S329-2013 Actions

• Feb 6, 2013: OPINION REFERRED TO JUDICIARY
• Jan 11, 2013: TO ATTORNEY-GENERAL FOR OPINION
• Jan 9, 2013: REFERRED TO JUDICIARY

S329-2013 Memo

BILL NUMBER:S329

TITLE OF BILL:             REVISED 12/10/12

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing the addition of a new article 20 to the constitution, in
relation to providing for recall

PURPOSE OR GENERAL IDEA OF BILL:

This constitutional amendment will give voters the ability to recall
local and statewide elected officers, state senators, assembly
members, supreme court judges and trial court judges.

SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new article 20 to the constitution to
provide for recall of statewide officers, senators, members of the
assembly and judges of the supreme and trial courts.

Section 2 is the "Resolved" clause referring the amendment to the
first regular legislative session convening after the next succeeding
general election of members of the assembly, and, in conformity with
section 1 of article 19 of the constitution, be published for 3
months previous to the time of such election.

JUSTIFICATION:

Unlike 18 other states in the nation, there is no recall system for
voters in New York State to remove an elected official. The power to
remove an elected official rests solely with the Governor.

There is no provision of New York State law that would authorize a
city or local government recall.
An elected official is automatically expelled from office when they
are convicted of a felony and may be removed if they are convicted of
a crime "involving a violation of his oath of office." NY Pub.
Off Law �30 (McKinney 2010). However, it appears that the state
Constitution bars the removal of members of the judiciary and
legislators for "misconduct", N.Y. Const Art XlII, �5. In addition,
like the New York City Charter City Charter, New York State law also
permits the governor to "remove" a public official including the
chief executive officer of any city under certain circumstances after
giving to such officer a copy of the charges against him and
providing an opportunity to be heard in his defense.. NY. Canst. Art.
V. �4; Art XIII .13; NY Pub Off Law ..32;33 (McKinney 2010). In 2010,
the White Plains City Council passed a resolution of no confidence
calling on the former Mayor Adam Bradley to resign. In that instance
the Governor could have stepped in to remove the mayor under New York
State law. Additionally, the White Plains City Charter provided great
authority for the Council allowing that the Council may "punish or
expel a member for disorderly conduct"
and the Law Department was looking into whether this could legally
allow the Council to vote to expel the Mayor. White Plains City
Charter Sect 30. No similar provision exists in the New York City
Charter or Administrative Code and the Charter does specifically


address removal of the mayor in Chapter 1, see, 9 vesting the power
with the Governor.

Therefore, the Governor is the only entity with the power to remove an
elected official and a constitutional amendment is necessary to make
any change to provide for recall.

PRIOR LEGISLATIVE HISTORY:

2011-12: S.5190

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

EFFECTIVE DATE:

Upon passage of the Concurrent Resolution the amendment is referred to
the first regular legislative session convening after the next
succeeding general election of members of the assembly, and, in
conformity with section 1 of article 19 of the constitution, be
published for 3 months previous to the time of such election.

S329-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     329

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
    printed to be committed to the Committee on Judiciary

              CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

  proposing the addition of a new  article  20  to  the  constitution,  in
    relation to providing for recall

    Section  1.  Resolved (if the Assembly concur), That article 20 of the
  constitution be renumbered article 21 and a new article 20 be  added  to
  read as follows:

                                 ARTICLE XX
    SECTION  1.  RECALL IS THE POWER OF THE ELECTORS TO REMOVE AN ELECTIVE
  OFFICER.
    S 2. 1. RECALL OF A STATE OFFICER IS INITIATED BY  DELIVERING  TO  THE
  SECRETARY OF STATE A PETITION ALLEGING REASON FOR RECALL. SUFFICIENCY OF
  REASON IS NOT REVIEWABLE. PROPONENTS HAVE ONE HUNDRED SIXTY DAYS TO FILE
  SIGNED PETITIONS.
    2. A PETITION TO RECALL A STATEWIDE OFFICER MUST BE SIGNED BY ELECTORS
  EQUAL  IN NUMBER TO TWELVE PERCENT OF THE LAST VOTE FOR THE OFFICE, WITH
  SIGNATURES FROM EACH OF FIVE COUNTIES EQUAL IN NUMBER TO ONE PERCENT  OF
  THE  LAST  VOTE  FOR  THE  OFFICE  IN  THE  COUNTY. SIGNATURES TO RECALL
  SENATORS, MEMBERS OF THE ASSEMBLY, AND  JUDGES  OF  SUPREME  COURTS  AND
  TRIAL  COURTS  MUST  EQUAL IN NUMBER TWENTY PERCENT OF THE LAST VOTE FOR
  THE OFFICE.
    3. THE SECRETARY OF STATE SHALL MAINTAIN A  CONTINUOUS  COUNT  OF  THE
  SIGNATURES CERTIFIED TO THAT OFFICE.
    S  3. 1. AN ELECTION TO DETERMINE WHETHER TO RECALL AN OFFICER AND, IF
  APPROPRIATE, TO ELECT A SUCCESSOR SHALL BE CALLED BY  THE  GOVERNOR  AND
  HELD NOT LESS THAN SIXTY DAYS NOR MORE THAN EIGHTY DAYS FROM THE DATE OF
  CERTIFICATION OF SUFFICIENT SIGNATURES.
    2.  A  RECALL ELECTION MAY BE CONDUCTED WITHIN ONE HUNDRED EIGHTY DAYS
  FROM THE DATE OF CERTIFICATION OF SUFFICIENT SIGNATURES  IN  ORDER  THAT
  THE  ELECTION  MAY  BE  CONSOLIDATED  WITH  THE NEXT REGULARLY SCHEDULED

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD89035-01-3

 S. 329                              2

  ELECTION OCCURRING WHOLLY OR PARTIALLY WITHIN THE SAME  JURISDICTION  IN
  WHICH  THE  RECALL ELECTION IS HELD, IF THE NUMBER OF VOTERS ELIGIBLE TO
  VOTE AT THAT NEXT REGULARLY SCHEDULED  ELECTION  EQUAL  AT  LEAST  FIFTY
  PERCENT OF ALL THE VOTERS ELIGIBLE TO VOTE AT THE RECALL ELECTION.
    3.  IF  THE MAJORITY VOTE ON THE QUESTION IS TO RECALL, THE OFFICER IS
  REMOVED AND, IF THERE IS A  CANDIDATE,  THE  CANDIDATE  WHO  RECEIVES  A
  PLURALITY  IS  THE  SUCCESSOR.  THE  OFFICER MAY NOT BE A CANDIDATE, NOR
  SHALL THERE BE ANY CANDIDACY FOR AN OFFICE FILED PURSUANT TO SECTION TWO
  OF ARTICLE SIX.
    S 4. THE  LEGISLATURE  SHALL  PROVIDE  FOR  CIRCULATION,  FILING,  AND
  CERTIFICATION  OF  PETITIONS,  NOMINATION  OF CANDIDATES, AND THE RECALL
  ELECTION.
    S 5. IF RECALL OF THE GOVERNOR OR SECRETARY OF STATE IS INITIATED, THE
  RECALL DUTIES OF THAT OFFICE SHALL BE PERFORMED BY THE LIEUTENANT GOVER-
  NOR OR COMPTROLLER, RESPECTIVELY.
    S 6. A STATE OFFICER WHO IS NOT RECALLED SHALL BE  REIMBURSED  BY  THE
  STATE  FOR THE OFFICER'S RECALL ELECTION EXPENSES LEGALLY AND PERSONALLY
  INCURRED. ANOTHER RECALL MAY NOT BE INITIATED AGAINST THE OFFICER  UNTIL
  SIX MONTHS AFTER THE ELECTION.
    S  7. THE LEGISLATURE SHALL PROVIDE FOR RECALL OF LOCAL OFFICERS. THIS
  SECTION DOES NOT AFFECT COUNTIES AND CITIES WHOSE CHARTERS  PROVIDE  FOR
  RECALL.
    S  2.  Resolved (if the Assembly concur), That the foregoing amendment
  be referred to the first regular legislative session convening after the
  next succeeding general election of members of  the  assembly,  and,  in
  conformity  with  section  1  of  article  19  of  the  constitution, be
  published for 3 months previous to the time of such election.