About Those Committee Reforms

As my colleague Laura Seago noted last week, the only proposals for committee reform that we've seen coming from Senate Democrats have had to do with whether Republicans will be named to chair one of the dozens of committees and receive a few "lulus." Whatever happened to the promises to look into shrinking the ridiculously large number of committees, requiring members to show up to committee meetings in order to vote in those meetings, and developing a formal process for reading, amending and debating bills before rubber-stamping or blocking them? In other words, whatever happened to the promise to figure out a way to make committees work the way they do in nearly every other state legislative body in the United States, outside of New York? The Temporary Committee on Rules and Administration Reform had indicated they would try to come up with some recommendations for the full Senate by December. It's December 21.

Lulus distributed more equitably, but still not earned

Yesterday, the Daily News reported that the Senate Democrats are in “high level discussions” to give committee chairmanships to Republican members in hopes of improving relations between the two parties in the narrowly-divided chamber. Likely reflecting the nature of the talks themselves, the article emphasized the $12,500 lulus that GOP committee chairs will receive.

While bipartisan leadership is great, we certainly hope that this won’t be the only reform to the committee process that the Senate contemplates this month. When the chamber changed its rules in the wake of the coup last July, it also passed a resolution promising to return to the issue of committee reforms. Last month, Senate staff informed us that we could expect an outline of these reforms in December. In response to this news, we offered suggestions including reducing the number of committees, requiring committee reports, establishing a mark-up process, and institutionalizing conference committees to reconcile similar bills passed in both chambers. The promise to consider such changes has yet to be fulfilled.

Committee members of both parties need to earn their lulus by presiding over hearings, markups, and active discussion devoted to debating and improving legislation. If the Senate doesn’t go further to reform its committees, this new era of bipartisanship will mean little more than compensating members on both sides of the aisle for doing very little.

3 Men in a Cell?

In 2005, we noted that over the previous decade, a New York State legislator was just as likely to die in office as lose in a general election. For 2009, on the heels of the Bruno conviction, we have a new statistic: since 2000, legislators were more likely to resign while under ethics investigation, or after pleading guilty to or being convicted of a crime, than they were to lose in a general election.

Closing the Bruno Gap

Yesterday, former Senate Majority Leader Joe Bruno was convicted of two felony charges of mail fraud under the federal honest services law. He is all but certain to appeal. If he wins on appeal, it will not be because Bruno did not accept millions of dollars in consulting fees from individuals with legislative interests without disclosing the payments (he admits that he did), but rather because the federal statute under which he was charged is currently under review.

Some have argued that the federal prosecution of Bruno underscores the failures of state ethics commissions to do their jobs. We're not sure that's fair. The sad fact is, it is not clear that there is any state statute under which to charge state politicians for the kinds of crimes Bruno was alleged (and now convicted) of committing. New York’s ethics laws, such as they are, don’t restrict outside earnings or require legislators to disclose the sources of their income. Those who collect outside income that might raise questions about conflicts of interest – including Shelly Silver, according to a witness at Bruno’s trial – can simply refuse to disclose that information. Even under the ethics bill nearly passed this fall, there would not necessarily be a case for convicting Bruno.

The question, then, shouldn’t be about the problem with Bruno’s actions – most would agree that it is undesirable for a legislative leader to accept over $3 million from individuals who wish to influence policy outcomes – but the problem with New York’s ethics laws. We need a new push for ethics reform that includes mandatory disclosure of all outside income (including from legal work, as is required in Washington state), pay to play restrictions (which would have explicitly banned Bruno’s activities), and a truly independent legislative ethics commission to oversee compliance with these laws.

We need these reforms soon, before the next Joe Bruno – and odds are good that there will be one – walks.

Albany Revealed

I'd like to echo yesterday's blog post from my colleague, Laura Seago. Disappointing as yesterday's gay marriage vote may have been, it represents a historic and extremely important moment in Albany separate and apart from substantive issue of marriage equality: Senators were forced to take a public, binding vote on an issue many would have preferred to avoid.

What's a bit surprising to me is how many people in Albany who should have known better were "shocked, shocked" to learn that the private promises of support they received did not translate into actual votes.

There's a long tradition in Albany of avoiding votes on controversial issues and bills, either because the bills are popular, but opposed by powerful interests with deep pockets, or because an up or down vote would inevitably tick off one group of consituents or another. This can be a good deal for legislators. They can privately or publicly support a measure that gets them the good will of particular constituents without having to fear the loss of financial or electoral support that would come with an actual vote. But the result is that, all too often, the legislature avoids tough issues that must be addressed for the State's long term health. The public has no one to blame (unless they happen to live in the district of the Assembly Speaker or Senate Majority Leader).

If a democratic system is going to thrive, legislators will sometimes have to take difficult votes -- it is a disservice to New Yorkers to avoid public debate and votes merely because taking a stand could cost some legislators their jobs. That's the point of democracy: take a difficult stand and then defend it to your consituents. Either a majority will accept your explanation or not. If not, new legislators will be elected to take up the will of the people.

Lo and behold, the day after this controversial vote on gay marriage, people know where their state Senators really stand. There are protests, and talk of targeting members for their votes. Come November, voters will have an opportunity to judge their legislators on this topic in a way that they could not previously.

Wouldn't it be great for voters to have more points of reference? Actual votes on bills on controversial but important issues like campaign finance reform, congestion pricing, property tax reform, etc., etc.?

We can dream, and the new Senate rules may provide a real opportunity for this next year (in one chamber, anyway).

Victory in Defeat?

Today, in an incredibly rare move, the Senate voted down a bill – this one to legalize same-sex marriage.

Disappointing though the result might be, the bill’s failure symbolized a departure from business as usual in the Senate, and gave advocates for marriage equality a critical tool in pushing similar legislation next year.

During debate on the bill, Sen. Diaz, one of the eight democrats who voted against the legislation, called Majority Leader Malcolm Smith “treasonous” for not keeping his word with respect to a deal reached last January that included Smith’s promise to keep the marriage bill from coming to the floor for a vote in exchange for Diaz’s participation in the Democratic caucus. Normally, a bill only reaches the floor with the approval of chamber leadership and a guarantee of passage.

But today, for the first time, the Senate created a public record as to where its members stand on the issue of marriage. While some Senators were outspoken in their support for or opposition to the bill, it was never 100% clear until today who the five or six democratic holdouts were, and the fact that the bill lost by the margin it did was a surprise to most who have been following this issue closely.

Openness and accountability are critically important to representative government. In the past, leadership has shielded members from having to take votes on controversial issues and the result has been that voters haven't known who to blame for a bill's failure to pass. That's bad for New York, because it keeps the legislature from tackling difficult issues, and it's bad for New Yorkers, because they lose the ability to hold their members accountable.

One thing we are pretty sure of is that many, many New Yorkers will know how their Senators voted on gay marriage when they go to the polls next November. That's the kind of significant information they haven't had in the past. The majority of New Yorkers who support same-sex marriage and those who oppose it will now have a better opportunity to make sure that their views are reflected in the votes of their elected representatives.

UPDATE: In a previous version of this post, we indicated that the Senate has voted down a bill on only one other occasion in recent memory. We were incorrect. During two of the Senate's post-coup all-nighters, a total of three bills were voted down on the floor. An additional two bills were tabled due to a lack of support on the floor, again after the coup. We stand corrected.

Is the Citizen Legislature to Blame? Maybe for Boredom.

In a story in today’s Times, embattled former Senate Majority Leader Joe Bruno is quoted as attributing his use of a state secretary for private business and collecting consulting fees from myriad entities with state contracts to the fact that New York has a part-time legislature.

With this in mind, we decided to take a look at what the National Conference of State Legislatures has to say about part-time versus full-time legislatures. NCSL stresses that legislatures can’t be divided into two black and white categories, but interestingly enough, NCSL puts New York in a category with California, Michigan, and Pennsylvania – states that have longer sessions and larger districts, and where legislators have larger staffs and “are paid enough to make a living without requiring outside income.” In fact, according to NCSL, legislators in New York have the third-highest salaries in the nation. (Granted, $79,500 a year may make it tough to live in and represent a district on the Upper East Side, but the median household income in Saratoga and Rensselear Counties, which Bruno represented, is less than $50,000.)

Aside from salaries and session length, though, New York may be less like California and more like the states that NCSL identifies as requiring less time of legislators and compensating them with quite low salaries that usually must be supplemented with outside income. As we’ve written many times before, legislators in New York spend shockingly little time studying issues through the committee process and improving legislation accordingly. So maybe when Bruno blamed New York’s citizen legislature system for his outside dealings, he was really saying that he got into trouble because he had too much time on his hands.

Fortunately, we know how to fix that problem.

Senators, Advocates, Lobbyists: New Rules Mean New Opportunities Next Year

Of course, the legislature still isn't finished with the serious work it must get done THIS year.

But for advocates and Senators, it may be time to start thinking a little bit about next year, and here's why: the impact of the Senate's new rules could make a huge difference in the operations of the Senate and what gets considered.

There are several new ways to get hearings on bills, to force members to publicly take positions, and to force bills to the floor for debate and a vote. As my colleague Laura Seago has written, proponents of the gay marriage bill might want to use the new rules if they can't get leadership's cooperation. But there are a host of other groups that may want to use the new rules to get their issues on the floor of the senate -- tenants rights groups, property tax reform groups and environmental groups, to name a few.

We've posted a "road map" of the new rules and how they can be used here. It was drafted with Maria Cilenti , Director of Legislative Affairs of the New York City Bar. We hope that advocates (and Senators) will use it. The new rules will only make the legislature more transparent and accountable if rank-and-file members take advantage of them.

How to Fix Committees

As we've written before, the Senate has one major hurdle to clear before it largely fulfills its promise of making the chamber more deliberative, open, and accountable. Below is a letter that the Brennan Center sent the Temporary Committee on Rules and Administration Reform and other Senate leaders yesterday outlining the specific reforms that the chamber must make.

November 11, 2009

Dear Senators Valesky and Bonacic:

We write regarding the work of the Temporary Committee on Rules Reform. First, we congratulate the Senate on making significant strides in reforming its operating rules to distribute member resources more equitably, allow members to move legislation to the floor over the wishes of the majority leader, impose term limits on chamber leadership, and increase transparency for the actions of individual members, committees and the full chamber. All of these are significant reforms that provide the Senate with the opportunity to become a more accessible, accountable and efficient chamber. And they place the Senate far ahead of the Assembly in creating a more democratic body, where rank-and-file members will have a greater opportunity to represent their constituents and ensure that the concerns of those constituents get a public airing in the full chamber.

Our greatest reservation about the Senate’s rules changes thus far has been the failure to significantly alter the committee process. Based on our studies in this area, as well as our work in other state legislatures and Congress, we believe that there is no area in the New York state legislative process in greater need of reform than the committee process. We understand from communications with Senators and legislative staff that the Temporary Committee plans to take up this important topic in the coming weeks.

As you are aware, Senators currently sit on so many committees that it is difficult for many these Senators to devote enough time to any of them. There is still no process for reading bills in committee or even for requiring committee members to show up to meetings. Committee reports are almost always perfunctory and lack any description of committees’ work on bills (in addition to making it more difficult for other legislative members and members of the public really understand these bills, a lack of real committee reports -- unique to New York -- makes it exceptionally difficult for the courts to determine legislative intent in cases where the law is unclear). And while the new rules allow members to petition for hearings, it does nothing to require hearings on major legislation.

We strongly urge you to recommend the following changes to the committee process:

1. Reducing the number of legislative committees on which individual Senators may serve to no more than three to four, as is typical in other state legislatures (including such large states as California, Florida, Illinois, Michigan, Ohio and Pennsylvania);
2. Requiring committee reports issued with any bill voted out of committee to set forth the purpose of the bill, the proposed changes to existing law, section-by-section analysis, the bill’s procedural history, committee or subcommittee votes, and any individual members’ comments on the bill;
3. Requiring a process for reading, debating and amending any bill before it receives a vote from the committee (absent a vote by the committee to forego that process for any particular bill);[1]
4. Providing each committee with explicit control over its own budget and the hiring and firing of all committee staff; and
5. Institutionalizing conference committees, so that when bills addressing the same subject have been passed by both chambers, a conference committee will be convened at the request of the prime sponsor from each chamber or the Speaker and Majority Leader.

If the Senate passes these changes, it will largely fulfill its promise to overhaul its operating rules to promote representation, deliberation, accessibility, accountability and efficiency. Given the challenges New York currently faces, we believe that such changes could not come at a better time.

Sincerely,

Lawrence Norden
Senior Counsel, Democracy Program

cc: Sen. Pedro Espada
Sen. Joseph Griffo
Sen. Jeffrey Klein
Sen. Kevin Parker
Sen. John Sampson
Sen. José Serrano
Sen. Malcolm Smith
Sen. Daniel Squadron
Sen. Andrea Stewart-Cousins
Sen. George Winner
Shelly Mayer, Counsel to the Majority
Andrew Stengel, Senior Policy Adviser for Government Reform

---

[1] This process could be similar to the process used by the Senate Committee on Cities on May 19, 2009.

Breaking One Set of Rules to Enforce Another?

Liz Benjamin is reporting that the Assembly’s ethics committee held a closed-door session this morning, the subject of which committee members have kept tightly under wraps. While it’s good news that the committee – which, as we noted in our 2008 report, sometimes goes years without meeting – is doing its job, the opacity of the process may be cause for concern.

According to the New York State Open Meetings Law, a committee can only hold a closed-door ‘executive session’ after taking a vote “in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered” for the following reasons:

a. matters which will imperil the public safety if disclosed;

b. any matter which may disclose the identity of a law enforcement agent or informer;

c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

d. discussions regarding proposed, pending or current litigation;

e. collective negotiations pursuant to article fourteen of the civil service law;

f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

g. the preparation, grading or administration of examinations; and

h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

It is certainly plausible that options c, d, or f are relevant to official Ethics Committee business, but the committee's failure to disclose the subject of the meeting is suspect. The law allowing executive sessions is designed to protect the public and afford due process to those accused of violating the law, not to obscure the business of the legislature from public view.

"Greater transparency" without information is not greater transparency

To some fanfare, the Senate yesterday unveiled its new open legislation portal. The new site provides some information on bills (i.e., bill text, sponsor memo, status, bill summary, and voting records) that was not previously available on-line in a single place (though, as far as I can tell, it was all available somewhere). The new site is certainly easier to use than the old site.

Unfortunately, the new site still doesn't provide New Yorkers with the kind of critical information residents of other states can get to assess legislators and legislation: full fiscal notes, committee votes, floor debate transcripts, previous versions of amended bills, committee reports, etc.

It's wonderful to have a new database that makes searching easier. It would be more wonderful if the Senate would post information that would the database useful to people who want to fully understand legislation and the actions of their Senators.

We hope that's coming soon.

A Perfect Opportunity to Take New Senate Rules for a Spin

With yesterday’s votes in Washington and Maine concerning the rights of same-sex couples, New Yorkers may be wondering about the status of our own state’s proposal to extend marriage rights to gay couples.

On Tuesday, New York Magazine blog Daily Intel ran a story stating that Senate leadership appears unlikely to bring the marriage bill that has been languishing in the chamber for months to the floor for a vote.

This may be no surprise to those who were following this story in the spring. Then, as now, bill sponsor Tom Duane and senate leadership have a fairly good idea who is in favor of and who is against the bill, but voters do not. The Daily Intel post reports that there are 25 or 26 Democratic votes and three or four Republican votes in favor of the bill, but nobody’s naming names. That means that voters who want their elected representatives to vote a certain way on the bill have no way of knowing if they need to get in touch with their senators.

One of the rules reforms passed after the end of the Senate coup in July would solve both the problem of leadership’s reluctance to move the bill to the floor and anonymity with respect to senators’ positions on the issue. It’s called a petition for chamber consideration, and it allows the bill sponsor to request that a bill receive a timely floor vote. If three fifths of the chamber – or 37 senators – sign the petition, the bill is considered on the first legislative day after four days have passed. By signing the petition – a public document under New York’s open records law – senators can go on the record with their support of the bill and force the legislation to the floor without the blessing of chamber leadership.

The new Senate rules – perhaps the only redeeming thing about the coup that deadlocked the chamber for a month this summer – included a lot of good changes, but the real test is yet to come: members of the Senate actually have to take advantage of their new rights.

After decades of secrecy and leadership stranglehold over the legislative process, rank and file members finally have an opportunity to speak for themselves. But will they take it?

"This way you do business . . . is against the law."

That is the essence of the federal charges against former Senator Majority Leader Joe Bruno, and, in a way, all of Albany. Or so says an unnamed political operative in a New York Times article by Nicholas Confessore entitled "Bruno's trial seen as a hearing on Albany."

I made much the same point in an AP article authored by Michael Virtanen. Regardless of what the eventual outcome of the Bruno trial, the trial itself is bound to give us weeks of headlines that highlight the pay-to-play culture that so many in Albany take for granted. We can only hope that this will shame the legislature enough to force more reforms, and continue to chip away at the stranglehold party leadership and certain vested interests have over the state.

Photos from the October 27 Panel at NYU

Last Night's Panel At NYU Law School

We had a great panel on how to reform the State Legislature at NYU Law School last night. With approximately 150 people in attendance, E.J. McMahon (Empire Center), Susan Lerner (Common Cause NY), Senator Squadron and Assemblyman Jeffries each identified the one reform they would most like to see enacted to make significant change in the legislature (there was no dispute that significant change was needed).

E.J. McMahon had what was perhaps the most provocative suggestion: turning the legislature into a "Citizen's Legislature," where the number of legislators was increased, the legislative calendar shortened to 30 days, and the position of Senator and Assemblyman turned into a part-time job. The three other panelists objected to this idea, citing the complexity of issues facing the legislature and arguing it would make the legislature even less effective than it is now.

Susan Lerner argued for reform to the committee process: less committees, more hearings, mark-ups and debate on bills. These are things we see in every other state legislature, and all four panelists agreed this reform was needed in New York.

Senator Squadron argued that we needed real campaign finance reform in New York, with lower contribution limits and public financing. Susan Lerner agreed, stating that campaign finance reform was the reform necessary for all other reforms, and noting that too often legislators feel they must respond to lobbyists first. E.J. McMahon was the only contrarian on campaign finance reform, arguing that if anything, we should further deregulate New York's system (it's hard for me to imagine how it could be much more deregulated).

Assemblyman Hakeem Jeffries argued for an end to the current process for Special Elections, whereby party bosses essentially choose the replacement for legislators who must leave office in the middle of their terms for reasons like criminal indictment. He noted that approximately 1/3 of the legislature has been chosen through this special election process. He and Senator Squadron have introduced a bill to tackle this issue.

We had an extremely engaged audience, with questions about redistricting reform, constitutional convention, elimination of member items and whether it made sense to turn the legislature into a unicameral body.

While there was general agreement that things were pretty bad in Albany right now, the panelists also seemed to agree that the public disgust with Albany presented an opportunity for some significant changes.

TUESDAY: Reforming Albany: What Is Wrong with the State Legislature and How to Fix It

On Tuesday, October 27, the Brennan Center will join the New York Lawyer Chapter of the American Constitution Society in hosting a panel discussion entitled Reforming Albany: What Is Wrong with the State Legislature and How to Fix It.

The event features Assemblymember Hakeem Jeffries, AD 57; State Senator Daniel L. Squadron, SD 25; Susan Lerner, Executive Director of Common Cause/New York; and Edmund J. McMahon, Director of the Empire Center for New York State Policy at the Manhattan Institute for Policy Research. Our own Larry Norden will moderate.

What: Reforming Albany: What Is Wrong with the State Legislature and How to Fix It
When: Tuesday, October 27, 2009, 6:30 PM
Where: New York University School of Law
Vanderbilt Hall, Greenberg Lounge
40 Washington Square South
New York, NY

We hope to see you there!

A Blueprint for Fixing Albany

Today, the New York Times ran an editorial assessing the problems in New York and what needs to be done to fix them. Calling the state a “national embarrassment” and “a $131 billion monster controlled by a crowd of smug officials whose main concern is keeping their soft jobs,” the Times outlines a must-do list for state lawmakers. The editorial says what recent polls have already suggested – with the 2010 election a little over a year away, lawmakers fail to reform state government at their peril.

The editorial lays out a laundry list of areas for improvement that it will profile in detail in the coming weeks:

• Ethics Reform. The Times calls for “independent monitors with powers to oversee the ethics of those in the state government and Legislature.”
• Campaign Finance. Advocating a public financing model, the Times calls for “strict rules for reporting and using that money.”
• Budget Reform. The Times demands a more transparent budget process.
• Pension Reform. Of the fact that the comptroller is the sole trustee of the state’s pension fund, the Times says, “This should not be happening anywhere, but especially not in Albany.” The editorial supports Cuomo’s proposal for a 13-member commission to manage pensions, but cautions that the commissioners must be carefully chosen.
• Modernize Voter Registration. Echoing the paper’s support of a national proposal to reform the voter registration system, the Times says it’s time to make it easier to register to vote in New York.
• Redistricting Reform. One of the causes of stagnation in Albany is the process by which legislators draw their own districts – and choose their own voters. The Times advocates putting redistricting in the hands of an independent commission.

Some members of the New York state legislature are probably beyond redemption, but for those who still wish to accomplish something for New York State, the blueprint outlined by the Times is a great place to start.

What to Do About Monserrate?

As most of our readers now know, Hiram Monserrate, the Senate coup instigator accused of slashing his girlfriend in the face with a broken glass last December, was charged yesterday with a misdemeanor – not for the slashing itself, but for Monserrate’s rough treatment of his girlfriend caught on security video as the couple left for the hospital later that evening.

Had Monserrate been convicted of a felony, he would be forced to surrender his seat in the Senate. But because his crime is a misdemeanor, there is no requirement that he step down, even if he is sentenced to jail as his conviction allows.

Yesterday, Democratic Conference Leader John Sampson issued a statement saying that the “leaders of our conference are discussing the potential for further action in the Senate” and that they will “follow the letter of the law” should they choose to take action. Three Democratic senators issued even stronger statements today calling on Monserrate to resign and saying that they will work to remove him from the Senate if he does not step down voluntarily. Two more of their colleagues joined their call this afternoon.

It turns out that the letter of the law to which Sampson refers is quite clear. Section 3 of the New York State Legislative Law states in full: “[e]ach house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made.” The law does not specify the structure of the committee or what the report must find.

Malcolm Smith, still the nominal Temporary President of the Senate, has the authority to convene a temporary committee to investigate the claims against Monserrate or to delegate the inquiry to a standing committee – say, the Ethics committee, chaired by Sampson himself. The evidence against Monserrate has already been aired in court and is publicly available. Once this committee submits a report on their findings, the question of Monserrate’s expulsion can be put to the chamber for a vote. If the sentiments of the growing number of Senators who have already spoken our against Monserrate are reflective of the rest of the chamber, it should be a pretty easy one.

Lieutenant Governor Ruling a Victory for Paterson and an Argument for Committee Reports

Today, the New York State Court of Appeals ended the final chapter of the Senate coup saga that began nearly four months ago. In an unexpected victory for Governor Paterson, the court ruled that the Governor had the authority to appoint Richard Ravitch as Lieutenant Governor on July 8^th. In arguing that the constitutional provision for the Temporary President to perform the duties of Lieutenant Governor is a “short term” solution that “can at best provide only stop gap coverage,” the decision might also be viewed as a victory for those who found distasteful Pedro Espada’s assertions during the coup that as Temporary President, he was entitled to two votes in the Senate.

In the decision, the court relies on the precedent created by Ward v. Curran, the 1943 case in which the court allowed then-governor Dewey to hold a special election to fill a vacancy in the office of lieutenant governor. Motivated by fears that such special elections might allow for a governor and lieutenant governor of opposite parties, threatening the cohesiveness and efficacy of the executive branch, the legislature later changed the law to require that vacancies in the office of lieutenant governor be filled by gubernatorial appointment rather than special election.

The decision necessarily includes discussion of the legislature’s intent in changing the law, something that the courts usually determine by examining committee reports along with debate and hearing transcripts. Hobbled by New York’s weak legislative process, the court must rely on a gubernatorial address rather than legislative records to provide evidence of intent in this case. The dissent contests the majority’s interpretation of legislative intent, stating – again without the benefit of legislative records – that the legislature did not mean for the offices of lieutenant governor and governor to fall under the rubric of the section of the public officer’s law from which Governor Paterson derived appointment authority. Neither side can point to conclusive evidence.

As the majority writes in today's opinion, "the legislature is always free to revisit" the question of how vacancies in the office of Lieutenant Governor are filled. Just another reason to adopt a robust legislative process designed to explore and document the intent behind the laws that will affect New Yorkers for decades to come.

UPDATED: Words Matter: The Legislature’s Ethics Reform Bill Shows How A Shoddy Process Can Have Unintended Consequences

Yesterday, the Senate failed to pass its version of the ethics reform bill that passed the Assembly earlier this year. While ethics reform is undoubtedly necessary for New York, a longer gestation period for this particular bill may not be such a bad thing.

The legislation is rather massive, and we’ll have more to say about it’s substance in the coming days, but given the ethical shenanigans that seem to have pervaded the legislature over the past year, it’s probably fair to assume that many New Yorkers would view this as an important piece of legislation, deserving of careful consideration by the public and the legislators.

Exactly how much hearing time was specifically devoted to the language in this new bill? Was there a mark-up of the bill in Committee (as is commonplace in other legislatures) where committee members publicly review a bill, line by line, asking questions and offering amendments where appropriate? My guess would be no, since this almost never happens in the New York State Legislature.

Why does this matter? A good hearing or mark-up may have forced members to discuss the following change to existing law in the Assembly version of the bill (we’ll see what the Senate passes), brought to my attention several hours ago by Dennis Hawkins of the Fund for Modern Courts: the bill changes the standard for when a legislator will be subject to penalties for violating the relevant law. Whereas the old law required a finding that the legislator “intentionally” violated the law, the current bill requires that the commission find the legislator “willfully” violated the law.

Why the change? What was the intention? And what is the likely impact? It will be very hard to say, unless there is a detailed committee report that accompanied the bill (there almost certainly wasn’t, as there never is), or unless this came up during a hearing or mark-up specifically devoted to the bill (which there almost certainly wasn’t, since that almost never happens). It’s a safe bet that most legislators don’t even know this change is in here.

In the short time I spent researching this issue, I haven't found any New York case law that explains how "wilful" and "intentional" differ in meaning. It is possible that a court will find they do not differ, though that court will certainly have to confront the fact that this language was explicitly changed. Disturbingly, in other states in other contexts, “willful” has been interpreted to impose a higher threshold than “intentional,”; willfulness has meant not merely committing the act intentionally, but doing so “with legal malice, or without reasonable ground for believing the act to be lawful.” In other words, it is quite possible that the Assembly’s ethics bill -- supposedly meant to strengthen ethics enforcement in the State -- could actually make it more difficult to punish legislators who violate ethics laws intentionally, but not "willfully."

A good legislative process would have forced legislators to publicly grapple with this change and explain it (or, more likely, eliminate it). While the Senate has moved much further than the Assembly in adopting better rules, neither has adopted the kind of committee changes that would have forced them to deal with this potential problem before the bill received a floor vote.

I have notified Senator Squadron's office of the potential issue (Senator Squadron is the Senate sponsor of the bill), and they have stated they will look into it.