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When the Legislature Requested the Governor to Investigate Its Own Operations

March 24, 2015

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.[1] 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.[2] 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.[3]

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,[4] 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”[5] 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[6] 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.”[7]

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.[8]

Based upon this request, Governor Dewey on the next day[9] 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.”[10]

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.[11] 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.”[13]

Todd was clearly positive about the overall work of the legislature and its members.[14] 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.”[15] The New York Herald Tribune, however, appreciated the work of Mr. Todd which, while “not sensational,” was “fair” honest and thorough.”[16]

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.”[17]

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.[18] 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.[19]
[1] “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.

[2]  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.

[3] Id., Herald Tribune article.

[4] “State Opens Albany City Investigation,” New York Herald Tribune, August 28, 1943.

[5] “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).

[6] These were the President Pro Tem of the Senate, the Speaker of the Assembly, and the Majority Leader of the Assembly.

[7] “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.

[8] Id. at 332; See generally “Dewey Orders Investigation of Legislature,” New York Herald Tribune, December 22, 1943.

[9] The Herald Tribune states that the leaders met with Governor Dewey on the date of their letter, Sunday December 19, 1943. Id.

[10] “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).

[11] “Special Prosecutor in Albany Probe,” Newsday, December 21, 1943; “Outfoxing the O’Connells” Brooklyn Daily Eagle, December 26, 1943, p. 24.

[12] 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.

[13] See Moscow, supra note 1.

[14] “Calls Legislature Honest In General,” New York Times, October 25, 1945.

[15]  “Final Todd Grand Jury Report Gives Legislators Good Score,” New York Herald Tribune, October 25, 1945.

[16] “Neither Smear Nor Whitewash,” New York Herald Tribune, October 26, 1945.

[17] “Grand Jury Ends Albany Inquiry,” New York Times, December 14, 1945.

[18] “State Commission to Study, Examine, and Investigate State Agencies in Relation to Pari-mutuel Harness Racing,”  Report to Thomas E. Dewey, Governor (1954).

[19] Emanuel Perlmutter, “Politics and Raceways: Fortunes for Insiders,” New York Times, March 14, 1954.

The Case Law under the Moreland Act

March 20, 2015

By Bennett Liebman
Government Lawyer in Residence

Given the last two years of issues involving Moreland Act commissions in New York State, I thought it advisable to review the case law that has developed under the Moreland Act. It needs to be emphasized that this case law is basically aimed at investigations of State agencies and not the State legislature. The Moreland Act dates from 1907 and was clearly designed for and by Governor Charles Evans Hughes who took office after winning election in 1906. Hughes had made his mark in New York State government as the lead investigator of the committees investigating the gas industry and the life insurance industry, and it was widely assumed he would try to increase the power of the governor to pursue further investigations without seeking approval of the legislature. The act received its popular name from Sherman Moreland who was the sponsor of the legislation in the State Assembly.

Section six of the Executive Law, authorizes the governor  “at any time, either in person  or  by  one  or  more  persons  appointed  by  him  for  the  purpose,  to  examine  and investigate the  management and affairs of any department, board, bureau or commission of  the state.” The  statute  further empowers the governor  and  the  persons  appointed to a commission “to  subpoena  and  enforce  the  attendance  of witnesses, to  administer oaths and examine witnesses under oath  and  to  require  the  production  of any books or papers deemed relevant or material.” This language was in the original Moreland Act 1907. L. 1907, Ch. 539.  While a Moreland Act commission may only examine state departments, boards, bureaus or commissions, (and not the State legislature) when it examines such agencies, it has exceptionally strong powers. The decided cases involving the powers of a Moreland Act commission, appointed, are nearly unanimous in providing that such commissions have broad authority. The decisions, with one early exception, all support the subpoena powers given to a Moreland Act commission.

While the Moreland Act was in regular use from the time it was first enacted, there have been only been a limited number of cases that refer directly to the Act.[1] In the first fifty years that the Act was in effect, and when it was most frequently utilized by governors, there were relatively few cases that specifically involved the reach and effect of the Act.[2] Moreland Act commissions have rarely been resorted to in the years since the Rockefeller administration, but in two instances, (nursing homes in the 1970’s and government corruption in the 1980’s) considerable litigation arose from these investigations.

Early Decisions

The first time that the Act was mentioned was in People v. Anhut, 162 A.D. 517, 519 (1st Dept., 1914), which involved a prosecution that came about after the governor had established a Moreland Act commission to review State hospitals for the mentally ill. The court stated in regard to the Moreland Act, “The power of the Governor to appoint a committee and the authority of the latter to issue subpoenas and compel the attendance of witnesses is not denied.”

The Moreland Act was also a point of contention in the odd case of People v. Hebberd, 96 Misc. 617 (Sup. Ct. NY County, 1916) which is basically the one case questioning the authority of a Moreland Act commission. In 1915, Governor Whitman appointed a Moreland Act commissioner to examine and investigate the state board of charities. As a consequence of the investigation, criminal charges were brought against a number of individuals for criminal libel, for a conspiracy to avoid service of a subpoena, and a perjury prosecution against defendant Hebberd. The defendants had issued pamphlets concerning the charities that were the subject of the alleged criminal libel. The Moreland Act Commission determined to investigate the issuance of the pamphlets. It was alleged that the defendants conspired to avoid the service of a subpoena issued by the Commission and that defendant Hebberd committed perjury when he testified about the issuance of the pamphlets. The court found no basis for the criminal libel and further found that the Commission’s authority was simply to investigate charities, not to investigate the pamphlets. When the Commission determined to investigate the pamphlets and the authorship of the pamphlets, the court concluded, it was operating outside its authority as a Moreland Act Commission. The court stated, “But when the commissioner sought to inquire into acts of private individuals deemed hostile to the investigation conducted by him, for the purpose of ascertaining whether they were responsible for alleged libelous publications, which were calculated to belittle or injuriously affect the work of the commission, a serious question arises whether such an inquiry transcended his powers as commissioner, which were purely statutory and strictly confined to the provisions of the statute.” Id. at 631-632. The court found that the issues involving the authorship of the pamphlets were not proper subjects for this Moreland Act commission. Accordingly, there was no jurisdiction to issue a subpoena on this subject and the alleged perjurious testimony “was not material to the investigation which the commissioner was empowered to make, and therefore, under the Penal Law, the crime of perjury could not be established.” Id. at 650.

After the Hebberd case, no cases involving Moreland Act commissions were decided until after the  creation of the Moreland Act Commission investigating workers’ compensation and potential kickbacks in the medical industry in the early 1940’s  In Schiffman v. Bleakley, 46 N.Y.S.2d 353 (Sup. Ct., N.Y. County 1943), a doctor who had been subpoenaed by the Commission refused to testify stating that the commission had no power over him and that his constitutional rights were being denied. The court quickly dispensed with these arguments stating, “These contentions manifest an egotistical misunderstanding by petitioner as to the purpose of this Commission. It is a fact finding body. Its duties general, dealing with the practices of the Labor Department, the administration of the law and the effect on the Public. Its dealings with the petitioner are not personal but only incidenta to its fact finding. His importance as a witness is manifest in view of his extensive practice. He knows much of present methods. This is his opportunity to impart that knowledge to the Governor’s representatives.” Id. at 354. The court added, “The Commissioners have an unquestionable right to issue subpoenas.” Id .   In the case of Bleakley v. Schlesinger, 294 N.Y. 312 (1945), the Commission subpoenaed the books of an X-ray lab firm. The firm’s corporate secretary-treasurer refused to provide the records. The Court of Appeals held that the refusal to provide the subpoenaed records could provide the basis for a criminal contempt citation. The court found that “production of the books is a reasonable corporate requirement and the … officer, must either produce the wanted corporate books or give a reasonable explanation of his inability to do so, with the alternative of commitment. Id.at 317.

Harness Racing Investigation

A decade later in reviewing subpoenas issues by the Moreland Act Commission reviewing harness racing in the 1970’s, the courts similarly affirmed the powers of a Moreland Act Commission .  In Alexander v. New York State Com., 306 N.Y. 421 (1954), the Court of Appeals had to decide on the validity of subpoenas issued to apart-owner of a harness track, The owner had contended that they were too sweeping and were not relevant to the investigation of harness racing. The court upheld the subpoenas finding no issue as to their breadth, stating, “The commission will, of course, be restricted to such material as is relevant to the subject of the inquiry, but is not obliged to take petitioners’ word for what is or is not relevant.”

A similar challenge to a subpoena issued by the Moreland Act commission on harness racing was rejected in Weil v. New York State Com. to Investigate Harness Racing, 205 Misc. 614 (N.Y. Sup. Ct. 1954). In Weil, a series of individuals challenged the subpoenas issued by the Moreland Act Commission claiming that the commission lacked the power to issue the subpoenas, that the subpoenas were indefinite, and that the issuance of the subpoenas violated their constitutional rights. The court dismissed these arguments finding that the Commission had the clear “unquestionable right” to issue subpoenas and that there were no constitutional violations presented by the subpoena.

The petitioners argued that subpoenaing records of their involvement in racing outside New York State was beyond the power of the Commission. The court rejected this argument as well, finding that, despite the  “petitioners are enjoying privileges granted under licenses issued by this State, and their personal connection with harness racing and tracks outside is a legitimate subject of inquiry under the broad powers granted to the Governor by the Moreland Act to deal with matters affecting the public interest.” Id. at 619.

Nursing Home Investigations

While the nursing home investigations in the mid 1970’s did not bring any specific challenges to Moreland Act authority, litigation was brought involving the powers of a nursing home special prosecutor appointed under Section 63.8 of the Executive Law. Soon upon entering office, Governor Carey appointed both a Moreland Act Commission to investigate nursing homes, and, with Attorney General Lefkowitz, a special prosecutor under Section 63.8 of the Executive Law to “inquire into possible criminal violations in the nursing home industry and related matters.” Executive Order 3.4.[3] By contrast, in 1987, Governor Mario Cuomo, issued a single executive order, (Executive Orders 4.88 amended by 4.88.1)  establishing both a Moreland Act commission and through the attorney general’s office under Section 63.8 of the Executive Law an inquiry into “public peace, public safety and public justice.”

Section 63.8 had long been interpreted as authorizing only a broad inquiry into “public peace, public safety and public justice,” and had never been interpreted  to not authorize the Attorney-General to investigate a specific crime for the purpose of ascertaining whether a particular individual committed that crime. See Ward Baking Co. v. Western Union Tel. Co., 205 A.D. 723 (3rd Dept., 1923).  The general authority of the governor with the attorney general  to authorize a broad inquiry into public safety inquiry concerns was affirmed in  In Matter of Di Brizzi (Proskauer), 303 NY 206, (1951),  The Court of Appeals  held that Section 63.8 could be used for investigating organized crime and that the legislature could  confer authority upon an executive department to exercise subpoena power in connection with an investigation in aid of the executive function.[4] Similarly, in Greenspon v. Stichman, 12 N.Y.2d 1079 (1963), the Court of Appeals, without issuing an opinion, rejected the claim that combining the Moreland Act powers with Section 63.8  powers “violated the doctrine of separation of powers and the system of checks and balances provided for in the Constitution.” Id.

With the nursing home investigations, the operators of nursing homes argued that subpoenas issued by the special prosecutor appointed under Section 63.8 were invalid since they sought records from family run businesses and thus were similar to the inquiry rejected in Ward Baking . The Court of Appeals in Sigety v. Hynes, 38 N.Y.2d 260 (1975) found that since family run nursing homes were defined as hospitals  under the Public Health Law and thus  subject to State regulation, the Special Prosecutor under Section 63.8 was within  his rights in issuing a subpoena for the records of the nursing homes. The court recognized “that there exists a reasonable relationship between the action taken by the Governor, through the  , and the proper discharge of the executive function.” Id. at 266. Since the records of a nursing home were “not by …  nature a family business” the Special Prosecutor was authorized to subpoena its records. The Special Prosecutor, however, was not initially authorized to retain the subpoenaed records of nursing homes. The court found, further, that this was not within the Special Prosecutor’s powers under §63.8 as determined by Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243, 247 (1977). After this decision, the legislature amended the law to provide for a right of retention. L 1977, Ch. 451.

After Governor Carey issued and Attorney General Lefkowitz authorized a similar §63.8 special prosecutor in 1976 directed at private proprietary homes for adults (See Executive Order 3.36), the special prosecutor’s issuance of subpoenas was challenged. In Friedman v. Hi-Li Manor Home for Adults, 42 N.Y.2d 408 (1977), the Court of Appeals ruled that, given the close similarity between proprietary homes and nursing homes, the §63.8 special prosecutor had the right to issue subpoenas to proprietary homes and the landlords of such homes. The court found that there was little difference between a nursing home special prosecutor and a proprietary home special prosecutor. “Similarities between these two areas of activity are evident. To a large extent the consumers of care and service come from the same sector of our State’s population. Historically the great bulk of financial support has and does come from the public treasury, formerly in direct grants to the homes, now in indirect but equally significant subsidy routed through the residents of the homes.” Id. at 414.

In Hi-Li Manor, however, the court  refused to grant the Governor and the Attorney General carte blanche on §63.8 investigations. The court wrote that its decision “should not be understood as viewing subdivision 8 of section 63 as any reservoir of latent authority for investigations, however desirable they may be thought to be, into other areas of legitimate governmental concern or responsibility. Quite the contrary. In perspective we perceive recourse to this section as having been intended only when for compelling reasons reliance cannot or should not necessarily be placed on specific, individualized grants of authority from the Legislature.” Id. at 415. (  Id. at 417. Judge Cooke added, “Parenthetically, the suggested ad hoc approach would be impractical and self-defeating (e.g., when the Legislature is in recess, when powerful interests are involved, or when a politically sensitive investigation should be launched and there is a politically divided Legislature). An investigation, to be successful, must proceed promptly under an ever-present authority to conduct one.” Id.  at 420.

Despite the limitations in the Court of Appeals’ language on §63.8 authority, subpoenas issued pursuant to the §63.8 have been upheld in a series of cases including Hynes v. Moskowitz, 44 N.Y.2d 383 (1978); and  Doe v. Kuriansky, 59 N.Y.2d 836 (N.Y. 1983). See also Roseman v. Hymes, 1977 U.S. Dist. LEXIS 13024 (S.D.N.Y. Sept. 1, 1977).

Feerick Commission

There was no litigation under the Moreland Act until the State Commission on Government Integrity [Feerick Commission] was established in the late 1980’s. As stated previously, the Feerick Commission received its grant of powers both under the Moreland Act and under §63.8 of the Executive Law. All the attempts through the courts to restrict the powers of the Feerick Commission proved ultimately unsuccessful.

Some of the lawsuits brought against the Feerick Commission could be viewed as ancillary efforts to prevent the Feerick Commission from operating effectively. Rather than frontal attacks questioning the authority of the Feerick Commission, these suits were designed to make it more difficult for the  Feerick Commission to function.

An attempt to require the Feerick Commission to adhere to the provisions in Section 73 of the Civil Rights Law requiring that two members of the Commission be present whenever testimony was taken from a witness was rejected in Riker v. New York State Com. on Government Integrity, 153 A.D.2d 158 (3d Dep’t 1990). The court found that this requirement only applied to legislatively created temporary state commissions. It did not apply to a Moreland Act commission established by the governor.

Similarly, an attempt to prevent the State Board of Elections from providing records containing personal information to the Feerick Commission as a violation of the Personal Privacy Protection Law was denied in Building a Better New York Committee v. New York State Com. on Government Integrity, 138 Misc. 2d 829, (Sup. Ct. Albany Co.,1988). The court found that the Personal Privacy Protection Law authorized disclosure of personal information to “another agency if the record sought to be disclosed is necessary for the receiving agency to comply with the mandate of an executive order.” Id. at 834. In a follow-up to this decision, the plaintiff, having failed in his effort to block the transfer of the records from the Board of Elections, tried to utilize the Personal Privacy Protection Law to prevent the Feerick Commission from publicly disclosing the record. The Third Department found that the action was barred both by res judicata and that the data sought to be withheld from public disclosure did “not contain the type of records which the statute is intended to protect.”  The Personal Privacy Protection Law has no bearing on the issue of public access to the subject data because the file does not contain the type of records which the statute is intended to protect. Spargo v. New York State Com. on Government Integrity, 140 A.D.2d 26, 30 (N.Y. App. Div. 3d Dep’t 1988); app. denied 72 N.Y.2d 809 (1988).[5]

In Albany Industrial Dev. Agency v. New York State Com. on Government Integrity, 144 Misc. 2d 342 (Sup. Ct., Albany County, 1989) the plaintiffs who were municipal agencies and officers sued to quash a subpoena duces tecum issued by the Feerick Commission arguing that the investigation of the Commission was near completion. Therefore, a higher burden was placed on the Commission to justify its subpoenas. The court rejected this argument finding that “each of the challenged requests documents and records which are relevant and material to the Commission’s inquiry.” Id. at 344.

The more substantive challenges to the Feerick’s Commission’s powers came in the cases of New York State Com. on Government Integrity v. Congel, 156 A.D.2d 274 ( 1st Dep’t 1989) app, dismissed, 75 N.Y.2d 836 (1990) and New York Republican State Committee v. New York State Com. on Government Integrity, 138 Misc. 2d 790 (Sup. Ct., NY. County 1988) aff’d without opinion, 140 A.D.2d 1014 (1st Dep’t., 1988).

In the Congel case, the Pyramid Companies, a real estate development group, was   under investigation for its involvement in an election in the town of Poughkeepsie. The Feerick Commission issued subpoenas duces tecum for records of Pyramid, and the trial court refused to enforce the subpoenas. The trial court found that the Commission’s investigation had already been progressed to the point where the Commission had issued a preliminary report, and that the subpoenas were, accordingly, “for the purpose of ferreting out specific violations of law, a prosecutorial function not within the Commission’s purview.” 156 A.D. 2d at 277.The Appellate Division disagreed with the trial court. It found that the subpoenaed materials were relevant to the Commission’s inquiry. Id. at 278 and that “provided the materials are relevant to the proper purpose of the investigation, the subpoena’s demand for their disclosure must ordinarily be honored unless there is some sustainable claim of harassment or overbreadth.” Id. As a result, there was nothing “to prevent the Commission from obtaining material with incidental prosecutorial application, so long as the material is also relevant to the Commission’s proper objectives. Id. at 279. Based on the relevance of the subpoenaed materials, the subpoenas issued by the Feerick Commission were to be enforced.

A similar result obtained in the Republican State Committee case. The Republican State Committee was resisting subpoenas issued to obtain information on its housekeeping account. The argument was that “the Commission has overstepped its legal authority under the executive order and the Executive Law by issuing subpoenas to entities which are not either a ‘department, board, bureau or commission of the state’, and that the Commission’s investigatory power, and hence its subpoena power, is limited to State entities as described in Executive Law § 6.” 138 Misc. 2d 790 at 793. The Committee also claimed that the subpoenas could chill contributions to the party thereby violating the First Amendment.” Id. at 794.

The court disagreed. Citing the Schiffman case, supra, it found that the Committee was not the focus of the Commission’s fact finding but was incidental to its fact-finding purposes dealing with the Board of Elections and its enforcement of the campaign finance disclosure laws. The court found that the Feerick Commission, as a Moreland Act Commission and as supplemented by its powers under §63.8 of the Executive Law, had authority to issue the subpoenas. Id. at 795. Further, “the Commission has established its authority, and the relevance of the committees’ until now undisclosed financial records to a complete evaluation of the present campaign disclosure laws.” Id. at 796. The disclosure of the housekeeping accounts also had no chilling effect on First Amendment rights. Thus, the power of the Feerick Commission to issue subpoenas to non-government entities was clearly upheld.

Again, with the exception of the Hebberd case, judicial decisions have validated the powers of Moreland Act Commissions. The treatment of the Moreland Act Commissions by the courts validates the description of the law made by the New York Tribune  that the original legislation was signed by Governor Hughes. “This bill confers on the Governor almost unlimited powers along this line, powers that no Governor of the state has ever had before…Friends of the administration maintain that this bill is one of the most important of the year and that it will be an important factor in the clean government and welfare of the state.”[6] While the Moreland Act gives the governor no authority over the legislature, it possesses broad powers over those government entities that are subject to its jurisdiction.

[1] There are some opinions of the Attorney General that have mentioned generally the powers of a Moreland Act Commission. See 1939, Op.Atty.Gen. 125; 1927, Op.Atty.Gen. 301; 1909 Op.Atty.Gen. 276.

[2] While the courts may have rarely adjudicated the powers of a Moreland Act commission, in the case of  In re Second Report of November, 1968 Grand Jury of Erie County, 26 N.Y.2d 200, 215 (1970) the Court of Appeals declared, “And, of course, the Governor’s power to direct so-called Moreland Act investigations, always resulting in reports, has now become classic.”

[3] This was somewhat similar to the approach taken by Governor Rockefeller regard to investigating corruption or misconduct and government. He first appointed a special prosecutor pursuant to Section 63.8 of the Executive Law. See Executive Order 1.10. (September 8, 1962). Four months later, Governor Rockefeller issued Executive Order 1.11 which added the Moreland Act powers to the powers held by the special prosecutor under Section 63.8

[4] In a one sentence concurring opinion, Judge Fuld wrote, “Study of the Executive Order makes clear that the Governor acted under both section 8 and subdivision 8 of section 62 of the Executive Law and, that being so, there can be no doubt either as to the authority of the Governor to appoint the so-called Crime Commission or as to the power of that commission to issue the subpoena here in question.” 303 N.Y. at 218. Judge Fuld’s views suggest that the Moreland Act commission may provide an entity with more powers than an entity created solely under §63.8.

[5] Plaintiff Spargo also was involved with the Feerick Commission on the issue of proper venue on the issuance of compelling compliance with subpoenas. See Spargo v. New York State Com. on Government Integrity, 144 A.D.2d 897 (3d Dep’t 1988), app. dismissed  73 N.Y.2d 871 (1989). The venue issue also arose in the case of

New York Republican State Committee v. New York State Com. on Government Integrity, 138 A.D.2d 884 (3d Dep’t 1988), app. denied 72 N.Y.2d 803 (1988).

[6]  “Moreland Bill Signed,” New York Tribune, June 22, 1907 Pp. 1-2. See also “Legislature’s Work,” New York Tribune, June 27, 1907 Pg. 2 “One of the important measures of the year was the Moreland Bill empowering the Governor personally or by appointees to investigate every department or bureau or division of the state to ascertain the exact state of its business.”

New York State and the National Assessment of Educational Progress Tests

March 17, 2015

By Bennett Liebman
Government Lawyer in Residence

We confess to having limited expertise and no firm position on the issues surrounding the future of education funding in New York State. But we are bothered by the fact that objective data rarely seems to emerge in the public debate on this issue. To try to provide some hopefully objective data, we are posting the National Assessment of Educational Progress [NAEP] test results for New York State. NAEP bills itself as the “nation’s report card” and is regularly regarded in the media as the “gold standard” for educational testing data. (All cites are to the NAEP website at http://www.nationsreportcard.gov/)

The “NAEP is a congressionally authorized project of the National Center for Education Statistics (NCES) within the Institute of Education Sciences of the U.S. Department of Education.” Its report cards since 1969 “communicate … a continuing and nationally representative measure of achievement in various subjects over time.”

“NAEP is the only assessment that allows comparison of results from one state with another, or with results for the rest of the nation. The NAEP program helps states answer such questions as: How does the performance of students in my state compare with the performance of students in other states with similar resources or students? How does my state’s performance compare with the region’s? Are my state’s gains in student performance keeping up with the pace of improvement in other states?” Unlike other testing, there does not appear to be any way to teach or prepare students for the NAEP exams, and it is often quoted that ten points on the exam is the equivalent of a grade level.

We are posting NAEP’s own summaries of certain test results plus the direct links to these results.

National Long Term Trends from 2012

http://www.nationsreportcard.gov/ltt_2012/

  • Compared to the first assessment in 1971 for reading and in 1973 for mathematics, scores were higher in 2012 for 9- and 13-year-olds and not significantly different for 17-year-olds.
  • In both reading and mathematics at all three ages, Black students made larger gains from the early 1970s than White students.  Hispanic students made larger gains from the 1970s than White students in reading at all three ages and in mathematics at ages 13 and 17.
  • Female students have consistently outscored male students in reading at all three ages, but the gender gap narrowed from 1971 to 2012 at age 9.
  • At ages 9 and 13, the scores of male and female students were not significantly different in mathematics, but the gender gap in mathematics for 17-year-olds narrowed in comparison to 1973.

New York State Profile

 http://nces.ed.gov/nationsreportcard/states/ and go to New York for the general profile and for particular tests. The main chart on this page shows the results of NAEP testing in New York since the 1990’s

Mathematics: The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 48 points in 2013. This performance gap was not significantly different from that in 1990 (50 points)

Science: In 2011, the average score of eighth-grade students in New York was 149. This was lower than the average score of 151 for public school students in the nation

Reading: The percentage of students in New York who performed at or above the NAEP Proficient level was 37 percent in 2013. This percentage was greater than the nation (34 percent).

Student Characteristics: Number enrolled: 2,704,718 Percent in Title I schools: 98.0% With Individualized Education Programs (IEP): 16.6% Percent in limited-English proficiency programs: 7.6% Percent eligible for free/reduced lunch: 49.3% Racial/Ethnic Background: White: 48.2% Black: 18.4% Hispanic: 23.3% Asian: 8.3% Pacific Islander: 0.1% American Indian/Alaskan Native: 0.5% School/District Characteristics: Number of school districts: 728* Number of schools: 4817 Number of charter schools: 183 Per-pupil expenditures: $18,621 Pupil/teacher ratio: 12.9 Number of FTE teachers: 209,527

4th Grade Math NYS

In 2013, the average score of fourth-grade students in New York was 240. This was not significantly different from the average score of 241 for public school students in the nation.

The average score for students in New York in 2013 (240) was higher than their average score in 2011 (238) and in 1992 (218).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 38 points in 2013. This performance gap was not significantly different from that in 1992 (43 points). The percentage of students in New York who performed at or above the NAEP Proficient level was 40 percent in 2013. This percentage was greater than that in 2011 (36 percent) and in 1992 (17 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 82 percent in 2013. This percentage was not significantly different from that in 2011 (80 percent) and was greater than that in 1992 (57 percent).

In 2013, Black students had an average score that was 23 points lower than White students. This performance gap was narrower than that in 1992 (31 points).

In 2013, Hispanic students had an average score that was 19 points lower than White students. This performance gap was narrower than that in 1992 (32 points).

In 2013, male students in New York had an average score that was not significantly different from female students.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 21 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was narrower than that in 1996 (30 points).

State and nation both up 22 points from 1991-2013. State = 240 Nation = 241

8th Grade Math NYS

In 2013, the average score of eighth-grade students in New York was 282. This was lower than the average score of 284 for public school students in the nation.

The average score for students in New York in 2013 (282) was not significantly different from their average score in 2011 (280) and was higher than their average score in 1990 (261).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 48 points in 2013. This performance gap was not significantly different from that in 1990 (50 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 32 percent in 2013. This percentage was not significantly different from that in 2011 (30 percent) and was greater than that in 1990 (15 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 72 percent in 2013. This percentage was not significantly different from that in 2011 (70 percent) and was greater than that in 1990 (50 percent).

In 2013, Black students had an average score that was 32 points lower than White students. This performance gap was not significantly different from that in 1990 (39 points).

In 2013, Hispanic students had an average score that was 28 points lower than White students. This performance gap was not significantly different from that in 1990 (35 points).

In 2013, male students in New York had an average score that was not significantly different from female students.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 24 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was not significantly different from that in 1996 (29 points).

State up 21 points from1990-2013; Nation up 22 points. State – 282. Nation -284

4th Grade Reading NYS

In 2013, the average score of fourth-grade students in New York was 224. This was higher than the average score of 221 for public school students in the nation.

The average score for students in New York in 2013 (224) was not significantly different from their average score in 2011 (222) and was higher than their average score in 1992 (215).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 46 points in 2013. This performance gap was not significantly different from that in 1992 (46 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 37 percent in 2013. This percentage was not significantly different from that in 2011 (35 percent) and was greater than that in 1992 (27 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 70 percent in 2013. This percentage was not significantly different from that in 2011 (68 percent) and was greater than that in 1992 (61 percent).

In 2013, Black students had an average score that was 22 points lower than White students. This performance gap was not significantly different from that in 1992 (27 points).

In 2013, Hispanic students had an average score that was 23 points lower than White students. This performance gap was narrower than that in 1992 (42 points).

In 2013, female students in New York had an average score that was higher than male students by 6 points.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 26 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was narrower than that in 1998 (35 points).

State up 9 points from 1992-2013; Nation up 6 points. State = 224. Nation = 221.

8th Grade Reading NYS

In 2013, the average score of eighth-grade students in New York was 266. This was not significantly different from the average score of 266 for public school students in the nation

The average score for students in New York in 2013 (266) was not significantly different from their average score in 2011 (266) and in 1998 (265).

The score gap between higher performing students in New York (those at the 75th percentile) and lower performing students (those at the 25th percentile) was 46 points in 2013. This performance gap was not significantly different from that in 1998 (43 points).

The percentage of students in New York who performed at or above the NAEP Proficient level was 35 percent in 2013. This percentage was not significantly different from that in 2011 (35 percent) and in 1998 (32 percent).

The percentage of students in New York who performed at or above the NAEP Basic level was 76 percent in 2013. This percentage was not significantly different from that in 2011 (76 percent) and in 1998 (76 percent).

In 2013, Black students had an average score that was 25 points lower than White students. This performance gap was not significantly different from that in 1998 (28 points).

In 2013, Hispanic students had an average score that was 25 points lower than White students. This performance gap was not significantly different from that in 1998 (28 points).

In 2013, female students in New York had an average score that was higher than male students by 12 points.

In 2013, students who were eligible for free/reduced-price school lunch, an indicator of low family income, had an average score that was 24 points lower than students who were not eligible for free/reduced-price school lunch. This performance gap was not significantly different from that in 1998 (25 points).

State unchanged from 1998-2013; Nation up 5 points. State and nation both at 266.

Data from New York City

Go to http://nces.ed.gov/nationsreportcard/districts/ and go to New York City.

4th grade math In 2013, the average score of fourth-grade students in New York City was 236. This was not significantly different from the average score of 235 for public school students in large cities.

8th grade math In 2013, the average score of eighth-grade students in New York City was 274. This was not significantly different from the average score of 276 for public school students in large cities.

4th grade reading In 2013, the average score of fourth-grade students in New York City was 216. This was higher than the average score of 212 for public school students in large cities.

8th grade reading In 2013, the average score of eighth-grade students in New York City was 256. This was not significantly different from the average score of 258 for public school students in large cities.

There Really Was a Lava Libretti

March 12, 2015

By: Bennett Liebman
Government Lawyer in Residence

Over the decades, former New York State governor Mario Cuomo used to talk about the many assumed names he had used over the years while playing basketball and baseball games in Queens, Brooklyn and Long Island. He spoke about playing in church-sponsored leagues and regional leagues under the names Glendy Laduke, Lava Libretti, Matt Dente, Connie Cutts, and even Igor Livingston.[1] Most of these aliases were used for teams associated with legendary amateur coach Joe Austin[2] who managed for decades a host of teams that ran through St. Monica’s Roman Catholic Church in South Jamaica in Queens.

Of these nom de plumes, Lava Libretti always seemed to be the most descriptive and interesting. Mario Cuomo after becoming governor would say that it was because he was “always hot.”[3] The earlier explanation was the notion that the name conveyed two aspects of his personality. The “Lava” part stemmed from the fact that he was a hothead. The “Libretti” surname came from the fact that he was always carrying books. So with Lava Libretti, you got a hot-headed bookworm.

It is always nice to trust these stories, but it’s better to verify them. In the case of Lava Libretti, it does look like you can actually rely on the name. The Long Island Press[4] from February 9, 1948 shows Mr. Libretti playing for the St. Monica Celtics[5] against the Flushing Flashes. In the game won 73-35 by the Celtics, Joe Schlosser scored 24 points, and “teammate Lava Libretti followed closely with 19 points, made on seven two-pointers and five charity tosses.”[6] [Emphasis added] The same story appears that day in the Long Island Star Journal under a different headline.[7] Thanks to the Internet, a copy of the Star Journal article is available for perusal.

So, Mario Cuomo actually used the name Lava Libretti playing for Joe Austin. But this raises further issues. What 15 year old would seriously call himself Lava Libretti? Would someone who called himself Lava Libretti ever conceive of using the name Igor Livingston? We can verify Lava Libretti, but it is still a leap of faith to believe in Igor Livingston.

There Really Was a Lava Libretti

[1] Richard Benedetto, “Mario Cuomo Put the Person Before Politics,” Utica Observer-Dispatch, January 6, 2015; Bob Keeler, “For Assemb. Hevesi, Second Is Not So Bad,” Newsday, April 1, 1979.

[2] See George Vecsey, :Sports of The Times; Farewell to Governor’s Coach, New York Times, September 11, 1998; Bill Bell, “Joe Austin Way of Life Jamaica Man Leveled Playing Field For Kids,” New York Daily News, August 23, 2001.

[3] Pete Axthelm, “The Fiery Conciliator,” Newsweek, July 23, 1984.

[4] For information on the Long Island Press, see http://en.wikipedia.org/wiki/Long_Island_Daily_Press.

[5]  A variety of Joe Austin -managed teams were called the Celtics.

[6] “Celtics Avenge Early Loss,” Routing Flashes by 73-35,” Long Island Press, February 9, 1948.

[7] “Flashes Lose to St. Monica’s,” Long Island Star Journal, February 9, 1948,.Pg. 12.

“Three Men in a Room” and Albany: Where did the Phrase come from?

March 11, 2015

By: Bennett Liebman
Government Lawyer in Residence

There have been regular meetings of the Governor and the legislative leaders since at least 1943 when Governor Thomas Dewey came into office. [1] While given the dominance of Governor Dewey over all aspects of New York State government, these meetings were closer in reality to one man in a room rather than three in a room, the fact is that New York State government has had three leaders in a room making key legislative decisions for close to three quarters of a century.   This practice has become recognized as “three men in a room.” A quick look at Nexis shows 1,194 occasions[2] where the term “three men in a room” has appeared in the same article as the word “Albany.” There is even a book entitled Three Men in a Room: The Inside Story of Power And Betrayal in an American Statehouse .[3]

How did we get to the situation where “three men in a room” has become almost a requisite component of any written discussion of New York State government? The question is when did these meetings get be to be known as “three men in a room”?

In actuality, it has taken decades for the term to catch on. Reviewing a variety of media databases, it appears that the earliest reference to the phrase “three men in a room” was by Rex Smith in 1988 while working for Newsday.[4]  Smith, in writing about the budget breakdown in Albany that year,  concluded his article by saying, “ Nobody knows what goes on in the budget negotiations behind the closed doors in Albany, making it difficult to figure out what went wrong or who is to blame for this year’s impasse. ‘This is not a game of blame,’ Miller[5] said yesterday. But the system used to achieve a budget agreement – which depends, at the end, on a consensus among three men in a room – has broken down.” [6][Emphasis added]

Yet, Smith’s use of the term did not become fashionable. In fact, it was another seven years before the phrase “three men in a room” would resurface in describing Albany. The Daily News in a June 7, 1995 editorial stated “Coming after an election in which the voters clearly demanded change, Albany rolled on like ol’ man river. The interminable closed-door wheeling and dealing was typical, with decisions of breathtaking consequences made by three men in a room.”[7] [Emphasis added] Eleven days later the New York Times quoted Democratic Assemblywoman Sandra Galef saying, “Pataki, for all of his promises, went back to the same old formula — three men in a room hammering out the budget.”[8] [Emphasis added]

Again, however, the 1995 articles failed to have staying power. There were no mentions of the term for the next two years. In the summer of 1997, Newsday wrote two separate editorials complaining about the three men in a room, [9] but no other journal or journalist picked up on the phrase.

This all changed in 1998 when the New York Times climbed on board the “three men in a room” bandwagon. First as the session began, the Times ran a special report by James Dao highlighting the leadership dominated “three men in a room” culture of Albany.[10] Then in a series of articles around a six week period around budget time, Richard Perez-Pena with three articles, Abby Goodnough with one article, and two Times editorials all cited “three men in a room.”[11] Similarly in 1998, Newsday continued to write about “three men in a room” with seven articles. One was from Assembly Speaker Sheldon Silver who opened his article stating “The era of ‘three-men-in-a-roombudget-making is over. As one of those three men, I say, ‘Good riddance.’”[12]

The phrase was in regular use over the next several years, especially at Newsday and the New York Times[13]. Its usage, however, per Nexus, began to increase significantly beginning in 2002. That year had 35 cites to the phrase. There were 65 cites in 2005, 116 cites in 2007 and 103 in 2009. In the first two months of 2015, spurred on by the indictment of Speaker Silver, there have already been 167 cites to the phrase.

The phrase “three men in a room” is nearly always used disparagingly to mean a secret non-transparent process under which a small group of officials make the decisions for the entire State. Yet, there is occasional support for the process. It has been called the   “ungovernable polity” defense.[14] As political scientists have written, “Building support and legitimacy for compromises within a democracy is difficult, and the process in New York reflects how protracted that process can become…. [As most members see it,] strong leadership is a self-inflicted ‘necessary evil’ to achieve agreement. As long as the leadership is responsive to member needs the members are likely to continue to support a strong leadership system.” [15] Crain’s New York Business has noted, “’Three men in a room’ is sometimes a necessary alternative to political pontificating by 212 legislators and a governor…”[16]  Even Blair Horner of the New York Public Interest Research Group has stated, “The three men in a room problem was one of degree, that so much business, including the entire budget, was done in complete secrecy…But you have to have leaders’ meetings. They have to talk to each other. Otherwise, how do you get anything done?”[17]

The “three men in a room” problem in New York is the inherent and continuing difficulty in establishing a proper balance between executive and legislative leadership, transparency and functionality.

[1] Charles Breitel, “Some Aspects of the Legislative Process” 21 N.Y. St. B.A. Bull. 271, 274 (1949). Breitel, who was then Counsel to Governor Dewey wrote, “This liaison has worked with unusual success. There is a suggestion that

we may have struck upon an instrument which with further improvement will make up for the deficiency of liaison in the American system as compared with the parliamentary system. If so, we would be resolving the dilemma without losing the stability and the other advantages of the American system with its checks and balances. The liaison device consists of regular meeting, and the practices adopted there, of the legislative majority leaders with the Governor of the State.” Id.

[2] As of March 3, 2015.

[3] Seymour P. Lachman with Robert Polner, Three Men in a Room: The Inside Story Of Power and Betrayal in an American Statehouse (2006).

[4] Smith currently serves as the editor of the Albany Times Union.

[5] Mel Miller was the Speaker of the Assembly at the time of the article.

[6] Rex Smith, “Faltering Steps in the Budget Dance,” Newsday, April 14, 1988.

[7] “Hardly Worth the Wait” Daily News, June 7, 1995,

[8] Elsa Brenner, “Both Sides Claim Success on Budget,” New York Times, June 18, 1995.

[9] “209 Empty Suits / Legislators Should Reject Rubber- Stamp Role,” Newsday, August 3, 1997; “Don’t Waste State’s Money on Building Prisons, ”Newsday, July 9, 1997.

[10] James Dao, “Rank and File of Albany Chafing at Their Bit Parts,” New York Times, January 3, 1998.

[11] Richard Perez-Pena, “Budget Groundwork Finishes Early in Albany,” New York Times, March 24, 1998; Richard Perez-Pena, “Albany’s Open Budget Talks Make History in Fits and Starts,” New York Times, March 26, 1998; Richard Perez-Pena,  “Pataki’s Quandary,” New York Times, April 15, 1998;  Abby Goodnough “Albany Legislative Leaders Quickly Agree on Most of Budget,” New York Times, April 3, 1998;“Editorial Risky Budget Optimism,” New York Times, April 9, 1998;  “No Going Back in Albany,” New York Times, May 6, 1998. From 1999 – 2006, Richard Perez-Pena wrote six additional articles citing to three men in a room.

[12] Sheldon Silver, “Drafting a Budget Outside the Back Room,” Newsday April 21, 1998.

[13] Nexis has the New York Times using the phrase five times in 1999. Newsday, per Nexis, employed the phrase three times in 1999.

[14] Galie and Bopst, “It Ain’t Necessarily So”: The Governor’s ‘Message of Necessity’ and the Legislative Process in New York,” 76 Albany Law Review 2219, 2267 (2013).

[15] Jeffrey M. Stonecash & Amy Widestrom, “The Legislature, Parties, and Resolving Conflict,” in Governing New York State, 165, 168, 180 (Robert F. Pecorella & Jeffrey M. Stonecash eds., 5th ed. 2006). Cited in Galie and Bopst Id.  at note 298.

[16]  “A Shoddy Tax Deal in Albany,” Crain’s New York Business, December 12, 2011.

[17] Richard Perez-Pena, “Political Memo; In Slow-Motion Albany, Old Days Look Exciting,” New York Times,,July 22, 2001.

Reviving the Pocket Veto in New York State

March 3, 2015

By: Bennett Liebman, Government Lawyer in Residence

Governor Andrew Cuomo in January and February of 2015 pocket-vetoed three contentious bills from the 2014 legislative session.[1] He took no action on these bills, and they de facto did not become law.

Under the New York State Constitution, when the legislature is in session, the governor has ten days to approve or veto a bill. If the governor takes no action within the ten day period, the bill becomes law.[2] In terms of legislative adjournments, the Constitution states, “No bill shall become a law after the final adjournment of the legislature, unless approved by the governor within thirty days after such adjournment.”[3] So where the legislature has adjourned, the governor has the ability to have a pocket veto. If the governor takes no action on bills pending approval before the governor after the legislature has adjourned, those bills do not become law and are, thus, pocket vetoed.

In New York State since 1976, the legislature has not adjourned. It only takes recesses. “The thirty-day rule, it would seem, cannot be constitutionally applied because the State Senate has not adjourned sine die since 1976.”[4] So how could these bills be pocket-vetoed in an era where there are no adjournments?

The answer would seem that to be that at the end of the calendar year, the legislature as a matter of course is adjourned. The State Constitution states,” The political year and legislative term shall begin on the first day of January; and the legislature shall, every year, assemble on the first Wednesday after the first Monday in January.”[5]  That language should end the existence of the prior legislature. Additionally, the houses when they first assemble on the first Wednesday will generally declare that the legislative session for the previous year has concluded. So there is a theoretical basis for continuing the ability to maintain a pocket veto. Each year in January, the previous legislature, by operation of the Constitution, and through its own actions has finally adjourned.

But even if a pocket veto is still legally authorized, is there any public policy reason why it should be utilized?  The point of the pocket veto was that there might be times when the governor (especially with the logjam of legislation passed at the conclusion of a legislative session) did not have the time to fully consider the legislation. In such cases, the legislation would not become effective unless signed by the executive. In the pre-1976 era, hundreds of bills were sent by the legislature to the executive, necessitating executive action within a confined thirty day period. A pocket veto is simpler for the governor, for, unlike an ordinary gubernatorial veto, a pocket veto does not require a formal statement of the governor’s objections to the bill.[6]

The pocket veto was used significantly in the 19th century. It was said, “As a rule, Governors have confined their memorandums of disapproval to the important bills and made what is called a ‘pocket’ veto of the rest – that is they have let them die a peaceful death without any obituary notice.”[7] Yet the pocket veto fell out of style in the 20th century. For much of the 20th century governors saw no need for the pocket veto.   In fact from the time of Governor Herbert Lehman in 1933 until the governorship of Mario Cuomo,[8]  there were no pocket vetoes. Governors were praised and lauded themselves for not resorting to pocket vetoes.[9]

Governor Pataki, however, restored used the pocket veto and used it on 63 occasion during his twelve years in office.[10] Pocket vetoes were not used by Governors Spitzer and Paterson, and were not used until 2015 by Governor Andrew Cuomo.

Now, unlike the pre-1976 days, bills that pass the legislature are regularly held by the legislative leaders in order to provide a regular and orderly flow of bills to the executive This insures that the executive staff is not overwhelmed with the burden of reviewing hundreds of bills within a ten day or a thirty day period after the legislature recesses for the summer. This also provides the executive staff with a considerable amount of time to vet all the passed legislation with the public and interested parties. The 2014 bills that were pocket vetoed in 2015 were passed by the legislature more than seven months before the vetoes. A pocket veto of these bills cannot be justified by any notion that the executive did not have sufficient time or resources to consider the legislation. Instead, the only thing that the pocket veto accomplishes is to provide the governor with the ability not to state his or her objections to the legislation to be vetoed. If we are concerned about transparency in government, the pocket veto should not be used.

But while there are legitimate concerns about the pocket veto, equal attention should be paid to the problems inherent in the ability of the legislature to hold back and time the submission of passed bills to the executive for approval. Why should bills take seven months after their passage to be acted on by the governor?

The ability to time the submission of bills to the governor also permits a considerable amount of political gamesmanship. For example:

  1. If the legislature and the governor are not getting along, the legislature can submit controversial and/or difficult bills to the governor for consideration just before Election Day, thereby jamming up the governor.
  2. Conversely, if the legislature and the governor are completely cooperating, the legislature can submit extremely popular bills to the governor for consideration just before Election Day thereby promoting both the legislature and the governor.
  3. If the legislature and the governor are getting along, the legislature can submit controversial and/or difficult bills to the governor for consideration after Election Day, thereby letting the governor off the hook on these issues.
  4. If the legislature and the governor are getting along, the legislature can submit certain bills – on which the governor might not wish to say anything on the record- which will reach the governor after the legislature has adjourned. This will enable the governor to pocket veto the legislation.

There may be no reason why all legislation should be acted on thirty days after the legislature informally leaves Albany, but the current situation under which the legislature gets to pick and choose when to submit bills to the governor is full of potential political chicanery and can unduly delay the democratic process.

[1] The pocket vetoes for bills S7801  (relating to police discipline) and S5584A (purporting to provide a payment for  the New York Racing Association to the Nassau County Off-Track Betting Corporation) became effective on February 2, 2015. The pocket veto for S. S870C (authorizing the city of Buffalo to adjudicate traffic infractions) became effective on January 29, 2015. All these bills were controversial in their respective fields, especially the police discipline bill which pitted police unions against localities and civil rights groups.

[2] State Constitution Article 4, Section 7.

[3] Id.

[4] Steven D. Koczak, Winning Battles and Losing Wars: Governor George E. Pataki and the Executive Veto, Doctoral Dissertation 2013 Pg. 161. See also Richard A. Givens, “Primer on the State Legislative Process: How It Differs from Federal Procedure,” New York State Bar Journal, Vol. 57, Issue 3 (April 1985), Pg. 13.

[5] State Constitution Article 13, Section 4.

[6] State Constitution, Article 4, Section 7 supra note 2.  For regularly vetoed bills, the governor “shall return it with his or her objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it.”

[7] “The Veto Power,” Amsterdam Daily Democrat and Reporter, September 27, 1893.

[8] Governor Mario Cuomo used the pocket veto once during his tenure and issued a veto memorandum in that instance. Veto 29 of 1989. See generally Koczak, supra note 4 at Pg. 171,

[9] See “The Veto Power,” supra note 6 for Governor Flower. “Vetoes by Lehman Kill 40% of Bills, New York Times, April 18, 1938. “Although the Constitution permits a pocket veto at the end of the thirty day period, Mr. Lehman has never followed that practice.”

[10] Koczak supra note 4 at Pg. 171.

Changing the Timing of the State of the State Address

February 26, 2015

By: Bennett Liebman
Government Lawyer in Residence

This January, Governor Andrew Cuomo, following the death of his father former Governor Mario Cuomo on January 1, decided not to deliver his annual State of the State remarks when the State legislature reconvened on Wednesday January 7. Instead, he delivered his remarks on Wednesday January 21, 2015, two weeks after the original time of the State of the State.

The question arises as to what legal constraints were in place that might have limited the Governor’s ability to change the timing of his State of the State remarks. What precedents were there on the delivery of these remarks?

The short answer is that there are basically no restraints on the State of the State remarks. In fact, there is no requirement that the Governor actually deliver an oral 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.”

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.

Nor is there any requirement of a speech. 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[1] wanted to make sure that only a message 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.[2]

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 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 in 1913.[3]

Smith’s remarks 1923 remarks were the first time that a “Governor of this State has delivered his message in person.”[4] 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.[5] 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.”[6] The New York Times added that the “Governor-elect is well aware that little attention is paid to a message from the Governor, no matter how important the  topics dealt with when the message is read in the usual lackadaisical somnolent fashion by the Clerk of the Senate or Assembly.”[7]

Smith was not joking about his non-skimming of the message. The New York Times claimed that his 1923 speech lasted one and a half hours.[8] In subsequent years, Smith spoke for longer period. His 1924 speech was two hours.[9] The 1925 speech took three hours.[10]The 1926 speech was 2:10.[11]

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.[12] The 1928 message, with Smith a candidate for the presidency, was the longest message ever,[13]  encompassing 35,000 words,[14] 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.”[15]

All governors since Smith have given their State of the State messages in person. The speeches have been broadcast, and governor have learned, unlike Governor Smith, to keep their remarks to a more manageable time period.[16]

[1] Livingston subsequently served both as the Speaker of State Assembly and the  President Pro Tem of the Senate

[2] Robert Allan Carter, New York State Constitution: Sources of Legislative Intent (Second Edition) p. 35 (2001) See also Constitutional Convention of 1821, Reports of the Proceedings and Debates P. 173.

[3] See Frederick N. Rasmussen, “Woodrow Wilson Revived the Tradition of the Oral State of the Union Address,” Baltimore Sun, January 29, 2011. See generally http://www.presidency.ucsb.edu/sou.php

[4] “Smith to Read First Message on Wednesday,” New York Herald Tribune, December 30, 1922.

[5] Id.

[6] Id.

[7] “Smith Will Read his Annual Message, “New York Times, December 30, 1922.

[8] “Gov. Smith Proposes Radical New Laws to Bring Home Rule,” New York Times, January 4, 1923. The Baltimore Sun claimed that his speech was one hour and forty minutes. “Liberal Government Is ‘Al’ Smith’s Plea,” Baltimore Sun, January 4, 1923.

[9] “Gov. Smith Presents Tax Relief Program; Republicans to Aid,” New York Times, January 2, 1924.

[10] Reginald Wilson, “Smith Urges Cooperation; Republicans Act at Once,” New York Herald Tribune, January 8, 1925. The New York Times clocked the speech at two hours, forty-five minutes. See “Message Longest on Record,” New York Times, January 8, 1925.

[11] Reginald Wilson, “Smith Wants State to Fund Housing, Asks 25% Tax Cut,” New York Herald Tribune, January 7, 1926.

[12] “Smith Not to Read Message to Legislature; Breaks His Custom by Doctor’s Advice,” New York Times, January 4, 1927.

[13] “Gov Smith Faces G.O.P. Majority,” Associated Press, Boston Globe, January 4, 1928.

[14] Theodore C. Wallen, “Smith to Give Nation Views In Message of 35,000 Words,” New York Herald Tribune, December 29, 1927.

[15] “Smith Feared Message Would Take Up 3 Days,” New York Herald Tribune, January 4, 1928.

[16] The one exception to this shortened State of the State approach may have been Governor Cuomo’s actual 2015 State of the State address which ran for one hour thirty minutes. Arguably, the fact that this peech was combined with the budget presentation could conceivably have justified its length. See Kyle Hughes, “Cuomo Talks Gambling, Schools,” Oneida Daily Dispatch, January 22, 2015.

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