By Bennett Liebman
Government Law Center
Efforts at public ethics reform in New York State often terminate with a whimper and not a bang. But at least most of the time, there are whimpers. Muttered complaints are generally voiced about the lack of reform. Yet, this year, one of the progressive reform efforts of New York State was placed out of commission in complete silence.
Defunded this year was the State’s Law Revision Commission which had operated since 1934. The Law Revision Commission was designed to serve as a non-partisan body of legal experts which would “examine the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms.” It has been considered “the oldest continuous agency in the common-law world devoted to law reform through legislation.” The Law Revision Commission continues to exist in statute, but without funding, it has been rendered inoperative.
That’s not the way it is supposed to work. New York’s Law Revision Commission was one of the signature progressive reforms of the 20th century in New York. Its ancestry is impeccable. Its parentage runs through Benjamin Cardozo, Alfred Smith, Herbert Lehman and Thomas Dewey.
It was truly Benjamin Cardozo’s concept. Cardozo, while an associate judge on the New York Court of Appeals, authored a law review article suggesting the creation of a ministry of justice. That ministry would be an agency that would mediate between the work of the courts and the legislature. The ministry would place the duty on a group “to watch the law in action, observe the manner of its functioning and report the changes needed when function is deranged.” It should be a formal office composed of at least five members who would have a “single-hearted consecration” to research and scholarship. The need for such a body was obvious to Justice Cardozo. “Men are insisting, as perhaps never before, that law shall be made true to its ideal of justice. Let us gather the driftwood, and leave the waters pure.”
Cardozo’s concept of a ministry to regularly report on improving the law was soon advocated by New York State Governor Alfred E. Smith. Smith, in his State of the State message to the legislature in 1923, proposed a “commission to investigate defects in the law and its administration.” Smith noted, “It is necessary that … we keep pace with our own growth and with modern conception of right and justice. The law of the State, civil and criminal, should be brought into harmony with existing social, economic and business conditions.” The legislature responded by establishing a commission to investigate defects in the law. That commission recommended a law revision commission, and in 1925, Governor Smith again recommended the establishment of a permanent law revision commission. Smith in his State of the State message noted that he was “thoroughly in accord with the report of the commission” and he recommended that the legislature should enact suitable legislation to create such permanent agency.”
While Smith was unable to secure passage of the legal reform commission, Governor Herbert Lehman was successful. Lehman in 1934 in a special message to the legislature formally proposed a law revision commission. Such a commission would provide “a through and disinterested recommendation” of State laws. “Its function will be the consideration of changes in substantive law and the recommendation of those changes yearly to the Legislature.” 
Lehman’s proposal was soon passed by the legislature. In signing the Law Revision Commission bill, Lehman further wrote, “The creation of this permanent agency is an outstanding progressive development in the administration of justice within this State. The importance of the work of this commission cannot be exaggerated. It will be able to bring the law of this State into conformity with modern conditions and modern needs. Its recommendations will be of inestimable value to the Legislature.” It was the first of its kind in the United States and termed a “pioneer juristic venture.”
The Albany Times Union was enthusiastic about the legislation. It wrote, “With the appointment of the Law Revision Commission … New York now becomes the first state to undertake this reform. Moreover, by making the Commission a permanent adjunct of its government, New York assures that the work of law revision will be both continuing and enduring.” The Law Revision Commission was considered as bringing the “brain trust system” into American government as well as the “messenger of which Judge Cardozo wrote.”
In 1948, Governor Dewey and the legislature expanded the focus of the Law Revision Commission. They directed the Commission to review the overall issue of the confidentiality of news reporter sources. This was a significant departure from its prior work as the Commission had previously only reported on problems with existing laws. For the first time, the Commission worked on writing new legislation.
The legislation creating the Commission has remained largely unchanged since its creation. Besides certain ex officio members of the legislature, it has always consisted of five members appointed by the governor for five-year terms. Four members of the Commission must be attorneys, and two must be members of law faculties of New York schools. The duties of the Commission have remained unaltered since 1934.
Similarly, the record of accomplishment of the Law Revision Commission is difficult to match. In its first two years of existence, the Commission submitted 15 proposals to the legislature, all of which were voted on. By 1948, the Law Revision Commission could report that 70% of its proposals since its inception had been enacted by the legislature.
It has handled and reported on hundreds of difficult issues, involving most every aspect of the public law of New York. It has issued reports on topics as diverse as mechanics liens, guardianship, commercial codes, gubernatorial succession, trusts and estates, extradition, the statute of frauds, and the rule against perpetuities. It has handled hot button issues that the elected branches wanted to farm out, such as the insanity defense, eminent domain, whistleblowing, and landlord-tenant issues. Even in recent years, with a most limited budget, the Commission has worked on reforming the alcoholic beverage control laws and the Not-for-Profit Corporation Law. In 2016, the legislature has passed bills recommended by the Commission on the limited disclosure of HIV medical information and on reforms concerning charitable corporations and trust governance.
As the Commission stated in its 50th annual report in 1985, The New York Law Revision Commission, “through its ‘recommendations’ has provided this advice during the past fifty years and, with the help of God, will continue to do so for many years to come.”
One would think rationally that in 2016 the Law Revision Commission’s role would be more valuable than ever. The political parties are more divided. Politics seems more divisive than ever. The pace of technology is creating more anachronisms in the law and creating a climate for more reform. The legislative process is overwhelmed by scores of moneyed interests. The need for disinterested, dispassionate intelligent review of legislation is more needed than ever. Shouldn’t the Law Revision Commission be called upon to report on ride sharing services, vacation and room rentals, tax exemptions to support affordable housing, local government powers and cooperation, the expansion of legalized traditional gambling endeavors, and power company and transmission company regulations?
Defunding the Law Revision Commission in 2016 is at best extremely shortsighted. It has always helped to improve New York State laws and New York State government. It is a government agency that has worked, and ought to be put back to work right now.
 Benjamin Cardozo, “A Ministry of Justice,” 35 Harvard Law Review, 113 (December 1921).
 Id. at 114.
 Id. at 124.
 Id. at 126.
 Public Papers of Governor Alfred E. Smith, Annual Message to the Legislature, 63 (1923).
 Id. at 64.
 Ch. 575, L. 1923.
 See John Godfrey Saxe, “A Ministry of Justice or Law Revision Commission,” 3 N.Y. L. Rev. 98 (1925).
 See “Text of Gov. Smith’s Annual Message to Legislature,” New York Times, January 8, 1925. The New York Times suggested in an editorial that a law revision commission was “worth trying.” “Law Revision,” New York Times, January 28, 1925.
 Public Papers of Governor Herbert Lehman, 83 (1934).
 Ch. 597, L. 1934.
 Id. at 350.
 John W. MacDonald, “The Bar and the Law Revision Commission,” 9 New York State Bar Association Journal, 56 (1937).
 Herbert Laube, “Book Review,” 20 Cornell Law Quarterly, 403 (1935). See also John W. MacDonald and Simon Rosenzweig, “The Law Revision Commission of the State of New York: Its Organization, Procedure, Program and Accomplishment,” Cornell Law Quarterly, 415 (1935).
 “New York Leads,” Albany Times Union, July 13, 1934.
 “Cardozo Brain Trust Pioneer, Says J.P. Hill,” Associated Press, Binghamton Press, November 5, 1934.
 MacDonald, supra note 15.
 Emmet N. O’Brien, “News Bill Marks Shift for State Law Board,” Albany Knickerbocker News, March 22, 1948. The referral of the issue to the Law Revision Commission also was endorsed by State Attorney General Goldstein who stated that he had “utmost faith and confidence” in the Commission’s study. John Mooney, “GOP Gives News Confidence ’49 Priority,” Saratogian, March 16, 1948.
 Legislative Law, Section 70. See Ch. 597, L. 1934.
 Legislative Law, Section 72. See Ch. 597, L. 1934.
 MacDonald, supra note 15 at 60.
 “US Information As Bad as Reds’ at Times, Editor Says,” Syracuse Post Standard, September 28, 1948.
 New York Law Revision Commission, Annual Report, 48 (1985).
By Bennett Liebman
Government Lawyer in Residence
Albany Law School
One of the more familiar tropes in upstate New York revolves around the origins of crime. The notion has long been that crime is like the New York State Thruway. It starts at New York City and works its way up through the rest of New York State. It is regarded as one of New York City’s least attractive exports, as young urbanites branch out bringing crime to the hinterlands. The issue is whether this trope has any accuracy in 21st century New York State.
Measurements of Crime
The FBI measures seven types of criminal acts. There are four violent crimes: murder and non-negligent homicide, rape, robbery, and aggravated assault. There are three measured non-violent crimes: burglary, larceny, and motor vehicle theft. Traditionally, crime rates are measured based on the incidence of crime per 100,000 inhabitants. Adding the violent crime rate and non-violent crime rate provides the overall crime rate for a given area. While there are numerous precautions involved in comparing crime rates, the fact is that these rates are generally used to provide a snapshot of the amount of crime occurring in any given location.
From 1965-1994, the crime rate in New York State was in the top half of the states in the country. From 1965-1993, New York State’s violent crime rate was either the highest or the second-highest in the nation. The property crime rate in New York State during that period was always in the top half of all states.
Yet since 1990, the number of crimes and the rate of crime in New York State have fallen dramatically. The crime rate went from 6,363.8 crime incidents per 100,000 inhabitants (in 1990?) to 2,100 in 2014. The crime rate fell by more than two-thirds. New York State, whose crime rate was the eighth highest in the nation in 1990, ranked 47th in the nation in 2014.
The crime rate has fallen significantly in the nation as well. The index crime rate in the nation in 1990 was 5,802.7. It is, as of 2014, 2,961.6, a reduction of 49%. Thus, while crime has fallen in the nation, it has fallen far faster in New York State. In 1990, the crime rate was 9.7% higher in New York State than in the rest of the nation. By 2014, the crime rate in New York State was more than 29% lower than the national average.
The New York City Experience
In 1990, the index crime rate for New York City was 9,699.1, with a violent crime rate of 2,383.6. By 2014, that rate had decreased to 2,185.4. The crime rate had decreased in New York City by 75.4%. (Violent crime decreased by 75.5%.) In 1990, the crime rate in New York City was 52.4% higher than the state average. In 2014, it was 5.4% over the State level. The rate of property crime in New York City was 6.2% lower in New York City than the state average. New York City’s overall crime rate was 26.2% lower than the nation as a whole.
New York City v. Urban Upstate Counties
With the huge decrease in crime in New York City, the 2014 statistics show there are areas of upstate New York that have higher overall crime rates than New York City. These include the following 15 counties: Albany, Broome, Chautauqua, Chemung, Erie, Fulton, Genesee, Monroe, Montgomery, Niagara, Oneida, Onondaga, Rensselaer, Schenectady and Tompkins.
Bronx County has by far the highest violent crime rate in the State, but there are 11 upstate counties with higher crime rates than the Bronx. These are: Albany, Broome, Chautauqua, Erie, Fulton, Genesee, Monroe, Niagara, Onondaga, Rensselaer, and Schenectady.
New York County (Manhattan) has the highest crime rate of the five counties within New York City. This is certainly understandable given how many commuters work in New York County and the fact that New York County appears to be the most significant tourist destination in the country. Nonetheless, there are four counties – Albany, Broome, Erie and Schenectady – that have higher crime rates than New York County.
The counties with the five highest crime rates in the state are: (1) Schenectady (3,270.9), (2) Broome (3,203.5), (3) Erie (3,076.1), (4) Albany (2,975) and (5) New York (2,908.4). Currently, the crime rate in Schenectady County is nearly 50% higher than it is in New York City.
One can understand a higher crime rate for Erie County. It is right on the Canadian border. People commute to work there. It is close to the tourist area of Niagara Falls. To a certain extent, Albany serves as a commuter hub for state government workers – although the number of traditional State employees has fallen over the past quarter century. But there is hardly an influx of tourists or commuters into Schenectady and Broome counties which might account for their high crime rates.
New York City v. Upstate Cities
Since there are 15 upstate counties that have higher overall crime rates than New York City, it is hardly surprising that almost all of the significant upstate cities have crime rates that are considerably higher than that of New York City.
Of the state’s 10 largest cities outside the metropolitan New York area, nine of the ten have higher crime rates than New York City. The only significant upstate city with a lower crime rate than that of New York City is the City of Rome, the smallest of the ten largest upstate cities. Perhaps of greater significance, Rome is also the only upstate city of the ten largest cities with a lower violent crime rate than that of New York City.
Some of the upstate cities had violent crime rates that are significantly higher than that of New York City. Buffalo and Niagara Falls had violent crime rates that were more than double that of New York City.
The highest overall crime rates in the upstate cities in order are: (1) Albany, (2) Niagara Falls, (3) Buffalo, (4) Binghamton, (5) Troy, (6) Syracuse, (7) Schenectady, (8) Rochester, (9) Utica, and (10) Rome. Every city ‒ except for Rome – has a crime rate double that of New York City. Albany’s crime rate was triple that of New York City.
Again, demographic considerations might account for some of the rankings of Niagara Falls and Buffalo. However, it is hard to find an outside reason for the crime rates in Albany, Binghamton and Troy.
Some Added Bright Spots
Besides the overall general improvement in crime rates, there are particular areas of the State where the crime rate is especially law. The suburban counties around New York City have low crime rates, and Putnam County – which has in recent years become more of a suburb of New York City ‒ has the lowest crime rate in the State.
The State’s rural counties also have generally low crime rates. Much of the Adirondack area also has a comparatively low crime rate. The counties of Clinton, Essex, Franklin, Hamilton, Herkimer, Lewis, Saratoga, Warren and Washington, which comprise much of the Adirondack Park area, have crime rates lower than the State average, which might seem surprising in light of their large number of tourists and their comparatively low number of residents. Essex and Lewis have the third and fifth lowest crime rates in the State respectively.
This low crime rate seems most pronounced both in Warren and Saratoga counties. Besides their presence in the Adirondack Park, these counties have significant other tourist venues. Warren County has Lake George and a very large amusement park in The Great Escape. Saratoga has two racetracks, one racino, and a large performing arts center.
Where the Crime Is
The New York State crime statistics demonstrate to us where the problems are. While violent crime is still comparatively higher in New York City than in much of the State, the primary locus of crime in New York State is now in the urban areas of upstate New York. The trope of criminal behavior making its way north and west from New York City no longer has any truth. Instead, Schenectady County is the county with the highest crime rate. Albany is the city with the highest crime rate. The nine largest cities in upstate New York now have higher overall crime rates and higher violent crime rates than New York City. Instead of crime following the State Thruway from New York City, crime is now like the Mohawk and Hudson Rivers flowing east and south from the high crime areas to New York City.
 The index crime rate — refers to the sum of these seven crimes. The four specified violent crimes are a subset of the overall index crime rate.
 This paper uses data derived from the FBI’s uniform crime reports. These reports and their accompanying charts are issued by the FBI and the State Division of Criminal Justice Services. See generally https://www.fbi.gov/about-us/cjis/ucr/ and http://www.criminaljustice.ny.gov/crimnet/ojsa/stats.htm. The statistics used to demonstrate current conditions are from the 2014 calendar year. See, for example, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-4.
 See https://www.fbi.gov/about-us/cjis/ucr/ucr-statistics-their-proper-use. In addition to the factors noted, the number of non-residents generally visiting or working in an area also would affect an area’s crime rate. Thus, New York County – with numerous commuters and visitors ‒ might be expected to have a higher crime rate. Similarly, counties in New York with numerous tourists (Niagara County, the counties in the Adirondacks, and Saratoga County) might be expected to have a somewhat higher crime rate. Some urban counties in upstate New York State which have experienced a downturn in employment over the past several decades due to the departure of major private employers (Erie, Monroe, Onondaga and Schenectady) might be expected to have a lower crime rate. The same might be true of a county like Sullivan County in the Catskills which has anecdotally experienced a decrease in tourism.
 49.67% higher.
 See Danny Hakim, “Albany’s Two Payrolls: One Is Anybody’s Guess,” New York Times, July 27, 2010. http://www.nytimes.com/2010/07/28/nyregion/28payroll.html?_r=0.
 Much of the information is from https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-8/table-8-by-state/Table_8_Offenses_Known_to_Law_Enforcement_by_New_York_by_City_2014.xls.
 Id. This particular chart utilizes a slightly higher crime rate for New York City than that of http://www.criminaljustice.ny.gov/crimnet/ojsa/indexcrimes/2014-county-index-rates.pdf in footnote 5.
 This excludes the cities of Yonkers, White Plains and New Rochelle in Westchester County.
 The highest violent crime rate for an upstate city of decent size was the City of Newburgh in Orange County. Newburgh, with a population of 28,378, had a violent crime rate that was 142.7% higher than that of New York City.
 Niagara Falls has proximity to Canada, a major tourism attraction in the falls, a major casino, and a large entertainment facility in Artpark.
 The crime rates in Oneida County and Fulton County, which are partially located in the Adirondack Park, have crime rates higher than the state average. This can be explained partially by the presence of older urban areas in these counties south of the Adirondack Park (Utica in Oneida County, Gloversville and Johnstown in Fulton County) with high crime rates.
 The City of Saratoga Springs, which is where the racetracks, racino and performing arts center are located, has a crime rate slightly above the State average, but considerably less than most cities in upstate New York of its population size of 27,496.
By Bennett Liebman
Government Lawyer in Residence
Albany Law School
Introduction to the New York Ethical Environment
In New York State, ethics oversight and enforcement is diffused and scattered across a wide number of agencies and authorities. Most every State agency has its own internal ethics officer as well as a Procurement Integrity Officer. There are three separate ethics commissions. There is a general joint commission on public ethics, a legislative ethics commission and an Ethics Commission for the Unified Court System.
There is an overall State inspector general. For specific agencies, there is a gaming inspector general, a welfare inspector general, a workers’ compensation fraud inspector general, a Metropolitan Transportation Authority inspector general, a Medicaid inspector general, an inspector general for the Port Authority, an inspector general for the Justice Center, a New York City Watershed inspector general, and an inspector general in the Department of Corrections and Community Supervision. There is an independent business integrity counsel at the New York Racing Association.
There is a code of ethics for State officers and employees. At the local level, there is also a requirement of a code of ethics since “the governing body of each county, city, town, village, school district and fire district” is required to adopt a code of ethics. The State Comptroller is required to “adopt a code of ethics setting forth standards of conduct for members of the Advisory Council for the New York State and Local Retirement Systems.” Thousands of State and local government officers and employees must file financial disclosure statements.
There are police review boards, and a department of investigations in the City of New York. State and local comptrollers oversee government operations as does the State Attorney General. The State Attorney General and the State Comptroller have their own public corruption efforts and have established a joint task force on public integrity.
On top of that, there are district attorneys in each of New York’s 62 counties who prosecute violations of the Penal Law, and the State Attorney General also prosecutes public integrity cases.
We have created a vast bureaucracy of ethics laws, codes and monitors throughout New York State. Yet, the perception has been that the integrity of New York State and local government has not been measurably improved, and the federal prosecutors ‒ most notably the United States Attorney for the Southern District of New York Preet Bharara ‒ are the people actually enforcing the ethics and anti-corruption laws governing State officials. United States Attorney Bharara has won convictions against 27 public officials, including Speaker of the Assembly Sheldon Silver and State Senate leader Dean Skelos.
Federal Enforcement of the Ethics Laws
Until the early 1970’s, United States attorneys did not generally prosecute state and local officials. Herbert Stern, the United States Attorney for New Jersey, has been widely credited with beginning the effort to use federal criminal laws to attack local corruption.
Utilizing Stern’s example, federal prosecutors began to use federal criminal laws to pursue local corruption. New York State federal prosecutors successfully prosecuted Nassau County Republican leader Joseph Margiotta, Syracuse mayor Lee Alexander, Bronx borough president Stanley Simon, a host of major political figures in New York City involved with the parking violations scandal of the 1980’s, and other government officials.
In contrast, prosecutions of major state elected officials by local district attorneys has appeared to be on the decrease as the federal law enforcement officials have largely overrun the field. That has seemingly left a general ethics punishment void, as there appear to be few effective enforcement sanctions for official behavior that, while clearly improper, does not rise to the level of a federal crime. In New York State, it seems to be either a federal crime, or bust.
The suggestion here is that in order to remedy significant misconduct, we go back in time and start reusing the power of the governor to remove public officials.
The Governor’s Removal Powers
Under the State Constitution and the applicable statutes, the governor enjoys broad removal power over local and state officers. Under the Constitution, “the governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected.” In dealing with crimes involving bribery, “any district attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision of this article which may come to his or her knowledge, shall be removed from office by the governor, after due notice.”
For State officials, the Constitution provides “Except as otherwise provided in this constitution, the heads of all other departments and the members of all boards and commissions, excepting temporary commissions for special purposes, shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner to be prescribed by law.”
Finally, the Constitution gives the Legislature the right to provide generally for the power and procedure for removals from office.
Section 33 of the Public Officers Law adds to the listing of officers removable by the governor. They include “officer appointed by the governor for a full term or to fill a vacancy, whose appointment is not required by law to be made by and with the advice and consent of the senate, any county treasurer, any county superintendent of the poor, any register of a county or any coroner, except as otherwise provided by special provisions of law.” Also removable by the governor are “the chief executive officer of every city and the chief or commissioner of police, commissioner or director of public safety or other chief executive officer of the police force.” The governor, for example, can remove the mayor of the City of New York, as well as the City police commissioner, a borough president, the comptroller, and the public advocate.
In addition to the Public Officers Law’s § 33 powers, the series of laws that have been enacted to deal with municipal financial crises in New York give the governor significant additional removal powers. These laws further enhancing the governor’s removal powers over municipal officers and employees include the laws establishing the Nassau County Interim Finance Authority, the Buffalo Fiscal Stability Authority, the Erie County Fiscal Stability Authority, the New York State Financial Emergency Act for the City of New York, and the New York State Financial Emergency Act for the City of Yonkers.
Section 34 of the Public Officers Law provides for the manner in which the governor can exercise his or her removal powers. The governor need not personally investigate or hear the removal case. The governor can appoint a State judge, a county judge or an individual appointed by the governor to hold the hearing on the removal case and to make findings on the case to the governor. The governor can request a local district attorney or the attorney general to help investigate the removal case in order to provide assistance to the person designated by the governor to report on the removal decision. Accordingly, the Public Officers Law provides a governor with numerous options on how to handle a removal proceeding. The governor can handle the removal proceedings personally. Conversely, the governor can delegate much of the fact finding and the investigatory portion of the removal proceedings to individuals designated by the governor.
Short History of Gubernatorial Removals
Up until the first third of the twentieth century, gubernatorial removals were considered a major part of the governor’s powers. Many of the most illustrious governors of the state – Charles Evans Hughes, Al Smith, Franklin Roosevelt, Theodore Roosevelt – all were involved significantly in removal proceedings. In probably the most famous removal proceeding, Governor Franklin Roosevelt heard the removal proceeding against New York City mayor Jimmy Walker in 1932. While Walker resigned before a decision was reached, Roosevelt’s handling of the case convinced many observers that he was not merely a jovial lightweight and that he had the gravitas needed to serve as president.
The last time that the power of the governor was invoked to remove an official was in 1974 when Governor Malcolm Wilson initiated removal proceedings and charges against the sheriff of Schoharie County. The sheriff, however, forfeited his office before the charges were heard, and Governor Wilson did not hold any formal proceedings against the sheriff.
The last major removal case to have been determined by a governor seems to be the decision of Governor Herbert Lehman not to remove Kings County Attorney William F.X. Geoghan in 1936.
While there may have been no formal removal cases in the past 80 years, there actually is a rich and full body of precedents on how the removal power is to be exercised. These have involved decisions on removal standards by a former chief justice of the United States in Governor Hughes as well as statements by former presidents Franklin and Theodore Roosevelt. Governor Samuel Tilden, the State’s governor in the wake of the infamous Tweed Ring, provided his views on the nature of removals. In short, there are perceptible standards that are in place that can be used to deal with gubernatorial removals.
Utility of the Removal Powers
It is actually somewhat surprising that the removal powers have not been utilized in recent years. We have had activist governors such as Eliot Spitzer and Andrew Cuomo who clearly believe that the best defense is a good offense. The removal power can demonstrate that the governor is on the offensive on ethics issues.
As mentioned previously, another advantage of the removal powers is that governors can largely choose their levels of involvement. A governor in a major case can serve as the factfinder and actually hold the hearing. In minor cases, or in cases where the officer seeking to be removed is a political opponent of the governor, the governor might choose a widely esteemed factfinder and appoint the State attorney general to assist the factfinder’s investigation. This would permit a governor ‒ initiating a removal processing – to be almost totally neutral in judging the actual removal of the officer. The removal power can make a governor both an activist and a neutral.
There are also numerous available candidates for potential removals. There is low hanging fruit among State board members. The Public Officers Law allows for the creation of vacancies whenever a member of a board, authority or commission appointed by the governor has three consecutive unexcused absences. The governor could work with the division of the budget and the independent authorities budget office to identify such individuals and have them removed for nonfeasance.
In recent months, the conduct of several county district attorneys has been called into question. The County Executive in Suffolk County has urged the District Attorney in that county to resign and has threatened to go to the Governor’s office to have the District Attorney removed. The conduct of the District Attorney in Rensselaer County has been put into question after the District Attorney proceeded to present a case to a grand jury where jurisdiction over the case appeared to be lodged with the State Attorney General. The county legislature in St. Lawrence County has voted that it has no confidence in the county District Attorney and has called on the State to review her actions.
In New York City, there had been speculation that the Governor would be called upon to consider the removal of former comptroller John Liu in 2012. With both federal and State prosecutors reviewing the conduct of New York City mayor Bill DeBlasio, there may be calls for the Governor to review the conduct of the Mayor.
In short, there may be ample targets should the Governor decide to utilize the removal powers vested in that office. The removal powers give the Governor significant powers over local and State officials. It gives the Governor the opportunity to impose and apply meaningful sanctions without having to be involved in the criminal process. There is also considerable precedent on how the removal process can be utilized.
From a political perspective, it affords a governor the ability to be an activist in pursuing corruption and malfeasance in government. At the same time, the procedures in Section 34 of the Public Officers Law would allow the governor to be almost a neutral noncombatant in the actual process of investigating and adjudicating any removal decision.
The removal process could work both on a public policy and on a political level. It can provide effective penalties for official misconduct. Similarly, it could provide political benefits to a governor who wanted to be proactive in pursing corruption. It is surprising that this power has fallen out of favor over the past 75 years.
 State Finance Law § 139-j.9; NYCRR § 8.3; 19 NYCRR § 932.7.
 9 NYCRR § 4.189.
 Executive Law § 94.
 Legislative Law § 80.
 22 NYCRR § 7400.4.
 Executive Law § 52.
 Racing, Pari-Mutuel Wagering and Breeding Law § 1368.
 Executive Law § 46.
 Workersʼ Compensation Law § 136.
 Public Authorities Law § 1279.
 Public Health Law § 31.
 Unconsol. Laws § 6405.
 Executive Law § 552.
 9 NYCRR § 5.86.
 7 NYCRR §5.52; 7 NYCRR § 701.8.; 7 NYCRR § 1901.2.
 Racing, Pari-Mutuel Wagering and Breeding Law § 206.
 Public Officers Law § 74.
 General Municipal Law § 806.
 2 NYCRR § 320.5.
 Public Officers Law § 73-a; General Municipal Law §§ 811, 812; N.Y. Ct. Rules § 40.2.
 Westlaw Journal Government Contract, “New York Fights Fraud Against State Government,” March 7, 2011.
 Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective, University of Chicago Press (1996).
 Joseph Spector, “Preet Bharara: The Man Behind NY Corruption Busting,” Rochester Democrat and Chronicle, December 27, 2015.
 Herbert M. Suskin, “Federal Prosecution of Local Corruption,” 29 University of Miami L. Rev. 390 (1975); Herbert J. Stern, “Prosecutions of Local Political Corruption under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion,” 3 Seton Hall L. Rev. 1 (1971). See also United States v. Addonizio, 451 F.2d 49, 72 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).
 See Paul Hoffman, Tiger in the Court, Playboy Press (1973). The book is subtitled “The US Attorney who Prosecuted 8 Mayors, 2 Secretaries of State, 2 State Treasurers, 2 Powerful Political Bosses and 64 other Public Officials.” See also Herbert J. Stern, Diary of a DA: The True Story of the Prosecutor Who Took on the Mob, Fought Corruption, and Won, Skyhorse Publishing (2012).
 United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982).
 United States v. Alexander, 860 F.2d 508 (2d Cir. 1988).
 United States v. Biaggi, 672 F. Supp. 112 (S.D.N.Y. 1987); aff’d 909 F.2d 662 (2nd Cir. 1990), cert. denied, sub nom. Simon v. United States, 499 U.S. 904 (1991).
 United States v. Friedman, 854 F.2d 535, cert. denied, Lazar v. United States, 490 U.S. 1004 (1989).
 The federal conviction of New York State Assembly Speaker Melvin Miller was overturned in U.S. v. Miller, 997 F.2d 1010 (2nd Cir. 1993).
 In the 1970’s and the 1980’s, the district attorney’s offices in New York City prosecuted Assembly Speaker Perry Duryea and Assembly majority leader John Kingston, People v. Duryea 76 Misc.2d 948 (Sup. Ct. 1974), aff’d 44 A.D.2d 663 (1st Dept. 1974); Assembly Speaker Stanley Steingut (Steingut v. Gold, 54 A.D. 2d 481 (2nd Dept. 1976) aff’d 42 N.Y. 2d 311 (1977), and Senate minority leader Manfred Ohrenstein, along with several other senators. (People v. Ohrenstein, 153 A.D.2d 342 (1st Dept. 1989), aff’d 77 N.Y. 2d 38 (1990). In 2007, based on prior State investigations, the Albany County district attorney did prosecute State Comptroller Alan Hevesi.
 N.Y. Const. art. XIII, § 13(a).
 N.Y. Const. art. XIII, § 13(b).
 N.Y. Const. art. V, § 4.
 N.Y. Const. art. XIII, § 5.
 Public Officers Law § 33.1.
 Public Officers Law § 33.2.
 NYC Charter § 9.
 NYC Charter § 431.
 NYC Charter § 81.
 NYC Charter § 92.
 NYC Charter § 24.
 Public Authorities Law § 3669.4.(c).
 Public Authorities Law § 3858.3.(c).
 Public Authorities Law § 3959.3.(c).
 Unconsol. Laws, Ch. 22, § 1.3.
 Unconsol. Laws, Ch. 23, § 11.3. See also New York State Financial Emergency Act of Nineteen Hundred Eighty-four for the City of Yonkers, Unconsol. Laws, Ch 23-A, § 12.3.
 Public Officers Law §34.1.
 Public Officers Law §34.3.
 Public Officers Law §34.2.
 Public Papers of Governor Malcolm Wilson, 766 (1974).
 Id. at 772.
 Public Papers of Governor Herbert Lehman, 728 (1936).
 See for example “Memorandum by Counsel for District Attorney Geoghan Accompanying Answer to Charges Setting Forth Decisions of Governors and Their Commissioners in Removal Proceedings,” Public Papers of Governor Herbert Lehman 701 (1936). See also “The Counsel to Proponents Submits Memorandum Relating to General Principles Applicable to the Governor’s Decision in Removal Decisions,” Public Papers of Governor Herbert Lehman 710 (1936); “Opinion In the Matter of the Charges against John F. Ahearn, President of the Borough of Manhattan, in the City of New York,” Public Papers of Governor Charles Evans Hughes 275 (1907).
 “Letter of Hon. Samuel J. Tilden to the Hon. Wm. H. Wickham, “February 17, 1875, in 1 Proceedings at the Trial of Joel B. Erhardt, DeWitt C. Wheeler and Sidney P. Nichols before Hon. Smith Ely, Jr., Mayor of New York, Dec. 20, 21 and 22, 1877 (1877).
 Public Officers Law § 30.3.
 Public Authorities Law § 4.
 David Winzelberg and Claude Solnik, “Bellone Calls for Spota to Resign,” Long Island Business News, May 12, 2016.
 Joye Brown, “Steve Bellone Pushes Fight With Thomas Spota to New Level,” Newsday, May 15, 2016.
 “The AG vs. the DA,” New York Post, May 2, 2016.
 Susan Mende, “County Wants Rain Probe,” Ogdensburg Journal, April 19, 2016.
 “How to Bounce Liu,” New York Post, March 3, 2012; Jon Lentz, “What Happens If John Liu Resigns?,” City and State, February 29, 2012.
 See “Corruption Probes in N.Y. State: A Primer,” Buffalo News, May 8, 2016.
By Bennett Liebman
Government Lawyer in Residence
Albany Law School
We have witnessed for many months extraordinary media attention paid to the lead contamination problems in Flint, Michigan. In New York State, we have seen water safety issues raised in the village of Hoosick Falls in Washington County and nearby Petersburgh in Rensselaer County.
The dangers of lead exposure are well established. “Tiny doses of lead cause subtle damage to the developing brains of children that can trigger learning disabilities and violent behavior later in life.” “High lead levels can lead to various cognitive problems, including developmental and behavior issues, such as ADHD, learning disabilities, lower IQ and the possibility of permanent brain damage.” The Centers for Disease Control (CDC) state, “Lead poisoning can cause learning disabilities, behavioral problems, and, at very high levels, seizures, coma, and even death.” The decline in lead exposure since the 1970’s has given rise to “markedly higher IQs, increased economic potential, and, quite likely, considerably lower rates of crime and teenage pregnancy. (Lead poisoning reduces impulse control as well as cognitive functioning.) It feels callous to reduce the protection of young brains to an economic calculation, but the economic benefits have surely been staggering: By one careful estimate, they add up to $260 billion per year.”
Yet, many other areas of upstate New York have lead contamination issues that seem to be far more serious than the problems revealed in Flint. While these New York State problems may be due to apathy and neglect, rather than to specific governmental actions, the data seem to indicate a major need for government actions in certain areas of upstate New York to reduce lead hazards.
What are the exact parameters of the lead exposure for children in New York State? The main source of this data derives from the CDC. The CDC believes that “no safe blood lead level in children has been identified,” but it specifically views lead blood levels above five micrograms per deciliter (µg/dL) as the reference level at which “health actions be initiated.” Until 2012, the 10 µg/dL level was the stated level of concern for lead levels. In 2012, the CDC changed the standard to move to a lower 5 µg/dL level. The CDC no longer utilizes the “level of concern” language but believes that the 5 µg/dL level is the appropriate “reference value to identify children who have been exposed to lead and who require case management.” This finding was based on a number of scientific studies showing that lead blood levels below 10 µg/dL can cause lifelong health effects.” The CDC believes that 97.5% of children from ages 1-5 have blood levels below 5 µg/dL.
In order to achieve the goal of reducing lead poisoning and prevention of lead exposure, the CDC works with most ‒ but not all ‒ states and the District of Columbia to test for lead exposure in children under age six. New York is one of those states that conducts lead testing.
In New York State, the statistics on lead blood levels are divided and separated between New York City and the remainder of the state. New York City would seem to represent a major triumph of public health policy. In 1997, 3.3% of children had lead blood levels above 10 μg/dL. By 2014, that number had been reduced to .29%, well below the national average. In 2014, in New York City, only 2.2% of children had lead blood levels above 5 μg/dL, again a number well below the national average. New York City’s children have a lead exposure level that is 37% below the national average, despite the fact that New York City has some of the oldest housing stock in the nation, especially in boroughs such as Manhattan and Brooklyn.
The picture is not as pretty in areas of New York State excluding New York City (NYS*). The 2014 levels of children with lead blood levels in excess of 10 µg/dL levels was 1.46%, nearly 2.75 times the national level. No state has a higher percentage of children with lead blood levels over 10 µg/dL than NYS*. The percentage of children with lead blood levels of 5µg/dL in NYS* was 6.67%, again a number that is 90% higher than the national average.
To put these statistics into context, in Flint, Michigan, the percentage of children with lead blood levels in excess of 5 µg/dL went from 3.1% in 2013 to 3.9% in 2014, and was at 3.3% in 2015. In the six-month period between October 1, 2014 and April 1, 2015, the percentage of children in Flint with lead blood levels in excess of 5µg/dL was 1.9%. Again, the NYS* numbers are far higher than any of the numbers coming out of Flint.
When you break out the NYS* blood level numbers by county, it also becomes apparent that the suburbs near New York City – which are wealthier and have a statistically smaller percentage of housing built before 1950 ‒ have fewer problems with lead levels. Thus, the lead blood levels in counties such as Nassau, Suffolk, Westchester, Rockland, and Putnam are not anywhere near the average levels of upstate New York.
On the other hand, in upstate New York, most every county has a higher rate of lead blood levels in children than Flint had at its worst times. Only the counties of Dutchess and Hamilton had levels below that of Flint in 2014. There are 16 counties (out of a total of 57 in NYS*) where more than 10% of the children tested had lead blood levels in excess of 5 µg/dL. There are eight counties in NYS* where more than 12% of the children had lead blood levels in excess of 5 µg/dL.
A number of the counties in upstate New York where more than 12% of children had lead blood levels in excess of 5 µg/dL lie along the New York State Thruway corridor. Many of these counties in this traditional rust belt area have an aging housing stock, but their housing stock is generally not as old as the housing stock in Manhattan or Brooklyn in New York City. Brooklyn, with 58.5% of its housing stock constructed before 1950 and with the second highest level of poverty for children under age six in the state, had 2.8% of its children with lead blood levels over 5µg/dL. That is compared to the average lead blood level in NYS* of 6.6%.
These Thruway counties moving from the east towards the west – where more than 12% of the tested children had blood lead in excess of 5µ/dL ‒ include Montgomery (the city of Amsterdam), Fulton (the cities of Gloversville and Johnstown), Oneida (the city of Utica), Cayuga (the city of Auburn), Orleans County (the city of Albion), Erie County (the city of Buffalo) and Chautauqua County (the cities of Dunkirk and Fredonia).
These counties along the Thruway with the highest percentage of tested children with lead blood levels in excess of 5µg/dL were, in order: Fulton (24.7%), Oneida (21.7%) Montgomery (19%), Orleans (17%), Cayuga (15.8%), Erie (13.9%) and Chautauqua (12.3%).
Among the non-Thruway area counties, Washington County – the home of Hoosick Falls ‒ and Yates County in central New York also were counties where more than 12% of the tested children had blood lead in excess of 5µ/dL levels. The percentage of tested children with lead blood levels in excess of 5µ/dL was 15.1% in Washington County. In Yates County, the percentage was 14.7%.
What do these counties with elevated lead levels seem to have in common? Almost all eight counties have a high percentage of housing constructed before 1950. Montgomery County even has a higher percentage of pre-1950 housing units than Brooklyn with 61.7% compared to Brooklyn’s 58.5%.
They also are generally poorer counties. Of New York State’s 62 counties, none of the eight counties mentioned above were in the top third of New York’s wealthiest counties. Except for Erie County, which ranked 21st of 62 counties in per capita income, all the other counties mentioned were in the bottom half of per capita income in New York State.
Finally, while there have been allegations about racial issues involved with lead exposure levels in Flint, that would not appear to be the case in NYS*. Based on the census data, the affected counties are overwhelmingly white.
The percentage of whites in these counties include Yates (97.2%), Washington (94.6%), Fulton (93.8%) Cayuga (91.3%), Chautauqua (89.3%), Orleans (87.8%), Montgomery (85%), Oneida (84.8%) and Erie (80.3%). The overall percentage of the white population of New York State was 70.4%. There might be a racial aspect to lead exposure in Erie County, where most of the tested children apparently resided in the city of Buffalo, but other than in Buffalo, this issue in upstate New York can hardly be regarded as racially based.
There has been some recognition of this upstate lead crisis by public officials, at least in Erie County. In February of 2016, Attorney General Eric Schneiderman “announced that he is investing an additional $346,825 in the Buffalo Green and Healthy Homes Initiative (GHHI Buffalo) to significantly increase the initiative’s home lead hazard intervention and remediation efforts.” New York State Senator Charles Schumer proposed “a new $3,000 homeowner tax credit for any property owner who abates the lead paint problem in a property he or she owns. The tax credit would be available to homeowners earning $110,000 a year or less.” Schumer pointed out that lead exposure for children five and younger was 4% in Flint but 14% in Erie County. The Buffalo News has recognized that young children in Western New York suffer a higher rate of lead poisoning than those in Flint, Michigan, where state officials decided to save a little money by using river water as the city’s water supply.”
Yet, while there has been evidence of some activity in Erie County, there appears to be limited interest in reducing lead exposure in the rest of upstate New York. This is a critical health crisis. It is far worse than Flint. It is also a problem that government can actually solve. Government has greatly reduced lead exposure in the past, and the New York City experience has shown that government can nearly eliminate lead exposure even in poverty-stricken areas with an aging – if not ancient ‒ housing stock. This should not be brain surgery. Political will and a financial commitment can and should eliminate this major New York State health problem.
 Jesse McKinley, “Water in Upstate Village Cleared of Pollutant, Cuomo Says in Visit,” New York Times, March 14, 2016; Jesse McKinley, “Link to Teflon Tainted Water, A Village Fears,” New York Times, February 29, 2016 (dealing with chemical known as PFOA).
 Mary Esh, “Chemical in Water Drawing Fire,” Baltimore Sun, March 18, 2016; Vivian Yee, “Tainted-Water Worries Spread to Vermont Village,” New York Times, March 15, 2016 (also PFOA).
 Michael Hawthorne, “Lead Still Stalks City’s Kids,” Chicago Tribune, May 3, 2015.The blogger Kevin Drum has been most vocal about the linkage between lead exposure and crime. See Kevin Drum, “Lead and Crime: Some New Evidence from a Century Ago,” Mother Jones, January 4, 2015. http://www.motherjones.com/kevin-drum/2015/01/lead-and-crime-some-new-evidence-century-ago, Kevin Drum, “Lead and Crime: It’s a Brain Thing,” Mother Jones, February 3, 2014. http://www.motherjones.com/kevin-drum/2014/02/lead-and-crime-its-brain-thing [last viewed April 11, 2016].
 Michael D. Terranova, County Legislators Must Help Prevent Lead Poisoning,” Buffalo News, April 3, 2016.
 “Childhood Lead Poisoning,” http://www.cdc.gov/nceh/lead/factsheets/Lead_fact_sheet.pdf [last viewed April 10, 2016].
 Jacob S. Hacker and Paul Pierson, “The Real Cause of the Flint Crisis,” Atlantic Online, March 7, 2016 [last viewed April 11, 2016].
 http://www.cdc.gov/nceh/lead/acclpp/blood_lead_levels.htm [last viewed April 10, 2016].
 “Blood Lead Levels in Children,” http://www.cdc.gov/nceh/lead/acclpp/lead_levels_in_children_fact_sheet.pdf [last viewed April 10, 2016].
 See Sarah Frostenson, “America Does a Terrible Job Tracking How Many Kids Have Lead Poisoning,” Vox, February 5, 2016. “Twenty-one states do not regularly submit data to the CDC on lead surveillance programs in their states. Eleven of those 21 states do not submit any kind of lead surveillance data to the CDC — no state-level or county-level data.” [last viewed April 11, 2016].
 For purposes of this paper, the term “children” will refer to all individuals under age six.
 “Number of Children Tested and Confirmed BLL’s ≥10 µg/dL by State, Year, and BLL Group, Children < 72 Months Old, http://www.cdc.gov/nceh/lead/data/Website_StateConfirmed ByYear_1997_2014_01112016.htm [last viewed April 10, 2016]. This is the source utilized for all statewide and national data.
 In general, on this topic see Hacker and Pierson, supra at note 6.
 The closest state to NYS* is Pennsylvania with 1.28% of children with lead blood levels in excess of 10 µg/dL. The percentage of children with blood levels in excess of 10 µg/dL is 14% higher in NYS* than in Pennsylvania.
 “Number of Children Tested,” supra at note 15. It should be noted that the percentage of children’s lead blood levels in NYS* above 10 µg/dL was 6.31% in 1997 and has been reduced considerably over the past two decades. Pennsylvania’s percentage of children with lead blood levels in excess of 5µg/dL is even higher than that of NYS*, reaching 8.5%.
 Michigan Department of Health and Human Services (MDHHS) “Blood Lead Level Test Results for Selected Flint Zip Codes, Genesee County, and the State of Michigan Summary as of April 1, 2016,” http://www.michigan.gov/documents/flintwater/Flint_Blood_Testing_Report_01Apr2016_520549_7.pdf [last viewed April 10, 2016].
 Id. “Of children younger than 6 years old tested between 10/1/2015 and 4/1/2016, 1.9% from Flint zip codes 48501-48507 and 0.3% from an Additional Impacted Location had blood lead levels greater than or equal to 5 mcg/mL.”
 It needs to be noted that there is no indication in the county New York State numbers on how officials determined the sampling size and what areas and/or children inside the specific counties were targeted for testing. All the county data is from “CBLS County-level Summary Data for NY, 2014,” which can be accessed through http://www.cdc.gov/nceh/lead/data/state/nydata.htm [last viewed April 11, 2016].
 3.13%. Again, this data is from “CBLS County-level Summary Data for NY, 2014,” supra at note 22.
 Hamilton, which is New York’s smallest county, had no cases where a child lead blood level exceeded 5 µg/dL. Only 11 children were tested in Hamilton County in 2014.
 These counties are Chautauqua, Erie, Fulton, Montgomery, Oneida, Orleans, Yates and Washington.
 The statistics show that in Manhattan 54.4% of the housing stock and in Brooklyn 58.5% of the housing stock was built before 1950. This data is from the 2000 United States census. “CBLS County-level Summary Data for NY, 2014,” accessed through http://www.cdc.gov/nceh/lead/data/state/nydata.htm.
 The State Thruway does not run through Fulton and Orleans County, but is runs extremely close to these counties.
 For the age of housing as a risk factor, see, Sarah Frostenson and Sarah Kliff,“The Risk of Lead Poisoning Isn’t Just In Flint,” Vox, April 6, 2016, http://www.vox.com/a/lead-exposure-risk-map [last viewed April 11, 2016].
 See generally New York locations by per capita income, https://en.wikipedia.org/wiki/New_York_locations_by_per_capita_income using information from Census data.
 All the data on race in New York is derived from Census Bureau, QuickFacts, New York http://www.census.gov/quickfacts/table/PST045215/36,36029,36115 [last viewed April 11, 2016].
 T.J. Pignataro, Susan Schulman and Sandra Tan, “Legislature Must Still Approve Paying for Lead–Poisoning Initiative,” Buffalo News, March 9, 2016.
 By contrast, see Nicholas Kristof, “When Whites Just Don’t Get It, Revisited,” New York Times, April 3, 2016.
 http://www.ag.ny.gov/press-release/ag-schneiderman-announces-funding-fight-childhood-lead-poisoning-buffalo-0 [last viewed April 8, 2016].
 Jerry Zremski, “Schumer Proposing Tax Credit, Buffalo News, February 25, 2016. https://www.schumer.senate.gov/newsroom/press-releases/schumer-announces-new-legislation-to-combat-major-lead-crisis-plaguing-upstate-ny-senator-says-congress-must-vote-on-bill-to-help-homeowners-in-upstate-ny-remove-hazardous-lead-from-their-homes [last viewed April 8, 2016].
 “WNY’s Catastrophe; High Rate of Lead Poisoning in Children Cries Out for a Many-Sided Plan of Action,” Buffalo News, March 6, 2016.
By Bennett Liebman
Government Lawyer in Residence
Albany Law School
Governor Andrew Cuomo for the year 2016 has decided that he will not give his annual State of the State remarks when the legislature reconvenes on Wednesday, January 6, 2016. Instead, he has chosen to give a combined State of the State/executive budget address on Wednesday, January 13, 2016.
Last January, Governor Andrew Cuomo, following the death of his father, former Governor Mario Cuomo, on January 1, also decided not to deliver his annual State of the State remarks when the State legislature reconvened on Wednesday, January 7, 2015. Instead, he delivered his remarks on Wednesday, January 21, 2015, two weeks after the original time of the State of the State. At that time, he also combined both the State of the State and the annual budget addresses.
The question has arisen as to what legal constraints are in place that might limit the Governor’s ability to change the timing of his State of the State remarks and to combine the State of the State with the budget presentation. What precedents are there on the delivery of these remarks?
The Timing of the State of the State Address
In a 2015 article for the Government Law Center, I previously noted that there were no limitations on changing the timing of the State of the State address. “The legal issue is governed by Article 4, Section 3 of the State Constitution which provides that the governor ‘shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he shall judge expedient.’” In short, there was nothing in the Constitution governing the timing of the State of the State address, leaving the governor free to set the time for his State of the State address.
On its face, this provision states nothing about the timing of the communication. Thus, there is no Constitutional requirement governing the timing of the governor’s message. The governor is free to deliver this message at whatever time he or she might wish.
The Need for a State of the State Speech
The State Constitution does not even require that the governor deliver a State of the State speech to the legislature. All the Constitution requires is a “message.” This is not idle language. The State of the State requirement has largely been unchanged since the 1821 Constitutional Convention. At that Convention, delegate Peter Robert Livingston wanted to make sure that only a message and not a formal speech would be required. A message would not necessitate the legislature to convene in Albany. A message would not cost the State the time and the expense of the individual legislators.
Based on this non-requirement of a speech, New York governors for a century simply delivered written messages to the legislature. The speech element was not added until Governor Alfred Smith took office in 1923.
This basically tracked what was happening on the federal level, where no oral State of the Union message was delivered between the time of Thomas Jefferson’s presidency until Woodrow Wilson took office in 1913.
Smith’s 1923 remarks were the first time that a “Governor of this State has delivered his message in person.” In prior years, the message would be given by the governor’s secretary to the clerks of the individual houses who would read the message to the members. Smith claimed, “It will at least mean that the legislators will remain in their seats to hear it, as least as far as I am concerned, for I shall not skim through it as I have heard some clerks of the Assembly do.” It should be noted that the early 1920’s represented the beginning of major radio broadcasting across the nation, and it could be that the ability of a governor to deliver a speech directly to the people at home may have been a factor in the decision to deliver the State of the State in person.
Smith delivered his State of the State remarks orally to the legislature in 1923, 1924, 1925 and 1926. In his last two years as governor, Smith waived off the actual State of the State speech. In 1927, upon doctor’s orders, he chose not to deliver a State of the State speech. The 1928 message, with Smith a candidate for the presidency, was the longest message ever, encompassing 35,000 words, and Smith chose not to deliver it. Smith joked, “I wanted to go to New York Friday so I decided I would have to forego the reading of the message Wednesday.”
All governors since Smith have given their State of the State messages in person. The speeches have been broadcast, and governors have generally, unlike Governor Smith, kept their remarks to a more manageable time period.
The Constitutional Requirements for Budget Submission
Unlike the State of the State address, the State Constitution does provide some guidance for the time in which the governor is to submit the executive budget. In years not following a gubernatorial election, the budget is to be submitted before the second Tuesday following the first day of the legislative session. In 2016, that date would be January 19. In years following a gubernatorial election, the executive budget is to be introduced by February 1. This would, in theory, provide a newly elected governor with some extra time to prepare a budget. There is nothing in the Constitution, however, which precludes governors from submitting their executive budget before the dates provided in the Constitution. Thus, Governor Cuomo can appropriately deliver the executive budget (address?) on January 13, 2016 even though he has until January 19, 2016 to (submit?) the budget.
The Requirement of a Gubernatorial Budget Speech
There is no requirement whatsoever for the governor to deliver any speech or remarks in conjunction with the executive budget. The Constitution provides for the submission to the legislature of a “budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues to be available therefor.” There never has been anything resembling a speech requirement.
Nonetheless, certain gubernatorial budget traditions have developed over time. The first executive budget was submitted by Governor Franklin Roosevelt in 1929. At that time, Governor Roosevelt developed the so-called “budget school.” Before the budget was submitted, the Governor would have off-the-record briefings and question and answer sessions with the media on the budget. There would generally be two budget schools – one for correspondents and one for editorial writers. Any information gathered at the budget school would be held confidential until after the budget itself was released. So while there was no budget speech, there were gubernatorial media briefings on the budget.
The budget school approach was continued by Governor Herbert Lehman throughout his ten years as governor. The New York Times reported that the school gave “the Governor a chance to explain the budget and to give the newspapermen a chance to ask questions to clear up problems which may arise in their minds. It has generally been regarded as exceedingly helpful . . .”
Governor Thomas Dewey also continued the budget school in his early years in office. After his first term, he expanded upon the budget school and conducted a separate budget school for his fellow Republican members of the legislature.
Future governors continued to conduct budget schools, but the legislative school was expanded to include members of both parties. With three briefings, the briefing for the newspaper editors and editorial writers was moved to be held at night at the Executive Mansion. In fact on one occasion, Democratic Congressman Samuel Stratton criticized Governor Rockefeller for serving French (rather than New York State?) wine at the budget school held at the Executive Mansion.
Also, with the increase in the number of budget schools, there was no longer any need to place limitations on the news emanating from these schools. Instead, on the day that the budget was submitted, the governor would hold budget schools with the legislators, the Albany-based media correspondents, and the editors/editorial writers. The information garnered in these sessions was on the record.
In New York State, “governors usually began their presentation . . . with a performance of the speech and slide show before the statehouse press.” This was followed by a legislative briefing and ultimately by an evening briefing for the editors and editorial writers. So, for the first 60 plus years after the executive budget had been adopted in New York State, there was no gubernatorial budget speech. The governor gave a series of budget briefings.
This changed with Governor Pataki. He began to deliver a formal budget address in the large (Kitty Carlisle Hart?) theater in the Empire State Plaza in Albany. Instead of briefings and/or question and answer sessions, the Governor gave a detailed speech on the budget to an audience far larger than the audience in the Assembly Chamber, where the State of the State was given. Only with Governor Pataki did the notion of a budget speech actually begin.
So clearly Governor Andrew Cuomo is doing nothing remotely improper in combining the State of the State address with the gubernatorial budget speech. Neither speech is required by the State Constitution, and the budget speech itself is of a fairly recent vintage.
The unification of the speeches has both plusses and minuses for a governor. Instead of two significant opportunities for statewide and national publicity, the governor only gets one. On the other hand, the news coming out of a budget address is not always upbeat, and a governor can obscure any bad news in the budget by packaging it within the loftier aspirational goals of a State of the State speech. Also, the combined speech – with no provision for questioning the governor – makes sure that the governor’s budget is not subject to the same level of inquiry as in the budget school days of the past. The governor ends up with less media attention but at the same time less media scrutiny.
 Yancey Roy, “Cuomo to Combine Budget, State Of State Addresses,” Newsday, December 8, 2015; Kenneth Lovett, “Shel Plays It Cool, Guilty Silver Acting ‘Normal,’ Tells Pals He’ll Win Appeal,” New York Daily News, December 7, 2015.
 See Bennett Liebman, “Changing the Timing of the State of the State Address,” https://governmentreform.wordpress.com/2015/02/26/changing-the-timing-of-the-state-of-the-state-address/.
 Livingston subsequently served both as the Speaker of the State Assembly and the President Pro Tem of the State Senate.
 Robert Allan Carter, New York State Constitution: Sources of Legislative Intent (2nd edition), p. 35 (2001). See also Constitutional Convention of 1821, Reports of the Proceedings and Debates, p. 173.
 “Smith to Read First Message on Wednesday,” New York Herald Tribune, December 30, 1922.
 Associated Press, “Gov Smith Faces G.O.P. Majority,” Boston Globe, January 4, 1928.
 Theodore C. Wallen, “Smith to Give Nation Views In Message of 35,000 Words,” New York Herald Tribune, December 29, 1927.
 “Smith Feared Message Would Take Up 3 Days,” New York Herald Tribune, January 4, 1928.
 New York State Constitution, Article 7, Section 2.
 New York State Division of the Budget, The Executive Budget in New York State, p. 68 (1981).
 Id. “The contents of the budget are regarded as a secret in the interim between the school and the submission of the document to the Legislature, with no further speculation permitted.” “‘Budget School’ Planned,” New York Times, January 25, 1943.
 “Lehman Will Conduct State Budget School,” New York Times, January 19, 1940. See also “Lehman Bids Press to ‘Budget School,’” New York Times, January 25, 1940.
 “‘Budget School’ Planned,” supra at note 16; “Dewey Cut Likely in State Expenses,” New York Times, January 28, 1944. An explanation of the Dewey budget school briefing can be found at John Mooney, “Governor Dewey Briefs Reporters on His Annual Budget,” Albany Knickerbocker News, January 29, 1951.
 “Press Studies State Budget,” Albany Times Union, January 20, 1947; “School Lunch Funds Sought,” Amsterdam Evening Recorder, January 28, 1947.
 “Finger Lakes Wines Best–Stratton,” Interlaken Review, March 21, 1968.
 Dall W. Forsythe and Donald J. Boyd, Memos to the Governor: An Introduction to State Budgeting, p. 6, 2012 (3rd edition). The authors report that Governor Mario Cuomo spent more time in answering questions than on his formal presentation.
 See for example, “Week Ahead,” Rochester Democrat and Chronicle, January 15, 2006; Joseph Dolman, “Pataki School-Fund Plan Looks Like a Gamble,” Newsday, January 21, 2004.
 Governor Andrew Cuomo basically followed in Governor Pataki’s footsteps when in 2011 he started giving the State of the State address in the Empire State Plaza and not in the Assembly Chamber.
By Bennett Liebman
Government Lawyer in Residence
In response to numerous indictments of state elected officials, convictions and a political climate where public corruption appeared to be running rampant, Governor Andrew Cuomo established a Moreland Act Commission to review public corruption in June of 2013.  The purpose of the 25-member Commission, per Governor Cuomo, was that it was “critical that the laws, regulations and procedures regulating conduct by public officials, the electoral process and financing of campaigns are strong, effective and comprehensive, and are fairly and vigorously enforced to promote public confidence in State government.” The Commission, however, was short-lived. As part of the 2014 budget arrangement with the legislature, the Governor terminated the operation of the Commission in April of 2014. The abrupt end of the Commission inspired numerous narratives that it was terminated due to unspecified political arrangements and/or due to efforts to avoid politically sensitive investigations. The investigation into the termination of the Moreland Commission by the United State Attorney for the Southern District seems to be ongoing.
Yet, this is hardly the first time that New York State investigatory commissions have been terminated in the midst of allegations of political deals and efforts to quash sensitive investigations. New York State has seen a series of commissions and commissioners whose termination was alleged to have been caused by political arrangements and considerations.
Thomas Dewey – Daniel O’Connell 1943-1946
Perhaps the New York prototype for the controversial ending of an investigatory/prosecutory commission was Governor Thomas Dewey’s investigation of the Democratic machine of Albany County run by legendary boss Daniel O’Connell. Dewey had assailed the O’Connell machine in his unsuccessful campaign for election as Governor of New York in 1938. He continued criticizing the O’Connell machine in his successful 1942 election for Governor. After becoming Governor, Dewey authorized investigations by the State Tax Commission into Albany County’s real estate assessment practices and by the State Attorney General into election matters. Dewey followed up on these preliminary investigations by establishing, via an executive order, a special prosecutor to investigate electoral abuses in Albany County. In November of 1943, Dewey, in conjunction with Attorney General Goldstein, named attorney George Monaghan to head the investigation. Monaghan had been an assistant to Dewey when Dewey had served as the district attorney in New York County.
Monaghan indicted and convicted a series of low-level Albany officials , but was largely unsuccessful in reaching O’Connell or the heart of the Albany machine. Dewey and Monaghan ended the investigation in early 1946 after more than two years of effort. The reason given for terminating the investigation was that the O’Connell administration’s control of the Albany jury system made it nearly impossible to assemble an impartial jury that would ever find O’Connell partisans guilty. Monaghan had earlier claimed
The O’Connell machine survived the investigation largely intact. The Herald Tribune reported that “the investigations failed to harm either the organization or its leader, and while a few key leaders were indicted, they were not convicted.” 52 persons were indicted. One indictment was quashed by the Court of Appeals. There were 33 guilty pleas, no jury convictions and the acquittal of eight defendants. Of the guilty pleas, “31 were from ex-convicts charged with illegal voting.”
Most everyone understood from the start of the investigation that the jury system in Albany County would be a major impediment to any successful prosecution of the O’Connell regime. The legislature passed a bill changing the jury selection system only for Albany County, but it was found to be an unconstitutional attempt by the State legislature to pass a local law. An attempt by the Special Prosecutor to move the site of a trial from Albany County to New York County was denied in Murphy v. Extraordinary Special & Trial Term of Supreme Court, 294 N.Y. 440 (1945) based upon a finding that the prosecution had no authority on its own initiative to change the venue of a criminal trial.
Despite Monaghan’s stated reason that the flawed jury system in Albany County was the reason for terminating the O’Connell investigation, there has long existed a belief that the investigation was ended because O’Connell threatened the Dewey administration and the Republican legislative leaders with revealing criminal information about their operations. In short, the belief is that O’Connell effectively blackmailed the Dewey administration to end the investigation.
This legend/belief was probably best articulated by Pulitzer Prize-winning author William Kennedy in his book O Albany! Kennedy wrote, “The reason always given for Dewey’s failure to nail Dan, or anybody important, has been that Dan retaliated with his own investigation of the legislature [which sits in Albany County’s jurisdiction]. Well, yes. But a story goes with it.”
The story is that an O’Connell loyalist found that a firm supplying contract services for the State Comptroller was sending checks to a number of top Republicans. The O’Connell loyalist made copies of the checks and informed O’Connell about the checks. O’Connell had the loyalist telephone him (O’Connell knew that his phones were being tapped by Monaghan) with this information. Soon after this phone call, Dewey called reporter Leo O’Brien – who was friendly with O’Connell – and “told him to tell Dan that if he called off his own investigation, he, Dewey, would call off his own investigation of Albany.”
Leo O’Brien told his own version of the arrangement. As an Albany newspaperman in 1945 who was friendly with both the Dewey and O’Connell administrations, he was summoned by Dewey’s counsel to meet as an intermediary with Dewey at Dewey’s private home in Pawling in Dutchess County. There Dewey offered to end his investigation provided that some of O’Connell’s associates plead guilty and take suspended sentences. Dewey wanted to make certain that if he dropped his investigation, O’Connell would not continue with his own. O’Brien told Dewey that O’Connell would agree. 
O’Brien returned to Albany after his Dewey meeting and told O’Connell, “’The investigation is over – provided if the one is closed you won’t keep the other one going.’ And Dan said, ‘That’s easy enough.’”
There are other sides to this story. One review of the O’Connell administration states that “it seems reasonable to suppose that Governor Dewey gave up because there was no chance of accomplishing anything and the matter was hence becoming an embarrassment.”
A biography of Albany Mayor Erastus Corning suggests that Leo O’Brien believed that Dewey’s motivation to terminate the investigation “had less to do with fear or intimidation from O’Connell and more to do with the fact that it had gone on too long, produced too little, cost too much and that the public tide had turned completely against it.” In any event, if O’ Brien’s word – and O’Brien in theory would not appear to have any significant motive to fabricate – is to be credited at all, there was some likelihood that a form of quid pro quo was involved in the termination of the O’Connell investigation.
Nelson Rockefeller – Robert Wagner 1959-1961
Soon after being elected as Governor in 1958, Nelson Rockefeller commenced an effort to investigate the government of the City of New York. Governor Rockefeller viewed this as a “Little Hoover” commission which would provide a serious objective study of New York City government. The New York City Democrats – especially Mayor Robert Wagner – (who would be up for reelection in 1961) – viewed it as a “witch hunt.” This commission – formally the Commission on Governmental Operations of the City of New York – was established by the legislature in connection with the 1959 budget. The Commission was a nine-member body headed initially by Otto Nelson, who was an executive with the New York Life Insurance Company. Mr. Nelson left after a year and was replaced as chairman by former State Comptroller Frank Moore. Its investigations were handled by attorney Whitney North Seymour.
Much to the displeasure of the New York City Democrats, the Commission’s investigations functioned largely in a manner designed to assail the government of New York City. Its preliminary report in February of 1960 found that New York City officeholders “lack ‘the appetite, willingness, or capacity’ to do the job.” The Commission thus injected “itself unquestionably into the political arena in 1961.” After the report, Seymour focused on investigations that involved possible bribes in the awarding of construction contracts and broad invitations of inspectors at city agencies.
According to Nelson Rockefeller’s biographer, Richard Norton Smith, there were backdoor discussions in 1960 between the city and state administration on limiting the Commission’s role. These discussions “produced an agreement whereby Wagner would provide sufficient Democratic support in the legislature to pass a Rockefeller-favored banking bill stymied in the previous year’s session. In return, the Seymour Commission would quietly fold its tent. In the event, enough Democrats switched their votes to enact the legislation sought by Chase and other big banks.”
A review of the legislation passed in 1960 shows that Democrats produced enough votes to pass a bill authorizing New York City banks to expand their branches into New York City’s suburbs. While in the past the Democrats in the legislature had been opposed to this particular measure, nearly all the Democrats in the Assembly from the Bronx and Brooklyn voted for the measure. Only with Democratic support could this legislation be passed as many of the Republicans in the Assembly voted against the bill. The legislation passed by a vote of 91-56 at a time when the Republicans had a 92-58 membership edge in the Assembly.
Only after the branch banking legislation had been passed was legislation introduced to change the membership on the Temporary State Commission to study the governmental operations of the City of New York. The bill was introduced on March 28, 1960 and passed both houses after a message of necessity on March 31. The bill increased the number of members on the Commission to 11, giving the mayor of New York City from two to four appointments. Additionally, the mayor was free to pick whomever he wanted for these posts. Under the original legislation in 1959, the mayor had two appointments who could not be city or state employees. Governor Rockefeller in his message approving the changes in the Commission stated that the Commission would now place a greater emphasis on the revision of the New York City Charter.
Besides increasing the number of mayoral appointees, Governor Rockefeller announced that the Whitney North Seymour investigatory arm of the Commission would no longer be on its own. Instead, it would be placed under the supervision of the Temporary State Commission of Investigation as a special unit. The Temporary State Commission was a bipartisan organization that was not subject to the direct control of the executive.
In early 1961, despite whatever agreement that may have been previously reached in 1960, it appeared that the Seymour investigations of New York City would continue aggressively. The Seymour unit announced that there was corruption throughout the planning division of the City Department of Buildings. In return, Mayor Wagner accused Seymour of a smear campaign. The legislature increased the funding for Mr. Seymour’s investigation for the fiscal year.
Nevertheless, the State Investigation Commission soon began to close down the Seymour investigations unit. State Investigation Commission Chairman Jacob Grumet announced in late January of 1961 that the Seymour unit would be out of business in June of 1961. Seymour continued his investigation including a report that a steamship executive with business before the City was providing favors to the Mayor.”
Nonetheless, The State Investigation Commission ended the Seymour unit’s existence in July of 1961. While no final formal report of the investigatory unit was planned or issued, Seymour, acting on his own, issued a personal report. He pointed fault both at the State Investigation Committee and the City. He wrote that many of the municipal services of the City were for sale and that the city leadership operated in a “complete vacuum of moral leadership.” Mayor Wagner’s response was that the Seymour investigation “has gone out of business in the same way it started – in a blaze of mud.”
Little became of the Seymour charges, and Mayor Wagner handily won both the Democratic primary and the general election in route to his third term as mayor. Yet it is hard, on its face, to dismiss the votes, the legislation, and the reduction of the status of the Seymour investigatory unit to the State Investigation Commission in 1960 as being totally coincidental.
Maurice Nadjari-Hugh Carey 1975-1976
In the wake of the report of the Knapp Commission finding substantial corruption in the police department of the City of New York, Governor Rockefeller, by executive order in September of 1972, created a special prosecutor’s office to investigate crimes “connected with the enforcement of law or administration of criminal justice in the City of New York.” Named as the Special Prosecutor was Maurice Nadjari who had served for 14 years in the Manhattan County District Attorney’s Office and had been the chief assistant district attorney in Suffolk County. “This new, somewhat unique Office was given exclusive jurisdiction and feared power, on a virtually open-ended scale, with almost on-demand resources in money and personnel.” Nadjari had the reputation of being a tough and aggressive prosecutor, and he lived up to his reputation during his time as special prosecutor.
He brought charges against numerous public officials. After two years in office, he had indicted 110 people including five judges, the Queens County district attorney Thomas Mackell, defense attorneys, and police officers. The Queens county district attorney had been convicted along with his two top aides. Starting in 1975, however, Special Prosecutor Nadjari’s methods and activities were the subject of heavy criticism. The conviction of district attorney Mackell was reversed on appeal with a strong rebuke of Nadjari’s methods. No members of the judiciary had been convicted. Nadjari was criticized for his frequent leaks of prosecutorial information, and “he suffered a series of legal defeats in his major cases.” As Time Magazine put it: “To his detractors he was unorthodox, ruthless, overzealous, tyrannical and inept.” 
On December 23, 1975, Governor Hugh Carey tried to remove Nadjari from his position as Special Prosecutor. Carey named Manhattan district attorney Robert Morgenthau as his replacement. Governor Carey, however, had failed to deal with Attorney General Louis Lefkowitz who had the formal authority to appoint a special prosecutor. Lefkowitz agreed to let Nadjari stay on his job for an additional six months to complete his work.
At the same time, Nadjari went on the attack against Governor Carey. Nadjari alleged that his firing was due to highly placed, self-motivated people misleading the Governor about Nadjari’s work. He also suggested that Governor Carey had dismissed him because he was investigating high-ranking figures in the Democratic Party. He implied that the Governor had learned of his investigation into State Democratic Party chairman Patrick Cunningham selling judgeships. “His aides begin ‘leaking’ reports that he was investigating influential Democrats, that a wiretap had been compromised, and, as a result, Democrats including the Governor knew that Nadjari was ‘closing in.’” In May of 1976, Nadjari did, in fact, indictCunningham for selling a judicial nomination.
In response, Carey asked Attorney General Lefkowitz to review Nadjari’s allegations against him. In January of 1976, the Attorney General named former judge and former State Investigation Commission chairman Jacob Grumet to review Governor Carey’s charges against the Special Prosecutor.
Things turned poorly for Nadjari in June of 1976. At the Court of Appeals, he lost a major case which restricted his jurisdiction strictly to the criminal justice system. Governor Carey was cleared of any misconduct by Justice Grumet. The Grumet investigation found that “Governor Carey’s decision to replace Mr. Nadjari was based upon his independent judgment, in the official discharge of his duties and responsibilities of his office.” Attorney General Lefkowitz soon named Robert Morgenthau’s chief assistant, John Keenan, to replace Nadjari.
Subsequent commentaries on the Nadjari tenure have not been kind to the erstwhile special prosecutor. The Cunningham indictment was dismissed. “In his last six months in office, Maurice H. Nadjari exceeded his authority, that he stretched his jurisdiction, that he engaged in wholesale and unjustified wiretapping and that he and his aides misused grand juries.” He was criticized by the State Investigations Commission “which accused Nadjari and his former chief assistant of deliberately disclosing and leaking information to the press and of tarnishing the reputations of numerous officials.”He lost an election in 1977 for district attorney in Queens County. Former Court of Appeals judge Joseph Bellacosa has stated of Nadjari:
“By the time Nadjari was ‘fired’ by Governor Carey after the Mackell case debacle, with the eventual and needed acquiescence of the New York State’s Attorney General Louis Lefkowitz (a different check-and-balance mechanism), the Special Prosecutor’s office had done a lot of damage to individuals, and to the torn tapestry of ordered process. Despite a scant record of successful prosecutions, the annual budget of that exceedingly privileged Office averaged about $ 2 million. The wreckage left behind in the wake of this prosecutorial hurricane was enormous: lives and reputations were wrongly ruined; regularized and legitimate criminal processes, including innocent judicial officers and the judicial system itself, were scarred with cynical suspicion; and some corruption intended to be rooted out, instead, festered, with a nefarious new Special Prosecutorial form of official mischief fostered. That is one lousy legacy!”
While the Carey-Nadjari fight was the one that had the most extensive media coverage of the issue of whether a governor acted improperly in taking action against a government investigator, it is also the one instance where there is a clear verdict on whether or not a governor acted properly in terminating a prosecutor or investigation. Justice Grumet’s investigation concluded clearly that Governor Carey did not act improperly. The same cannot be said conclusively about the Dewey-O’Connell inquiry or the Rockefeller-Wagner inquiry. We will need to await more data on Governor Cuomo’s termination of the Moreland Act Commission.
 The Moreland Act – which is Section 6 of the Executive Law – authorizes the Governor or his appointees to investigate and examine the management and affairs of any state agency.
 Kenneth Lovett, “Andy Foe’s Got to Love This Confab,” New York Daily News, March 4, 2015.
 “Dewey Assails O’Connell Machine,” New York Herald Tribune, October 25, 1938.
 Governor Dewey later extended the reach of the special prosecutor “to include crime and corruption of public officers in Albany County or any subdivision thereof, crimes affecting the administration of justice, the collection of public revenues and crimes committed by persons and corporations having business dealings with Albany County or its subdivisions.” See People v. Prior, 294 N.Y. 405, 409 (N.Y. 1945).
 See “Monaghan Charges Jury Balked Probe, New York Post, February 16, 1946.
 “4 State Court Justices Flayed by Monaghan,” Associated Press, Buffalo Courier Express, November 11, 1944.
 “Albany County Inquiry Ends; Jury Set-Up Hit,” New York Herald Tribune, February 16, 1946.
 “Dewey-urged Albany Probe Ends Today, Many Indicted,” United Press, North Tonawanda News, February 15, 1946.
 “Albany Jury Ends 2-Year Crime Hunt,” New York Times, February 16, 1946.
 Laws 1944, Chapter 206.
 Stapleton v. Pinckney, 182 Misc. 590 (Sup. Ct. Albany County 1944) aff’d 293 N.Y. 330 (1944).
 William J. Kennedy, O Albany!, Penguin Books (1985).
 Id. at 288. This blackmailing of the Dewey administration by O’Connell was the basic plot in Kennedy’s play, Grand View. See generally Michael Patrick Gillespie, Reading William Kennedy (2002).
 Id. at 289-290.
 O’Brien later served for many years as the Democratic congressman from Albany.
 Id. at 290.
 Id. at 290 -291.
 Id. at 291. O’Brien added in his version that O’Connell would not agree to have any of his associates plead guilty. Dan O’Connell told a version of this story to television newscaster Ernie Tetrault in an interview after Dewey’s death in 1971. Id. at 291.
 Frank S. Robinson, Machine Politics: A Study of Albany’s O’Connell’s (1977) p. 93. If the jury issue was the only Dewey/Monaghan concern, it would not have been particularly difficult to craft constitutional legislation that would have applied to more counties in addition to Albany County. In short, any jurisdictional issues that plagued the investigation could have easily been cured if the Dewey administration truly wanted it.
 Paul Grondahl, Mayor Erastus Corning, Albany Icon, Albany Enigma (2007) p. 242. Frank Robinson quotes the New York Times in noting that the Monaghan investigation had “some of the aspects of a boomerang. The constant use of the State Police and wiretapping, and the constant pressure to produce evidence of criminality that would stand up in court has produced a sympathy and an objection to what is called further ‘persecution’.” See Robinson, note 21 supra. See Warren Moscow, “O’Connell Takes Albany Party Post,” New York Times, October 30, 1945.
 O’Brien’s situation would seem to be different than that of Daniel O’Connell. O’Connell could conceivably have wished to augment his reputation by showing how he outsmarted and outmaneuvered the seemingly all powerful Thomas Dewey.
 “’Little Hoover’ Probe No Witch Hunt: Rocky,” Associated Press, Newsday, May 7, 1959; Douglas Dales, “Inquiry on City Approved,” New York Times, March 26, 1959.
 Laws 1959, Ch. 368.
 Leo Egan, “Nelson Charges Stir Talk of Fusion In ’61,” New York Times, February 7, 1960. See also Michael Kramer and Sam Roberts, “I Never Wanted to Be Vice-President of Anything,” 1976 p. 218.
 Robert Poteete, “State Assails City’s Government Sees Waste in Millions,” New York Herald Tribune, February 1, 1960.
 Martin G. Berck, “State Probe Hotly Debated From Start,” New York Herald Tribune, February 10, 1960.
 Richard Norton Smith, On His Own Terms (2014) p. 335.
 L. 1960, Ch. 237. See generally, McKinney’s 1960 Session Laws of New York, Memorandum of Joint Legislative Commission to Revise the Banking Law at p. 1886.
 “Democratic Split Led To Bank Law,” New York Times, March 23, 1960.
 Laws 1960, Ch. 1030.
 Public Papers of Governor Nelson A. Rockefeller (1960) p. 582.
 Id. at 1012.
 The next year, the Herald Tribune noted that in May of 1960 the Mayor and the Governor “reached a truce on several issues.” Laurence Barrett, “Hamstrung By the State Prober Says,” New York Herald Tribune, July 17, 1961.
 Smith notes that there were “recriminations over the commission’s continued existence.” Smith, supra note 29.
 Edith Evans Asbury, “Graft Is Charged in Building Unit,” New York Times, January 11, 1961.
 John Sibley, “Mayor Calls on Governor To Curb ‘Smear’ Inquiry,” New York Times, January 24, 1961.
 Laurence Barrett, “Heads of 2 State Inquiries at Odds,” New York Herald Tribune, January 27, 1961. See also John Sibley, “Grumet Defends Inquiries in City,” New York Times, January 27, 1961.
 David Miller, “Wagner Didn’t Know Who Paid the Hotel Bill, Aid Says,” New York Herald Tribune, April 30, 1961.
 Peter Kihss, “Seymour Unit Ends Inquiries After a Stormy Two-Year Life,” New York Times, July 2, 1961.
 Laurence Barrett, See note 35 supra.
 “State Prober Says City Hides Scandals,” Newsday, July 17, 1961.
 Charles G. Bennett, “Mayor Sees ‘Mud’ in Seymour Study,” New York Times, July 18, 1961.
 The Knapp Commission – formally known as the Commission to Investigate Alleged Police Corruption – was established by New York City Mayor John Lindsay in 1970 to review the overall issue of police corruption. Its reports were issued in 1972. Its popular name derives from Whitman Knapp, who was the chairman of the Commission.
 9 NYCRR § 1.55. This office was continued by successor governors including Governors Wilson and Carey until it was ended by Governor Mario Cuomo in 1990. See Selwyn Rabb, “State to End New York City Corruption Office, New York Times, January 19, 1990.
 William E. Farrell, “Take-It-or-Leave-It Prosecutor: Maurice Hyman Nadjari,” New York Times, September 20, 1972. A Newsday columnist had once described Nadjari thusly: “He is too good. He would refuse to be managed by the politicians. They fear him for that and for his relentless pursuit of wrong-doers, no matter who they are.” Art Bergmann, “A Driving Prosecutor Who Cares,” Newsday, May 8, 1969.
 Joseph W. Bellacosa, “The Honorable Hugh R. Jones Fifth Memorial Lecture: Cogitations Concerning the Special Prosecutor Paradigm: Is the Cure Worse than the Disease?” Court Of Appeals Courtroom, Albany, New York, Monday, October 16, 2006, 21 St. John’s J.L. Comm. 615, 629 (2007).
 “Fighting Prosecutor: Maurice Nadjari,” New York Times, January 9, 1965. See also Maurice H. Nadjari,” New York State’s Office of the Special Prosecutor: A Creation Born of Necessity,” 2 Hofstra L. Rev., 97 (1974).
 Marcia Chambers, “Critics Now Cooperative As Nadjari Ends 2d Year,” New York Times, September 15, 1974.
 See Anthony Lewis, “The Zeal of Maurice Nadjari,” New York Times, March 28, 1976.
 Selwyn Rabb, “The ‘Superprosecutorm’” New York Times, December 24, 1975.
 “New York: An Abrupt Exit for the Superprosecutor,” Time, January 5, 1976.
 Carey was also faulted for failing to deal with the general issue of how Morgenthau could serve simultaneously as both the Manhattan district attorney and the special prosecutor.
 Edward Hershey, “Nadjari Fighting Carey Ouster,” Newsday, December 27, 1975.
 Selwyn Rabb, “Carey Denounces Hints by Nadjari about a Cover-Up,” New York Times, December 31, 1975.
 Tom Goldstein, “Carey Knowledge of an Inquiry Tied to Nadjari Ouster,” New York Times, December 25, 1975. See also Marcia Chambers, “Nadjari Calls Cunningham a Salesman of Judgeships,” New York Times, January 7, 1976. Governor Carey in a public statement said, that Mr. Nadjari “engaged in a public campaign to impugn my motives for acting, and to attempt to discredit me in the eyes of the public.” Public Papers of Governor Hugh L. Carey (1959) p. 790.
 Frank Lynn, “Carey-Nadjari Dispute, “New York Times, January 2, 1976.
 Matter of Dondi v. Jones, 40 N.Y.2d 8 (1976).
 Edward Hershey, “Carey Is Cleared on Nadjari,” Newsday, June 23, 1976.
 Public Papers of Governor Hugh L. Carey, (1960) pp. 903-904.
 Tom Goldstein, “Nadjari’s Indictment Record,” New York Times, December 23, 1976.
 State of New York, Commission on Investigation, “The Nadjari Office and the Press” (November 18, 1976).
 Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity, 1996 p. 100.
 Bellacosa, supra at note 48, pp. 634 -635.
By Bennett Liebman
Government Lawyer in Residence
In light of the longstanding enmity and the assorted separation of powers/turf wars between the executive and the legislature in New York State, it may come as a surprise that once upon a time the leaders of the State legislature actually requested the governor to appoint a special prosecutor to investigate the legislature. Yet, this is exactly what happened in 1943 when the legislature asked Governor Thomas Dewey to appoint a special prosecutor to investigate the legislature.
The background is what sets this episode apart. Governor Dewey, who was elected governor in 1942, was convinced that the Albany City and Albany County governments – controlled by the infamous Democratic machine of Dan O’Connell – were thoroughly corrupt. During Dewey’s unsuccessful 1938 gubernatorial run against Governor Herbert Lehman, Dewey had regularly accused the O’Connell regime of massive corruption. In the 1938 election, won by Lehman by less than 70,000 votes, the County of Albany provided a large, 20,500-vote margin for Lehman. Albany was the only county outside of New York City to vote for Lehman, and in the city of Albany, 94% of the registered voters were counted for Lehman.
Once elected governor in 1942, Dewey set his sights on the O’Connell team. He ordered investigations by several agencies against Albany County. The Tax Department began looking at tax assessments in Albany County, and an Election Frauds Bureau in the office of the Attorney General began an investigation into voting registration in Albany County. Eventually, in December of 1943, Governor Dewey appointed a special prosecutor to investigate violations of the Election Law and “the provisions of the Penal Law relating to crimes against the elective franchise” in Albany County or in subdivisions of Albany County.
The O’Connell machine was not one to sit idly by, and the Democratic district attorney for Albany County, John Delaney, in the fall of 1943, served subpoenas on the Commissioner of Taxation and Finance, the State Comptroller and the former secretary to the Clerk of the Assembly demanding all the appropriations of the State legislature since 1935, including all payments and vouchers. See Moore v. Delaney, 180 Misc. 844 (Sup. Ct., Albany County, 1943). District Attorney Delaney alleged that he had “information in his possession which leads him to the belief that the crimes of larceny, bribery and corruption may have been committed by legislative officials in the expenditures of public moneys.” Id. at 848. Since the Republican Party held the majority in both houses of the legislature, the subpoenas were regarded as the O’Connell effort to strike back at Governor Dewey by investigating the Republicans in the legislature.
The Commissioner of Taxation and Finance and the Comptroller sued to quash the subpoenas and the State Supreme Court agreed with their argument. The court found that the subpoenas were “so broad and comprehensive and cover such a period of time that it is impossible for the court to tell whether all the matters required to be produced by them have any relevancy to the alleged crimes which the grand jury proposes to investigate.” Id.
As to the former secretary to the Clerk of the Assembly, the court found the subpoenas to be valid. The court stated “that it is a simple subpoena, regular in form, and no valid reason has been shown why it should be quashed.” Id.
While the legislature was able to avoid the initial thrust of the O’Connell counterattack, there was no assurance that the legislature would escape a properly constructed inquiry from Albany County district attorney Delaney.
To battle the Albany County district attorney, the legislative leaders clearly decided to forget about any separation of powers issues. They directly asked the governor to intervene to assist them and prevent the Albany County investigation. The leaders of both houses on December 19, 1943, wrote Governor Dewey alleging that the Albany County district attorney “was instituting and threatening to institute certain prosecutions against some of the members of the Legislature and its employees, unless the Attorney-General ceased his investigation into the city and county of Albany.” The threat of this investigation “must have grave consequences upon the proper functioning of government in the State and upon the respect of the people for our democratic system…. It is intolerable that the Legislature of a State or its individual members should be harassed by any local agency trying to protect its political sponsorship.”
The leaders urged the governor “to supersede the district attorney of the county of Albany by the Attorney-General of the State and to designate a person of unimpeachable reputation and character and great knowledge of government to conduct a fearless and impartial investigation into these matters.” The leaders pledged “unlimited assistance” to the investigation.
Based upon this request, Governor Dewey on the next day superseded the Albany County district attorney and prevented him from continuing his investigation of the State legislature. Instead, Governor Dewey, in an extremely broad designation statement, ordered the Attorney-General to investigate and prosecute “any and all crimes and willful misconduct in public office heretofore or hereafter committed or alleged to have been committed in the county of Albany by any member, officer , employee or agent or former member, officer, employee, or agent of the Legislature of the State of New York.”
One day after superseding the Albany County district attorney, the governor and the Attorney General named Hiram C. Todd to the post of the legislative special prosecutor. Todd was a corporate attorney in New York City who had served at several times for past Democratic governors as a special prosecutor. He was perhaps best known for his investigation of the failure of the City Trust Company in 1929.
Very little actually came of the Todd investigations. No criminal wrongdoing was ever established. He worked for nearly two years on his investigation of the legislature. His work, however, appeared to confirm the cynical observation that he was serving as – what might be currently termed – a “tool” of the Dewey administration. The New York Times wrote that he “turned a Democratic investigation of Republicans into a Republican investigation of the Democratic leadership.”
Todd was clearly positive about the overall work of the legislature and its members. His concluding grand jury report found that “the legislature… functions with general efficiency and rectitude. The fact that some wrongs have been brought to light … is counter-balanced by the fact that the general picture presented to the grand jury of legislative operations is of earnest men diligently engaged upon a public task in an earnest manner.” The New York Herald Tribune, however, appreciated the work of Mr. Todd which, while “not sensational,” was “fair” honest and thorough.”
Todd concluded his investigation in late 1945 having established no criminality in the State legislature. The 22-month investigation produced “one indictment, three presentments, two citations for contempt and no convictions.”
A decade later the Moreland Act inquiry into State regulation of the harness racing industry showed considerable corruption within the State legislature at the time of the Todd inquiry, making the judgments of the Todd inquiry of somewhat questionable value. The New York Times had summarized the Moreland Act report by stating that “influential politicians acquired substantial blocks of stock in tracks and racing associations, generally just before an association received a license, or existing associations obtained extended racing dates. Public pressure to increase the state share of the betting revenue was ignored by the Legislature. Stock was obtained by the politicians at bargain prices. Shares were held secretly in the names of friends and relatives and sold at fabulous gains.” Much of this was occurring at the time of Todd’s work and paints a far uglier picture than the portrait of earnestness found by the Todd inquiry.
 “Dewey Condemns Machine in Albany,” New York Times, October 8, 1938; See also Warren Moscow, “O’Connell Takes Albany Party Post,” New York Times, October 30, 1945.
 James A. Hagerty, “Lehman Is Victor by 67,506 Margin,” New York Times, November 10, 1938; Dewey pointed out the city of Albany had more registered voters than its adult population. See “Albany Vote Investigation Is Ordered by Gov. Lehman,” New York Herald Tribune, November 16, 1938.
 Id., Herald Tribune article.
 “State Opens Albany City Investigation,” New York Herald Tribune, August 28, 1943.
 “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany,” Public Papers of Governor Dewey, pp. 272-275 (1943).
 These were the President Pro Tem of the Senate, the Speaker of the Assembly, and the Majority Leader of the Assembly.
 “Letter to the Governor from Legislative Majority Leaders Requesting Appointment of a Special Prosecutor to Investigate Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 331-332 (1943). The text is also in “Dewey Supersedes Albany Democrats in State Inquiry,” New York Times, December 22, 1943.
 Id. at 332; See generally “Dewey Orders Investigation of Legislature,” New York Herald Tribune, December 22, 1943.
 The Herald Tribune states that the leaders met with Governor Dewey on the date of their letter, Sunday December 19, 1943. Id.
 “Designating the Attorney-General to Represent the People at Extraordinary Special and Trial Term of the Supreme Court, County of Albany, to Manage and Conduct Proceedings in Connection with Charges of Legislative Corruption,” Public Papers of Governor Dewey, pp. 274-276 (1943).
 “Special Prosecutor in Albany Probe,” Newsday, December 21, 1943; “Outfoxing the O’Connells” Brooklyn Daily Eagle, December 26, 1943, p. 24.
 The New York Sun called Todd an “elderly silk stocking lawyer.” Paul Ward, “Dewey, Elected Largely On ‘Clean-Up’ Pledges, Loses Two Court Cases In Less Than 24 Hours,” New York Sun, July 23, 1944.
 See Moscow, supra note 1.
 “Calls Legislature Honest In General,” New York Times, October 25, 1945.
 “Final Todd Grand Jury Report Gives Legislators Good Score,” New York Herald Tribune, October 25, 1945.
 “Neither Smear Nor Whitewash,” New York Herald Tribune, October 26, 1945.
 “Grand Jury Ends Albany Inquiry,” New York Times, December 14, 1945.
 “State Commission to Study, Examine, and Investigate State Agencies in Relation to Pari-mutuel Harness Racing,” Report to Thomas E. Dewey, Governor (1954).
 Emanuel Perlmutter, “Politics and Raceways: Fortunes for Insiders,” New York Times, March 14, 1954.