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The Empire

Even More on Moreland Commissions

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An Empire reader asked if the Moreland Act would apply to the state legislature. This comes a day after Governor Cuomo issued a pointed statement calling for the passage of ethics reform legislation, lest he convene a Moreland Commission on public integrity.

The Moreland Act applies to New York State's Executive Law and specifically to the office of the Governor. But what that Commission might do when it comes to looking at the legislature is up for debate even among the experts.

"The use of such a commission to investigate the legislature branch would raise serious separation of powers issues," said Peter J. Galie, director of the Raichle Pre-Law Center at Canisius College, via email. While there have been at least 58 Moreland Commissions since 1907, Galie said he does not know of any that have targeted the legislative branch, per se.

The power to convene a commission is granted to the governor under section 6 of the Executive Law, which states:

"The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state."

But it also applies to section 63 of the Executive law, according to Stephen Gillers, of NYU Law School. Here's the relevant portion:

"Whenever in his judgment the public interest requires it, the attorney general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice."

"The first provision does not envision investigation of the legislature or legislators, but only executive agencies and the like," said Gillers via email, "The second one includes the elastic phrase 'public justice,' which could include the legislature -- or not. Any effort to investigate the legislature itself will be met with a challenge based on the separation of powers doctrine."

But it's still not that simple. Here's more from Giller's email:

But on the other hand, no senator or assemblyperson is immune to investigation personally (as opposed to the legislature as an institution of government). "Each can be investigated by a prosecutor just like anyone else. And prosecutors are executive branch persons.

So the governor is on solid ground if his Moreland Commission investigates individual members of the legislature and that would be an easy jurisdiction to define.

"Also, the governor would be on solid ground if the commission was charged to investigate any agency or board of the state government or any local government or private person and that investigation encompassed the behavior of a legislator."

The only sticking point, where the legislature may claim the law does not allow a commission, is if the investigation is into the legislature as an institution. But it will be very easy for the governor to frame his charge to any commission in a way that steers clear of any implication that the charge includes an investigation of the legislature as such.

So exactly who or what would be the target of Governor Cuomo's Moreland Commission?  We're still hoping for that answer from Governor Cuomo's office.