Labor & Employment Law

May the Governor, acting entirely on his own, select and appoint an otherwise qualified individual to fill a vacancy in the office of the Lieutenant-Governor?

The Appellate Division?s answer: no, he may not.

A number of earlier postings in New York Public Personnel Law expressed the view that the Governor?s reliance on Public Officers Law §43 for this purpose was misplace [see, for example, the most recent such posting at http://publicpersonnellaw.blogspot.com/2009/07/appointing-individual-to-vacant.html].

Essentially, NYPPL observed that the Constitution does constitute a "provision of law" barring the "filling the vacancy" via an election in the same manner as it bars the Governor's making an "appointment" to the office under color of §43.

As to the suggestion that the Governor call a ?special election? to fill the Lieutenant Governor vacancy, Public Officers Law §42, which provides for the ?Filling vacancies in elective offices,? whereby a special election may be scheduled permits such a calling such a special election ?except in the offices of governor or lieutenant-governor ? , unless otherwise provided by the constitution, or unless previously filled at a special election? [emphasis supplied].

In the words of the Appellate Division:

?Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate. Inasmuch as the statute as applied to the office of lieutenant-governor cannot be reconciled with the Constitution (cf. Matter of Wolpoff v Cuomo, 80 NY2d 70, 78), it must yield (see People v Allen, 301 NY 287, 290). Thus, the Governor's purported appointment of Mr. Ravitch was unlawful because no provision of the Constitution or of any statute provides for the filling of a vacancy in the office of lieutenant-governor other than by election, and only the temporary president of the Senate is authorized to perform the duties of that office during the period of the vacancy. We hold, therefore, that the Supreme Court properly granted the Senators' motion for a preliminary injunction.?

Recognizing that this matter is one of great public import and ought to be resolved finally and expeditiously by the Court of Appeals, the Appellate Division dispensed with the need for the Governor to move for leave to appeal to that Court and, on its own motion, granted such leave to appeal.

The Appellate Division then, in effect, reinstated the Supreme Court?s injunction barring the Governor?s designee, Richard Ravitch, from presiding over, or exercising a casting vote in, the New York State Senate.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06265.htm

Full post as published by New York Public Personnel Law on August 21, 2009 (boomark / email).