An Examination of Governor Cuomo’s Moreland Commission: The Progress So Far

By Kelly Hendricken, Albany Government Law Review

Introduction  

            Recently, Governor Andrew Cuomo called for a Moreland Act Commission to investigate the response of New York’s power utility companies to Superstorm Sandy.[1]  This now established Moreland Commission on Utility and Storm Preparation came after a firestorm of complaints in the wake of the weeks it took for many residents in the Long Island and New York City areas to regain power after the tragedy and devastation of Superstorm Sandy.[2]  The Commission has already made some recommendations, which are sure to create much change after this particular public outcry for better regulation and more sanctions for the power companies in charge of restoring power after the widespread damage caused by Superstorm Sandy that left hundreds of thousands of people in New York without power.[3]  It is important to understand both the authority the Commission has and the power of its recommendations because of the widespread change this will impose on New Yorkers in the future.  The legislative recommendations that are about to be made will change the utilities regulation in New York State, hopefully for the better.

A Brief History of the Moreland Act of 1907

            The Moreland Act of 1907, also known as New York Executive Law section 6, allows the governor to create a commission at any time “to examine and investigate the management and affairs of any department, board, bureau or commission of the state.”[4] This Act was born because a Governor wanted to remove a “recalcitrant Insurance Superintendent.”[5]  Having an executive branch inquiry commission is not considered a new concept, and while it creates a larger scope of power, the executive normally has an inherent ability or an express ability provided by statute to inquire into the status of the executive branch’s functioning.[6]  The Moreland Act has been used in the past to investigate matters such as alcoholic-beverage control, nursing home corruption, the Urban Development Corporation’s financial collapse, the Parking Violations Bureau scandal, and conflicts of interest in state and local governments.[7]  The common thread is that a scandal causing public outrage tends to give rise to the Governor’s calling of a Moreland Commission.[8]  New York State Education Department only has the records of a few of the Moreland Commissions, which include:  Commission for Investigation of Workmen’s Compensation Law Administration, Commission to Study, Examine and Investigate State Agencies in Relation to Pari-Mutuel Harness Racing, Commission for Bingo Control Inquiry, Commission on Welfare, Commission on the Alcoholic Beverage Control Law, and the Commission on Government Integrity.[9] 

            Most recently, Governor Cuomo has been quick to use the threat of the Moreland Act as a way to throw his weight around to get things done politically.[10]  He had recently threatened to commission a Moreland Act investigation in the wake of the political scandal involving the sexual harassment of multiple women who worked for the politician Assemblyman Vito Lopez.[11]  This threat came after the newly commissioned New York State ethics body, the Joint Commission on Public Ethics, declined to provide a full probe into the matter which would have included Speaker Sheldon Silver’s actions in regard to the settlement with the female workers who were sexually harassed.[12]  However, within three days after the Governor’s threat, JCOPE announced their decision to conduct an expanded investigation that would include looking into Sheldon Silver’s part in the settlement agreement.[13]  Now, Governor Cuomo did include some bite with his bark, as he did not just threaten to investigate the matter of the power companies and has actually created a Moreland Commission to fully investigate and make recommendations.

Background on the Creation of the Moreland Commission on Utility and Storm Preparation

             Superstorm Sandy left at least 125 deaths in its wake, with at least 60 New Yorkers counted among that death toll.[14] The damage to New York was so severe that the state is planning to seek $42 billion worth of aid from the federal government to defray costs, with about $9 billion of that federal aid going to preparation for future storms.[15]  The National Hurricane Center stated that “Sandy’s pure kinetic energy for storm surge and wave ‘destruction potential’ reached a 5.8 on the National Oceanic and Atmospheric Administration’s 0 to 6 scale, the highest measured.”[16]  On Long Island, about 90% of the residents lost power from Sandy, and over 900,000 residents in New York City and the outer boroughs lost power from Con Edison.[17]

            The reason, however, that the Moreland Commission was created was because of the Long Island Power Authority [hereinafter LIPA], which was created by former Governor Mario Cuomo originally to cut costs to its customers.[18]  However, its uselessness is realized by the fact that LIPA’s 1.1 million customers pay some of the highest rates in the country.[19]  LIPA’s ineffectiveness runs deep, as evidenced by how long their discussion of the looming Hurricane Sandy was:  approximately 39 seconds.[20]  LIPA’s ineffectiveness and pure incompetence has also been evidenced by the fact that Long Island’s power recovery was the slowest in the surrounding area, and many horror stories have followed in LIPA’s wake.[21]  Almost three weeks after Superstorm Sandy struck, more than 10,000 Long Island residents still did not have power restored to their homes.[22]

            Governor Cuomo was subjected to criticism regarding his oversight of LIPA.[23]  However, the biggest problem cited is the fact that the authority acts as quasi-independent, even though it is a government organization.[24]  Furthermore, in wake of the 39 second conversation, the acting chief executive, Michael D. Hervey, resigned from his position effective at the end of 2012.[25]

The Moreland Commission Response in Wake of Reports on LIPA

            The Moreland Commission released its Interim Report, which included a proposed restructuring of LIPA, on January 7, 2013.[26]  The recommendations included that LIPA be replaced by a private utility company, and furthermore, that the Public Service Commission, which regulates the power companies in New York State, should be “beefed up” with more resources and have more power to sanction and punish utility companies.[27]  The overall changes may give the Public Service Commission the ability to pull the operating license of the power companies if they do not readily prepare for potential disasters like Superstorm Sandy in the future.[28]  The LIPA legislation is outdated in general, and actually exempted LIPA from the oversight of the Public Service Commission.[29]  That in itself is problematic because all other power companies are regulated by the Public Service Commission,[30] and would at the very least disrupt state uniformity in regulation.  Furthermore, the Commission determined that the relationship between LIPA and National Grid causes severe public confusion about operational and customer service.[31]  This is illustrated by the “unusual arrangement” that National Grid and LIPA have.[32]  LIPA merely owns and oversees the power grid and the work of National Grid, while National Grid actually supplies the power to keep the grid itself going.[33]

            In conclusion, the Interim Report shed light on the problems that have been put in the backseat for far too long in regard to power companies and the best way to service the many citizens of New York.  The problem is that the restructuring of both the regulatory oversight and the actual power authority would take much political aggression because of the severe limits placed on the Public Service Commission’s ability to fine unruly power companies.[34]  Furthermore, the Moreland Commission suggested making LIPA’s grid attractive to sell to an outside buyer.[35]  However, this could also be an issue because of the amount of debt LIPA is in, among a host of other issues.[36]  For now, New Yorkers will just have to play the game of wait and see.  However, it seems that Governor Cuomo will not put this to rest until LIPA is out of commission, and Long Islanders will be better off for his perseverance.

     


[1] The Moreland Commission on Utility Storm Preparation and Response, http://moreland.ny.gov/ (last visited June 1, 2013) (formed to investigate responses following Hurricane Irene and Tropical Storm Lee as well as Superstorm Sandy).

[2] Patrick McGeehan, Panel Proposes Dissolving the L.I. Power Authority, N.Y. Times, Jan. 8, 2013, at A19 [hereinafter Dissolving LIPA].

[3] Id.; Christina Rexrode & Verena Dobnik, Hurricane Sandy: New Jersey, New York Still Struggle With Power Outages, Huffington Post, Nov. 11, 2012, http://www.huffingtonpost.com/2012/11/11/hurricane-sandy-new-jersey-york-power-outage_n_2113856.html.

[4] The Moreland Act of 1907, N.Y. Exec. Law § 6 (McKinney 2012); Moreland Act Commissions, N.Y. ST. DEP’T EDUC., http://www.archives.nysed.gov/a/research/res_topics_legal_govguide_committees.shtml (last visited June 1, 2013).

[5] Celestine Bohlen, Moreland Act of 1907: Governors’ Strong Suit, N.Y. Times, Dec. 15, 1988, http://www.nytimes.com/1988/12/15/nyregion/moreland-act-of-1907-governors-strong-suit.html.

[6] Carl. E. Singley, The MOVE Commission:  The Use of Public Inquiry Commissions to Investigate Government Misconduct and Other Matters of Vital Public Concern, 59 Temp. L. Q. 303, 309­–11 (1986).

[7] Bohlen, supra note 5.

[8] Id.

[9] Records of the Governor’s Office, N.Y. St. Dep’t Educ., http://www.archives.nysed.gov/a/research/res_topics_legal_govguide_committees.shtml (last visited June 1, 2013).

[10] James M. Odato, Cuomo Takes Out Big Stick, Times Union (Albany, NY), Sept. 10, 2012, at A3.

[11] Odato, supra note 10; Jimmy Vielkind, Assembly Panel Ordered to Talk, Times Union (Albany, NY), Oct. 5, 2012, at A1.

[12] Press Release, Common Cause, Women, Good Government Urge JCOPE: Fully Investigate Assembly and Lopez (Oct. 11, 2012), http://www.commoncause.org/site/apps/nl/newsletter2.asp?c=dkLNK1MQIwG&b=5287775; Jacob Gershman, Governor Demands A Probe of Speaker, Wall St. J., Sept. 8, 2012, at A17; Kenneth Lovett, Silver Grilled Testifies in Vito Probe, N.Y. Daily News, Nov. 26, 2012, at 2; Odato, supra note 10.

[13] Kenneth Lovett & Glenn Blain, Assembly Speaker Sheldon Silver to be investigated, N.Y. Daily News (Sept. 11, 2012), http://www.nydailynews.com/new-york/assembly-speaker-sheldon-silver-article-1.1156291; Odato, supra note 10.

[14] Superstorm Sandy Deaths, Damage and Magnitude:  What We Know One Month Later, Huffington Post (Nov. 29, 2012), http://www.huffingtonpost.com/2012/11/29/superstorm-hurricane-sandy-deaths-2012_n_2209217.html.

[15] Id.

[16] Id.

[17] Ben Chapman, 900,000 New Yorkers Who Lost Power During Sandy Superstorm Won’t Get Lights Back for Another Week, N.Y. Daily News (Nov. 2, 2012), http://www.nydailynews.com/new-york/900-000-lost-power-won-lights-back-week-article-1.1195700; Editorial, The Power Mess on Long Island, N.Y. Times, Nov. 19, 2012, at A20.

[18] Editorial, The Power Mess on Long Island, supra note 17.

[19] Id.

[20] Danny Hakim, Patrick McGeehan & Michael Moss, Suffering on Long Island as Power Agency Shows its Flaws, N.Y. Times (Nov. 13, 2012), http://www.nytimes.com/2012/11/14/nyregion/long-island-power-authoritys-flaws-hindered-recovery-efforts.html.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] The Moreland Commission on Utility Storm Preparation and Response,  Interim Report 3–4 (Jan. 7, 2013) [hereinafter Moreland Commission].

[27] McGeehan, Dissolving LIPA, supra note 2.

[28] Id.

[29] Moreland Commission, supra note 26, at 11.

[30] Department of Public Service/Public Service Commission, N.Y. ST. DEP’T EDUC., http://www.archives.nysed.gov/a/research/res_topics_env_guide_3_dps.shtml (last visited June 1, 2013).

[31]  Moreland Commission , supra note 26 at 15.

[32] McGeehan, Dissolving LIPA, supra note 2.

[33] Id.

[34] Id.

[35] See id.

[36] Id.

21 Comments

Filed under Civil Service Law, Energy Law, Executive Law, Government Reform, Municipal Law, Public Budgets

21 responses to “An Examination of Governor Cuomo’s Moreland Commission: The Progress So Far

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