Lt. Gov. Kathy Hochul (photo: Kevin P. Coughlin/Office of the Governor)
Kathy Hochul is the ninth New York lieutenant governor to become governor through the state constitutional process to fill a vacancy.* But she will be just the second to appoint a successor to the office she herself vacates. David Paterson was the first. This provides her a unique opportunity to improve New York state government.
Lieutenant Governor Paterson became Governor in 2008 when Eliot Spitzer resigned in disgrace. Notwithstanding the centuries long practice of leaving the lieutenant governorship unfilled when it was vacated in the midst of a term, Paterson appointed respected civic leader Richard Ravitch of New York City to the post.
Unprecedented and unexpected, Paterson’s action ultimately survived a challenge in the state’s high court. It was part of his response to a major state fiscal crisis in a time of chaotic partisan tugging and hauling for control of the State Senate. In contrast, Hochul’s choice will be an integral element of her transition into the governorship. It will therefore surely be placed under a microscope for early indications of her ideas about government structure and reform, her approach to decision-making and her early thinking about the nature of the coalition she envisions she will need to win the full term she has said she will seek in 2022.
The job of lieutenant governor, David Patterson reminisced, was to get up in the morning and check the news to be sure that the governor had survived the night. If so, he could confidently sleep in. In fact, apart from presiding over the State Senate, a largely ceremonial role, the state constitution and statutes give the lieutenant governor virtually no responsibilities – or powers – a fact that has been lamented by almost all who have held the office, and actually has driven some from it.
Candidates for governor routinely say that their first consideration in choosing a running mate is the person’s ability, if called upon, to do the top job. The political reality is, however, that aspirants to the lieutenant governorship are considered first in accord with the long established major party practice of presenting the voters with a demographically and geographically “balanced ticket” in statewide elections. Governor Hochul – an upstater, a woman, a former Congress member – was herself a beneficiary of ticket-balancing. She was selected by Andrew Cuomo as his running mate in 2014 when Lieutenant Governor Bob Duffy declined to run again.
Adhering to the idea of balance, Hochul has said she will appoint someone from New York City and she is widely expected to choose a person of color (Hochul is white). If the experience of another Paterson appointment to statewide office is any precedent – the choice of Kirsten Gillibrand to serve in the U.S. Senate when Hillary Clinton resigned her seat to become Secretary of State – there are numerous prominent Democrats already pushing hard to be selected. Among those mentioned are State Senators Brian Benjamin of Manhattan and Jamaal Bailey of the Bronx and Bronx Borough President Ruben Diaz, Jr.
In reality those running for Governor in New York make no definitive choice of running mate. This is because though New York voters cast a single ballot to fill the two offices, party nominations for Governor and Lieutenant Governor are subject to separate primary elections. This creates the possibility that the preference of the gubernatorial candidate for the lieutenant governor nomination may not end up being his or her running-mate. Hugh Carey did not pick Mary Anne Krupsak. Mario Cuomo did not pick Al Del Bello. Hochul herself had to defeat Tim Wu in a statewide primary to secure her 2014 nomination, and win another primary to survive a challenge in 2018 by Jumaane Williams (a potential candidate for statewide office again) to her renomination.
The Lieutenant Governor is elected for the same term at the same time as the Governor; unlike appointed staffers, he or she can’t be fired. Moreover, it’s hard (impossible?) to think of an ambitious politician whose ultimate career goal is to be Lieutenant Governor. Those who seek the office are likely to see themselves on the way to bigger and better things…like the governorship. So not only may the Governor end up with a Lieutenant Governor he or she did not choose, but one who can’t be fired and may want the Governor’s job. This is not a formula for trust, or inclusion.
Yet because the Lieutenant Governor has virtually no formal powers, his or her role in state government is almost entirely dependent upon developing a strong, trusting supportive relationship with the Governor. This can happen. Malcolm Wilson was involved in almost every major decision made by state government during his 15 years as Nelson Rockefeller’s Lieutenant Governor. Stan Lundine played an important role as the Lieutenant Governor for Mario Cuomo’s second and third terms. In contrast, George Pataki’s Lieutenant Governors, Betsy McCaughey Ross and Mary Donohue, were entirely marginalized. Hochul herself, though smart and able, was rarely drawn into the center of decision-making on the Capitol’s second floor during the second and third terms of Andrew Cuomo’s administration. (Notably, all of these marginalized lieutenant governors were women, as was Krupsak, who resigned after a single term to run against Governor Hugh Carey, the governor with whom she was elected.)
But when it comes to filling the current vacancy, the game is different. Governor Hochul will actually choose the Lieutenant Governor. There will be no party convention. There will be no primary. There will be no election. There will be no State Senate advice and consent. Hochul will get the person she chooses. A person she can trust. A person she can comfortably provide a serious role in her administration. That is, she can draw upon the opportunity created by circumstance not only to fill the job of Lieutenant Governor, but to show the significance and value of a strong, inclusive team at the top.
The next step: revising the election law to require Governor and Lieutenant Governor be nominated as well as elected as a team.
*A tenth, John Taylor, acted as governor for about four months when Daniel Tompkins resigned to become Vice president, as the state constitution in force in 1817 did not provide for full succession to the office.
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Gerald Benjamin is Emeritus Founding Director of The Benjamin Center at SUNY New Paltz.
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School during covid (photo: Michael Appleton/Mayoral Photography Office)
For years we’ve heard from the mayor and his schools chancellors that our Department of Education is all about “equity and excellence.” Lofty goals, lofty promises, and grand announcements of progress have followed, giving the impression that we are much further along than we really are. You may not share the DOE’s faith in utopia, but my school, Francis Lewis High School, is located right on Utopia Parkway in Queens.
This notwithstanding, I’m not persuaded. Next school year, after our awful pandemic year, we’re returning to full, in-person education. From a pure work perspective, I’m thrilled. I don’t ever want to teach online again. I’ve had it with teaching five or ten kids and twenty or thirty cat pictures, representing students who are sleeping, playing video games, or doing any number of things they wouldn’t attempt in my live classroom.
I’m not afraid to go back, and I can’t wait to do my real job again. Of course, I’m vaccinated, and for now, I believe that affords me sufficient protection against covid. Are my students vaccinated? I hope so, but who knows? Maybe their parents don’t believe in it. Maybe they don’t want to place needles in their arms. Maybe they heard someone on TV say not to get it. Barring genuine medical reasons, the city needs to mandate vaccines not only for us teachers and staff, but also for all eligible students. That’s simple.
Less simple is the fact that no students under 12 are vaccinated, as they are not yet eligible. While my union was able to put safeguards in place that kept people safe, for the most part, last school year, will they work with full classes and schools? Even if they do, what if students decide not to wear masks? Last year they were placed in remote instruction, but since there isn’t any this year, will there be consequences? Mayor de Blasio doesn’t seem to find that important enough to comment, but masks are vital. Students who can wear them but won’t need to have alternate placement.
Another level of protection has been social distancing. Last year, the standard was six feet. This year, it’s down to three. Depending on when and whom you ask, there are 50, 200, or 10% of all city schools that cannot maintain three feet of social distance with their full student bodies in school. I can tell you with absolute certainty, regardless of which figure is correct, that our school is among them.
Passing between classes at Francis Lewis High School ought to be an Olympic sport. You’d be lucky to have three inches of social distancing. More likely you’ll be carried by a wave of moving people, hopefully in the right direction. I’ve often found it impossible to get into a room and had to resort to u-turns in our crowded hallways.
The city once said it would find accommodations for overcrowded schools like ours. They sat with the UFT and discussed what they could do. What they did for us was absolutely nothing, and evidently that’s what they are planning to do for, at the very least, 49 other schools too. How does allowing social distancing in some schools, but not others, represent equity?
Of course it doesn’t represent equity at all. For the New York City Department of Education, equity is a thing to be dispensed at their discretion. When it comes to addressing the rampant overcrowding they’ve ignored for nearly eight years under this mayor, it’s no equity for you. DOE policy is everyone shove in and hope for the best. The answer for September is to put a smile on your face and try to forget the new Delta variant is even more contagious and deadly than the version of COVID-19 that brought our city to its knees. Navigate your overcrowded hallways and classrooms as best you can, the city is telling us, and good luck.
This is unconscionable by any standard. There are few entities more maddening and incompetent than New York City’s Department of Education, but it’s still on the mayor and DOE officials to find adequate space for our city’s students. They don’t deserve a pass here, and we cannot allow them to happily march tens of thousands of students and teachers into the Delta variant.
This is an emergency for all, not just for those in schools with insufficient space. The hypocrisy and indifference here is staggering. It’s imperative that the city find sufficient space not only for our students, but for all students. Like every other step of dealing with the pandemic and schools, the de Blasio administration is already well behind, but it must start now and make sure that the overcrowded schools they’ve ignored for so long don’t become death traps.
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Arthur Goldstein is an ESL teacher at Francis Lewis High School, and a UFT executive committee member. On Twitter @TeacherArthurG.
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Assembly Speaker Carl Heastie and Gov. Andrew Cuomo (photo: governor's office)
Friday brought sad but unsurprising news in Assembly Speaker Carl Heastie’s decision to call off impeaching Governor Andrew Cuomo. For survivors, lawmakers, and advocates who doubted the Legislature would impose real accountability, this decision confirmed their worst fears. While Cuomo’s promised resignation is a monumental fall from power and an important safeguard against future abuse, it provides little justice for those he attacked in the past.
There are lots of political reasons why officials might want to avoid impeachment, but Heastie’s surprising justification is largely a Constitutional one — and he’s completely wrong. Heastie said in announcing the plan to drop impeachment that the New York State Constitution “does not authorize the legislature to impeach and remove an elected official who is no longer in office.” Not only is this false, but the claim raises serious questions about the Speaker’s candor to his colleagues and the public.
Heastie’s support for this conclusion is a memo from unnamed authors, advising the Assembly on whether it could impeach Cuomo. One small problem: it answered the wrong question. Heastie’s memo conflates the power of the Senate and that of the Assembly, as well as confusing the power to punish with the power to impeach. As I responded when posting a line-by-line critique, “If my staff brought me a memo [this] bad…I'd be baffled.”
First, the document presumes Cuomo’s out of office, but (in fact) he hasn’t yet resigned. Sure, he gave a press conference, but as the Governor’s televised denials have taught us: just because Cuomo says it on TV, it doesn’t mean it’s true. Even worse, there is no evidence yet that Cuomo has submitted his resignation letter, and under New York law, he could rescind even a formal letter up until the day it takes effect.
Even if Cuomo were out of office, the Assembly still could act, and it should. There are open questions about whether the State Senate (technically sitting jointly with New York’s highest court as the Court for the Trial of Impeachment) could bar Cuomo from running in future elections, but the power of the Assembly is clear.
Under our Constitution: “The assembly shall have the power of impeachment by a vote of a majority of all the members elected thereto.” That’s not an excerpt, that’s the whole of what our Constitution says about impeachment of any official. If there’s a majority vote, the Assembly has the power to act. If Heastie wanted just an honest analysis of his chamber’s own powers, the memo wouldn’t have run six pages, it would have been a short paragraph saying “yes.”
Even worse, the Assembly memo then confuses things further on the Senate side. There is a point of genuine uncertainty about the Senate’s power to bar Cuomo from holding future office, but the authors turn it into something much broader. They say that simply because the court may not have the power to punish, it doesn’t have the power to hear the case at all.
If you strip away the legalese, this proposition is laughable. This would be like telling a judge that since you think you have a winning case, you just won’t bother showing up to court at all. Under precedent from around the country, it’s clear that the Senate could force Cuomo to stand trial, even out of office.
The last point is unclear, and one for the Senate itself to decide: can Cuomo be punished after resigning? Today, as he continues to control the levers of power, that question is merely a hypothetical. But even if he had already left, the answer would be unclear. Scrambling for any justification for inaction, the authors of the Assembly memo hang their hat on the narrowest of pegs: the word “and.” The authors claim that unlike the federal constitution, New York’s only allows office holders to be removed from office and barred from running in the future.
To the Assembly sources, this narrow reading means that Cuomo can’t be barred if he’s already out of office and incapable of being removed. Cute trick, the only problem is that our federal constitution (which is older than New York’s impeachment clause) has nearly-identical language that had been interpreted much more broadly at the time ours was ratified.
But while the grammar may be ambiguous, the injustice of Cuomo’s immunity is clear. There is no civil or criminal process in the state (other than impeachment) that could block him from holding office in the future. And other states have previously blocked their governors from escaping accountability by resigning at the 11th hour. To these states, the need for justice was more important than a narrow, formalistic reading of the impeachment powers.
Resignation allows Cuomo to depart on his terms, stage managing his exit at a moment he should be stripped of all power. Already, the Governor has started his post-resignation media strategy, reframing his defeat as magnanimity. In an interview with New York Magazine’s Andrew Rice and Laura Nahmias, Cuomo belligerently claimed: “I’m not gonna drag the state through the mud, through a three-month, four-month impeachment, and then win, and have made the State Legislature and the state government look like a ship of fools….”
Always the pugilist, Cuomo will continue to fight for his legacy long after he leaves the Governor’s Mansion. And with $18 million in his campaign coffers, Cuomo won’t be fighting alone. Ever the political tactician, even in exile, Cuomo is a force to be feared. He may not be a modern-day Napoleon, but he won’t be relegated anywhere as distant as Elba. Shipped away to the suburbs, eking out a living on his $50K state pension (and trivial $5 million book advance), Cuomo will find a way to rebuild his image and his empire – unless legislators act.
In the end, once Cuomo is finally gone, the Senate may be powerless to bar him from holding future office. But that day has not yet come. Until the moment Cuomo leaves, the Assembly that has so-long delayed accountability must finally, and forcefully, act.
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Albert Fox Cahn is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.) and a fellow at Yale Law School’s Information Society Project and the Engelberg Center for Innovation Law & Policy at New York University School of Law. On Twitter @FoxCahn.
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