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Removing the Lead from Upstate New York

April 12, 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[1] and nearby Petersburgh in Rensselaer County.[2]

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.”[3] “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.”[4] 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.”[5] 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.”[6]

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,”[7] but it specifically views lead blood levels above five micrograms per deciliter (µg/dL) as the reference level at which “health actions be initiated.”[8] 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.[9] 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.”[10] This finding was based on a number of scientific studies showing that lead blood levels below 10 µg/dL can cause lifelong health effects.”[11] The CDC believes that 97.5% of children from ages 1-5 have blood levels below 5 µg/dL.[12]

In order to achieve the goal of reducing lead poisoning and prevention of lead exposure, the CDC works with most ‒ but not all ‒ states[13] and the District of Columbia to test for lead exposure in children under age six.[14] New York is one of those states that conducts lead testing.

Nationally, as of the most recent 2014 testing, .53% of children tested show lead blood levels above 10 µg/dL.[15]  Nationally 3.5% of children have lead blood levels above 5 μg/dL.[16]

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.[17] 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*.[18] 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.[19]

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.[20] 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%.[21] 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,[22] 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[23] and Hamilton[24] 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.[25]

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.[26] 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).[27]

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.[28] 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.[29] 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.[30] 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,[31] 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,[32] but other than in Buffalo, this issue in upstate New York can hardly be regarded as racially based.[33]

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.”[34] 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.”[35] Schumer pointed out that lead exposure for children five and younger was 4% in Flint but 14% in Erie County.[36] 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.”[37]

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.

 

 

[1] 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).

[2] 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).

[3] 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].

[4] Michael D. Terranova, County Legislators Must Help Prevent Lead Poisoning,” Buffalo News, April 3, 2016.

[5] “Childhood Lead Poisoning,” http://www.cdc.gov/nceh/lead/factsheets/Lead_fact_sheet.pdf [last viewed April 10, 2016].

[6] Jacob S. Hacker and Paul Pierson, “The Real Cause of the Flint Crisis,” Atlantic Online, March 7, 2016 [last viewed April 11, 2016].

[7] http://www.cdc.gov/nceh/lead/ [last viewed April 10, 2016].

[8] Id.

[9] http://www.cdc.gov/nceh/lead/acclpp/blood_lead_levels.htm [last viewed April 10, 2016].

[10] Id.

[11] “Blood Lead Levels in Children,” http://www.cdc.gov/nceh/lead/acclpp/lead_levels_in_children_fact_sheet.pdf [last viewed April 10, 2016].

[12] Id.

[13] 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].

[14] For purposes of this paper, the term “children” will refer to all individuals under age six.

[15] “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.

[16] Id.

[17] In general, on this topic see Hacker and Pierson, supra at note 6.

[18] 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.

[19] “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%.

[20] 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].

[21] 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.”

[22] 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].

[23] 3.13%. Again, this data is from “CBLS County-level Summary Data for NY, 2014,” supra at note 22.

[24] 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.

[25] These counties are Chautauqua, Erie, Fulton, Montgomery, Oneida, Orleans, Yates and Washington.

[26] 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.

[27] The State Thruway does not run through Fulton and Orleans County, but is runs extremely close to these counties.

[28] 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].

[29] 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.

[30] Id.

[31] 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].

[32] T.J. Pignataro, Susan Schulman and Sandra Tan, “Legislature Must Still Approve Paying for LeadPoisoning Initiative,” Buffalo News, March 9, 2016.

[33] By contrast, see Nicholas Kristof, “When Whites Just Don’t Get It, Revisited,” New York Times, April 3, 2016.

[34] http://www.ag.ny.gov/press-release/ag-schneiderman-announces-funding-fight-childhood-lead-poisoning-buffalo-0 [last viewed April 8, 2016].

[35] 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].

[36] Id.

[37] “WNY’s Catastrophe; High Rate of Lead Poisoning in Children Cries Out for a Many-Sided Plan of Action,” Buffalo News, March 6, 2016.

Combining the State of the State Address with the Governor’s Budget Message

January 7, 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.[1]

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.[2] “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.’”[3] 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.”[6] 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.[7] 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.”[8] 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,[9] encompassing 35,000 words,[10] 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.”[11]

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.[12] In 2016, that date would be January 19. In years following a gubernatorial election, the executive budget is to be introduced by February 1.[13] 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.”[14] 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.”[15] 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.[16] 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 . . .”[17]

Governor Thomas Dewey also continued the budget school in his early years in office.[18] After his first term, he expanded upon the budget school and conducted a separate budget school for his fellow Republican members of the legislature.[19]

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.[20]

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.”[21] This was followed by a legislative briefing and ultimately by an evening briefing for the editors and editorial writers.[22] 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.[23] 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.[24] 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.

 

[1] 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.

[2] 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/.

[3] Id.

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

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

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

[7] Id.

[8] Id.

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

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

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

[12] New York State Constitution, Article 7, Section 2.

[13] Id.

[14] Id.

[15] New York State Division of the Budget, The Executive Budget in New York State, p. 68 (1981).

[16] 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.

[17] “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.

[18] “‘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.

[19] “Press Studies State Budget,” Albany Times Union, January 20, 1947; “School Lunch Funds Sought,” Amsterdam Evening Recorder, January 28, 1947.

[20] “Finger Lakes Wines Best–Stratton,” Interlaken Review, March 21, 1968.

[21] 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.

[22] Id.

[23] 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.

[24] 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.

Terminating Gubernatorial Investigatory Commissions

April 16, 2015

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[1] to review public corruption in June of 2013. [2] 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.”[3] 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.[4]

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.[5] 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.[6] 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.[7] 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.”[9] 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.”[10]

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.[11] The legislature passed a bill changing the jury selection system only for Albany County,[12] but it was found to be an unconstitutional attempt by the State legislature to pass a local law.[13] 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![14] 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.”[15]

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.[16] Soon after this phone call, Dewey called reporter Leo O’Brien[17] – 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.”[18]

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.  [19]

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.’”[20]

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.”[21]

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.”[22] In any event, if O’ Brien’s word – and O’Brien in theory would not appear to have any significant motive to  fabricate[23] – 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.”[24]  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.[25] 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.[26] Its preliminary report in February of 1960 found that New York City officeholders “lack ‘the appetite, willingness, or capacity’ to do the job.”[27] The Commission thus injected “itself unquestionably into the political arena in 1961.”[28] 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.”[29]

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.[30] 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.[31] 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.[32] 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.[33]

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.[34] The Temporary State Commission was a bipartisan organization that was not subject to the direct control of the executive.[35]

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.[36] The Seymour unit announced that there was corruption throughout the planning division of the City Department of Buildings.[37] In return, Mayor Wagner accused Seymour of a smear campaign.[38] 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.[39] Seymour continued his investigation including a report that a steamship executive with business before the City was providing favors to the Mayor.”[40]

Nonetheless, The State Investigation Commission ended the Seymour unit’s existence in July of 1961.[41] 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.[42] 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.”[43] 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.”[44]

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[45] 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.”[46] 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.[47] “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.”[48] Nadjari had the reputation of being a tough and aggressive prosecutor, and he lived up to his reputation during his time as special prosecutor.[49]

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.[50] 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,[51] and “he suffered a series of legal defeats in his major cases.”[52] As Time Magazine put it: “To his detractors he was unorthodox, ruthless, overzealous, tyrannical and inept.” [53]

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.[54]

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.[55] He also suggested that Governor Carey had dismissed him because he was investigating high-ranking figures in the Democratic Party.[56]  He implied that the Governor had learned of his investigation into State Democratic Party chairman Patrick Cunningham selling judgeships.[57] “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.’”[58] 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.[59] Governor Carey was cleared of any misconduct by Justice Grumet.[60] 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.”[61] 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.”[62] He was criticized by the State Investigations Commission[63] “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.”[64]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!”[65]

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.

[1] 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.

[2] 9 NYCRR § 8.106, dated July 2, 2013, which created the Commission to Investigate Public Corruption with twenty-five members.
[3] Id.

[4] Kenneth Lovett, “Andy Foe’s Got to Love This Confab,” New York Daily News, March 4, 2015.

[5] “Dewey Assails O’Connell Machine,” New York Herald Tribune, October 25, 1938.

[6] 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).

[7] See “Monaghan Charges Jury Balked Probe, New York Post, February 16, 1946.

[8] “4 State Court Justices Flayed by Monaghan,” Associated Press, Buffalo Courier Express, November 11, 1944.

[9] “Albany County Inquiry Ends; Jury Set-Up Hit,” New York Herald Tribune, February 16, 1946.

[10] “Dewey-urged Albany Probe Ends Today, Many Indicted,” United Press, North Tonawanda News, February 15, 1946.

[11] “Albany Jury Ends 2-Year Crime Hunt,” New York Times, February 16, 1946.

[12] Laws 1944, Chapter 206.

[13] Stapleton v. Pinckney, 182 Misc. 590 (Sup. Ct. Albany County 1944) aff’d 293 N.Y. 330 (1944).

[14] William J. Kennedy, O Albany!, Penguin Books (1985).

[15] 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).

[16] Id. at 289-290.

[17] O’Brien later served for many years as the Democratic congressman from Albany.

[18] Id. at 290.

[19] Id. at 290 -291.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] “’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.

[25] Laws 1959, Ch. 368.

[26] 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.

[27] Robert Poteete, “State Assails City’s Government Sees Waste in Millions,” New York Herald Tribune, February 1, 1960.

[28] Martin G. Berck, “State Probe Hotly Debated From Start,” New York Herald Tribune, February 10, 1960.

[29] Richard Norton Smith, On His Own Terms (2014) p. 335.

[30] 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.

[31] “Democratic Split Led To Bank Law,” New York Times, March 23, 1960.

[32] Laws 1960, Ch. 1030.

[33] Public Papers of Governor Nelson A. Rockefeller (1960) p. 582.

[34] Id. at 1012.

[35] 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.

[36] Smith notes that there were “recriminations over the commission’s continued existence.” Smith, supra note 29.

[37] Edith Evans Asbury, “Graft Is Charged in Building Unit,” New York Times, January 11, 1961.

[38] John Sibley, “Mayor Calls on Governor To Curb ‘Smear’ Inquiry,” New York Times, January 24, 1961.

[39] 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.

[40] David Miller, “Wagner Didn’t Know Who Paid the Hotel Bill, Aid Says,” New York Herald Tribune, April 30, 1961.

[41] Peter Kihss, “Seymour Unit Ends Inquiries After a Stormy Two-Year Life,” New York Times, July 2, 1961.

[42] Laurence Barrett, See note 35 supra.

[43] “State Prober Says City Hides Scandals,” Newsday, July 17, 1961.

[44] Charles G. Bennett, “Mayor Sees ‘Mud’ in Seymour Study,” New York Times, July 18, 1961.

[45] 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.

[46]  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.

[47] 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.

[48] 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).

[49] “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).

[50] Marcia Chambers, “Critics Now Cooperative As Nadjari Ends 2d Year,” New York Times, September 15, 1974.

[51] See Anthony Lewis, “The Zeal of Maurice Nadjari,” New York Times, March 28, 1976.

[52] Selwyn Rabb, “The ‘Superprosecutorm’” New York Times, December 24, 1975.

[53] “New York: An Abrupt Exit for the Superprosecutor,” Time, January 5, 1976.

[54] 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.

[55] Edward Hershey, “Nadjari Fighting Carey Ouster,” Newsday, December 27, 1975.

[56] Selwyn Rabb, “Carey Denounces Hints by Nadjari about a Cover-Up,” New York Times, December 31, 1975.

[57] 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.

[58] Frank Lynn, “Carey-Nadjari Dispute, “New York Times, January 2, 1976.

[59]  Matter of Dondi v. Jones, 40 N.Y.2d 8 (1976).

[60] Edward Hershey, “Carey Is Cleared on Nadjari,” Newsday, June 23, 1976.

[61] Public Papers of Governor Hugh L. Carey, (1960) pp. 903-904.

[62] Tom Goldstein, “Nadjari’s Indictment Record,” New York Times, December 23, 1976.

[63] State of New York, Commission on Investigation, “The Nadjari Office and the Press” (November 18, 1976).

[64] Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity, 1996 p. 100.

[65] Bellacosa, supra at note 48, pp. 634 -635.

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.

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