Hon. Simcha Felder
Enforces Oral Rule
He Promulgated

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By Henry J. Stern
December 13, 2007

"A funny thing happened to me on the way to the studio.." That was the way radio comedians began their routines fifty or sixty years ago.  That stock opener was resurrected in 1962 in the title of a Broadway play, "A funny thing happened on the way to the Forum". The play was set in ancient Rome.  It was directed by George Abbott, who died at 107, and produced by Harold Prince, who is now a young 79.

Well, a funny thing happened to me at the City Council recently (Dec 5). A hearing had been scheduled by the Government Operations Committee of the Council on the subject of Council Members' lulus and outside employment.  The hearing was held to keep a commitment made at the Council meeting on November 15, 2006, thirteen months ago, when they increased their own salaries by 25 percent (to a minimum of $112,500, with over eight-ninths of the body receiving additional stipends, ranging from $4,000 to $28,500, for leadership roles or the burden of chairing committees or subcommittees).  The raises were retroactive to November 1. At the next payday, the members received the timely Christmas (or Holiday) gift with which the gifted members had gifted themselves..

Requiring some time to prepare a written statement for the hearing (which I learned about that morning from Citizens Union), being familiar with how long hearings take and the way they are supposed to be conducted, and having to travel from our midtown office, I arrived at the hearing at about 11 a.m.

I was pleased to see that the hearing was still under way, and that Dick Dadey of Citizens Union, Neil Rosenstein of NYPIRG and a potential Council candidate were seated at the witness table, being questioned at some length by the chair, Hon. Simcha Felder of Borough Park, Brooklyn.  As required, I told the sergeant at arms I had arrived, and gave him copies of my testimonyto give to the committee. 

I was then informed by the committee counsel, that I would not be allowed to testify because Chairman Felder had instituted a rule that no one could testify at a hearing who had not arrived by fifteen minutes after the hearing began.  I had never heard of this rule in my own nine years on the Council, and did not know of any other chair of a committee who restricted testimony in this way.

I  asked Mr. Felder whether this "rule had been reduced to writing.” He allowed that it did not appear on any printed page.  Although I am not an expert on the intricacies of the Administrative Procedure Act, I had never heard of an "undocumented rule", promulgated at will, never ratified by man or beast, and enforced at the pleasure of the chair..

It seems like a common-sense requirement, perhaps unstated in writing because it is so elementary, that if a rule be promulgated by a public agency, it must at least be stated in writing somewhere, so that people affected by it could have an opportunity to learn of it.

Mr. Felder succeeded to Brooklyn Civil Court Judge Noach Dear's seat in the Council in 2002, speaks of himself as a candidate for City Comptroller in 2009. He is sometimes confused with Councilman Lewis Fidler, also of Brooklyn, but they are far from the same.

He was courteous to me as an individual.  He recited some of my experience in government, said that if we had an argument, he would lose it. He was neither bitter or hostile.  His plaint was that that if he allowed me to testify, he would be unable to deny the right to testify to others who violated Felder's Rule by arriving after his timeline, which he then stated was twenty minutes. It was in the interest of fairness, therefore, that he not allow me to testify..

At the time, there were about 20 people in the room, committee members, staff, press and witnesses.  The public attendees could be counted on one hand.  Nobody else sought to testify.  The time was about 11:30 in the morning, so lunch was not an immediate concern. The issue was not one of logistics or lack of resources. It was a matter of principle

The press appeared quite interested in the chair's refusal to allow me to testify.  They questioned him closely after the meeting ended. You can link to the News account by Frank Lombardi or the Post story by Frankie Edozien.

 I had distributed my relatively noncontroversial statement by hand to the reporters and to the other members then in attendance: Inez Dickens of Manhattan, Joseph Addabbo, Jr., of Queens, and Dominick Recchia of Brooklyn (who came by for a few minutes)  I was told that Larry Seabrook of the Bronx had been present but had left before my arrival, so I was unable to hear his attack on Citizens Union. His words were, however, alluded to in a Daily News editorial, Cirque du Simcha, which we link to, as well as append to this article.

No substantial harm was done by not allowing me to speak, (Rule 13-F: "No blood, no foul".) This account is not the result of high dudgeon but of mild disappointment, because I had hoped to enter into a dialogue with the members, if they were to ask questions. City Council committee hearings often take several hours, with numerous speakers. The point of a public hearing is to hear from the public. That purpose is frustrated when witnesses are silenced by arbitrary and manufactured rules.

Especially when they are discussing their own pay and prerogatives, the solons should listen to citizens who want to offer their views. Too bad they just don't understand..

Why should every witness have to be present all day, practically from the start of the hearing?  What is the point of it?  If they were lawyers, testifying for a fee, they would have to be paid for the hours they waited, which would put a great burden on those who retained their services.

Reasonable rules are necessary, and we believe there should be basic procedural standards for all committees, published and available to those who want to come before the committee.  These rules should be agreed to by the speaker and adopted by the Council.   We do not believe that individual chairs should be able to set arbitrary personal standards as to who can testify and when they must arrive.  They should not exclude witnesses who appear in good faith with prepared testimony.

The sequence of events reported here is not an outrage, it is simply foolish.  We relate it as an example of an attitude which, in a minor way, contributes the disrespect in which the Council is generally held.  Speaker Christine Quinn has made valiant efforts to improve the Council and its public standing.  She has acted responsibly in a number of cases to overrule self-promotional committee chairs.  She has avoided needless controversy with Mayor Bloomberg, and has earned general approval.  She showed a high degree of leadership when a staff member abused a Councilman at a public meeting last year.

It is part of her job to deal with slower and less sensitive members, and she should, and probably will, either persuade or instruct her chairs to treat the public with a modicum of dignity and respect.  There may also be some responsibility to do her best to protect witnesses from bizarre verbal assaults by unhappy members, but that bring us into First Amendment issues. That, however, would be a tall order. None of us wants to curtail speech by elected officials or anyone else, certainly not in the absence of a clear and present danger to the witness or to the public.

We are aware of the relative triviality of this matter, compared with the problems that face our city and state.  Many issues, however, come down in the end to whether public officials speak and act rationally and co-operatively, or arbitrarily and confrontationally.  This applies to the highest positions in State government as well as to the lowliest committee of the City Council.

We cannot legislate or mandate common sense or fair play. We cannot prevent unhappy people from acting high and mighty when an ordinary citizen (Chaim Yankel in Yiddish; John Q. Public in 20th century American) comes before them. The two languages combine in Joe Schmo, a hapless fellow.)

But many issues come down to whether people will act rationally and communally, or arbitrarily and confrontationally. (That was a lot of adverbs.)  I know that one cannot legislate common sense, or prevent people from acting high and mighty when they have a shred of power. I also know that most people are in no position to complain when something like this happens to them.  I am fortunate that I can share my modest disappointment with our readers, in the hope that the responsible leadership of the Council will prevent similar rebuffs to others who come to an advertised public hearing to present their views to elected officials.

To conclude, especially when Councilmembers are holding a public hearing on their own pay and prerogatives, they should listen to citizens who come to express their opinions. . Too bad that someone just doesn't understand. It's called "the insolence of office."

#430 12.13.2007 1547wds

Cirque du Simcha
NY Daily News, 12/8/07

Councilman Simcha Felder, who heads the committee with jurisdiction over such things, insists he's serious about reforming how lawmakers set their pay, but you wouldn't know it from the farcical hearing he held this week.

First, Felder let one member of the committee, Bronx Councilman Larry Seabrook, deliver a tirade against Citizens Union Executive Director Dick Dadey, who came with thoughtful ideas about the Council's salary structure. Galled that CU, a top civic group, hasn't endorsed him since 1994, Seabrook demanded to know the number of blacks on its board, as well as how much Dadey is paid. Felder laughed at Seabrook's gross badgering until an aide whispered that the press was watching.

Then, Felder hit another witness, Neil Rosenstein of NYPIRG, with the same irrelevant, inappropriate question: How much did he make? Far less than a councilman, Rosenstein responded. (The base salary for this part-time job is $112,500.)

Then, Felder refused to let former Parks Commissioner Henry Stern, a good-government champion, testify. Felder said Stern had failed to register to speak during the hearing's first 20 minutes - a requirement not written anywhere.

Finally, Brooklyn Councilman Domenic Recchia showed up just minutes before the hearing ended, enabling him to be counted as having attended a meeting he actually had missed.

Why did Felder, who aspires to be controller, run this circus? Because the Council promised to consider pay-raise reform when it okayed a 25% hike last year. Among the items on the agenda: barring members from voting on their own pay and banning the speaker from doling out stipends to members who head committees. These extra "lulus" are now worth as much as $28,500.

Congress lives with both prohibitions per the U.S. Constitution. The Council should abide by the same high standards. But, based on what we've observed, we're not holding our breath.