634 NYS2d 619 | N.Y. Sup. Ct. | 1995
Petitioners in this hybrid CPLR article 78 proceeding/ declaratory judgment action are members of the New York State Unemployment Insurance Appeals Board (the Board), a five-member entity within the State Labor Department created originally by Laws of 1935 (ch 468, § 1) and continued, as modified, in Labor Law § 534. All three petitioners were appointed on December 29, 1994, to serve the balance of six-year terms which the prior incumbents had occupied as holdovers beyond the expiration of their original terms. Mr. Cappelli was designated Chairman. On that date, Governor Cuomo also appointed Arthur Strauss, who is not a party to this proceeding, to a term to expire November 18, 2000. Mr. Strauss was already a member of the Board but resigned his prior term, which was scheduled to expire on November 18,1996, to accept a new appointment to the same Board for a longer term. Petitioner Adams was appointed to Mr. Strauss’ prior term.
Petitioners duly executed and filed their oaths of office on December 29 and 30, 1994, pursuant to Public Officers Law § 30 and immediately commenced to perform the duties of their offices. However, notwithstanding that their services were accepted and their authority to act was de facto recognized, respondent Commissioner Sweeney and his interim predecessor, Acting Labor Commissioner Robert Gollnick, declined and/or failed to authorize processing of forms necessary to place petitioners on the payroll. As a consequence, on January 25, 1995, a regular State payroll day, petitioners were not paid. As no explanation was received in response to petitioners’ repeated attempts to communicate regarding the failure to pay them, on February 7, by order to show cause, petitioners initiated an article 78 proceeding seeking relief in the nature of mandamus directing respondent Commissioner to take those ministerial steps necessary to permit petitioners to receive their salaries and other benefits and injunctive relief precluding any interference with the continued performance of their duties. Petitioners’ verified petition further alleged that the failure to pay them constituted a taking in violation of the Fourteenth Amendment to the United States Constitution and illegal discrimination based on political affiliation in violation of their rights under the First and Fourteenth Amendments to the United States Constitution, which, in turn, also constituted a deprivation of civil rights in violation of 42 USC § 1983. This later contention is premised on the fact that Arthur Strauss, a
DISCUSSION
All parties agree that the ultimate disposition of petitioners’ suit rests upon the interpretation to be accorded New York Constitution, article V, § 4 and its application to Labor Law § 534. Respondents argue that the constitutional provision is clear on its face and expressly requires Senate confirmation of all members of all boards and commissions appointed to serve in the executive branch of the State government. As petitioners were not so confirmed, respondent contends their appointments are not valid.
It is undisputed that, since 1925, when article V, § 4 was enacted by the Legislature and ratified in referendum, there has not been a challenge to the validity of a gubernatorial appointment to a board or commission based upon the failure to obtain Senate confirmation under article V, § 4 where a statute did not expressly require such confirmation. In addition to the members of the Unemployment Insurance Appeal Board at issue here, there are numerous other appointments to various executive branch bodies which would also be invalidated if respondents’ interpretation of the constitutional provision prevails. (See, e.g., Executive Law § 242 [State Probation Commission]; ECL 27-1319 [State Superfund Management Board], 29-0301 [Commission for Siting Low-Level Radioactive Waste Disposal Facilities]; Mental Hygiene Law § 45.15 [Mental Hygiene Medical Review Board].) Moreover, it is also agreed that since the creation in 1935 of the Unemployment Insurance Appeal Board, no appointment to the Board has been submitted to the Senate for confirmation.
In creating the Board, the Legislature directed the appointment of three members by the Governor, the first appointments to be made "for terms of two, four and six years respectively, and thereafter as their terms expire the governor shall appoint or reappoint members for terms of six years. A member of an appeal board may be removed by the governor for cause, after a hearing. Vacancies shall be filled by appointment by the governor for the unexpired term.” (L 1935, ch 468, § 518 [6].) The statute was recodified in 1944, in substantially the same language except that the provision for staggered terms was eliminated, presumably as obsolete since the Board
Citing Matter of King v Cuomo (81 NY2d 247 [1993]) and Anderson v Regan (53 NY2d 356 [1981]), for the proposition that the plain language of a constitutional provision must be given effect, respondents argue that the plain and literal language of NY Constitution, article V, § 4 mandates Senate confirmation of all members of all boards and commissions, notwithstanding the long history of failure to confirm some members, including petitioners, and the absence of such provision in the governing statute.
New York Constitution, article V, § 4, as amended, reads: "The head of the department of audit and control shall be the comptroller and of the department of law, the attorney-general. The head of the department of education shall be The Regents of the University of the State of New York, who shall appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department. The head of the department of agriculture and markets shall be appointed in a manner to be prescribed by law. Except as otherwise provided in this constitution, the heads of all other departments and the members of all boards and commissions, excepting temporary commissions for special purposes, shall be appointed by the governor by and with the advice and consent of the senate and may be removed by the governor, in a manner to be prescribed by law.” Unlike the unequivocal constitutional limitation on appropriations at issue in Anderson (supra), or the bicameral recall practice found to be unconstitutional in Matter of King (supra) due to its absence from the constitutionally mandated procedure for enacting legislation, article V, § 4, though apparently specific in direction, is ambiguous in application when
New York’s first Constitution, devised primarily by John Jay, Gouverneur Morris and Robert Livingston during the Constitutional Convention of 1777, provided for the separation of the powers of government into the executive, legislative and judicial branches, but, from the beginning, the distribution of power among these three branches has been the subject of debate. "While providing for the strongest executive among the States at the time, the Governor’s authority was circumscribed by the creation of the Council of Revision, composed of the Governor, Chancellor and the Justices of the Supreme Court, whose duty it was to veto or revise legislation deemed unconstitutional or improvident, and the Council of Appointment, consisting of the Governor and four Senators, whose function was to make appointments for all government offices in the State. Proposed by Jay as a compromise to ensure quality, it was expected that the Governor would nominate candidates for various positions and the Council would confirm or reject. (See, Galie, The New York State Constitution: A Reference Guide, at 2-4 [1991].) By 1801, the weakness of the Council of Appointment was revealed in a partisan dispute between a Federalist Governor Jay and Republican legislative members which resulted in the development of a notorious spoils system providing for the appointment of nearly 15,000 officers by 1820. (See, Galie, op. cit., at 6-7.)
The Constitutional Convention of 1821 abolished the Council of Appointment and established the power to appoint most of the "constitutional officers” in the Legislature. The new Constitution also vested in the local electorate control over the selection of thousands of previously appointed government officials. (Galie, op. cit, at 8-10.) This structure was advanced in the Convention of 1846 which provided for direct election of
In January 1915, 152 "departments, bureaus, boards and commissions” constituted the executive branch, many with redundant and conflicting responsibilities, and each largely independent of supervision, except by the Governor personally. Such structure was unwieldy and wasteful. It was therefore proposed that the number of executive "departments” be limited to 17 and that all of the various existing "departments, bureaus, boards and commissions” be consolidated within one of those departments, under a designated "head.” Several "departments” were already functioning, having been created by earlier legislation, and were to be continued. Some of those "departments” were supervised, not by a single individual, but were governed by a board or commission; for example, the Board of Regents of the University of the State of New York supervised the Department of Education and multimember boards oversaw the Public Service and Civil Service Commissions. All "heads” of departments were designated "constitutional officers.” Proposed section 20 provided that "the heads of all departments and the members of all commissions unless otherwise provided for in this Constitution, shall be appointed by the Governor by and with the advice and consent of the Senate and may be removed by the Governor in his discretion.” The purpose of the proposed revision was to give the power to the Governor to efficiently execute the laws. (See, 3 Revised Record of 1915 Constitutional Convention, at 3328-3330.) A distinction was made among those officers or departments which had a long-established "peculiar relation” to the people, like the Attorney-General and the Comptroller, and
Under the 1915 Constitutional Plan, no new departments were to be created by the Legislature, but the Legislature was to provide for the internal organization of the departments. (See, Report of Reconstruction Commission on Retrenchment and Reorganization in the State Government, Oct. 10, 1919 [Moses Report], at 246.) While not approved by the electorate in 1915, the language and format of today’s section 4 of article V clearly originated in the 1915 debates. Those discussions indicate an intention to require Senate confirmation only of the "heads,” be they single individuals or the members of boards or commissions, of the 17 proposed constitutional departments, unless the method of selection was otherwise expressly provided in the Constitution. Such interpretation is further borne out in subsequent legislative history.
In response to the same concerns expressed in the Convention of 1915, upon his election, Governor Alfred E. Smith appointed a Reconstruction Commission, chaired by Robert Moses, to formulate a "Plan of Retrenchment.” The report of the Commission, rendered in 1919, recommended many of the changes proposed in 1915, including consolidation of the numerous agencies, as well as the establishment of an executive budget system to replace the previously uncoordinated, separate funding of the agencies. By this time, the government had grown to "a miscellaneous collection of 187 offices, boards, commissions and other agencies * * * independent of one another and most * * * subject to no direct and effective supervision by a superior authority.” (Moses Report, op. cit., at 6.) At that time, new agencies and boards were created by the Legislature haphazardly without regard to any existing
A plan was proposed recommending consolidation of all administrative agencies into 16 identified departments, "each headed by a single officer, except departments where quasi-legislative and quasi-judicial or inspectional and advisory functions require a board,” to be chosen by the Governor, subject to Senate confirmation, except for the Comptroller who was to continue to be elected; extension of the Governor’s term of office from two to four years and the adjustment of the terms of executive officers to the same term as that of the Governor; the grouping of related functions within each department into "divisions and bureaus” with an accountable chief; and a budget system under which the Governor and his "Cabinet” would submit yearly proposals for the raising and spending of all State monies. (Moses Report, op. cit., at 11.)
The Moses Commission Report contained an elaborate and detailed scheme for each enumerated department, including the Department of Labor which was to continue to be headed by an Industrial Commission of five members to be appointed by the Governor with Senate consent, for terms of five years. The Commission would appoint a Director who would be responsible for over-all administration of the entire department and would serve "during good behavior.” The Reconstruction Plan specifically provided for seven "Bureaus” or subdivisions of the Department of Labor, the heads of which were to be in the competitive class under civil service, except for the Secretary, meant to be a general administrator, who was to be also appointed by the Commission. At the time, no provision for unemployment insurance existed, however, both the existing State Insurance Fund and Bureau of Workmen’s Compensation were placed under the supervision of the Director. The Plan specified that administration of any new bureaus would be under the Director and "not in independent new departments.” (See, Moses Report, op. cit., at 125-128.) Implementation of the recommended Plan, according to the Moses Commission, required "only statutory changes,” notwithstanding the language of their proposed constitutional amendment to article V, § 5, virtually identical to section 4 at the time of its adoption in 1925: "§ 5. The heads of all the departments and the members of all boards, commissions and councils mentioned in this article shall, unless otherwise provided in this Constitution, be appointed by the Governor by and with the advice and consent of the Senate and may be removed by him in his discre
As a result of Governor Smith’s defeat in 1920, the proposals of the Reconstruction Commission were deferred until the 1923 Legislative Session, following Governor Smith’s re-election. With some modification, such as the continued election of the Attorney-General as well as the Comptroller and minor changes in the number and names of the designated civil departments, the substance of the amendment to article V tracked the Moses Commission’s Proposal. The precise language of section 4, as passed in 1923 and 1925 and ratified in the election of 1925, is as that section appears today except for the modifying phrase following "the heads of all other departments and the members of all boards and commissions,” "mentioned in this article, ” which was deleted in 1938. (L 1923, Concurrent Resolutions, proposed Amendments to NY Const, at 1760; L 1925, Concurrent Resolutions, proposed Amendments to NY Const, at 1149.) Both petitioners and respondents suggest that this modification was insignificant, relying upon the only mention of the change at the 1938 Constitutional Convention by Mr. Feinberg: "There was nothing done to Section 4 except a couple of words were struck out as being unnecessary.” (3 Revised Record of 1938 Constitutional Convention, at 2367.) It is noted that Mr. Moses, whose Reconstruction Commission had drafted the original language of section 4, was also a participant in the 1938 Convention. This court infers that the reason the phrase "mentioned in this article” was no longer necessary in 1938 is because the various "boards and commissions” which it modified referred to those 187 boards, commissions, and bureaus existing prior to the restructuring which, by 1938, had been merged into the 20 named departments. Such inference is suggested as well by the simultaneous deletion of transition provisions contained in section 3 of article V.
The 1925 amendments to article V included a much more extensive section 3 than appears in the present Constitution. Section 3, as enacted, directed: "§ 3. At the session im
On November 19, 1925, the State Reorganization Commission, chaired by Charles E. Hughes, convened, pursuant to legislative direction under section 3. Its report, dated February 26, 1926 (Hughes Report), recommended that the Department of Charities be headed by a "State Board of Charities” and that Civil Service be headed by a commission. Except for these two and Education, which, as provided in the Constitution, was to be headed by the Regents, and Agriculture and Markets, the Report recommended that all other department heads be "individuals and not boards or commissions” (Hughes Report, op. cit., at 5). The Hughes Commission, acting immediately following the ratification of the new amendment and pursuant to its direction, interpreted article V, § 4 to require only that the heads of departments, be they individuals or members of boards or commissions, be subject to Senate confirmation following appointment by the Governor. This is borne out in the extensive and detailed scheme set forth for each of the 20 designated civil departments, all of which contained subsidiary divisions with various provisions made for the designation of a chief officer or supervisory body.
The Department of Labor, originally created in 1909, was to be continued as was, with the State Industrial Commissioner as head and seven subsidiary bureaus. The Industrial Commissioner would continue to be served, in an advisory capacity, by an Industrial Council of 10 members and an Industrial Board, composed of three members appointed by the Governor without Senate confirmation for terms of six years, to develop an industrial code and oversee workmen’s compensation claims. An Advisory Committee of Policyholders, appointed by the Governor, advised the Industrial Commissioner regarding administration of the State Insurance Fund. The Hughes Commission recommended expansion of the Industrial Board to five members and specified that "the members of this board and of the Industrial Council shall continue to be appointed as at present by the Governor.” (Hughes Report, op. cit., at 48.) Given their proximity in time to the actual passage of the amendment, and the fact that they were acting at the direction of the same legislators who had passed it, it is difficult to imagine that the Hughes Commission would have so misperceived the intent of the very provision they were implementing as to expressly omit the need for Senate confirmation of the members of the many subsidiary boards and commissions described in their report.
In Matter of Kolb v Holling (285 NY 104, supra), the Court of Appeals recognized the importance of legislative history in divining the true intent of constitutional and statutory language. Noting the particular significance of legislative action following immediately upon the heels of constitutional revision, and quoting from People ex rel. Joyce v Brundage (78 NY 403, 406 [1879]), the Court noted (285 NY, at 112-113): "The weight to be given to contemporaneous construction is well expressed by Marcy, J., in People v. Green (2 Wend. 274). He says: 'Great deference is certainly due to a legislative exposition of a constitutional provision, and especially when it is made almost contemporaneously with such provision, and may be supposed to result from the same views of policy, and modes of reasoning which prevailed among the framers of the instrument propounded.’ ” The Legislature that acted upon the recommendations of the Hughes Commission was the very same Legislature that had passed the amendments to article V. The legislation it passed implementing the mandate of sections 3 and 4 is strong evidence of the proper interpretation to be accorded these sections. Taken together with the fact that for 60 years members of the Unemployment Insurance Appeal Board have never been confirmed by the Senate, the failure to
THE 1983 CLAIM
Having determined that effective December 30, 1994, petitioners became the lawful incumbents of their offices, it is necessary to consider whether the respondents’ failure to pay them in a timely fashion constituted a violation of their constitutional and civil rights giving rise to a claim pursuant to 42 USC § 1983.
As agreed between the parties, all facts will be accepted as presented in the papers. No testimony has been taken and the court makes no assessment of credibility other than as suggested by the undisputed facts. The court accepts, as it must, the assertion by respondent Sweeney that he was unaware of petitioners’ political affiliation prior to commencement of this proceeding and that his failure to place them on the payroll was solely at the direction of respondent Pataki. The court further accepts the representation that all members of the Board were treated similarly: that pursuant to the Governor’s direction, no action was taken with respect to any of them. Mr. Strauss’ dissimilar treatment (and apparently that of the other Liberal Party member of the Board, Mr. Segedy) was merely the result of his status quo presence on the Board payroll prior to the December reappointment. To determine whether a section 1983 action lies, it is necessary to examine the motives of Governor Pataki and the nature of petitioners’ offices.
Petitioners cite to various statements purportedly made to the press both by respondent Sweeney prior to commencement of litigation and by Governor Pataki after petitioners had begun legal action as evidence that they were targeted by the newly elected Governor for political reasons. There is no refutation of this suggestion from respondent Pataki and, indeed, it is obvious that Governor Pataki’s political ire was piqued by Governor Cuomo’s equally political decision to fill three potential patronage positions with Democratic Party members
Petitioners have been performing the duties of their offices, without interference from respondents, since December. There has never been any suggestion that their performance was inadequate or that the Governor had cause for their discharge. Respondents have acknowledged petitioners’ right to compensation. The failure to pay them was quite obviously intended to induce their departure from office, thereby making their positions available to other appointees.
In Elrod v Burns (427 US 347 [1976]), Justice Brennan provided a thorough analysis of the evils of unrestrained political patronage and its necessarily unconstitutional impact upon the most fundamental of First Amendment rights, concluding
The Unemployment Insurance Fund, designed to provide financial relief to persons involuntarily unemployed, is administered, as part of the Department of Labor, by the Commissioner, who makes all rules and regulations and, subject to civil service, appoints those officers and employees necessary to the administration of the law. (Labor Law § 530.) An elaborate scheme of eligibility and benefits, set forth in sections 511 through 527, is initially interpreted and applied by the Commissioner who authorizes or denies the payment of claims. The Commissioner also appoints Referees, who are under the supervision and administrative control of the Appeal Board, to hear and decide disputes. (Labor Law § 535.) It is the function of the members of the Appeal Board, acting in their quasi-judicial capacity, to finally determine any disputed claims and to maintain an index of authority for its decisions. (Labor Law § 534.) The Board’s construction and application of the statute is controlling over that of the Commissioner and must be accepted by the courts if it has a rational basis in law and support in the record. (Matter of Marsh, 13 NY2d 235, 239 [1963].) It is apparent that petitioners, unlike those in Elrod and Branti (supra), are high-level policymakers not generally protected from patronage discharge under the constraints of the First and Fourteenth Amendments.
However, Labor Law § 534 itself appears designed to insulate the Board from the vicissitudes of elective politics by providing for staggered terms of six years so that no particular Governor
In Kaluczky v City of White Plains (57 F3d 202 [2d Cir]), the United States Court of Appeals for the Second Circuit determined that a six-year term of office, while insulating a personnel officer from outright discharge, did not alter his policymaking role or insulate him from defendants’ efforts to induce his resignation so that another, more politically desirable, could be appointed. The court found that the six-year tenure did not afford plaintiff additional First Amendment protection if the criteria for the "policymaker exception” was established. That criteria include whether a position is covered by civil service, given policymaking and independent decision-making functions by law, requires technical competence, has the power to control others, is perceived publicly as authority on matters of policy, has a nexus or contact with elected officials or political leaders, receives a high salary. (Vezzetti v Pellegrini, 22 F3d 483, 486 [2d Cir 1994]; Regan v Boogertman, 984 F2d 577, 580 [2d Cir 1993]; Savage v Gorski, 850 F2d 64, 68-69 [2d Cir 1988]; Kaluczky v City of White Plains, supra, at 208-209.) Where the appointing authority is able to demonstrate that party affiliation is an appropriate requirement of a policymaking position, patronage dismissals and comparable adverse employment practices are not proscribed by the First Amendment and individuals occupying such positions will not be protected. As noted in Rutan v Republican Party of III. (497 US 62, 76 [1990]): "[t]he First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge.”
There is obvious tension between the statutory scheme for unilateral gubernatorial appointment of members of the Board who may not all be of the same party, thus on some occasions requiring a Chief Executive to affirmatively seek out a
Petitioners do not seek civil damages for the violation of their Fourteenth Amendment rights. Whether respondents enjoy qualified immunity for their actions need not therefore be determined, however, it was clearly within respondents’ ken, in light of New York Constitution, article I, § 6 and the language of Labor Law § 534, that their refusal to pay petitioners while accepting their services violated petitioners’ well-established civil and constitutional rights. (Cf., Hodge v Jones,
CONCLUSION
Upon the foregoing analysis, New York Constitution, article V, § 4 does not require Senate confirmation of appointments to the Unemployment Insurance Appeal Board and petitioners are declared to be lawful members of that Board for the balance of their respective terms. Respondents are hereby enjoined from further interference in the performance of petitioners’ duties or from removing them from the payroll without notice of cause and an opportunity to be heard. This court further finds that respondents’ willful failure to provide compensation to which petitioners were entitled, in an effort to force them from office, constituted a violation of petitioners’ rights to due process pursuant to the Fourteenth Amendment to the United States Constitution, thereby depriving them, under color of State law, of rights, privileges and immunities secured by the Constitution in violation of 42 USC § 1983. Accordingly, petitioners are awarded costs and reasonable attorneys’ fees pursuant to 42 USC § 1988, to be assessed upon hearing.
Respondents have withdrawn their initial contention that a "hiring freeze” required the deferment of petitioners’ compensation. The tenability of such argument is belied, however, by the fact that pursuant to Public Officers Law §§ 5 and 39, the only way to remove petitioners, other than for cause, would be by appointing a successor. (See, Matter of Riester v Reilly, 138 Misc 2d 68 [Sup Ct, Albany County 1988].) The only other alternative would require abolition of their positions, which the Governor was without power to do since the positions are statutory.
