A court could decide Friday if a referendum to expand casino gambling in New York wasn't just uncommonly reworded to include rosy benefits — but whether it was approved illegally in secret.
The dispute centers on the timing of changes made to the referendum acted upon by the state Board of Elections. The referendum was reworded to promise more jobs, tax cuts and aid for schools — all additions made to the initial version by Gov. Andrew Cuomo's administration and legislative leaders.
However, a Brooklyn attorney who opposes the casino legislation claimed Tuesday that the changes were made after the July 29 meeting where the Board of Elections signed off on it. Lawyer Eric Snyder said that would violate the state's Open Meetings Law.
Snyder told The Associated Press that the Board of Elections didn't vote publicly to add the promises when it rewrote the referendum on July 29.
"They didn't vote on it," he said in an interview, citing a video of the July 29 meeting and its transcript. "I don't know what they did, but they didn't approve the language."
The Board of Elections denied the vote to send the referendum to voters on the Nov. 5 ballot was in violation of the law. Board of Elections spokesman John Conklin said late Tuesday that the referendum was approved July 29 and released records signed by the executive directors that showed changes were made.
In the meeting's transcript and its official minutes, the rosy language making the promises weren't spoken or written in what Douglas Kellner, co-chairman of the Board of Elections, called "minor revisions" to the "official text" provided by the Attorney General's Office. Kellner said the referendum was the "subject of, I know, extensive discussions and careful vetting," according to the transcript.
The board also authorized its executive directors to make further changes by telephone, while consulting commissioners.
If the Board of Elections is found to have not voted for the change or to have violated the Open Meetings Law, the action needed to make the referendum valid would be void, and that could block it from the ballot.
"A meeting cannot validly be held by telephone nor can voting occur over the phone," said Robert Freeman, executive director of the state Committee on Open Government. Freeman says the law and court rulings specifically require government meetings to be in the presence of each other in an open setting so the public cannot just hear them, but see them and see who may be "whispering in their ear." The law now allows for valid public meetings by video, but officials must be visible to the public, he said.
He also said a quorum that consists of a majority of all board members — not selected members — must be present to make decisions.
On Tuesday in an unrelated case, the state's highest court upheld a lower court in striking down a local referendum question in Suffolk County over language that appeared to advocate for passage.
The rewriting of the casino referendum has been criticized by newspaper editorial boards and good-government groups.
"That is the biggest hoax ever perpetrated on the taxpayers of the state of New York," said state Conservative Party Chairman Michael Long, who opposed the casino referendum. "It really is a fraud."
Referenda are supposed summarize a law passed by the Legislature to change the constitution. The measure written by Cuomo and the Legislature lists is purposes as "promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated." The added benefits of tax breaks and school aid, however, aren't listed in the law.
A recent Siena College poll found the rosy wording worked. Voters were split on the issue at 46 percent when read the straight wording, but approval rose to 55 percent when voters were read the revised wording.
Snyder said the Board of Elections on Friday is scheduled to request that the case be thrown out because Snyder missed a 14-day deadline to file the action taken on July 29. Snyder learned of the changed wording when it was revealed in news reports Sept. 12.