Labor & Employment Law

Appointing an individual to the vacant Lieutenant Governor position

In recent weeks NYPPL has posted a number of items concerning the current vacancy in the position of Lieutenant Governor -- see

http://publicpersonnellaw.blogspot.com/2009/07/filling-vacancy-of-lieutenant-governor.html

and

http://publicpersonnellaw.blogspot.com/2009/07/appointment-to-office-of-lieutenant.html .

At present litigation is pending challenging the Governor?s claim of authority to appoint an individual to the vacancy pursuant to Public Officers Law §43.*

The statutory authority claimed for the appointment is Public Officers Law §43. §43 authorizes the Governor to fill a vacancy by appointment under certain circumstances. This section, in pertinent part, provides that:

?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 ?? [Emphasis supplied].

However, the fourth unnumbered paragraph of Article IV, Section 6, of the State Constitution appears to obviate any claim to such authority pursuant to Section 43 with respect to making appointments to the vacant Lieutenant Governor position. Clearly it could be argued that the fourth unnumbered paragraph constitutes ?a provision of law for filling the same... to execute the duties thereof.? Section 6, in pertinent part, states that ?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 [Emphasis supplied].

Accordingly, this provision in the Constitution appears to preclude the Governor from acting under color of Section 43 of the Public Officers Law with respect to making an appointment to a vacant Lieutenant Governor position.

Simply said, Section 43 authorizes the Governor to make the necessary appointment only in the event there is ?no provision of law for filling the same ... to execute the duties thereof." In this instance, however, the fourth unnumbered paragraph provides for the devolution of the duties of the Lieutenant Governor ?in case of vacancy in [that office] alone? whereupon the Temporary President of the Senate "shall perform all the duties of lieutenant-governor during such vacancy" [emphasis supplied].

Further, it could be argued that were the Governor to assume the power to appoint an individual to the vacant Lieutenant Governor position, such action would, on its face, frustrate other provisions set out in Article IV addressing situations where there is a ?vacancy in the offices of both governor and lieutenant-governor.??

Some have expressed the view that as the President of the United States has, from time to time, appointed an individual to a vacant position of Vice-president, the Governor may do likewise with respect to appointing an individual to serve as the Lieutenant Governor should a vacancy in that office occur.***

Such an argument ignores a critical element: there is specific authority in the federal Constitution authorizing the President making such an appointment.

Section 2 of the 25th amendment to the federal Constitution, ratified February 10, 1967, provides as follows:

2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

No similar provision is to be found in New York State's Constitution.

* New York State Supreme Court Judge Ute Lally signed a temporary restraining order preventing the Governor?s nominee for Lieutenant Governor, Richard Ravitch, from "exercising any of the powers" of lieutenant governor, including presiding as president of the State Senate. The order declares the lieutenant governor's office still vacant and prohibits Secretary of State Lorraine Cortes-Vazquez from accepting the oath of office required by Section 10 of the Public Officers Law to be executed and filed by Ravitch with respect to his serving in the office of Lieutenant Governor.

** 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.

*** Gerald Ford was appointed by then President Richard Nixon after then Vice President Spiro Agnew resigned from his office. As the 25th amendment had been ratified in 1967, Nixon had Constitutional authority to nominate Mr. Ford to fill the Vice President vacancy, subject to confirmation by majority vote of both houses of Congress. Vice President Ford subsequently succeeded President Nixon upon his resignation from the Presidency.

Full post as published by New York Public Personnel Law on July 20, 2009 (boomark / email).