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Labor & Employment Law

: New York Public Personnel Law

The State Constitution?s provisions addressing a vacancy in the office of Lieutenant Governor

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The State Constitution?s provisions addressing a vacancy in the office of Lieutenant Governor
Article IV, §6 of the State Constitution

Robert Ward, of the Rockefeller Institute of Government, is reported to have said that ?On its face, the constitution does not rule out two votes,? apparently referring to the claim of a coalition of Republicans and a Democrat advancing the theory that the State constitution provides ?Sen. Pedro Espada [elected as temporary president of the State Senate on June 8, 2009] with two votes in the Senate: one vote as a Bronx senator and one vote as acting lieutenant governor."

Set out below is Article IV, §6 of the State Constitution -- the ?Qualifications, duties and compensation of lieutenant-governor.?

Significantly, §6 provides, in pertinent part, 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 ?.?

Accordingly, upon the election of Senator Espada as ?temporary president of the Senate,? he, by operation of law, assumed ?all the duties of lieutenant-governor? as that position was then vacant.

Such being the case, it could be argued that when the temporary president of the State Senate assumes the duties of lieutenant governor, that individual would have but a single vote, consistent with the constitution's provision that he or she ?shall have only a casting vote therein.?

Further, considering the fact that the temporary president of the State Senate is a position in the legislative branch of government [See Article III, §9 below] while the office of lieutenant governor is a position in the executive branch of government pursuant to Article IV, it could be argued that Mr. Espada?s status as a State Senator became "inoperative," at least temporarily, upon his assuming the constitutional mandate of performing the duties of lieutenant governor and thus he cannot vote in the State Senate as a State Senator but may vote solely as required consistent with his performing the duties of the lieutenant governor.

In the alternative, assuming that Mr. Espada retains his status as an "operative" State Senator while serving to perform the duties of the lieutenant governor," he probably should recuse himself from voting as a Senator in situations where to so vote would thrust him into the position of having to subsequently vote to sustain or overturn his own vote as a Senator should he be required to break a tie vote in the Senate in his capacity of performing the duties of the lieutenant governor. [See, for example, Informal Opinions of the Attorney General, 2003-3.]

Article IV, § 6.

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein. The lieutenant-governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant-governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant-governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.

Article III, §9

§9. A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker [emphasis supplied].

Full post as published by New York Public Personnel Law on June 18, 2009 (boomark / email).