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Brian Lehrer: Brian Lehrer on WNYC. What should the punishment be for Governor Andrew Cuomo for his actions in the nursing home scandal, for not reporting some say covering up the number of nursing home residents who died by listing thousands as hospital deaths instead, for bullying Assemblyman Ron Kim of Queens on the phone last week to try to convince him to help keep the undercount quiet, for slipping legal immunity for nursing homes into a big budget bill last year despite their failures allegedly because their owners are his donors, and for the original policy, some say original sin of moving COVID patients back into nursing homes from hospitals at the beginning of the pandemic?

Assemblyman Kim is tweeting that Cuomo committed an impeachable offense. Others at least want to strip him of the emergency powers he has had during the pandemic. That's what we'll focus on most right now with the lead sponsor of a reduced emergency powers bill, Democratic state Senator Alessandra Biaggi represents much of the Bronx, from Riverdale down to Hunts Point and Throgs Neck, and a little bit of Westchester between Mount Vernon and New Rochelle.

She's chair of the Senate Ethics and Governance Committee, very relevant here, obviously. Ironically, before running for the Senate, she used to serve in Governor Cuomo’s Counsel's Office. Senator Biaggi, thanks for coming on with us today. Welcome back to WNYC.

Senator Alessandra Biaggi: Thank you so much for having me, Brian, happy to be here.

Brian: I gather that your bill would stop the governor from issuing certain kinds of emergency orders, but still allow him to temporarily suspend existing laws during the pandemic. Can you explain in more detail what you're proposing and why?

Senator Biaggi: Sure. What my bill does is a full repeal of the governor's expanded emergency powers. In March of 2020, last year, the legislature had voted to expand the governor's executive powers right before we were really in the throes of COVID-19. Why was that? Because what the governor had done was essentially given us this bill language and tied it to economic relief, a $40 million amount of money to be used for COVID-19. We now know that $40 million is a crumb in the bucket of what was spent, but nevertheless, it was tied to that economic relief.

Prior to the passing of the expanded emergency powers, during a state of emergency, the governor has the power to issue an executive order to temporarily suspend parts of a law like an ordinance or regulation or a rule. However, the expansion of his emergency powers on March 2nd, which was signed into law on March 3rd, gave the governor the power to issue directives, which essentially is like writing a new law, it circumvents the legislature in a way that does not allow us to have input into the process.

What my bill does is it repealed the expanded emergency powers. Why? Because what my rationale is, it's not just about this scandal that we're living through at the moment with the nursing home undercounting and what's going on there that I think is in the category of investigation. This bill is important because we are a year into this crisis. We are as a legislative body, a co-equal branch of government. Frankly, it really doesn't make sense to circumvent the legislature any longer. Never did, in my opinion. It doesn't make sense because the legislature is the body that is closest to the people that we represent.

We are able to really provide substantive background and input on the policies and the directives that are being made. I think one area where this comes up for a lot of New Yorkers is with schooling and remote learning, which is, again, just one of the many, many, many things that have been decided in this entire crisis.

Brian: If your bill passes, would it mean you in the legislature would have to pass a law every time there's a tightening or loosening of COVID restrictions. For example, the governor just announced yesterday that movie theaters in New York City can reopen next month at partial capacity. Obviously, when schools open and close, as you just mentioned, what the threshold is for that is something that the governor has been able to do unilaterally. There's so many details, movie theaters, sporting events, restaurants. What percent, under your bill with those individual decisions about all those things have to be voted on each time by more than 200 state legislators?

Senator Biaggi: Not necessarily. The governor, he still has excess power because we are still in a declared state of emergency. He has extended powers because of that, just like every other governor in the United States. He can issue executive orders to temporarily suspend parts of the law, an ordinance, or regulation, but if there is a significant policy decision that he wants to make, then the legislature can have input.

Now, I have to be really intellectually honest here. There are two proposals being floated. The one proposal is the one that I, of course, sponsor, which is the full repeal of the expanded emergency powers. The second proposal that is being floated is essentially the creation of a commission, whereby any directive or policy decision or idea that the governor wants to do, or pass, or suspend or stop, would go through this commission, which would essentially be an appointed person from the senate, the assembly, and the executive, and then they would vote and up or down on whether or not they agreed with that particular decision that the governor was being made before moving forward.

My opinion about that is that I think it would delay the process of how we're trying to make decisions. Also, in a day, there could be many decisions that need to be made. That might again, just not be the best route for New Yorkers. These are the details that we're still discussing and going through, but it would not slow down or stop government, which is one of the myths that the executive is, unfortunately, talking about.

Brian: I was going to ask you about that other version in the Senate that you just brought up, which involves that 10% commission to study what to do with the governor's executive powers. Commissions are good because they're independent, depending on who appoints the members, they're bad sometimes because they're bureaucratic and slow things down, and other things. I also see that the assembly, although also under democratic control, is less keen to strip the governor of any powers, and more willing to let this just blow over. Is that your perception of the assembly at this point?

Senator Biaggi: It's really unclear, mainly because the discussion around the expanded emergency powers and the repeal of them or the peel back of them has really only just begun recently in earnest. I think what I have been hearing just writ large, from just the legislature, generally, is that the emergency powers-- The expanded-- I want to make sure we're clear about that, the expanded emergency powers are set to expire. There's some setting on April 30th of this year.

However, again, because we are not only living through this nursing home crisis and scandal, and frankly, a lack of transparency and willingness to really have accountability on very important decision-making and the consequences that surround those things. It does not make sense to wait. I think that waiting just continues to further the unfortunate reality that we find ourselves in as a legislature, which is really not being part of any process. A lot of the things that we find out about are in press conferences with the rest of New York, why is that a problem?

It's a problem because our constituents are looking to us, all of us, every member of the legislature for answers. We should have those answers, whether it's the school closing, vaccination sites, testing sites, sports in schools, pick a topic, these are things that people are going to look to us to have answers on. It really does go beyond what's going on with nursing homes. It's important that we as a legislative body are participating in the process, but also are able to really answer questions for the people we represent so that they feel safe, so that they feel like they're clear on the guidance, and so that we can continue to move through this pandemic in a way that actually reduces harm and suffering.

Brian: Listeners, do you want Governor Cuomo stripped off any of his emergency COVID powers? Do you want him impeached? Do you want the legislature to get off the scandal and focus on other business? Wherever you are on this, and any questions you may have for a state Senator Alessandra Biaggi of the Bronx and Westchester, our phones are open at 646-435-7280. 646-435-728. For tweet at Brian Lehrer. Senator, I see you retweeted this from Assemblyman Kim yesterday.

Again, listeners Assemblyman Ron Kim, who was on the show last week is the one who Governor Cuomo called at home and allegedly threatened his career if he didn't help to keep the nursing home situation quiet. He tweeted, "Cuomo abused his powers to hide life and death information from the Department of Justice that prevented lawmakers from legislating like fully repealing corporate immunity for nursing homes. This is an impeachable offense," from Ron Kim and I realized senator that retweets don't equal full endorsement, but do you think the governor has committed an impeachable offense?

Senator Biaggi: This is what I think needs to happen actually. I think that there has to be a really clear and fair order of operations. From the legislative side, the repeal of the extended emergency powers for me is one of the most responsible things we can do. In addition to I'm sure we'll get to the immunity provisions which you eloquently explained and very simply explained, which is really awesome to hear. The repeal of the immunity provisions that were given to nursing homes. In addition to those two things, what we need to do as a state and as the legislature is to have oversight and investigations.

Whether that is through the state legislature, through the Attorney General's Office, those are things that we need to do to make sure that we have a fair fact-finding process. Now, I say that knowing full well that there are currently two investigations at the federal level, one of the FBI, one of the Eastern District of New York, EDNY that are also concurrently happening right now. We can do both of those things and we should do both of those things.

After we go through that fact-finding mission, then if we determine or find that there has either been a cover-up or an unethical, illegal criminal misconduct then we can make a decision as a body as to whether this is an impeachable offense. I think that we could argue that if there is criminal misconduct that would be in line with an impeachable offense, but I think that right now, calling for an impeachable offense without going through that fact-finding mission is premature and it's also irresponsible.

Brian: Let me take two callers right off the bat, who I think have very different views of governor Cuomo in this context. Jim in West Windsor New Jersey you're on WNYC. Hi, Jim.

Jim: Good morning, Brian. I think Cuomo should be brought in front of a tribunal in the Hague for international murder, use of the Javits Center. He had use of a mobile pop-up mesh unit in Central Park. He had the use of the Naval ship Pope. Instead, he sends all these sick people into nursing homes. He slaughtered 16,000 aged and invalid people.

Brian: Jim, thank you very much. Very different, I think will be David, a retired New York City public school teacher and of course, Senator we'll get your reaction to that very strong language from Jim in a minute, but that's I think my way of contrast here David you're on WNYC David. Hello.

David: Good morning. Ms. Biaggi and by the way, I remember your grandfather very well. I thought he was a good State Congressman. I was an essential worker out there. I'm a retired teacher who substituted and I have many complaints with the governor. I'm also a veteran I've been to a ward I know what it looks like. This thing with Governor Cuomo was not Pickett's charge. You have to please-- I'll get off in a minute. You have to remember the context of who he was dealing with the former president of the United States. He had nowhere to put these poor people. My mother was a nurse, my uncle was a doctor, and then seeing as I would argue gave-- Put leverage over him.

They said, "We're not going to do it." He's a leader. I respect him immensely, that's what they do to generals they Court Martial Billy Mitchell, the Court Martial the [unintelligible 00:13:36] the captain of the Indianapolis. They do this in the military, but he was-- You have to remember the context. I'm always be grateful for his leadership and that's my comment that's all. Thank you.

Brian: David thank you very much. Obviously, two very contrasting thoughts there. Let me play on the serious charge of murder that the first caller made and let's contextualize and say unintentional murder. Nobody thinks the governor was trying to kill nursing home patients, but last Friday at the governor's news conference, his health commissioner, Dr. Zucker defended that original policy. Here it is.

Dr. Zucker: He makes the decisions based on the information that you have at the time. We made the right public health decision at the time and faced with the same facts, we would make the same decisions again.

Brian: What's your reaction to that. Do you agree with that first caller's position that the governor had the Javits Center available, had other facilities available where he could have moved the COVID positive patients from hospitals instead of back to their nursing homes? Because that's an important question.

Senator Biaggi: Here's what I think. I think hard sometimes for myself up-- I'm putting myself into this mix here to do. As a human being who is being intellectually honest. Sometimes it's hard to hold two conflicting ideas or beliefs at the same time, but I'm going to-- In the interest of answering your question, I think I'm going to say something controversial. It's in the context of what I've just said.

The governor did a lot of things well during this pandemic. However, there were also things that he failed at. When we're looking at nursing homes and the decision to send COVID positive patients back to nursing homes, after they were discharged from a hospital, that was one of the things that I believe that he failed on. Listening to Dr. Zucker say that they would do it again is alarming. I am alarmed by that for so many reasons, but let me tell you what I'm rooted in to make that decision.

At the same that New York state issued their Department of Health directive to send nursing home patients back to nursing homes, COVID positive nursing home patients back to nursing homes, the CDC also had guidance. The CDC did not say that nursing homes are required. It said that they can take, can take COVID positive patients who are discharged from hospitals back to nursing homes. The difference here is that New York State did not say can. It didn't give the nursing home the option. It said that they are required to take COVID positive patients back to nursing homes.

Now, why I find this to be really troubling is because, and the first caller actually mentioned this, at the same time that this was happening there was the USNS from the federal government which didn't initially come to New York to be very fair, not to take COVID positive patients, but ultimately change that decision because there was a shortage of hospital beds. There was also the Javits Center and many, many other field hospitals Central Park, then Cortland Park in my own district. There were other alternatives than having to send back to nursing homes COVID positive patients.

I find it to be just like a slap in the face of New Yorkers to say that they would do that again when I think many of us are able to draw a correlation if not a causation and that's what an investigation would ultimately help us with, to the increase of nursing home deaths to this March 25th directive. I think that it's really problematic and also just irresponsible because we know better now. To say, as a department of health commissioner that we would do it again when-- Let's say at the time they didn't know better. Even though I could point to that CDC guidance, we know better now. That is just outrageous. That was an outrageous comment that was made by the Department of Health commissioner.

Brian: let's take another call, Sherry in Yonkers, you're on WNYC. Hi, Sherry.

Sherry: Hi, Brian, thank you for taking my call. What happened, my Nana was in a nursing home here in Yonkers, and on the 2nd of April, they called because she had a private room, she'd lived there for like 15 years and she was 103. She did have a good life, a very long life, but what happened was they called us and told us she was going to be taken out of her private room in quarantine in another, or put in another room so somebody else could be quarantined there who had symptoms.

We told him if you do that she's going to die, and by the nights she was dead. That was very sad for us, but I don't think that Cuomo should lose his emergency powers or be impeached because as Dr. Zucker said, they did what they could at the time. That's how I feel. Nobody is perfect and we were all dealing with something that we didn't know how to deal with.

Brian: Thank you very much, Sherry. Sorry about your Nana, but I'm also glad she lived to 103. Senator, this takes us beyond the governor's actions in a certain way, because there was also, and I think this is as important to talk about the underlying question of nursing home reform and there's legislation to accomplish that too, as I don't have to tell you, can you describe what you support on that and respond to Sherry in any way?

Senator Biaggi: Absolutely. Sherry, I am very sorry about your loss., but as Brian's said 103 is a very, very long life and that is just amazing. I think in response to Sherry, this is where my criticism of the governor kind of falls in this regard. I do believe that he knew better. I can say that with confidence and in good faith because the federal government's guidelines through the CDC did not require COVID positive patients to be sent back to nursing homes.

I probably could talk about this at all, but I won't. Just to answer your question, Brian, about the nursing home reforms, I think that there are a number of things that we can do, and just yesterday in the New York state Senate, there are actually a bunch of bills that we did pass in a package of legislation essentially to safeguard the health and the safety of new Yorkers in nursing homes. The bills were drafted in response to some of the hearings that we held in the summer about COVID-19 and nursing homes.

Here are a few of the bills that were passed yesterday. We passed something called the Patient Care Ratio Reporting. Essentially, what it requires is that all nursing homes spend at least 70% of a facility's revenue on direct patient care, which I think is something that we could all agree is a good thing. Also, it's because visitors and visiting policy has been a really challenging thing during this pandemic.

Visitors have not really been able to see their family members or loved ones in nursing homes. We passed something called the Compassionate Care Giving Visitor's bill. This is is a bill that creates essentially a standardized program that allows personal care and compassionate care visitors into nursing homes. In addition to that, there are a series of other bills that we've passed, but one in particular that I believe must be prioritized.

It's something called The State Staffing for Quality Care Act. This is a bill that is held by the Senate Health Chair, Gustavo Rivera, and it's a bill essentially that would set minimum staffing ratios for certain kinds of patients. California had implemented this in 2004. What it will do essentially is say that if you are a nurse in a hospital, you as a nurse can have eight patients to one, or three patients to one, whatever the ratios are, according to whatever the health facility is or whatever the job you're doing.

There's different ratios for different places. This is incredibly important because not only was this a problem pre-pandemic, but during the pandemic, what we saw, not only in nursing homes but in hospitals was that nurses at some point were taking care of upwards of 30, 40, 50 patients each. That is how many people they had, not only in the emergency room but in the ICU and on different floors of the hospital.

We know that that is not a real responsible thing to require a nurse or set of nurses to care for that many patients. It's not responsible because it's almost physically impossible. This is something that would put into place, safe ratios so that we can ensure that the people who are coming into hospitals, are coming into nursing homes actually have the adequate care that they deserve.

Brian: Let me take one more phone call for you before we went out of time. Susan and Ridgewood Queens you're on WNYC with state Senator Alessandra Biaggi chair of the ethics committee. Hi.

Susan: Hi. I do think that he should be limited in his power on several levels. He was aware of the limited resources in the nursing homes, he is continuously cut Medicaid and Medicare, he's obstructed bail reform, he had the power to allow senior citizen prisoners to get out of prison, nonviolent offenders to avoid harm from COVID-19, he has more than failed. In so many ways, this is not just one thing. Of course, this was just really a crime against humanity. What he did he knew knowingly what he was doing. Those are my thoughts. Thank you.

Brian: You mentioned to our screen are refusing to tax the ultra-wealthy, so it isn't just what he did in the past that's upsetting you about the governor?

Senator Biaggi: Correct. Everything. It's really a problem on so many levels.

Brian: Susan, thank you for your call. Senator in that context, political analysts have noted a strange bedfellows coalition that is the most aggressive about going after the governor right now, it's Republicans and the New York Post, of course, always, but also the most progressive legislators, including you and Senator Salazar and Ramos and assemblyman Kim and others. Ultimately, it goes this analysis, the Republicans won Cuomo out or weakend because they think he's too liberal and you want Cuomo out or weakend because you think he's too conservative like that last caller fair analysis?

Senator Biaggi: I think he's too conservative. Although I do think that he is conservative on a number of issues and we definitely diverged, one being with the last caller mentioned which is how we've funded our state. We've had austerity budgets in the state of New York for a long time. It's one of the reasons we find ourselves in a $16 billion deficit because we didn't have a rainy day fund like the state of California did. For me, it's not a political issue at all.

This is about life and death at the end of the day, 15,000 New Yorkers lost their lives. What is important here is that for the families and the people who lost someone in this pandemic, in a nursing home, not only do they deserve the truth of what happened and the accountability from the state about what happened, but they also deserve to pursue justice in court which we didn't get to talk to you in full detail, but you did mention about the legal immunity that was given to nursing homes and they deserve that if they have any evidence at all that the nursing home in some way either intentionally or even unintentionally put in harm's way their loved one.

Now, I don't say that irresponsibly or rationally, I fully understand the crisis that we all found ourselves in, especially in nursing homes and hospitals. There was a shortage of PPE and there was a limited amount of testing. It was in almost impossible circumstance to find ourselves in. However, why this is especially egregious is because we knew from the beginning that nursing homes was the ground zero place where the most vulnerable population lands. That meant that from the beginning, we had to take the most amount of care. That is why I think that all of my positions about why we should remove the expanded emergency powers continue to stand.

Brian: Last thing before you go. I think your claim to fame in the State Senate before this had been the hearings that you held on sexual harassment in Albany by state legislators and others. Do you think the governor's dealings with people are part of a related pattern of behaviors, mostly by men that were acceptable in the past, but should be subject to a new more equal set of standards today? I'm thinking of the phone call that he made to assemblyman Kim that the assemblyman perceived as bullying and threatening and yet here's what the governor said about that on Friday.

Governor Cuomo: Funny, you guys like to say I'm too aggressive. No, no, no, no, I wasn't aggressive enough.

Brian: I know you got to go in a second Senator, your last thought?

Senator Biaggi: I find that comment from him to be really brazen and unfortunate, mainly because it's not just that, "Oh, the governor's tough." We want all of our leaders to be tough. His behavior goes beyond a level of tough. It is toxic. It is abusive. It has gone on for decades.

There is not a person in New York politics who has not been on the receiving end of the governor or his team or staff. Frankly, it crosses a line that is just unacceptable and it always has been unacceptable, but it's just that now because of what's happening in New York and because assembly member Ron Kim has spoken out, more people are finally, finally speaking up and speaking out.

Brian: State Senator Alessandra Biaggi, Democrat from the Bronx and Westchester thank you so much for joining us today.

Senator Biaggi: Brian, thank you so much for having me.

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