Labor & Employment Law

Appointment to the Office of Lieutenant Governor

On July 6, 2009 the Attorney General issued the following statement:

?Statement Of Attorney General Andrew Cuomo Regarding Lieutenant Governor Appointment Proposal

"The State Constitution explicitly prescribes what occurs when there is a vacancy in the Office of Lieutenant Governor. In such circumstance, article 4, §6 states that ?the temporary president of the senate shall perform all the duties of the lieutenant-governor during such vacancy . . . .?

?Article 4, §1 of the Constitution expressly provides that ?the lieutenant-governor shall be chosen at the same time, and for the same term? as the Governor. The Legislature did not authorize a Governor to bypass this provision of the Constitution and fill a vacancy in the Office of Lieutenant Governor pursuant to Public Officers Law §43. That statute, which provides for Gubernatorial appointment to fill certain vacancies, applies only when there is ?no provision of law for filling the same?. With respect to the Lieutenant Governor, however, the Constitution leaves no gap concerning a vacancy in that office - article 4, §6 expressly addresses that circumstance.

?In sum, we understand the apparent political convenience of the proponents? theory due to the current Senate circumstances. In our view, however, it is not constitutional. In addition, contrary to the proponents? goal, we believe it would not provide long term political stability but rather the opposite, by involving the Governor in a political ploy that would wind through the courts for many months.?

On July 8, 2009, Governor Paterson issued a statement announcing the appointment of Richard Ravitch to serve as Lieutenant Governor. The Governor, in a letter of the same date, explained:

"Since June 10, my Counsel has examined the legal basis for this appointment. We have consulted with eminent lawyers and scholars. The State Constitution grants authority to the Legislature to provide a means for filling vacancies in elective office. The Legislature has provided that means by passing Section 43 of the Public Officers Law, which states: ?if a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, it the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.

"With no statutory or constitution provision prohibiting the Governor from filling a vacancy in the Lieutenant Governor?s office, I am taking action under the authority granted to me by the Constitution and the Public Officers Law."

Public Officers Law §43 provides as follows:

Filling other vacancies.

If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election. But if the term of such officer shall expire with the calendar year in which the appointment shall be made, or if the office be appointive, the appointee shall hold for the residue of the term [emphasis supplied].

Section 2 of the Public Officers Law, Definitions, provides, in pertinent part, ? §2. Definitions. The term "state officer" includes every officer for whom all the electors of the state are entitled to vote ?.? All ?electors of the state are entitled to vote? for Lieutenant Governor.

In contrast, the fourth unnumbered paragraph of Article IV, Section 6, of the Constitution provides, in pertinent part, as follows:

In case of vacancy in the office of lieutenant-governor alone, ? the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office ? the speaker of the assembly shall act as governor during such vacancy or inability [emphasis supplied].

This provision appears to preclude the Governor from acting pursuant to Section 43 of the Public Officers Law. Section 43 authorizes the Governor to make the necessary appointment only in the event there is ?no provision of law for filling the same." In this instance, however, the fourth unnumbered paragraph appears to provide for the devolution of the duties of the Lieutenant Governor ?in case of vacancy in [that office] alone? where upon the Temporary President of the Senate "shall perform all the duties of lieutenant-governor during such vacancy" [emphasis supplied].

Further, were the Governor authorized to appoint an individual to the vacant Lieutenant Governor position under the current set of circumstances, it would, on its face, frustrate, or at least create a conflict, with respect to other provisions set out in Article IV addressing situations where there is a ?vacancy in the offices of both governor and lieutenant-governor??

An earlier posting of NYPPL, [ see http://publicpersonnellaw.blogspot.com/2009/07/filling-vacancy-of-lieutenant-governor.html ] opined:

Article III, §9 of the State Constitution provides that ?A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker" [emphasis supplied].

As the Constitution does not mandate that the Senate "choose" a member of the Senate to be its temporary president, it could be argued that an individual not a sitting Senator could be so chosen by the Senate.

Perhaps this is "the way out" -- the Senate "chooses" a non-senator as its Temporary President "to perform the duties of the Lieutenant Governor," which avoids the court confrontation that would probably follow were the Governor to appoint an individual to the Lieutenant Governor vacancy.

The relevant provisions of the State Constitution are set out below.

Article IV, § 6.

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote* therein. The lieutenant-governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant-governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant-governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.

Article III, §9

A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.

* A "casting vote" is a vote given to the presiding officer of a council or legislative body in order to resolve a deadlock and which can be exercised only when such a deadlock exists.

Full post as published by New York Public Personnel Law on July 09, 2009 (boomark / email).