In the original version of a news release yesterday summarizing the latest state legislative expenditure data posted at SeeThroughNY.net, the Empire Center reported that the Assembly had “prematurely” begun paying salaries to three members chosen in the 2016 general election to fill seats vacated before those elections, after having similarly begun payments to members elected to already vacated seats in the 2014 general election.

Our characterization of these payments was based on Article 3, Section 2 of the state Constitution, which states: “The assembly members elected in the year one thousand nine hundred and thirty-eight, and their successors, shall be chosen for two years.”

In response, Michael Whyland, the spokesman for Assembly Speaker Carl Heastie, issued a statement describing our report as erroneous and misleading.  He said the decision to seat and begin paying the members was based on a “unanimous policy decision” by the state Board of Elections, which had “directed local BOEs (Boards of Elections) to list the public office up for election once, not twice, even if there is a vacancy in an unexpired term.”  The spokesman stated, further, that the decision had “recognized that each house of the legislature would determine when to seat the winner in such circumstances.”

The board decision in question was summed up in the minutes of the board’s May 2014 meeting as follows:

“As many are aware, there are currently 12 vacant Senate and Assembly seats throughout the State. The State Board has been asked on numerous occasions whether the office must appear twice—once for the unexpired term and once for the full term—on this year’s general election ballot.

“After a review of the relevant statutes, the State Board is of the opinion that since no Special Elections have been called to fill those vacancies, that such office should be filled at the upcoming General Election and the office should appear only ONCE on the ballot, for the full term. We will immediately make a notification to all interested parties should the legislature act in such a way that would change or alter this position …” [emphasis added]

As worded, the directive applies to cases in which “no Special Elections have been called” — which clearly means there were no elections to fill unexpired terms for seats that had been vacated. Note, also, that the board differentiated between “unexpired” terms and “full” terms, and that the directive further stated that “such office should be filled at the upcoming General Election … for the full term.” As provided in the Constitution, full terms are two years—not two years plus a few weeks or months.

The speaker apparently has chosen to read the Board of Election directive, in combination with the legislative law, as implicitly authorizing the Assembly’s practice of quickly seating the winners of general elections as if chosen in a special election—even though, as the board stated, “no special elections have been called.”  Moreover, while the state Board of Elections has the authority to regulate the election process, including the form of the ballot, it is not a judicial body empowered to interpret the Legislature’s constitutional power.

We appreciate the effort by the speaker’s office to inform us on this matter.  However, we would also suggest that this is, at the very least, a grey area, in which there remain grounds for questioning the Legislature’s authority to effectively appoint the winners of general elections to serve out their predecessors’ unexpired terms. At the very least, the issue remains sufficiently ambiguous to demand a statutory clarification.

The Empire Center, based in Albany, is an independent, not-for-profit, non-partisan think tank dedicated to promoting policies that can make New York a better place to live, work and do business. SeeThroughNY this summer marked nine years of connecting New Yorkers with information about how their tax dollars are spent.

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