People v. Ohrenstein, 77 N.Y.2d 38 (1990)

A legislator cannot be criminally prosecuted for assigning staff to political campaigns or for placing ‘no-show’ employees on the payroll unless there is a clearly defined law, rule, or regulation prohibiting such conduct at the time the actions occurred.

Summary

Manfred Ohrenstein, a NY State Senator, was indicted on charges related to assigning Senate staff to political campaigns and placing ‘no-show’ employees on the Senate payroll. The court dismissed counts related to campaign work, citing separation of powers and legislative immunity, but sustained counts related to ‘no-show’ employees. The Court of Appeals affirmed, holding that, absent a specific law prohibiting the use of legislative staff in political campaigns or a clear definition of ‘proper duties,’ criminal prosecution was inappropriate. The court emphasized that the decision was specific to the time period (prior to 1987) and did not address civil remedies or future conduct.

Facts

Senator Ohrenstein, the Minority Leader of the NY State Senate, allegedly conspired to use Senate staff for political campaigns to help elect or re-elect Democratic senators. Some employees were temporarily assigned to campaigns while others were hired specifically for the campaigns. Additionally, four individuals were allegedly placed on the Senate payroll without performing any work. Senators certified that all employees performed ‘proper duties’. Democrats failed to gain the majority in the Senate.

Procedural History

A Manhattan Grand Jury indicted Ohrenstein and others on multiple counts of theft-related felonies and misdemeanors. The trial court dismissed counts related to employees who performed both campaign work and other legislative tasks, citing separation of powers and legislative immunity. It upheld counts related to employees working exclusively on campaigns and ‘no-show’ employees. Both the prosecutor and the defendants appealed. The Appellate Division affirmed the dismissal of counts related to campaign workers and upheld the counts related to ‘no-show’ employees. Both sides appealed to the Court of Appeals.

Issue(s)

1. Whether the assignment of Senate staff to political campaigns constituted a criminal violation in the absence of a specific statute, rule, or regulation prohibiting such conduct before 1987?
2. Whether placing ‘no-show’ employees on the Senate payroll constituted a criminal violation, and whether such a prosecution violated the Speech or Debate Clause of the NY State Constitution or the separation of powers doctrine?

Holding

1. No, because prior to 1987, there was no law, rule, or regulation that clearly defined ‘proper duties’ of legislative staff or prohibited their assignment to political campaigns.
2. No, because the allegation that the ‘no-show’ employees performed no duties at all was sufficient to sustain the criminal counts, and the prosecution did not violate the Speech or Debate Clause or the separation of powers doctrine.

Court’s Reasoning

The court reasoned that, while assigning legislative staff to political campaigns may be ethically questionable, it did not constitute a criminal act prior to 1987 due to the absence of a clear legal prohibition. The Legislature had the power to define the duties of its staff, and at the time, there was no specific restriction on political activities. The court distinguished between political and governmental activities, noting that the line is blurred for legislators and their assistants. The court rejected the prosecutor’s argument that Article VII, Section 8 of the NY Constitution, which prohibits the use of State funds for ‘private undertakings,’ served as a basis for criminal prosecution, stating that this section was intended to prevent fiscal imprudence, not to punish larceny. As to the ‘no-show’ employees, the court held that there was no need to define “proper duties” as the allegation was that absolutely no services were performed. The Speech or Debate Clause was not intended to provide a sanctuary for legislators who knowingly place on the payroll employees who were never intended to do anything but receive State moneys. The Court emphasized that generic theft statutes could apply to future conduct where the duties of state employees are defined, and prohibited conduct is clearly outlined in statute, rule or regulation. As the Court stated, “The statutes dealing genetically with theft provide a basis for prosecution in cases where government employers use State employees for activities which are prohibited or are not within the employees’ duties as defined by statute, rule or regulation.”