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The Governor’s Power of Removal: An Added Mechanism for Ethics Enforcement in New York State

June 2, 2016

By Bennett Liebman
Government Lawyer in Residence
Albany Law School

Introduction to the New York Ethical Environment

In New York State, ethics oversight and enforcement is diffused and scattered across a wide number of agencies and authorities. Most every State agency has its own internal ethics officer[1] as well as a Procurement Integrity Officer.[2] There are three separate ethics commissions. There is a general joint commission on public ethics,[3] a legislative ethics commission[4] and an Ethics Commission for the Unified Court System.[5]

There is an overall State inspector general.[6] For specific agencies, there is a gaming inspector general,[7] a welfare inspector general,[8] a workers’ compensation fraud inspector general,[9] a Metropolitan Transportation Authority inspector general,[10] a Medicaid inspector general,[11] an inspector general for the Port Authority,[12] an inspector general for the Justice Center,[13] a New York City Watershed inspector general,[14] and an inspector general in the Department of Corrections and Community Supervision.[15] There is an independent business integrity counsel at the New York Racing Association.[16]

There is a code of ethics for State officers and employees.[17] At the local level, there is also a requirement of a code of ethics since “the governing body of each county, city, town, village, school district and fire district” is required to adopt a code of ethics.[18] The State Comptroller is required to “adopt a code of ethics setting forth standards of conduct for members of the Advisory Council for the New York State and Local Retirement Systems.”[19] Thousands of State and local government officers and employees must file financial disclosure statements.[20]

There are police review boards, and a department of investigations in the City of New York. State and local comptrollers oversee government operations as does the State Attorney General. The State Attorney General and the State Comptroller have their own public corruption efforts and have established a joint task force on public integrity.[21]

On top of that, there are district attorneys in each of New York’s 62 counties who prosecute violations of the Penal Law, and the State Attorney General also prosecutes public integrity cases.[22]

We have created a vast bureaucracy of ethics laws, codes and monitors throughout New York State. Yet, the perception has been that the integrity of New York State and local government has not been measurably improved,[23] and the federal prosecutors ‒ most notably the United States Attorney for the Southern District of New York Preet Bharara ‒ are the people actually enforcing the ethics and anti-corruption laws governing State officials. United States Attorney Bharara has won convictions against 27 public officials, including Speaker of the Assembly Sheldon Silver and State Senate leader Dean Skelos.[24]

 Federal Enforcement of the Ethics Laws

Until the early 1970’s, United States attorneys did not generally prosecute state and local officials.[25] Herbert Stern, the United States Attorney for New Jersey, has been widely credited with beginning the effort to use federal criminal laws to attack local corruption.[26]

Utilizing Stern’s example, federal prosecutors began to use federal criminal laws to pursue local corruption. New York State federal prosecutors successfully prosecuted Nassau County Republican leader Joseph Margiotta,[27] Syracuse mayor Lee Alexander,[28] Bronx borough president Stanley Simon,[29] a host of major political figures in New York City involved with the parking violations scandal of the 1980’s,[30] and other government officials.[31]

In contrast, prosecutions of major state elected officials by local district attorneys has appeared to be on the decrease as the federal law enforcement officials have largely overrun the field.[32] That has seemingly left a general ethics punishment void, as there appear to be few effective enforcement sanctions for official behavior that, while clearly improper, does not rise to the level of a federal crime. In New York State, it seems to be either a federal crime, or bust.

The suggestion here is that in order to remedy significant misconduct, we go back in time and start reusing the power of the governor to remove public officials.

The Governor’s Removal Powers

Under the State Constitution and the applicable statutes, the governor enjoys broad removal power over local and state officers. Under the Constitution, “the governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected.”[33] In dealing with crimes involving bribery, “any district attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision of this article which may come to his or her knowledge, shall be removed from office by the governor, after due notice.”[34]

For State officials, the Constitution provides “Except as otherwise provided in this constitution, the heads of all other departments and the members of all boards and commissions, excepting temporary commissions for special purposes, shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner to be prescribed by law.”[35]

Finally, the Constitution gives the Legislature the right to provide generally for the power and procedure for removals from office.[36]

Section 33 of the Public Officers Law adds to the listing of officers removable by the governor. They include “officer appointed by the governor for a full term or to fill a vacancy, whose appointment is not required by law to be made by and with the advice and consent of the senate, any county treasurer, any county superintendent of the poor, any register of a county or any coroner, except as otherwise provided by special provisions of law.”[37] Also removable by the governor are “the chief executive officer of every city and the chief or commissioner of police, commissioner or director of public safety or other chief executive officer of the police force.”[38] The governor, for example, can remove the mayor of the City of New York,[39] as well as the City police commissioner,[40] a borough president,[41] the comptroller,[42] and the public advocate.[43]

In addition to the Public Officers Law’s § 33 powers, the series of laws that have been enacted to deal with municipal financial crises in New York give the governor significant additional removal powers. These laws further enhancing the governor’s removal powers over municipal officers and employees include the laws establishing the Nassau County Interim Finance Authority,[44] the Buffalo Fiscal Stability Authority,[45] the Erie County Fiscal Stability Authority,[46] the New York State Financial Emergency Act for the City of New York,[47] and the New York State Financial Emergency Act for the City of Yonkers.[48]

Section 34 of the Public Officers Law provides for the manner in which the governor can exercise his or her removal powers. The governor need not personally investigate or hear the removal case. The governor can appoint a State judge, a county judge or an individual appointed by the governor to hold the hearing on the removal case[49] and to make findings on the case to the governor.[50] The governor can request a local district attorney or the attorney general to help investigate the removal case in order to provide assistance to the person designated by the governor to report on the removal decision.[51] Accordingly, the Public Officers Law provides a governor with numerous options on how to handle a removal proceeding. The governor can handle the removal proceedings personally. Conversely, the governor can delegate much of the fact finding and the investigatory portion of the removal proceedings to individuals designated by the governor.

 Short History of Gubernatorial Removals

Up until the first third of the twentieth century, gubernatorial removals were considered a major part of the governor’s powers. Many of the most illustrious governors of the state – Charles Evans Hughes, Al Smith, Franklin Roosevelt, Theodore Roosevelt – all were involved significantly in removal proceedings. In probably the most famous removal proceeding, Governor Franklin Roosevelt heard the removal proceeding against New York City mayor Jimmy Walker in 1932. While Walker resigned before a decision was reached, Roosevelt’s handling of the case convinced many observers that he was not merely a jovial lightweight and that he had the gravitas needed to serve as president.

The last time that the power of the governor was invoked to remove an official was in 1974 when Governor Malcolm Wilson initiated removal proceedings and charges against the sheriff of Schoharie County.[52] The sheriff, however, forfeited his office before the charges were heard, and Governor Wilson did not hold any formal proceedings against the sheriff.[53]

The last major removal case to have been determined by a governor seems to be the decision of Governor Herbert Lehman not to remove Kings County Attorney William F.X. Geoghan in 1936.[54]

While there may have been no formal removal cases in the past 80 years, there actually is a rich and full body of precedents on how the removal power is to be exercised. These have involved decisions on removal standards by a former chief justice of the United States in Governor Hughes as well as statements by former presidents Franklin and Theodore Roosevelt.[55] Governor Samuel Tilden, the State’s governor in the wake of the infamous Tweed Ring, provided his views on the nature of removals.[56] In short, there are perceptible standards that are in place that can be used to deal with gubernatorial removals.

Utility of the Removal Powers

It is actually somewhat surprising that the removal powers have not been utilized in recent years. We have had activist governors such as Eliot Spitzer and Andrew Cuomo who clearly believe that the best defense is a good offense. The removal power can demonstrate that the governor is on the offensive on ethics issues.

As mentioned previously, another advantage of the removal powers is that governors can largely choose their levels of involvement. A governor in a major case can serve as the factfinder and actually hold the hearing. In minor cases, or in cases where the officer seeking to be removed is a political opponent of the governor, the governor might choose a widely esteemed factfinder and appoint the State attorney general to assist the factfinder’s investigation. This would permit a governor ‒ initiating a removal processing – to be almost totally neutral in judging the actual removal of the officer. The removal power can make a governor both an activist and a neutral.

There are also numerous available candidates for potential removals. There is low hanging fruit among State board members. The Public Officers Law allows for the creation of vacancies whenever a member of a board, authority or commission appointed by the governor has three consecutive unexcused absences.[57]  The governor could work with the division of the budget and the independent authorities budget office[58] to identify such individuals and have them removed for nonfeasance.

In recent months, the conduct of several county district attorneys has been called into question. The County Executive in Suffolk County has urged the District Attorney in that county to resign[59] and has threatened to go to the Governor’s office to have the District Attorney removed.[60] The conduct of the District Attorney in Rensselaer County has been put into question after the District Attorney proceeded to present a case to a grand jury where jurisdiction over the case appeared to be lodged with the State Attorney General.[61] The county legislature in St. Lawrence County has voted that it has no confidence in the county District Attorney and has called on the State to review her actions.[62]

In New York City, there had been speculation that the Governor would be called upon to consider the removal of former comptroller John Liu in 2012.[63] With both federal and State prosecutors reviewing the conduct of New York City mayor Bill DeBlasio,[64] there may be calls for the Governor to review the conduct of the Mayor.

In short, there may be ample targets should the Governor decide to utilize the removal powers vested in that office. The removal powers give the Governor significant powers over local and State officials. It gives the Governor the opportunity to impose and apply meaningful sanctions without having to be involved in the criminal process. There is also considerable precedent on how the removal process can be utilized.

From a political perspective, it affords a governor the ability to be an activist in pursuing corruption and malfeasance in government. At the same time, the procedures in Section 34 of the Public Officers Law would allow the governor to be almost a neutral noncombatant in the actual process of investigating and adjudicating any removal decision.

The removal process could work both on a public policy and on a political level. It can provide effective penalties for official misconduct. Similarly, it could provide political benefits to a governor who wanted to be proactive in pursing corruption. It is surprising that this power has fallen out of favor over the past 75 years.

 

[1] State Finance Law § 139-j.9; NYCRR § 8.3; 19 NYCRR § 932.7.

[2] 9 NYCRR § 4.189.

[3] Executive Law § 94.

[4] Legislative Law § 80.

[5] 22 NYCRR § 7400.4.

[6] Executive Law § 52.

[7] Racing, Pari-Mutuel Wagering and Breeding Law § 1368.

[8] Executive Law § 46.

[9] Workersʼ Compensation Law § 136.

[10] Public Authorities Law § 1279.

[11] Public Health Law § 31.

[12] Unconsol. Laws § 6405.

[13] Executive Law § 552.

[14] 9 NYCRR § 5.86.

[15] 7 NYCRR §5.52; 7 NYCRR § 701.8.; 7 NYCRR § 1901.2.

[16] Racing, Pari-Mutuel Wagering and Breeding Law § 206.

[17] Public Officers Law § 74.

[18] General Municipal Law § 806.

[19] 2 NYCRR § 320.5.

[20] Public Officers Law § 73-a; General Municipal Law §§ 811, 812; N.Y. Ct. Rules § 40.2.

[21] http://www.osc.state.ny.us/press/executive-order-joint-task-force.pdf.

[22] Westlaw Journal Government Contract, “New York Fights Fraud Against State Government,” March 7, 2011.

[23] Frank Anechiarico and James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective, University of Chicago Press (1996).

[24] Joseph Spector, “Preet Bharara: The Man Behind NY Corruption Busting,” Rochester Democrat and Chronicle, December 27, 2015.

[25] Herbert M. Suskin, “Federal Prosecution of Local Corruption,” 29 University of Miami L. Rev. 390 (1975);   Herbert J. Stern, “Prosecutions of Local Political Corruption under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion,” 3 Seton Hall L. Rev. 1 (1971). See also United States v. Addonizio, 451 F.2d 49, 72 (3d Cir. 1971), cert. denied, 405 U.S. 936 (1972).

[26] See Paul Hoffman, Tiger in the Court, Playboy Press (1973). The book is subtitled “The US Attorney who Prosecuted 8 Mayors, 2 Secretaries of State, 2 State Treasurers, 2 Powerful Political Bosses and 64 other Public Officials.” See also Herbert J. Stern, Diary of a DA: The True Story of the Prosecutor Who Took on the Mob, Fought Corruption, and Won, Skyhorse Publishing (2012).

[27] United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982).

[28] United States v. Alexander, 860 F.2d 508 (2d Cir. 1988).

[29] United States v. Biaggi, 672 F. Supp. 112 (S.D.N.Y. 1987); aff’d 909 F.2d 662 (2nd Cir. 1990), cert. denied, sub nom. Simon v. United States, 499 U.S. 904 (1991).

[30] United States v. Friedman, 854 F.2d 535, cert. denied, Lazar v. United States, 490 U.S. 1004 (1989).

[31] The federal conviction of New York State Assembly Speaker Melvin Miller was overturned in U.S. v. Miller, 997 F.2d 1010 (2nd Cir. 1993).

[32] In the 1970’s and the 1980’s, the district attorney’s offices in New York City prosecuted Assembly Speaker Perry Duryea and Assembly majority leader John Kingston, People v. Duryea 76 Misc.2d 948 (Sup. Ct. 1974), aff’d 44 A.D.2d 663 (1st Dept. 1974); Assembly Speaker Stanley Steingut (Steingut v. Gold, 54 A.D. 2d 481 (2nd Dept. 1976) aff’d 42 N.Y. 2d 311 (1977), and Senate minority leader Manfred Ohrenstein, along with several other senators. (People v. Ohrenstein, 153 A.D.2d 342 (1st Dept. 1989), aff’d 77 N.Y. 2d 38 (1990). In 2007, based on prior State investigations, the Albany County district attorney did prosecute State Comptroller Alan Hevesi.

[33] N.Y. Const. art. XIII, § 13(a).

[34] N.Y. Const. art. XIII, § 13(b).

[35] N.Y. Const. art. V, § 4.

[36] N.Y. Const. art. XIII, § 5.

[37] Public Officers Law § 33.1.

[38] Public Officers Law § 33.2.

[39] NYC Charter § 9.

[40] NYC Charter § 431.

[41] NYC Charter § 81.

[42] NYC Charter § 92.

[43] NYC Charter § 24.

[44] Public Authorities Law § 3669.4.(c).

[45] Public Authorities Law § 3858.3.(c).

[46] Public Authorities Law § 3959.3.(c).

[47] Unconsol. Laws, Ch. 22, § 1.3.

[48] Unconsol. Laws, Ch. 23, § 11.3. See also New York State Financial Emergency Act of Nineteen Hundred Eighty-four for the City of Yonkers, Unconsol. Laws, Ch 23-A, § 12.3.

[49] Public Officers Law §34.1.

[50] Public Officers Law §34.3.

[51] Public Officers Law §34.2.

[52] Public Papers of Governor Malcolm Wilson, 766 (1974).

[53] Id. at 772.

[54] Public Papers of Governor Herbert Lehman, 728 (1936).

[55] See for example “Memorandum by Counsel for District Attorney Geoghan Accompanying Answer to Charges Setting Forth Decisions of Governors and Their Commissioners in Removal Proceedings,” Public Papers of Governor Herbert Lehman 701 (1936). See also “The Counsel to Proponents Submits Memorandum Relating to General Principles Applicable to the Governor’s Decision in Removal Decisions,” Public Papers of Governor Herbert Lehman 710 (1936); “Opinion In the Matter of the Charges against John F. Ahearn, President of the Borough of Manhattan, in the City of New York,” Public Papers of Governor Charles Evans Hughes 275 (1907).

[56] “Letter of Hon. Samuel J. Tilden to the Hon. Wm. H. Wickham, “February 17, 1875, in 1 Proceedings at the Trial of Joel B. Erhardt, DeWitt C. Wheeler and Sidney P. Nichols before Hon. Smith Ely, Jr., Mayor of New York, Dec. 20, 21 and 22, 1877 (1877).

[57] Public Officers Law § 30.3.

[58] Public Authorities Law § 4.

[59] David Winzelberg and Claude Solnik, “Bellone Calls for Spota to Resign,” Long Island Business News, May 12, 2016.

[60] Joye Brown, “Steve Bellone Pushes Fight With Thomas Spota to New Level,” Newsday, May 15, 2016.

[61] “The AG vs. the DA,” New York Post, May 2, 2016.

[62] Susan Mende, “County Wants Rain Probe,” Ogdensburg Journal, April 19, 2016.

[63] “How to Bounce Liu,” New York Post, March 3, 2012; Jon Lentz, “What Happens If John Liu Resigns?,” City and State, February 29, 2012.

[64] See “Corruption Probes in N.Y. State: A Primer,” Buffalo News, May 8, 2016.

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