Renewed Request Regarding Transparency in NYC Board of Elections Rulemaking
SUMMARY
The Election Law Committee and New York City Affairs Committee renewed the City Bar’s request that the New York City Board of Elections (the Board) adopt legally-required transparent rulemaking procedures. Following up on an initial letter sent in 2020, the Committees cite both state and city law showing that government agencies are required to follow basic transparent procedures when adopting rules. Under the Board’s current procedures, in which the rules are changed without notice or an opportunity for comment, and new versions are posted with no reference to what has changed, compliance can be difficult. In the interest of increasing smooth interactions between all candidates, their agents, and Board staff, the Committees urged the Board of Elections to adopt simple, transparent rulemaking procedures including posting proposed rules, with revisions noted, implementing a written comment period, and posting finalized rules with the changes highlighted.
REPORT
February 2, 2023
Simon Shamoun, President
Rodney L. Pepe-Souvenir, Secretary
New York City Board of Elections
32-42 Broadway, 7th Floor
New York, NY 10004
Re: Renewed Request for Rulemaking that Accords with Legal Requirements
Dear President Pepe-Souvenir and Secretary Shamoun:
The Election Law Committee and New York City Affairs Committee of the New York City Bar Association renew the City Bar’s request that the New York City Board of Elections (Board) adopt transparent rulemaking procedures as required by law. Our previous letters, dated January 31, 2020 and March 10, 2022, are attached.
Under both state and city law, government agencies are required to follow basic transparent procedures when adopting rules.[1] The Board’s practice of adopting rules without following these procedures would appear to make these rules unenforceable.
Furthermore, we are confident that making procedures more transparent will increase compliance and reduce nuisances for Commissioners and staff.
Respectfully submitted,
Rachael A. Harding, Chair
Henry T. Berger, Past Chair
Martin E. Connor, Past Chair
Katharine G. Loving, Immediate Past Chair
Sarah K. Steiner, Past Chair
Election Law Committee
Erik Rubinstein, Secretary
New York City Affairs Committee
cc:
Michael J. Ryan, Executive Director, New York City Board of Elections
Vincent M. Ignizio, Deputy Executive Director, New York City Board of Elections
Hemalee Patel, General Counsel, New York City Board of Elections
Douglas A. Kellner, Co-Chair, New York State Board of Elections
Peter S. Kosinski, Co-Chair, New York State Board of Elections
Anthony J. Casale, Commissioner, New York State Board of Elections
Andrew J. Spano, Commissioner, New York State Board of Elections
Todd D. Valentine, Co-Executive Director, New York State Board of Elections
Kristin Zebrowski Stavisky, Co-Executive Director, New York State Board of Elections
Kimberly Galvin, Counsel, New York State Board of Elections
Brian Quail, Counsel, New York State Board of Elections
Enclosures
Footnotes
[1] See State Administrative Procedure Act §§ 1-501; City Administrative Procedure Act, New York City Charter, Ch. 45, §§ 1041-47.
