. We have been to meetings that included lawyers expert in administrative law, litigation, zoning and planning, the building code, the Board of Standards and Appeals, economic development and the fire code – from both agencies and the Law Department – at one meeting. Not only is this wasteful, but it is also counterproductive. 

            In our legal career we have never been in an environment where attorneys are so disrespectful of the expertise and experience of others. Position and seniority are provided deference, but not subject matter knowledge. We have been in large meetings at which we have been the only attorney with expertise in an area of commercial law (having actually had extensive experience in commercial transactions outside of government), where all in attendance, regardless of subject matter knowledge, have voiced their opinions – and all opinions have been equally regarded by senior decision makers. Often, the loudest voice, the biggest bully, carries the day. A kind of radical equalitarianism prevails. If you scraped by at “Solomon” Law School or clerked at the Supreme Court, your opinion carries equal weight. If you have dealt with the subject matter for decades, or you just graduated from law school – all get to have their say. Again, no matter who has what level of expertise and experience, the Law Department representative has the last word.

There is a lovely bit of idealistic equality here – but it doesn’t result in thoughtful legal decision making. In addition, City government is filled with graduates of law schools that are, shall we say, not that of Kings College, and who simply aren’t very skilled or very smart. That’s a harsh judgement, but we are the former Chief Justice of the Supreme Court of the United States, and we were privileged to study at Kings and read law with Benjamin Kissam – so we are, admittedly, a legal and educational snob. Notwithstanding our former high position, we have never in our career had our informed judgement so routinely ignored – and prior to City government we worked with and for some significant reprobates. 

            All decisions are group decisions. No one person has responsibility for legal decision- making on any issue. This is probably in order to prevent responsibility from affixing to any particular lawyer for a decision. Judgments both major and minor are the results of meetings to discuss the issue;  and there are often multiple meetings on any particular issue. This also does not result in quality thinking. It enables the last and loudest voice from the Law Department to carry the day. It protracts the process. We have been involved in City contract negotiations over a $500 million matter that went on for two years after a default. We were, at least on paper, the person most responsible for the subject matter – and yet we were only tangentially involved in the negotiations – which were conducted by agency General Counsel and the Counsel to the agency’s Commissioner (yes, the agency had both), supported by an agency attorney with subject matter expertise as well as litigation counsel from the Law Department. Yes, there was plenty of legal talent on the matter without need of my aid. After the deal had been cut, different Law Department attorneys with sovereignty of this particular bailiwick, and who admitted that they did not have the requisite financial expertise to understand the transaction, flyspecked the innumerable legal documents for months. The number of irrelevant issues raised by Law Department attorneys, and by other agency attorneys (without particular subject matter expertise) called in to add their wisdom, were both breathtaking and ridiculous. 

            Having practiced in the private sector and interacted with City government for decades, we came to learn that while the City builds layers upon layers of protective vehicles into its documents, accreted over decades of drafting and redrafting,  IT ALMOST NEVER EXERCICES ITS RIGHTS. When were first assigned to negotiate a contract with the City as a young lawyer, we engaged in trench warfare, negotiating line by line and word by word – as one would do in a multi-million dollar private sector transaction. After a couple of decades of experience, we learned that this was pointless. The goal in negotiating with City government is to get the contract signed and approved; and to GET THE CHECK. If the deal were to go south, you should be fully aware that the City is unlikely to assert its contractual rights. The City often demands substantial security in the form of letters of credit and performance bonds in its agreements, and its negotiating posture appears to revolve around the minimization of risk. But we have never heard of the City actually drawing on contract security. And facts on the ground are dispositive. Once a private party is in the system to get paid, has title to real estate or has its equipment in place, the City rarely reverses course. Once you are in, you are in for good – regardless of how badly behaved a counterparty you are. Smart businesspeople and attorneys with experience with New York City government are well aware of this (It’s also amazing, though, how many sophisticated people aren’t!).

            City attorneys spend an inordinate amount of time congratulating themselves on how excellent they are, how avaricious and incompetent private sector lawyers are, and how successful City lawyers have been in getting their way. First off, they are generally incorrect. Secondly, they often think this because they have been outsmarted. Third, the City does often get its way because of its enormous bargaining power (it is has a $100 billion annual operating budget and over three hundred thousand employees), not because of brilliant negotiating. And last, and most importantly, it doesn’t matter because the City doesn’t enforce the provisions of its agreements anyway, and when it attempts to do so in court it generally loses. 

            The most obnoxious practice in the Law Department is putting notes and questions in the margins of documents sent to them for review. Law Department attorneys put in the margin whatever comes to mind; important, unimportant, irrelevant, the result of gastro-intestinal distress, it all goes in there. Law Department attorneys never redraft or suggest language. They just comment. So, agency attorneys and professional managers have to guess at what their Law Department colleagues are looking for. You redraft, and they tell you in a marginal note, “No, that’s not exactly right,” and send it back to you for another round. This can go on for months. There is one widely revered very senior attorney at the Corporation Counsel, with decades of Law Department tenure, who has the last word on a wide range of financial transaction documents who i) never provides drafting, ii) can offer as few as one comment in a round of review, iii) can continue to provide comments for endless rounds and iv) has no sense of time or priorities. Stuff sits on his desk for months. But he is respected for his ability to find problems with documents. It is not his, or his colleagues, job to solve problems. They find problems; they issue spot like on law school exams.  When we were trained as an attorney, we learned that it is a lawyer’s job to solve problems. It is not clear to us whose interests the New York City Law Department is representing in pointing out, rather than solving, legal issues. Most of the issues they raise are so arcane as to not possibly protect any material interests of the City of New York. It’s a kind of academic exercise with the impact of bogging projects down for months and years. This has become a serious impediment to creative problem solving and new initiatives in City government. No one in authority puts a stop to this. Few City attorneys feels responsible for getting matters to closure. 

There might be some virtue in this course of dealing if the City’s contracts were so iron-clad that the City had a fearsome reputation for winning motions to dismiss in lawsuits (a motion that stops a lawsuit from proceeding shortly after a complaint commencing an action has been filed) – but the opposite is true. The City regularly gets bogged down in Jardyce v Jardyce like conflicts (except dealing with major economic and policy issues) that spend years in court without resolution. We were involved with the settlement of a six-year-old case filed by the City that was celebrated by colleagues and by press releases as a major win for City government, but, in our experienced estimation, was the best possible result for the interests of the City’s adversary in the litigation. They got exactly the result they were looking for when they breached their contract with the City years before.

MALO PERICULOSAM, LIBERTATEM QUAM QUIETAM SERVITUTEM

May 9, 2021 /

            The City of New York is a remarkably humane employer in many ways. The workforce is diverse in just about every manner you can imagine. We had in our business unit Hispanic folks, Black folks, South Asian people, white people of Irish, Jewish, and South and Central Asian backgrounds. We had an Ivy League graduate, and a majority of people without college educations. There was an individual in the group with only a high school degree, who had a large amount of responsibility, a relatively high salary, and the capacity to draft sophisticated legal documents.

            We found that employees were genuinely caring about each other – particularly when there was family illness – people covered for each other and were very supportive. We celebrated births of grandchildren, birthdays and retirements. Sick days were generous. The City’s health benefits were comprehensive, the retirement benefits were generous – for people who stayed with the City for more than ten years, and particularly for individuals who started their careers in City government decades ago. There were also odd benefits that one had to do a little digging to find out about – like for glasses and for the deductibles under other policies. 

            But the idea floating around (particularly in the pages of Manhattan Institute publications) that City government is full of over compensated, richly benefitted timeservers is so just plain wrong as to be practically libelous. In our experience the unions for non-uniformed employees (and we are writing here entirely about non-uniformed City employees, and those who aren’t classroom teachers) were invisible and toothless. To us, the pension benefits were essentially useless, having come to City government mid-career. They are non-portable and unavailable to those with City government for less than ten years. For those who started their work with the City within the last 25 or thirty years, the pension benefits are far inferior to what they were decades ago. The pension benefits are tiered – and the more recently you became employed, the smaller the percentage of your final salary your defined benefits would be after retirement. There are defined contribution plans available, as in most of the private sector, to which the City does not contribute. 

            There are a wide range of protections for City workers ranging from union membership to civil service. The City has a vast range of identity derived protections and trainings, including from sexual harassment and racial discrimination. It appears to be difficult to fire people – we didn’t see it happen. We did see senior people sent to remote, satellite locations to do non-jobs when new senior management was appointed. Unfortunately, those employment discrimination programs, like the board set up to monitor conflicts of interests of City workers, are more often weaponized by employees against each other, than employed to remedy cases of mistreatment. That is, one employee who has a personal issue with another employee files an, often anonymous, complaint with the relevant investigative authority in order to cause problems for his or her unliked colleague. This unleashes an investigation which has to run its course in order to provide an appropriate process; interviewing the individual about whom the complaint was made, and perhaps their colleagues (damaging the subject of the investigation’s reputation, whatever the outcome) in order to establish the facts of the case. Even if there is no finding of wrongdoing on the part of the employee, a good deal of damage to that person can be done.

            And certainly, City government being a political entity, there are plenty of politics driving personnel decisions, and many managers who misuse their authority and treat their subordinates poorly. We encountered no monitoring of bad treatment of City workers by supervisors and no sanctions for abuse of authority – as long as the supervisor wasn’t using their subordinates to do non-city work or engaging in discrimination based on suspect classifications. Treating everyone equally abusively seemed to be OK. While much lip service is paid to best practices in management, there is little training, and almost no actual execution of those best practices. Our agency had an organizational development function made up of perfectly nice people, who didn’t appear to do very much – other than run the occasional employee awards program. And those awards programs tended to recognize longevity of service, rather than outstanding performance. 

            Also odd was that the human resources function of the agency was primarily an enforcement operation – making sure that employees conformed to rules regarding time keeping, vacations, sick days and such. The human resources staff absolutely refused to assist employees in navigating the complex array of benefits and options given to City workers when they are onboarded and during their tenure with the City. A huge information dump of pages and pages of small type text, often poorly copied material describing benefit options is provided to employees at the time of employment – with no one available to assist the employee in making choices. We assume this is to avoid being blamed for providing incorrect information or poor advice. 

            However, human resources staff are eagle-eyed in hunting down errors made by employees in their domain. They are quick to point out mistakes or incomplete information in complex forms. They will contact you when you have tried to access benefits to which you may not be entitled, or when you have taken too much time off, or not provided the proper documentation to justify paid time off. At one point in our tenure, we were docked a day’s pay for taking two mandatory furlough days (during the COVID pandemic) on Christmas week. In the memo announcing the (minimally) budget reducing mandatory five furlough days, it was stated that two days could not be taken in the same week. When we signed up for our furlough days early in the pandemic no one took the time to point that out to us.

We learned a great deal about City benefits literally around the office watercolor. We had a very intelligent colleague with over thirty years of City experience who was extremely helpful in advising us about how to make the most of City employee systems and benefits. Once around said cooler, we mentioned having just returned from having an eye-exam and buying glasses. She said to me, “You didn’t PAY for that did you?” It turned out that the City had an eye care program, that paid for the full cost of the glasses and exam that we hadn’t signed up for. In the same conversation, we learned about a dental program and an obscure program for non-union managers that paid for co-pays and deductibles of other health insurance plans (on the theory that union employees received free health insurance, with no deductibles and no co-pays, and managers should be effectively entitled to the same thing). No one made mention of these benefits when we joined the City, and if materials about these programs were provided to us, we missed them. When we asked for guidance from human resources staff, we were referred to the City’s complex website. 

Civil Service

            While civil service protection was originally created early in the 20th Century as a result of civic movements to reform city government to encourage merit-based hiring and promotion, and to protect employees from political or other arbitrary decisions regarding termination, those goals got lost in the mists of time generations ago. We can see no policy goals now being advanced by civil service other than to employ hundreds of people to design and administer tests that measure nothing of use. The tenure protections seem to keep in their jobs the most belligerent employees and the lowest performers. It is civil service protection that makes motivating and managing underperforming employees difficult to impossible.

            In addition, civil service is an obscure, insiders’ game. While there is a (very well written and interesting) weekly newspaper covering civil service, and a complex series of websites providing information on when exams are given and how they work (https://www1.nyc.gov/site/dcas/employment/take-an-exam.page), only insiders seem to know about them and how to navigate them. Civil servants throughout the bureaucracy seem to be members of clans with other members of their clan who work in city government. Knowing which tests to take for which positions is far from obvious (https://www1.nyc.gov/site/dcas/employment/open-competitive-exam-notice-archive.page). And, once an individual has taken and performed well on a test, using that performance to actually secure a job can take years, and is also labyrinthian. Without a person experienced with the system to advise you, it is nearly impossible to negotiate it effectively. Of course, there is no one either at the City’s centralized personnel agency, the Department of Citywide Administrative Services (DCAS), or within the many agencies, who can or will advise you. You are entirely on your own to figure out how the system works. It is difficult for me to imagine any graduate of a top college or graduate school learning how to access the system, and then using it to secure a position with city government. The system as a result of its obscurity and complexity discourages outsiders for taking advantage of it. I also suspect that most job seekers need a job in the present, and don’t have the resources to wait the years it generally takes to secure a job through the civil service system.

            And what do the tests, test? Beats the merda out of us, actually! Although we were hired as a “provisional” employee, outside of the civil service system (and one can be “provisional” for one’s entire career, and remain outside of the system – something the gorgons of the system actively work to prevent), we took three exams in order to see what it is was like. City jobs have both a civil service title and a “business” title. The civil service title establishes which competitive test one has to take to be eligible for civil service protection in that position. The business title is the one that goes on your business card – but it has nothing to do with anything relating to compensation and tenure. The compensation for any position is related to its civil service title.

One exam, we took, for the highest level positions, administrative business promotion coordinator (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/20200128000.pdf), was taken entirely on-line, and consisted of in-putting your resume into an on-line form, which would then be scored by some poor soul at DCAS for how well your square peg fits into the square hole. Note also that tests are given irregularly and periodically, some as infrequently as one a decade. Which makes it difficult to gain access to some civil service titles. It is generally impossible from the civil service titles for administrative jobs to determine what jobs the test is actually for. Most are pretty specific though. We aspire to take the examination for ferry boat captain. Seems like a cool job – and pretty straightforward as to what the test is for.

 Notable also is that many tests have “selective certifications” associated with them. Qualifying for the selective certification, moves one to the head of the civil service list for certain positions. In our case, our agency had created a certification which was crafted to match our expertise and experience, making it a near certainty that once we had passed this examination and been placed on the requisite civil service list, and once a civil service position matching the title associated with the test became open at our agency (entirely different from an opening for the business title, for which we had already been hired), we would be a lay-up for the position. All of those various conditions could, and generally do, take years. 

Most tests, however, require going to a test center, and entering answers to questions into a computer. The contents of the tests are closely guarded, and one is not supposed to be able to prepare for civil service examinations. You aren’t supposed to know what is going to be on the test, although the unions provide materials to members regarding test preparation, and there is a company that advertises in the civil service newspaper (The Chief-Leader) that sells practice tests. At the first actual test we took, the union for people in that title handed out calculators (that performed only the DCAS permitted functions) to those waiting on-line for the test. 

The tests we took were for administrative staff analyst (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/201909058000.pdf) and associate staff analyst (https://www1.nyc.gov/assets/dcas/downloads/pdf/noes/201909061000.pdf). What those jobs do, and which one is more senior to the other, we can’t recall. What I do remember is that the exam for the lower level title was more difficult. In each case we reported to a DCAS testing center to sit for the exam. We were allowed pencils and a simple calculator. We were not permitted water or snacks. The tests were four hours long. The first test I took was in the middle of the winter. We arrived at the test site a half hour early. We stood on various lines in over-heated hallways for over an hour after the announced time for the test to begin. Eventually, after proving our identity and demonstrating that we had properly registered for the test and had paid the requisite (non-refundable) fees, we were seated at a desk with a computer, and panels on either side, to take the test. The four-hour, multiple choice, test was strictly timed, and it was after 7PM and dark when we completed the test. If one needed to pee, the time came out of your four hours. 

We were already exhausted from the long period of hall standing before the test and were totally wasted when we completed the test. We were given a “provisional” score when exiting the test center. We barely passed. We have eight years of higher education, including in law, statistics, finance and general management. We barely passed. What in God’s name were they testing for? We couldn’t tell you. The questions on both tests seems entirely unrelated to any job in city government we might think of. None of them involved functions we had ever performed in decades of work, including in senior management in very large organizations. Some of the questions had to do with performing statistical analysis involving long strings of numbers, and much work with scratch pad and calculator. Some had to do with highly qualitative personnel decisions. We suspect we got most of the mathematical questions right (which we had the opportunity to check over carefully) and some of the more qualitative decisions (which called for guessing what the conventional wisdom about the decision was). But the exam clearly tested nothing that had to do with any real job in City government. So what was the point? Testing endurance?

Making matters more arbitrary and capricious, after many years we have not received the final results of ANY of the examinations we paid for (and paying for the tests seems like a big deal to DCAS, given what is written in its materials) and took. In the case of the resume-based exam, this likely has to do with DCAS’ not getting around to scoring it – despite the fact that during the pandemic we can’t imagine what else the DCAS staff had to do. The two multiple choice tests are likely the subject to an extensive process of challenges to the answers. Test takers have the right to challenge answers they got wrong, and to argue that the response deemed “correct” by DCAS, was actually incorrect. This is essentially a complex appellate process within DCAS. At the conclusion of the multiple-choice tests, we were given extensive materials explaining this appellate process, and invited us to sessions where the answers would be provided and explained, giving the test taker with an opportunity to evaluate and challenge the “correct” answers. So, we continue to sit and wait. We are certain we will have left government service before there is any chance that we will become eligible for civil service protection. 

What civil service would have provided to me in my senior management position would be job security. While we could be removed from our position, another job would have to be found for us, for which the highest level test we passed qualified us. Likely, such a job would offer a lower salary, but we would be guaranteed that income, and the accompanying benefits, for life – as long as we didn’t do something that clearly violated the rules.

Once a test is scored, a list is created of successful test takers in order of their scores. When positions become open in the appropriate civil service title, agencies are provided with the names of the top three scoring individuals from the list to interview for the open position. The agency is able to hire for those positions only from the civil service list. Once a candidate is selected for a position, they must successfully complete a one-year provisional period before they obtain civil service protection.

 Tests appear erratically. It takes years for the tests to be scored. It takes years for the civil service lists to be created. It may take years for a person’s name to advance on a list to the point where they are considered for an agency position, and then the person must wait a year before gaining civil service status. Franz Kafka could not have devised a more dysfunctional, useless system. The tests evaluate irrelevant knowledge and skills and the process takes years. What highly trained, experienced person would subject themselves to such a hiring process? 

As a result, we have come to the conclusion that process is useless. It does not attract and retain top talent for the City. It does not protect highly skilled, mobile employees from arbitrary treatment. The system makes it nearly impossible to manage low performing long-serving staff. It simply rewards patience and longevity for those who don’t have alternative employment opportunities. We are not sure what useful purpose it serves. That being said, as noted at the beginning of this chapter, almost all of our colleagues in the business unit that we managed were dedicated and highly skilled. So, there must be something to it. But it also protects the two or three out of those thirty who are gaming the system, low performing, belligerent or clueless. 

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