New York Law Review

Tag: Executive Power

  • Cuomo v. New York State Commn. on Ethics & Lobbying in Govt., 2025 NY Slip Op 00902: Separation of Powers and the Creation of an Independent Ethics Commission

    2025 NY Slip Op 00902

    The New York Court of Appeals held that the Ethics Commission Reform Act of 2022, which created an independent ethics commission, was not facially unconstitutional despite concerns about the separation of powers and executive oversight.

    Summary

    The case concerned the constitutionality of the Ethics Commission Reform Act of 2022, which replaced the Joint Commission on Public Ethics (JCOPE) with a new Commission on Ethics and Lobbying in Government. The former Governor, Andrew M. Cuomo, challenged the Act, arguing it violated the separation of powers by granting excessive power to a commission not sufficiently accountable to the Governor. The Court of Appeals reversed the lower court’s decision, upholding the Act. It reasoned that the Act was designed to address the unique problem of self-regulation within the Executive Branch, which undermines public trust. The Court emphasized the importance of a flexible approach to separation of powers, allowing for overlap between branches, and noted that the Governor does not possess sole appointment and removal powers under the New York Constitution. The Court found that the Act, despite extending close to the boundary of permissible legislation, did not unconstitutionally encroach upon the Governor’s powers and was not facially unconstitutional.

    Facts

    In 2011, New York established the Joint Commission on Public Ethics (JCOPE) to enforce ethics and lobbying laws. JCOPE faced criticism for its lack of independence and ineffectiveness. The Ethics Commission Reform Act of 2022 replaced JCOPE with the Commission on Ethics and Lobbying in Government. The new Commission has 11 members appointed by various officials, including the Governor, legislative leaders, the Attorney General, and the Comptroller. The Act also created an Independent Review Committee (IRC) to vet nominees. Commission members could be removed by a majority vote of the Commission, and the Commission has the power to investigate ethics violations, impose penalties, and refer matters for criminal investigation. Former Governor Cuomo filed suit challenging the Act’s constitutionality, arguing violations of the separation of powers, Article V of the State Constitution, and the impeachment process.

    Procedural History

    Cuomo filed suit against the Commission in Supreme Court, seeking a declaration that the Act was unconstitutional. The Supreme Court granted Cuomo’s motion for preliminary injunction and the Commission’s cross-motion for summary judgement and declared specific sections unconstitutional. The Appellate Division affirmed the lower court’s decision. The Court of Appeals granted the Commission’s motion for leave to appeal and certified the question whether it erred in affirming the order of the Supreme Court. The Court of Appeals reversed the Appellate Division’s decision.

    Issue(s)

    1. Whether the Ethics Commission Reform Act of 2022 is facially unconstitutional because it violates the separation of powers doctrine by unconstitutionally vesting executive power in the State Commission on Ethics and Lobbying in Government.
    2. Whether the Commission, established within the Department of State, violates Article V of the State Constitution, which concerns the appointment and removal of state officers.
    3. Whether the Commission’s powers to investigate and potentially impose fines on the Governor unconstitutionally interfere with the Legislature’s impeachment power.

    Holding

    1. No, because the Act is not facially unconstitutional.
    2. No, because the Commission’s placement within the Department of State does not violate Article V of the State Constitution.
    3. No, because the Commission’s power to investigate and fine the Governor does not encroach on the Legislature’s impeachment power.

    Court’s Reasoning

    The Court applied a flexible approach to the separation of powers doctrine, recognizing that some overlap between branches is permissible. The Court emphasized that the New York Constitution does not grant the Governor exclusive appointment and removal powers. The Court held that the Act’s purpose of promoting public confidence in government justified its structure and functions, and the limitations built into the Act – a majority of commissioners are appointed by legislative officials, but vetted by an independent review committee; executive branch also retains supervisory powers such as investigations under the Moreland Act; Executive branch maintains concurrent enforcement authority- ensured that it remained within constitutional bounds. The Court determined that the Commission is not a department under Article V, thus not requiring a governor-appointed head. Finally, the Court found that the Commission’s disciplinary actions do not interfere with the Legislature’s power to impeach the Governor.

    Practical Implications

    The ruling provides guidance on the balance of power between the executive and legislative branches in New York. The decision emphasizes that the legislature has broad power to structure state agencies and create checks and balances on executive authority, particularly when addressing issues of public trust and ethics. Legal practitioners should understand that courts will take a functional and flexible approach to separation of powers challenges, considering the intent of the legislation and the realities of governing. This case also highlights the limits of the Governor’s appointment and removal powers and the permissibility of independent agencies tasked with enforcement powers, as long as there is a balance of executive and legislative control. It suggests that the creation of independent commissions to oversee ethics and lobbying matters may be a constitutionally viable way to address concerns of self-regulation and public confidence in government.

  • Sedacca v. Mangano, 18 N.Y.3d 609 (2012): Limits on Executive Power to Remove Appointed Commissioners

    Sedacca v. Mangano, 18 N.Y.3d 609 (2012)

    When a statute creates fixed, staggered terms for appointed commissioners designed to promote stability and political diversity, a County Executive’s power to remove those commissioners is limited and requires cause, even if the County Charter grants broad removal powers.

    Summary

    This case addresses whether the Nassau County Executive can terminate Assessment Review Commission (ARC) commissioners before their fixed statutory terms expire without cause. The Court of Appeals held that the County Executive’s power is limited by the legislative intent behind the statute creating the ARC, which sought to ensure stability and political diversity through fixed, staggered terms. Although the County Charter grants the executive broad removal powers, these powers cannot override the specific protections afforded to ARC commissioners by the Real Property Tax Law. The Court emphasized the importance of discerning and applying legislative intent in statutory interpretation to uphold the purpose of the act.

    Facts

    The outgoing Nassau County Executive appointed six ARC commissioners, including the petitioners, to fill vacancies on December 24, 2009. On January 14, 2010, the newly elected County Executive sent letters to all nine commissioners informing them of their removal, citing Nassau County Charter § 203. The County Executive stated his intention to appoint his own commissioners to implement his administration’s policies. The commissioners requested legal representation and an opportunity to be heard.

    Procedural History

    Petitioners initiated a combined declaratory judgment action/Article 78 proceeding, seeking a declaration that the County Executive lacked the power to remove them without cause and requesting attorney’s fees. The Supreme Court denied the petition. The Appellate Division modified the judgment, declaring that the County Executive had the authority to remove the commissioners without cause. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Nassau County Executive has the authority to remove commissioners of the Nassau County Assessment Review Commission prior to the expiration of their statutory terms in the absence of cause, given the provisions of Real Property Tax Law § 523-b and Nassau County Charter § 203.

    Holding

    No, because the legislative intent behind Real Property Tax Law § 523-b, which established the ARC with fixed, staggered terms for commissioners, demonstrates a desire to protect the commission from political influence and ensure stability. This intent overrides the general removal power granted to the County Executive under the Nassau County Charter § 203, requiring “cause” for removal in this specific case.

    Court’s Reasoning

    The Court of Appeals emphasized the importance of legislative intent in statutory interpretation, stating, “[i]n matters of statutory . . . interpretation, ‘legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors].’” The Court reasoned that the fixed, staggered terms of ARC commissioners, along with the requirement of political diversity, indicated a legislative intent to insulate the ARC from political influence. It noted that the five-year term exceeded the County Executive’s own term, designed to prevent wholesale changes in membership with each new administration.

    Although Nassau County Charter § 203 grants the County Executive the power to remove appointees, the Court interpreted the phrase “reasons for such removal” within that section to mean “cause” when applied to commissioners serving fixed terms. The Court reconciled the County Charter with the intent of RPTL 523-b, concluding that the commissioners were not essentially at-will employees subject to termination for any reason. The Court also found persuasive that members of the similarly situated Board of Assessment Review could only be removed upon a finding of misconduct. Removing commissioners without cause would render the statutory terms superfluous and frustrate the legislative intent.

    The Court, however, rejected the petitioners’ claim for attorney’s fees, noting that the County’s obligation to provide for the defense of employees did not extend to cases where the employees initiated the action. The court observed that the county code was clear on this matter and did not allow for compensation for the attorney’s fees.

  • Rapp v. Carey, 44 N.Y.2d 157 (1978): Limits on Executive Power Absent Legislative Authorization

    Rapp v. Carey, 44 N.Y.2d 157 (1978)

    The Governor of New York cannot, through executive order alone, mandate financial disclosure and restrictions on political/business activities for state employees without explicit or implied authorization from the Constitution or statutes.

    Summary

    This case concerns the extent of the Governor’s executive power in New York. State employees challenged Governor Carey’s Executive Order No. 10.1, which required extensive financial disclosures and restricted political and business activities for many state employees. The Court of Appeals affirmed the lower courts’ decisions, holding that the Governor exceeded his authority by issuing an executive order that effectively created new state policy without legislative approval. The Court emphasized the separation of powers doctrine and the need for legislative action to enact broad policy changes, especially those impacting a wide range of state employees.

    Facts

    Governor Carey issued Executive Order No. 10.1, requiring a large segment of State employees to file detailed personal financial statements with the Board of Public Disclosure. The order applied to employees earning over $30,000 annually or holding managerial/confidential positions in executive departments/agencies appointed by the Governor. The order also restricted these employees from holding political party office and regulated their outside employment/activities. Covered employees were directed to submit financial disclosure statements.

    Procedural History

    Affected state employees brought an action challenging the constitutionality of the Executive Order. The Special Term granted summary judgment to the plaintiffs, declaring the order unconstitutional and enjoining its enforcement. The Appellate Division unanimously affirmed this decision, leading to the appeal to the New York Court of Appeals.

    Issue(s)

    Whether the Governor of New York, under the State Constitution, may mandate, via executive order and without legislative authorization, that state employees file financial disclosure statements and abstain from political and business activities not prohibited by statute.

    Holding

    No, because neither the Constitution nor statutes grant the Governor express or implied authority to impose such requirements unilaterally. Furthermore, the order does not merely implement existing conflict-of-interest legislation but instead creates new policy, a power reserved for the Legislature.

    Court’s Reasoning

    The Court emphasized the principle of separation of powers, noting that the Governor’s power is limited to those powers delegated by the Constitution and statutes. While the Governor possesses broad executive power, including the power to oversee state departments and investigate their affairs (Executive Law, § 6), this does not extend to creating new policy without legislative approval. The Court distinguished Executive Order No. 10.1 from previous executive actions, stating, “But, until 1950, none of those orders had any rule-making component.”

    The Court rejected the argument that the executive order was merely an implementation of Section 74 of the Public Officers Law (the state’s code of ethics). The court stated, “In short, this order is not an implementation of section 74; it is a nullification of it — a nullification, however benevolent in purpose, without benefit of legislative action.” It emphasized that the Legislature deliberately created a code of ethics with broad standards, intending that conflicts of interest be resolved on a case-by-case basis, rather than through blanket prohibitions.

    The court also noted the problematic restriction on political activities which “involves a broad question of policy, hardly resolvable by other than the representatively elected lawmaking branch of government, the Legislature.”

    The Court distinguished the out-of-state cases cited by the defendants, noting that they were based on different constitutional or statutory provisions. The Court concluded by stating, “On no reasonable reading of the Constitution, the Executive Law, or the relevant provisions of the Public Officers Law can the Governor’s exercise of legislative power, exemplified in the executive order, be sustained.” The Court explicitly references the importance of preventing any single branch of government from assuming powers belonging to another, quoting People v. Tremaine, “Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department.”