author: Bellacosa, J.

text:
    In the Matter of F.W.E. Stapenhorst, Inc., Respondent, v Public Service Commission of the State of New York et al., Appellants.
    Argued March 28, 1990;
    decided April 26, 1990

      POINTS OF COUNSEL

      Lawrence G. Malone, William J. Cowan and Jonathan D. Feinberg for Public Service Commission of the State of New York, appellant.

      Kenneth M. Jasinski and Sarah Barish-Straus for New York State Electric & Gas Corporation, appellant.

      Craig M. Indyke and Ronald S. Carr for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Petitioner F.W.E. Stapenhorst, Inc. (Stapenhorst), a private hydroelectric producer, contracted in 1978 to provide electricity for 20 years to New York State Electric and Gas Corporation (NYSEG) at an agreed price structure. Stapenhorst has tried to reform the contract price to gain the incentive benefits of Federal and State price support programs. Appellants NYSEG and the New York Public Service Commission (PSC), through which the higher price is sought to be mandated, have resisted Stapenhorst’s efforts. Its litigation tactic, however, met with success in both lower courts. We take a different view and now reverse, concluding that the contract should not be reformed but should be left to be enforced as made.

Petitioner Stapenhorst and appellant NYSEG executed their contract on November 9, 1978, after more than two years of negotiation. Stapenhorst acquired the right to develop, own and operate a hydroelectric plant on the site of a former NYSEG facility on Goodyear Lake in the Town of Milford in Otsego County. NYSEG, in turn, agreed to purchase all the electricity produced at the to-be-developed facility for 20 years at a rate of 3 cents per kilowatt hour, with provisions for payment increases capped at 5 cents per kilowatt hour until August, 1987, and 6 cents for the approximately 11-year remainder of the contract. Significantly, Stapenhorst also sought and received an up-front lump-sum payment of $330,000 for research and development from NY-SEG, the Goodyear Lake Homeowners’ Association and various government entities. Finally, it was given a total 20-year local tax payment exemption.

The redeveloped Stapenhorst facility began producing electricity — but not profits — in 1980. Stapenhorst had underestimated the costs and expenses of rehabilitating and running the plant, and overestimated the amount of electricity the plant would generate. The combination of these business miscalculations led to a financial situation Stapenhorst was describing as "disastrous” by 1983. This appeal completes Stapenhorst’s third attempt to rescue itself from the agreed price for performing its contractual obligations.

First, in 1983, Stapenhorst tried, without success, to persuade NYSEG to increase the contract’s rate of payment. Next, in January 1987, Stapenhorst petitioned the PSC to reform the contract to incorporate the 6 cents per kilowatt hour minimum price prescribed in Public Service Law § 66-c (1). The Commission determined that the 1978 contract did not qualify for the later-enacted statutory incentive benefit. Finally, Stapenhorst commenced this article 78 proceeding to annul that PSC determination and to compel the PSC to impose the statutory rate on NYSEG and, ultimately, on the ratepayers. Supreme Court granted the petition and directed the contract be reformed in accordance with Stapenhorst’s request for relief. The Appellate Division affirmed. We granted leave to appeal to both NYSEG and PSC and we now reverse.

Attention should be given first to Stapenhorst’s contention that Public Service Law § 66-c (1) requires reformation of the contract. The stated purpose of this statute, enacted in 1980, is the conservation of energy by "encouraging] the development of alternate energy production facilities * * * and to provide for their most efficient utilization” (Public Service Law § 66-c [1]). This statutory exhortation, as amended (L 1981, ch 843), is energized by this core provision: "The [Public Service Commission] shall require any electric or steam corporation (a) to enter into long-term contracts to purchase or wheel electricity or useful thermal energy from any alternate energy production, small hydro or co-generation facility under such terms and conditions as the commission shall find just and economically reasonable * * * provided, however, the commission shall establish a minimum sales price for such purchased electricity from any such facility developed on or after June twenty-six, nineteen hundred eighty, of at least six cents per kilowatt hour for each utility” (emphasis added).

The Stapenhorst facility was not operational until after June 26, 1980 and therefore was "developed” after the statutory qualifying date (cf., Matter of Occidental Chem. Corp. v Public Serv. Commn., 114 AD2d 149, 155, lv denied 68 NY2d 608). But this feature is far from dispositive of this case because the statute’s qualifying thresholds must first be satisfied. Initially, the PSC "shall require” utilities "to enter into long-term contracts” with alternate energy producers "under such terms and conditions as the commission shall find just and economically reasonable”. Then, the mandatory minimum price, found in a proviso clause, is limited to "such purchased electricity”; that is, purchased electricity referable to a contract the PSC initially "required” and whose terms it affected.

The contract before us was executed more than IV2 years before the enactment of Public Service Law § 66-c (1). The PSC, therefore, patently could not have "required” it pursuant to the then-nonexistent statute, nor could the Commission have dictated any of the contract’s "terms and conditions,” including the conditioned statutory minimum payment. This contract was the product solely of private negotiations between two nonpublic entities. Indeed, it was initiated by Stapenhorst and predicated on its perceived potential for purely private profit. The plain meaning of the key unambiguous terms "shall require,” "to enter into long-term contracts,” and "such purchased electricity” compels the conclusion that the Stapenhorst-NYSEG contract utterly fails to qualify for the provisoed minimum price schedule of Public Service Law § 66-c (1) (see, e.g., Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). The clincher in this regard is that entitlement to the 6-cent minimum hinges on the PSC establishing "terms and conditions” that are just and economically reasonable. Inasmuch as the PSC had no input and could have had none on the terms or condition of this contract, the statutory minimum price is plainly unavailable to Stapenhorst.

The courts below, in coming to the opposite conclusion, appear to have overread Matter of Occidental Chem. Corp. v Public Serv. Commn. (114 AD2d 149, lv denied 68 NY2d 608, supra). The Appellate Division held in Occidental that a power plant on which construction began before June 26, 1980, but which did not begin generating electricity until after that date, was a "facility developed on or after June twenty-six, nineteen hundred eighty” for the purposes of Public Service Law § 66-c (1). The central and first question here, however, is whether this private contract, made prior to the statute, satisfies the qualifying terms of the statute irrespective of the facility development date factor. Thus, the night-and-day difference between Occidental and this case is evident. The Appellate Division in the case under review itself acknowledged the key distinction: "the contract in Occidental was not, as in the case at bar, executed prior to the enactment of the statute” (Matter of F.W.E. Stapenhorst, Inc. v Public Serv. Commn., 146 AD2d 422, 425). The existence of the valid and enforceable prestatute contract between Stapenhorst and NY-SEG thus excludes this case from Occidental’s orbit. Moreover, the dictum in that case that " 'the entire [statutory] program was designed, not only to encourage the creation of new facilities, but also the full, productive use of such facilities’ ” bears no relevance to the dispositive analysis here (id., quoting Matter of Occidental Chem. Corp. v Public Serv. Commn., supra, at 155).

We should look at what the parties agreed to do in their contract and what they expected to achieve, with no apparent awareness or expectation of a future statutory windfall. The parties’ private goal in 1978 was the creation of an "alternate energy facility” and its full, productive use. Stapenhorst’s signature on the contract is conclusive evidence that it had secured a guaranteed purchaser of its renovated facility’s entire output, with local public tax abatements and substantial research and development up-fronted funds. Those constitute significant privately agreed-to contractual incentives and benefits designed to serve the parties’ common and respective goals. We find no patent or interpretative basis on which to conclude that the Legislature intended Public Service Law § 66-c (1) to induce a party to fulfill preexisting contractual obligations at an added expense to a utility’s ratepayers. The contracting parties’ intent under this contract is clear and is therefore controlling (see, e.g., Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291). No cause for judicial contractual reformation, bestowing new additional benefits under Public Service Law § 66-c (1), is shown on the ground that the deal did not turn out to be as advantageous as Stapenhorst had hoped.

Stapenhorst claims alternatively that Federal law entitles it to a higher price for the electricity it sells to NYSEG (Public Utility Regulatory Policies Act [PURPA] of 1978 [16 USC § 2601 et seq.]). PURPA became effective on November 9, 1978 —the same day the parties entered into the contract at issue. Pursuant to section 210 of PURPA (16 USC § 824a-3), the Federal Energy Regulatory Commission (FERC) promulgated facilitating regulations in 1980 (18 CFR part 292). It, too, seeks to encourage the development of small power production plants by categorizing as "new capacity” facilities on which construction commenced after November 9, 1978. Utilities must pay at least the full "avoided costs” for electricity from such plants (18 CFR 292.101 [b] [6]; see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 274, n, cert denied — US —, 109 S Ct 785). Stapenhorst argues that its plant, as a "new capacity,” qualifies for the assumedly higher "avoided costs” benefit.

Once again, this contention dissipates under the terms and very existence of the parties’ contract. FERC expressed clearly that the regulatory scheme was not intended to affect contracts in place before the promulgation of the regulations, even if a contracting party qualified as a "new capacity” power producer (see, 18 CFR 292.301 [b] [2] ["Nothing in this subpart * * * (a)ffects the validity of any contract entered into between a qualifying facility and an electric utility for any purchase.”]). The Preamble for regulations implementing section 210 of PURPA is cogently instructive: "That a [qualifying] power production facility entered into a [preexisting] binding contractual arrangement with an electric utility indicates that it is likely that sufficient incentive existed, and that the further encouragement provided by these rules was not necessary” (45 Fed Reg 12214, 12218 [emphasis added]). Congress enacted PURPA and the contract was executed coincidentally on November 9, 1978. The implementing regulations —effective as of 1980 — make PURPA’s prospective application clear and unquestionably exclude preexisting contracts from its incentive bonus.

Stapenhorst lacks any safety net in either statutory scheme allowing it to escape from its preexisting contractual obligations. Apart from all else that has been said, to allow it to do so would provide it with a double benefit (the contractually secured incentives plus the added statutory ones) at the expense of the ratepayers, a result clearly not contemplated or intended in the respective statutory enactments. Had a statutory or regulatory enhancement for preexisting contracts been desired, the respective legislative bodies would certainly, in this highly technical and regulated field, have made that choice inescapably clear — as they should before we confer such a governmentally mandated monetary subsidy by judicial interpretation.

In light of the dispositive contractual and statutory analysis, it is unnecessary to reach the constitutional impairment of contract argument urged in opposition to reformation of this contract.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v David Boston, Appellant.
    Argued March 22, 1990;
    decided April 26, 1990

      POINTS OF COUNSEL

      Leslie Crary and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Patrick McCormick, Peter D. Coddington and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

After indictment, a defendant’s waiver of indictment and plea to a count interposed by Superior Court Information (SCI), rather than Grand Jury action, contravenes the unequivocal direction of CPL 195.10 and must therefore be nullified.

On March 7, 1986, a Bronx County Grand Jury indicted defendant, then 15 years old, for attempted murder in the second degree under an intentional murder theory (Penal Law § 125.25 [1]), two counts of assault in the first degree, and criminal possession of a weapon in the fourth degree. The indictment arose out of an incident in which defendant allegedly beat a 14 year old with a hammer, about the head, mouth and legs.

With the consent of defendant, his counsel, the People and the court, the following events ensued. After arraignment, the People filed an SCI charging defendant with attempted murder in the second degree under a depraved indifference theory (Penal Law § 125.25 [2]). Defendant then waived his right to have the People present the charge contained in the SCI, and expressed his desire to proceed with — and signed — the SCI. Next, on the People’s motion, the court consolidated the SCI with the indictment, making the depraved indifference count of the SCI count five of the indictment; defendant pleaded guilty to both attempted depraved indifference murder and first degree assault; and he was sentenced to two concurrent indeterminate terms of imprisonment.

Having served his sentence, defendant now seeks vacatur of the plea, arguing that waiver of indictment was impermissible under both the CPL and the State Constitution. A divided Appellate Division rejected defendant’s contention and affirmed the conviction, which we now reverse as a matter of statutory interpretation.

The State Constitution declares that no person shall be held to answer for an infamous crime unless upon indictment of the Grand Jury (NY Const, art I, § 6). The right to indictment by a Grand Jury has therefore been recognized as not merely a personal privilege of the defendant but a "public fundamental right,” which is the basis of jurisdiction to try and punish an individual (Matter of Simonson v Cahn, 27 NY2d 1; People v Miles, 289 NY 360; People ex rel. Battista v Christian, 249 NY 314). Infringement of that right constitutes a defect that cannot be waived by a guilty plea (People v Patterson, 39 NY2d 288, 295, affd 432 US 197).

At one time article I, § 6 permitted no exceptions; its unequivocal command precluded any waiver of indictment (People v Iannone, 45 NY2d 589, 593, n 4). But a constitutional amendment, effective January 1, 1974, modified that requirement to permit a single exception. Now "a person held for the action of a Grand Jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his counsel.” (NY Const, art I, §6.)

To facilitate implementation of that exception, the Legislature enacted CPL article 195 (Waiver of Indictment), the centerpiece of which is CPL 195.10, specifying when a prosecution may proceed pursuant to information filed by the District Attorney instead of indictment by the Grand Jury. A defendant, according to CPL 195.10, may waive indictment and consent to be prosecuted by SCI when a local criminal court has held the defendant for the action of a Grand Jury; the defendant is not charged with a class A felony; and the District Attorney consents to the waiver. A defendant may waive indictment pursuant to this section either in the local criminal court in which the order was issued holding the defendant for action of a Grand Jury, at the time such order is issued, or in the appropriate superior court at any time prior to the filing of an indictment by the Grand Jury. This last provision — CPL 195.10 (2) (b) — is the focus of defendant’s argument, and dispositive of his appeal.

Of critical significance here is the direction of CPL 195.10 (2) (b) that waiver of indictment be exercised "prior to the filing of an indictment by the grand jury. ” (Emphasis added.) The Legislature’s own chosen words — more restrictive than article I, § 6 of the State Constitution from which the statute derives — plainly and explicitly preclude waiver by SCI after an indictment is filed. As we have noted time and again, where statutory language is clear and unambiguous, this court in interpreting a statute will give effect to the words used by a coequal branch of government, unless "such application would cause an anachronistic or absurd result contrary to the contextual purpose of the enactment.” (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675.)

No such consequence is evident here. Indeed, legislative history makes clear that the basic objective of article 195 was to permit waiver of indictment for defendants who wished "to go directly to trial without waiting for a grand jury to hand up an indictment, to do so.” (Mem of State Executive Dept. 1974 McKinney’s Session Laws of NY, at 2006, 2007; Governor’s Mem, id., at 2095.) The statutory procedures were thus aimed at affording a defendant the opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings (id.; see also, People v Banville, 134 AD2d 116; People v Sledge, 90 AD2d 588, lv denied 58 NY2d 977; People v Herne, 110 Misc 2d 152, 155). There is no indication that the Legislature also intended by the statute to authorize waiver of indictment by defendants after a Grand Jury has acted, when those same motivations are no longer present.

Given the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario. The People urge that the Legislature had in mind the broader purpose of permitting greater flexibility in the plea process generally. That, however, was not made evident in the language or history of the statute; and, if indeed the purpose, it remains for the Legislature — not the courts — to rewrite the statute to express that objective.

In that the parties failed to follow the statutory mandate for a waiver of indictment, defendant’s attempted murder plea must be vacated. Moreover, because defendant’s assault plea was entered with the understanding that he would receive a lesser concurrent sentence, that conviction also must be set aside (see, People v Fuggazzatto, 62 NY2d 862; People v Rogers, 48 NY2d 167, 175; People v Clark, 45 NY2d 432, 440).

Accordingly, the order of the Appellate Division should be reversed, the plea of guilty and judgment vacated, and the case remitted to Supreme Court, Bronx County, for further proceedings on the indictment.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

        We reject the People’s contention that defendant’s argument must be preserved for review, by motion before the trial court to withdraw the plea. Failure to adhere to the statutory procedure for waiving indictment, which resulted in this accusatory instrument and this plea, may be considered jurisdictional, affecting "the organization of the court or the mode of proceedings prescribed by law.” (People v Patterson, 39 NY2d 288, 295; see also, People v Ahmed, 66 NY2d 307, 310; People v Case, 42 NY2d 98.)


text:
    The People of the State of New York, Respondent, v Yumet Tony Reyes, Appellant.
    Argued March 21, 1990;
    decided May 1, 1990

      POINTS OF COUNSEL

      Abe H. Konstam for appellant.

      Charles J. Hynes, District Attorney (Leonard Joblove and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Defendant, the owner of a Brooklyn building, was indicted for numerous felonies arising out of a fire which killed one tenant and injured another. The building had been renovated without permit and converted from an approved commercial office space to a nonapproved single-room occupancy (SRO) dwelling. Among the Building Code violations created by the illegal alteration were electrical deficiencies which caused the fire. The trial court dismissed the indictment on defendant Reyes’ motion. The Appellate Division reversed on the law and reinstated the indictment. We now affirm and agree that the Grand Jury evidence was legally sufficient to support the charges. Reyes was shown to have participated directly in the creation of the fire-producing conditions and to have retained control of the premises under the terms of a triple net lease, by which he gave operational and management responsibility over to another person.

Defendant Reyes owned the building from March 1983 through the time of the fire in December 1985. The fire started in a kitchen on the second floor. One of the second-floor tenants perished in the fire and a third-floor tenant was injured while fleeing from the flames.

From July 1983 through October 1985, the building was managed by Velez pursuant to a net lease agreement — the record title remained in Reyes’ name and Velez collected the rents and paid for any necessary repairs, maintenance, taxes and utility costs. In April 1985, Velez sublet the building to Arias who, in turn, permitted two others, Troncoso and Dume, to manage the grocery store on the ground floor. Troncoso also collected the residential rent money for Velez.

The Grand Jury charged Reyes and Velez with manslaughter, second degree, criminally negligent homicide, assault and reckless endangerment. By separate motions, both Velez and Reyes sought dismissal on legal insufficiency grounds. After inspecting the Grand Jury minutes, the trial court dismissed the indictment, stating that although the Grand Jury evidence established that a variety of hazardous conditions was a direct cause of the fire, "there is nothing in the Grand Jury minutes indicating that either defendant was responsible for creating the illegal conditions or violations or had possession or control over the premises during the time that the conditions were created.” The court also held that the Grand Jury should have been instructed as to the rights and responsibilities of the parties to a triple net lease agreement, the document itself having been presented to it. The People appealed and the Appellate Division reversed and reinstated the indictment as to both. Only Reyes is before us on a grant of leave to appeal by a Judge of this court.

A Grand Jury may indict when reasonable cause from competent and admissible evidence is presented to it, supporting its belief that legally sufficient evidence is present to establish that the accused committed the offense (CPL 190.65 [1]). On a motion to dismiss an indictment (CPL 210.20 [1] [b]), the court’s inquiry is keyed only to that legal sufficiency postulate, since the adequacy of the proof to establish reasonable cause is necessarily within the exclusive fact-finding function of the Grand Jury (People v Jennings, 69 NY2d 103, 115; see also, CPL 70.10 [1]; People v Mikuszewski, 73 NY2d 407, 411).

Measured by these threshold propositions, we conclude that the Grand Jury had enough evidence before it to conclude that defendant participated in the creation of the fire-producing conditions in the building, and that he also failed in his continuing duty as legal owner of the building to eliminate those conditions. It was reasonably foreseeable that the creation and continuance of the dangerous conditions presented a substantial and unjustifiable risk of death or injury in a fire.

The evidence showed a building with numerous electrical hazards, including the use of too many extension cords, exposed wires, improperly secured electrical boxes, broken wall outlets and improperly grounded equipment. The city’s electrical wiring inspector told the Grand Jury that these electrical violations created a substantial risk of an electrical fire. The Fire Marshall added that he was "98 percent” certain that the fire had been started by heat from overloaded electrical wiring in the kitchen wall. Moreover, there was also evidence that once the fire started, the structural characteristics of the building and other persisting hazardous conditions contributed to the rapid spread of the fire and aggravated the risk of death and injury. The single rooms on the second and third floors were constructed with highly flammable materials within a wood frame building, containing no "fire stopping” materials to impede the spread of fire between rooms and floors. For this reason, wood frame buildings are prohibited as SRO dwellings. Also, contrary to legal requirement, there were no smoke detectors, working fire alarms or fire extinguishers on the second and third floors. All but one of the rooms on the second floor lacked the legally required second means of egress, and the building was also not equipped with a sprinkler system — the legal alternative to the two means of egress requirement. Thus, the evidence showed that the conditions in the building created the risk, caused the fire and fed its rapid spread, depriving tenants of early warning, thus escalating the risk to trapped victims (People v Nelson, 309 NY 231; People v Deitsch, 97 AD2d 327, 335-336). The foreseeable events were thus a "sufficiently direct cause” to justify accusation of criminal responsibility (see, People v Kibbe, 35 NY2d 407, 412-413; contrast, People v Warner-Lambert Co., 51 NY2d 295, 305, cert denied 450 US 1031).

Direct eyewitness testimony showed Reyes personally supervised the construction that illegally and dangerously converted the space on the second and third floors into a SRO dwelling. The legal documentation was also presented showing Reyes’ retention of legal control over the building. Concomitantly, therefore, he had a continuing statutory duty to keep the building in a safe condition. Section 78 of the Multiple Dwelling Law requires that "[e]very multiple dwelling * * * shall be kept in good repair” and "[t]he owner shall be responsible for compliance with the provisions of this section” (Multiple Dwelling Law § 78 [1]). Defendant was an "owner” within the meaning of the statute because he was the owner "of the freehold of the premises or lesser estate” within it (Multiple Dwelling Law § 4 [44]). Although Reyes was not in actual possession of the building after he gave the leasehold to Velez, Reyes’ retained control supports the continuing duty with respect to the safety of the building and its tenants (see, Worth Distribs. v Latham, 59 NY2d 231, 237-238).

In particular, the lease between Reyes and Velez expressly provided that the tenant Velez "shall make no changes in or to the demised premises of any nature without [the] owner’s [Reyes’] prior written consent.” After the lease term commenced, Reyes continued to receive rent, responded to tenant complaints about the electrical service costs, and carried the insurance for the building. There was other evidence that a notice identifying 11 electrical violations was mailed to Reyes only five months before the fire and that three follow-up notifications were sent when Reyes failed to respond to the initial one.

Taken alone and certainly taken together, defendant Reyes’ participation in creating and supervising the dangerous and illegal renovation and his retention of control under the lease arrangement provided the Grand Jury with legally sufficient evidence and theories on which to indict him for the crimes charged.

We have examined the other issues, including the claim of inadequate legal instructions to the Grand Jury, and we have concluded they lack merit.

Accordingly, the order of the Appellate Division reinstating the indictment should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.


author: Titone, J.

text:
    Joseph Forti, Appellant, v New York State Ethics Commission, Respondent. Jack Kuttner et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued February 14, 1990;
    decided April 5, 1990

      POINTS OF COUNSEL

      Cory C. Kirchert for appellant in the first above-entitled action.

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent in the first above-entitled action.

      Brian C. Rappaport for appellants in the second above-entitled action.

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents in the second above-entitled action.
   OPINION OF THE COURT

Titone, J.

In 1987, Governor Cuomo signed into law the Ethics in Government Act (Act) (L 1987, ch 813), a sweeping reform measure designed to "enhance public trust and confidence in our governmental institutions” (Governor’s Program Bill Mem, Bill Jacket, L 1987, ch 813). Among the key features of the Act were its strengthened "revolving door” provisions, which imposed new and expanded restrictions on the business and professional activities of certain former government employees following their separation from State service. Plaintiffs, all former State officers or employees who left State service before the Act’s effective date, commenced these actions to challenge the opinion of the Ethics Commission that the new "revolving door” provisions were intended to apply to them. Plaintiffs have also challenged the new provisions on several constitutional grounds, including a claimed violation of their rights to equal protection and due process. We conclude that the Ethic Commission’s opinion on the statute’s applicability correctly reflects the Legislature’s intention and that, with one significant exception, plaintiffs’ constitutional claims are lacking in merit. Accordingly, we affirm the Appellate Division orders denying plaintiffs relief.

I. Legislative Background

New York’s first conflict of interest law was enacted in 1954 (L 1954, ch 695) in response to the conclusions of the Special Legislative Committee on Integrity and Ethical Standards in Government (Mar. 9, 1954, reprinted in 1954 NY Legis Doc No. 39). This legislation was then considered to be a pioneering effort to address the abuse of public office for private financial gain (see, Note, Curbing Influence Peddling in Albany: The 1987 Ethics in Government Act, 53 Brooklyn L Rev 1051, 1056, n 12 [hereinafter Note, Curbing Influence Peddling]). Significant revisions were considered and made in subsequent years (see, L 1965, ch 1012; Special Committee on Ethics, Report to Legislature, Mar. 1964, reprinted in 1964 NY Legis Doc No. 42). However, by the 1980’s, New York had lost its position of leadership in the area of ethics-in-government legislation (see, State-City Commission on Integrity in Government, Staff Report on Conflict of Interest and Financial Disclosure Law in New York, at 1 [Oct. 8, 1986]). In the mid-1980’s, a series of corruption scandals involving New York City government focused public attention on the need for reform (see, Note, Curbing Influence Peddling, op. cit., at 1052-1053, & nn 2-4). The 1987 Ethics in Government Act represents the product of a two-year effort by the Governor and Legislature to reach an acceptable compromise among the important competing concerns, most notably the need to impose stricter controls while, at the same time, ensuring that government service does not become so unattractive that talented individuals are deterred from entering government service.

The 1987 Act imposed enhanced restrictions on the ability of incumbent public officials, including legislators, to represent clients and appear before State and, in some instances, municipal agencies (see, Public Officers Law § 73 [2], [7]; see also, § 73 [3], [4] [a]). Similar restrictions were imposed, for the first time, on political party chairpersons in large cities (§73 [4] [b]; [7] [b]). Additionally, the Act established new financial disclosure requirements (see, § 73-a) and created a permanent State Ethics Commission to administer and enforce the provisions governing State officers and employees (see, Executive Law § 94). This appeal concerns the Act’s new "revolving door” rules, which limit the business and professional activities of former government officials.

II. The Act’s "Revolving Door” Provisions

In general, the purpose of "revolving door” provisions such as those at issue here is to prevent former government employees from unfairly profiting from or otherwise trading upon the contacts, associations and special knowledge that they acquired during their tenure as public servants (see, Note, Curbing Influence Peddling, op. cit, at 1062; see also, ABA Committee on Ethics and Professional Responsibility, Formal Opn No. 342 [1975], reprinted in ABA, Formal and Informal Opinions, Standing Committee on Ethics and Professional Responsibility 110, 120). The underlying premise is that "[former officers should not be permitted to exercise undue influence over former colleagues, still in office, in matters pending before the agencies [and] they should not be permitted to utilize information on specific cases gained during government service for their own benefit and that of private clients. Both are forms of unfair advantage” (Pub L 95-521 [Ethics in Government Act], Sen Rep No. 95-170, reprinted in 1978 US Code, Cong & Admin News 4216, 4247).

New York’s first "revolving door” rules applied only to State officers and employees within the executive branch (Public Officers Law § 73 [former (4)]). In 1965, the coverage of the "revolving door” rules was somewhat expanded (L 1965, ch 1012, § 2, as amended by L° 1968, ch 420, § 244, codified at Public Officers Law § 73 [former (7)]). Under the "revolving door” provisions that existed just prior to the enactment of the 1987 Ethics in Government Act, former heads and deputy heads of regulatory agencies were prohibited from receiving contingency fees for appearing before their former agencies on a variety of matters, and all former State officers and employees were prohibited from appearing before their former agencies on matters in which they had been directly involved, but only for a period of two years after their separation from State service (see, Public Officers Law § 73 [former (7)]). Former legislators could not receive compensation for their appearances before the Legislature, but no similar restrictions were imposed on former legislative employees (id.).

The 1987 Act tightened these restrictions in several important respects. For the first time, certain former legislative employees, i.e., those covered by the financial disclosure requirements of Public Officers Law § 73-a, were barred from engaging in lobbying, for compensation, on matters in which they were directly involved during their tenure with the Legislature (Public Officers Law § 73 [8]). This prohibition, however, applies only for the remainder of the legislative term in which the employee’s service to the Legislature was terminated (id.). In contrast, the duration of the statutory ban on severed executive branch employees practicing before their former agencies on matters in which they were directly involved during their government service was extended to a lifetime disqualification (id.). Further, a new postemployment limitation was added which prohibits such employees from appearing or practicing before their former agencies "in relation to any case, proceeding or application or other matter” for a period of two years after their State service has been terminated (emphasis supplied).

III. Applicability

The new Ethics in Government Act was signed into law on August 7, 1987, but its effective date was postponed until January 1, 1989 (L 1987, ch 813, §26). With respect to the "revolving door” provisions governing legislative employees, however, the Act was made applicable "only to such employees who terminate their service or employment on or after January [1, 1989]” (L 1987, ch 813, § 26 [a]).

On November 8, 1988, the Ethics Commission, in its first advisory opinion issued pursuant to Executive Law § 94 (15), construed these applicability provisions in response to requests by several affected individuals (Ethics Commission Advisory Opn 88-1). Relying in part on the existence of the special provision for former legislative employees, the Commission concluded that all others, most notably former executive branch employees, were to be covered by the new "revolving door” strictures imposed by Public Officers Law § 73 (8) regardless of whether they left State service before or after the Act’s effective date. The Commission noted, however, that the new restrictions would be applied "only to those post-employment activities engaged in on or after January 1, 1989” (id.).

IV. The Present Proceedings

Plaintiff Forti had been employed as an attorney within the State Department of Environmental Conservation until September of 1988, when he accepted employment with a private law firm as the head of the firm’s newly created environmental law division. Following the announcement of Advisory Opinion 88-1, Forti commenced an action seeking a declaration that, contrary to that Opinion, Public Officers Law § 73 (8) applies only to those former executive branch employees who left State service on or after January 1, 1989 or, in the alternative, that the statute’s two-year ban on all practice before the severed executive branch employee’s former agency is unconstitutional under the Equal Protection and Due Process Clauses of the State and Federal Constitutions (US Const 5th, 14th Amends; NY Const, art I, §§ 6, 11). Forti also sought a declaration that, as applied to attorneys and all other "officers of the Courts of the State of New York,” Public Officers Law § 73 (8), in its entirety, violates the separation of powers doctrine and, for that reason, is unconstitutional.

On Forti’s motion for summary judgment, the Supreme Court, Albany County, concluded that Advisory Opinion 88-1 was correct as a matter of statutory construction, but that, as applied to individuals such as Forti who had left State service before its effective date, Public Officers Law § 73 (8) was unconstitutional. Specifically, after characterizing the statute as "retroactive” legislation impairing an admitted attorney’s "vested” right to practice his or her profession, the court concluded that the distinctions drawn between former legislative and former executive branch employees were not supported by sufficiently persuasive reasons to satisfy the requirements of equal protection. On appeal, however, the Appellate Division reversed. In a lengthy and carefully reasoned opinion, the court concluded that plaintiff Forti had not demonstrated the statute to be unconstitutional (see, 147 AD2d 269). Thereafter, Forti took an appeal as of right to this court pursuant to CPLR 5601 (b) (1), claiming the direct involvement of a substantial constitutional question.

In Kuttner v Cuomo, the other action considered herein, the plaintiffs are all attorneys who were employed within State agencies but who left State service for private practice before January 1, 1989. Proceeding by order to show cause, the Kuttner plaintiffs sought declaratory relief similar to that sought in the Forti action. In addition to claiming that Public Officers Law § 73 (8) was not intended to be applied to them and was, as so applied, violative of their rights under the Due Process, Equal Protection and Ex Post Facto Clauses of the State and Federal Constitutions, the Kuttner plaintiffs complained that the statute constitutes an improper delegation of authority in that it fails to prohibit State agencies from adopting even more restrictive rules for its former employees. Further, they challenged the provisions of Public Officers Law §73 (14), which give the Ethics Commission the discretion to determine which violations of the "revolving door” rules should be prosecuted as class A misdemeanors.

On plaintiffs’ motion for a preliminary injunction against enforcement of the new statute, the Supreme Court, Albany County, concluded that they were likely to succeed on the merits of their claim that the new restrictions in section 73 (8) were inapplicable to them, since, despite Advisory Opinion 88-1, there was no "clear expression of a legislative intent to make [the statute] retroactive.” Further, noting its view that the new law "would be ex post facto” if applied to plaintiffs, the court found that they would be irreparably harmed if preliminary injunctive relief were not granted, because the restrictions on their ability to practice would substantially diminish their value to their present private employers and they would be faced with the choice of either terminating their current professional activities or risking criminal prosecution.

As in the Forti action, the Appellate Division concluded in the Kuttner appeal that section 73 (8) was properly deemed applicable to individuals in plaintiffs’ position and did not violate the constitutional Equal Protection or Due Process Clauses. The court further determined that plaintiffs were not likely to succeed either on their ex post facto claim or on their contention that the Legislature had improperly delegated rule-making authority. While it noted that plaintiffs might well succeed on their contention that the discretion afforded the Ethics Commission under section 73 (14) improperly infringed upon the authority vested in the State’s prosecutors, it held that preliminary injunctive relief was nonetheless not warranted on that claim, since no criminal prosecutions were threatened and, consequently, there was no imminent "irreparable harm” (see, 147 AD2d 215). Following the issuance of its order denying a preliminary injunction, the Appellate Division granted the Kuttner plaintiffs leave to appeal to this court, certifying the following question of law: "Did this court err as a matter of law in reversing the order of Supreme Court granting plaintiffs’ motion for a preliminary injunction restraining defendants from enforcing Advisory Opinion 88-1 of the State Ethics Commission and in denying such motion?”

V. Analysis

Applicability of Section 73 (8)

At the outset, we note our agreement with the Appellate Division’s conclusion (147 AD2d, at 275) that application of Public Officers Law § 73 (8) to former State employees who left State service before January 1, 1989 does not render that statute "retroactive” in any true sense of that term. As construed by Advisory Opinion 88-1, the statute merely prohibits a class of individuals from engaging in certain specified business and professional activities after the statute’s effective date. "A statute is not retroactive * * * when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events” (McKinney’s Cons Laws of NY, Book 1, Statutes § 51, at 87). Thus, contrary to plaintiffs’ arguments, the principles of statutory construction which require clear expression of a legislative intention to make a new provision retroactive (see, e.g., Shielcrawt v Moffett, 294 NY 180; Jacobus v Colgate, 217 NY 235; Murphy v Board of Educ., 104 AD2d 796, affd 64 NY2d 856; see also, McKinney’s Statutes § 51, at 89) are inapplicable here.

Construing the terms of the 1987 Ethics Act, including its applicability provisions, according to their plain and natural import, we conclude that the Legislature did intend the new "revolving door” rules set forth in Public Officers Law § 73 (8) to be applicable to plaintiffs and other former executive branch employees who left State service before January 1, 1989. First, the statutory prohibitions, which were to become effective on that date, were made applicable to any "person who has served as a state officer or employee” (id.). Thus, on its face, the new statute encompassed employees who had previously served the State, as well as those who would become "former” employees in the future. Second, the express exemption for legislative employees who left State service before January 1, 1989 (L 1987, ch 813, § 26 [a]) furnishes strong proof that other State workers whose employment was terminated before that date were intended to be included. Third, as the Appellate Division observed, the absence of a savings clause — or at least a specific legislative provision for a separate set of rules to govern former executive branch employees whose service was severed at some earlier point— further supports the conclusion that such employees were intended to be covered under Public Officers Law § 73 (8). Indeed, the alternative conclusion would leave such employees completely without statutory restrictions on their post-January 1, 1989 professional and business activities, a result that is logically unacceptable in light of the formerly applicable statutory restrictions (see, Public Officers Law § 73 [former (7)]), which were impliedly repealed by the 1987 Act, and the clear over-all legislative intention to tighten, rather than loosen, those restrictions.

Finally, contrary to plaintiffs’ contentions, there is nothing harsh or unreasonable about the application to plaintiffs of the new lifetime ban on appearing or otherwise practicing before their former agencies in connection with a matter in which they directly participated during their State tenure. The ban is designed to prevent former public servants from falling prey to one form of conflict of interest, or to the appearance of a conflict, and from taking unfair advantage of their insider’s knowledge and contacts, including the confidences and secrets they may have gained while working on the matter on behalf of the State. Indeed, all admitted attorneys within this State, including plaintiffs, have long been subject to such a restriction under DR 9-101 (B) of the Code of Professional Responsibility. The new provisions of section 73 (8) merely extend this reasonable limitation to nonattorneys formerly employed within the executive branch. Furthermore, any hardship resulting from plaintiffs’ prior engagement on forbidden matters has been mitigated by the Legislature’s decision to postpone the statute’s effective date for almost 17 months after its enactment, thereby enabling individuals such as plaintiffs, as well as their clients, to make suitable alternative arrangements.

Equal Protection

Having concluded that Public Officers Law § 73 (8) was intended to apply to former executive branch employees in plaintiffs’ position, we must now consider plaintiffs’ contention that such application violates their rights under the State and Federal Constitutions. Plaintiffs’ principal argument rests on the disparate treatment that the new "revolving door” law accords to former executive, as distinguished from former legislative, employees. As previously noted, the latter are afforded certain advantages over the former, most notably, the rights to engage in most lobbying activities immediately after the termination of their service and to lobby even with respect to matters in which they were directly involved after the completion of the legislative term in which such termination occurred. Further, as a result of the special applicability provision, legislative employees, but not executive branch employees, had the opportunity to avoid the reach of the new "revolving door” provisions entirely by simply leaving their State positions before January 1, 1989 (see, L 1987, ch 813, §26 [a]). Plaintiffs argue that these disparities violate their rights to equal protection of the laws.x

Initially, we note that to succeed in their argument plaintiffs must demonstrate the absence of a rational basis for the disparities of which they complain (see, Maresca v Cuomo, 64 NY2d 242). Plaintiffs have not demonstrated that the statute burdens any identifiable "suspect” class. Nor have they shown that they have a fundamental right to engage in the unrestricted practice of their profession. To the contrary, although admitted attorneys have a protected due process interest in the right to practice law (see, Willner v Committee on Character, 373 US 96, 102), that right is clearly subject to reasonable restrictions imposed by the legislative, judicial and executive branches of government. As several courts have already held, statutes or rules imposing such restrictions are subject to review, but only under the least exacting constitutional standard requiring a rational basis for the restriction (Edelstein v Wilentz, 812 F2d 128; Nordgren v Hafter, 789 F2d 334, 338, n 2, cert denied 479 US 850; Lupert v California State Bar, 761 F2d 1325, 1327, n 2, appeal dismissed 474 US 916; cf., Matter of Gordon, 48 NY2d 266). Accordingly, we reject plaintiffs’ argument that a level of constitutional scrutiny higher than the rational basis test should be applied here (see, Kadrmas v Dickinson Pub. Schools, 487 US 450; Vance v Bradley, 440 US 93, 96-97; Massachusetts Bd. of Retirement v Murgia, 427 US 307, 312; Winkler v Spinnato, 72 NY2d 402, 406, cert denied — US —, 109 S Ct 1640).

Under that test, the disparate treatment challenged here may readily be justified. First, the Legislature could rationally conclude that the risk of undue influence, or the appearance thereof, resulting from prior State service is significantly greater in the case of former executive branch employees. As the Appellate Division observed, the influence that any one individual may have on the outcome of a particular legislative matter is diluted by a number of institutional factors, none of which are present in the decision-making processes that exist within the executive branch. Among these factors are the internal checks and balances supplied by the requirements that a bill be passed by two separate legislative houses and signed by the Governor before it becomes effective. Also relevant are the facts that each legislator is personally accountable to his or her constituency and that the Legislature itself is reconstituted every two years with an attendant change in membership, political orientation and priorities.

Those same institutional safeguards are not present in the administrative agencies that employ most of the State’s executive branch workers. In contrast to the diffused decision-making process in the Legislature, many of the matters that come before State administrative agencies, such as license applications and the awarding of contracts, are resolved by one official or a small handful of officials, acting within their broad discretionary authority. Further, the tenure of administrative agency officials does not depend upon the approval of the electorate, many are protected by civil service laws and the myriad of routine decisions these officials make rarely draw the attention of the news media. Finally, the continuity of personnel that distinguishes administrative agencies from the legislative offices makes the former vulnerable to the evils inherent in cronyism and influence peddling.

For all of these reasons, a legislative decision to impose more stringent controls on the postemployment activities of former employees of State administrative agencies cannot be characterized as irrational. While the legislative branch is certainly not immune from many forms of influence peddling, there was adequate basis for the Legislature to conclude that administrative agencies are more susceptible to the ethical problems associated specifically with "revolving door” employment and was therefore in need of more restrictive "revolving door” rules. The Legislature is certainly entitled to consider that "[e]vils in the same field may be of different dimensions and proportions,” so that different remedies are required (Williamson v Lee Opt Co., 348 US 483, 489). Additionally, in fashioning a remedy for a perceived evil, the Legislature may "take one step at a time, addressing itself to the phase of the problem which seems most acute” (id.).

In this instance, differential treatment was justifiable not only because of fundamental institutional differences, but also because of the unique practical situation in which many former legislative employees are placed. Unlike their executive branch counterparts, such employees are unprotected by civil service or tenure rules and face the possibility of sudden job loss through the death, retirement or electoral defeat of the legislative member who employs them. Moreover, their job prospects upon severance are limited by the fact that the skills and knowledge they have developed in State service relate specifically to the legislative process and may not translate readily into the skills and knowledge required by equivalent private sector jobs. In light of these circumstances, our State Legislature might well have concluded, as did the congressional committee that drafted the 1988 proposal for "revolving door” reform at the Federal level, that "an overly severe ['revolving door’] prohibition * * * has a more punitive impact on Legislative Branch personnel than a similar ban on an Executive Branch employee” (Committee of Judiciary, Report on HR 5043, at 18-19). And, in weighing the various competing considerations, our Legislature could rationally have determined that the consequent impairment of its future ability to recruit talented staff was a serious enough problem to warrant relaxing the postemployment restrictions on legislative personnel (see, id.).

Due Process

Plaintiffs also seek a judicial declaration that Public Officers Law § 73 (8) violates their constitutional due process rights. Plaintiffs’ primary contention in this regard is that the "revolving door” provisions prevent them from exercising their rights to pursue their professional careers. However, the new rules do not interfere with the ability of plaintiffs, all of whom are attorneys, to practice law. They merely forbid them from accepting employment in a limited class of cases that poses the greatest potential for the unfair exploitation of the contacts they made, and the knowledge they obtained, during their State service. Such a restriction, which is reasonably related to the legislative goal of restoring public confidence in government, does not violate any protected property or liberty interest (see, Hasenbein v Siebert, 56 NY2d 853), even if, as a practical matter, it may reduce plaintiffs’ professional marketability.

Plaintiff Forti’s alternative due process argument is equally unpersuasive. Forti contends that his vested rights have been impaired because, as applied to him pursuant to Advisory Opinion 88-1, Public Officers Law § 73 (8) alters a term or condition of his State employment, namely his right to pursue postemployment professional opportunities subject only to the restrictions imposed by the earlier version of the statute (Public Officers Law § 73 [former (7)]). The flaw in this argument is that, absent a contractual arrangement or some other source for the claimed right, plaintiff had no vested interest in, or reasonable expectation in the continuance of, the pre-1989 rules governing his permissible postemployment activities (see generally; Cook v City of Binghamton, 48 NY2d 323). Although Forti had executed a certification in which he agreed to abide by the "revolving door” rules that existed at the time he was hired (see, Public Officers Law former § 78), nothing in that certification implied a limitation on the Legislature’s right to take further steps to address the problem of actual and potential conflicts of interest. Thus, the Legislature was free to reexamine its former policies and impose more severe postemployment restraints.

Separation of Powers

Plaintiffs have also raised a number of arguments, all of which involve, in one way or another, the doctrine of separation of powers. The first two of these arguments are readily disposed of. Plaintiff Forti’s separation of powers claim rests on the erroneous assumption that only the judiciary may regulate the practice of law, so that any legislative attempt to impose restrictions on attorneys’ practices would be a usurpation of judicial power. In fact, the Legislature can — and does— regulate many aspects of the practice of law in this State (see, Judiciary Law art 15). Indeed, the very power of this court to prescribe rules for the admission of attorneys is derived from the Legislature (see, Judiciary Law § 53; see also, § 90 [authorizing the Appellate Divisions to administer character and fitness, as well as disciplinary, procedures]). Moreover, Public Officers Law § 73 (8) is not directed specifically at admitted attorneys but rather is aimed at all former executive branch employees. Its effect on the practice of law is, thus, merely incidental.

The separation of powers argument raised by the plaintiffs in the Kuttner appeal is based on the entirely different premise that the final sentence of Public Officers Law §73 (8), which permits State agencies to adopt even more restrictive "revolving door” rules to govern practice before them, represents an unconstitutional delegation of legislative authority. However, our decision in Matter of Nicholas v Kahn (47 NY2d 24) establishes the general proposition that the Legislature may constitutionally authorize administrative agencies to promulgate their own specialized conflict of interest rules. Inasmuch as plaintiffs have not cited any specific objectionable regulations promulgated under section 73 (8), we have no occasion to consider whether the legislative standards underlying the rules are sufficient (see, e.g., Matter of Nicholas v Kahn, supra, at 31-32) or whether the rules fall outside the scope of the authority that the Legislature may permissibly delegate (see generally, Boreali v Axelrod, 71 NY2d 1).

The final argument advanced by the Kuttner plaintiffs stands on somewhat stronger footing. The argument concerns the constitutional propriety of Public Officers Law § 73 (14), which provides for civil penalties for violations of several of the statute’s other subdivisions, including subdivision (8). In addition, section 73 (14) provides that, "in lieu of a civil penalty,” the Ethics Commission may "refer a violation of any [of the specified] subdivision^] to the appropriate prosecutor and upon such conviction, but only after such referral, such violation shall be punishable as a class A misdemeanor” (emphasis supplied).

The Appellate Division concluded in the Kuttner appeal, which involved only the question of preliminary injunctive relief, that the plaintiffs were likely to succeed on the merits of their claim that this provision was violative of the separation of powers doctrine. After determining initially that the question was justiciable because plaintiffs were potentially subject to criminal prosecution if they violated Public Officers Law § 73 (8), the court observed that the challenged provision, fairly read, gives the respective Ethics Commissions the exclusive power to decide, in the first instance, who shall be criminally prosecuted. As such, the Appellate Division concluded, the provision results in an encroachment on the power of the executive branch, as represented specifically by the State’s prosecutors, to ensure "that the laws are faithfully executed” (NY Const, art IV, § 3; see, People v Di Falco, 44 NY2d 482, 486).

Like the court below, we conclude that section 73 (14)’s provisions for criminal prosecutions only upon referral by the Ethics Commission are highly troublesome. In addition to the constitutional criticism identified by the Appellate Division, there is an apparent inconsistency, which has already drawn some comment, between section 73 (14) and the constitutional directive that "[t]he power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired” (NY Const, art I, § 6) (L 1987, ch 813, Bill Jacket, Letter of District Attorney of Kings County, July 24, 1987, at 2; id., Letter of District Attorneys Association, July 15, 1987, at 1-2; see also, id., Report of Division of Budget, July 29, 1987, at 3; Letter of NY Public Interest Research Group, July 3, 1987, at 3; id., Mem from Secretary of State, July 27, 1987, at 2; id., Letter from New York State Office for Aging, Aug. 6, 1987, at 1; id., Mem of Department of Law, July 7, 1987, at 4; id., Mem from Counsel to Higher Education Services Corporation to Governor’s Counsel, Aug. 3, 1987, at 2 [all criticizing soundness and/or constitutionality of provision on other grounds]).

The procedural posture in which the issue is presented prevents us from squarely deciding it in the context of the Kuttner appeal, which is based on a certified question, since, in any event, our resolution would not be "decisive” of the correctness of the nonfinal Appellate Division order before us (see generally, Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599). As previously noted, the Appellate Division denied the Kuttner plaintiffs the preliminary injunctive relief they sought, not because it disagreed with them on the merits of their legal claim, but rather because it concluded that such relief was unnecessary in light of the absence of an imminent threat of prosecution. We find no error of law in this dispositive conclusion and, accordingly, can go no further (see, Brady v Ottaway Newspapers, 63 NY2d 1031; cf., Herzog Bros. Trucking v State Tax Commn., 69 NY2d 536, 540-541).

VI. Conclusion

To summarize, we hold that the Ethics Commission correctly concluded that Public Officers Law § 73 (8) is applicable to former executive branch employees whose State service was terminated before January 1, 1989. We further hold that the more favorable treatment afforded under the statute to former legislators and legislative employees does not violate plaintiffs’ constitutional right to equal protection of the law. Similarly, the limited restrictions on plaintiffs’ rights to practice before State administrative agencies do not constitute violations of their due process rights or the rights afforded by the Ex Post Facto Clause of the United States Constitution (US Const, art I, § 10, cl [1]). Finally, while the Kuttner plaintiff’s claims with regard to the constitutionality of Public Officers Law § 73 (14) have merit, we cannot say that the denial of preliminary injunctive relief was infected by error of law or an abuse of discretion under the circumstances of this case.

Accordingly, in Forti v New York State Ethics Commn., the order of the Appellate Division should be affirmed, with costs.

In Kuttner v Cuomo, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

In Forti v New York State Ethics Commn.: Order affirmed, with costs.

In Kuttner v Cuomo: Order affirmed, etc.

      . The Legislative Ethics Committee, established pursuant to Legislative Law § 80, was to act as the ethical watchdog for the legislative branch of government (see, Public Officers Law § 73 [14]).

      . Former supervisory legislative employees who were "not personally involved in the * * * matter to an important and material degree” may receive an exemption from this restriction upon approval of the Legislative Ethics Committee (Public Officers Law § 73 [8]). The 1987 Act left the "revolving door” restrictions imposed on former legislators entirely unchanged (compare, id,., with Public Officers Law § 73 [former (7)]).

      . Public Officers Law § 73 (8) refers to "state officers and] employee[s],” a class that includes most, if not all, nonelected executive branch employees who receive compensation and are not employed on a per diem basis (see, Public Officers Law § 73 [1] [i] [i]-[iv]; see also, § 73-a [1] [c] [i]-[iii]).

      .  For the same reason, we conclude that Public Officers Law § 73 (8), as applied to plaintiffs, does not constitute an ex post facto law in violation of the United States Constitution (US Const, art I, § 10, cl [1]; see, People v Morse, 62 NY2d 205, 217-218). Accordingly, we need not consider whether the restrictions on professional activities imposed by the statute are within the class of punitive measures contemplated by the Ex Post Facto Clause (see, Garner v Los Angeles Bd., 341 US 716; United States v Nasser, 476 F2d 1111).

      . We are not persuaded by plaintiff Forti’s novel argument that a higher level of scrutiny should be applied when a measure adopted by the Legislature favors that branch’s own members and employees over the employees of other branches of government. While such measures may indeed create "[t]he appearance, if not the reality[,] of legislative self-favoritism,” as plaintiff contends, the electorate, and not the judiciary, is the proper body to perceive and then correct any overreaching that may have occurred.


text:
    In the Matter of Webster Central School District et al., Appellants, v Public Employment Relations Board of the State of New York et al., Respondents.
    Argued March 27, 1990;
    decided May 1, 1990

      POINTS OF COUNSEL

      Dennis T. Barrett, Daniel R. Mooney and Richard A. Dollinger for Webster Central School District and others, appellants.

      Matthew R. Fletcher for Board of Cooperative Educational Services, First Supervisory District of Monroe County, appellant.

      Sandra M. Nathan and John M. Crotty for Public Employment Relations Board of the State of New York, respondent.

      Kevin H. Harren and Bernard F. Ashe for Gail Larson and others, respondents.

      Robert E. Diaz and Robert Wright for Commissioner of Education, amicus curiae.

      James P. Burns, III for Central New York BOCES Consortium, amicus curiae.

      Norman H. Gross and Henry F. Sobota for The New York State School Boards Association, amicus curiae.

      Warren H. Richmond for the Metro Area Boards of Cooperative Educational Services, amicus curiae.

      Melvin H. Osterman, Jr. and Heather D. Diddel for the Capital District Boards of Cooperative Educational Services, amicus curiae.

   OPINION OF THE COURT

Kaye, J.

In the statute permitting a Board of Cooperative Educational Services (BOCES) to offer academic summer school programs (Education Law § 1950 [4] [bb]), the Legislature clearly manifested its intention that school districts’ decisions to participate in such cooperative educational programs not be subject to mandatory collective bargaining with teachers’ unions. We therefore grant the school districts’ petition to nullify PERB’s determination requiring that the decisions be bargained.

BOCES was established some 40 years ago to provide added services, on a cooperative basis, for combined school districts (see, L 1948, ch 861, § 1). Today, several BOCES exist throughout the State, each made up of varying numbers of school districts, with their own governing boards (drawn from the component school districts), revenues (principally derived from participating districts), and teaching staff (see generally, Education Law § 1950). While the Monroe BOCES, for example, had over the years furnished many services for appellant school districts — particularly services that were not part of their traditional school curriculum — before 1984 it had no statutory authority to offer them academic programs.

In 1984, as part of a major reform intended to upgrade the quality of education in this State, the Legislature amended the Education Law to permit BOCES to "provide academic and other programs and services in the school year on a cooperative basis, including summer programs and services.” (Education Law § 1950 [4] [bb].) Along with increased requirements for high school graduation, the reform envisioned expanded cooperative use of school resources, including BOCES, both by allowing BOCES to offer credit-bearing academic courses and by providing State reimbursements to school districts for participation in BOCES programs (see, New York State Board of Regents, Action Plan to Improve Elementary and Secondary Education Results in New York, at 47-48 [1984]).

Prior to the 1984 amendment, the three appellant school districts had each year conducted separate summer school programs, employing teachers who were (or became) members of the bargaining units represented by respondent teachers unions. The collective bargaining agreements between the school districts and the unions in fact covered summer teaching, and provided for summer school workday, salary, sick leave, pay dates and hiring preferences.

Early in 1985, however, spurred by the new legislation, appellants outlined their summer school curriculum requirements to the Monroe BOCES, and it undertook to satisfy them, offering a combined program for students of the three districts. Each district, with the approval of the Commissioner of Education, then elected to accept the BOCES program in place of its own, and entered into a written agreement which provided for the payment of fees for each enrollee; unlike the district’s own summer programs, partial State reimbursement was available for fees paid to BOCES. The BOCES courses were all part of the standard secondary school curriculum, but the cooperative program offered a far wider selection than any of the districts had offered in previous years, to a greatly increased number of students. (The districts individually had chosen not to offer courses with fewer than 12 students.)

While refusing to negotiate their decision with respondent unions, appellants offered to bargain the impact of the decision, but the unions refused and filed improper practice charges with PERB. Following several days of testimony, the PERB Administrative Law Judge held that each of the districts had violated Civil Service Law § 209-a (1) (d) by unilaterally contracting-out the work exclusively performed by bargaining unit teachers and refusing to negotiate that decision. PERB consolidated the three cases and, on review, agreed with the Administrative Law Judge that the districts were subcontracting work they otherwise would have performed themselves, which was a mandatory subject of negotiation where the decision turned on a reduction of labor costs rather than a change in level of service; PERB therefore ordered the districts to cease and desist from such practices, together with other relief. The present article 78 proceeding ensued, culminating in the Appellate Division’s confirmation of PERB’s determination and dismissal of the petition, without opinion. We now reverse and grant the school districts’ petition.

The underlying legal issue before us is whether the employers’ decision to contract with BOCES for an academic summer school program in place of their own was a mandatory subject of negotiation (as the unions urge), or a prohibited or permissive bargaining subject (as the school districts contend) (see, Matter of Board of Educ. v New York State Pub. Employment Relations Bd., 75 NY2d 660 [decided today]).

In approaching this issue, we are mindful of the limited scope of our review as to matters within PERB’s expertise under the Civil Service Law (see, Civil Service Law § 209). However, statutory construction is a function for the courts; PERB is accorded no special deference in the interpretation of statutes (see, Matter of Rosen v Public Employment Relations Bd., 72 NY2d 42, 47-48). Indeed, in its decision PERB itself made only scant reference to the Education Law policy arguments that are at the heart of this appeal.

We conclude that the central legal question is answered as a matter of statutory construction, without reaching the soundness or reasonableness of PERB’s determination under the Civil Service Law: Education Law § 1950 (4) (bb) — the 1984 amendment — clearly manifests a legislative intention that a school district’s decision to contract with BOCES for an academic summer school program not be subject to mandatory collective bargaining.

The BOCES statute neither explicitly mandates nor explicitly prohibits collective bargaining (see, by contrast, Retirement and Social Security Law § 470). While legislative expression is the best evidence of legislative intent, it is not the only evidence; legislative intent may also be implied from the words of an enactment. It should be apparent, however, that in order to overcome the strong State policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be "plain and clear” (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744), or "inescapably implicit” in the statute (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778; see also, Matter of City School Dist. v New York State Pub. Employment Relations Bd., 74 NY2d 395). Anything less threatens to erode and eviscerate the mandate for collective bargaining.

We conclude that the 1984 amendment to the BOCES statute clearly evidences the Legislature’s intent that bargaining not be mandatory. In that the unions had not, in the several decades of BOCES’ operation, previously demanded bargaining of requests for shared services (albeit the scope of services was much more limited), it is hardly surprising that the 1984 amendment was not even more specific in reflecting this intention.

Education Law § 1950 prescribes an annual procedure for securing BOCES services, beginning with requests by component school districts, followed by various layers of approvals, and culminating in the districts’ final election to contract with BOCES — all to be accomplished between January 15 and April 1, for school year programs and services beginning in September (see, Education Law § 1950 [4] [d]). The 1984 amendment authorizes BOCES to establish an academic summer school program only upon the request of two or more school districts and the approval of the Commissioner of Education. The Commissioner of Education may approve such a program only if he finds that it serves the statutory goals of providing additional opportunities for pupils, effecting cost savings to the districts requesting the programs and services, offering greater opportunity for pupils to earn credit for academic subjects, and insuring greater or more appropriate use of BOCES facilities (Education Law § 1950 [4] [bb] [2]).

Appellants urge that the finely calibrated legislative scheme, requiring joint action by at least two school districts (and conceivably many more) and the approval of the Commissioner of Education, on a tight timetable, alone negates any mandate for bargaining; if each participating district additionally had to bargain to impasse, they contend, the deadlines simply could not be met. Whether or not the statutory scheme is alone sufficient evidence of a legislative intent not to mandate bargaining, we are persuaded to this conclusion by an additional component of the 1984 amendment — section 1950 (4) (bb) (5).

That section expressly addresses the subject of job protections for teachers in the event of a BOCES takeover. It provides that "[a] teacher whose position in a school district is abolished as the result of a takeover of an academic program by a board or boards of cooperative educational services shall be accorded the rights provided by [Education Law § 3014-a].” Education Law § 3014-a ("Teacher’s rights as a result of a board or boards of cooperative educational services taking over a program formerly operated by a school district or districts or by a county vocational education and extension board”), in turn, directs that such a teacher shall be considered an employee of the BOCES assuming the program, and it proceeds to outline in considerable detail the consequences that will follow when there are too few BOCES teaching positions available, including preferential hiring without loss of seniority-based benefits.

Given this statutory scheme, we are satisfied that the Legislature’s deliberate incorporation of section 3014-a governing teachers’ rights in the event of a BOCES takeover manifested an intention to establish, within the Education Law, a comprehensive package for a school district’s decision to contract for a BOCES program, and thus to withdraw that decision from the mandatory negotiating process.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the petition granted.

Chief Judge Wachtler and Judges Simons, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., taking no part.

Judgment reversed, etc.


author: Hancock, Jr., J.

text:
    Lydia Badr, Individually and as Mother and Natural Guardian of Dina Badr, an Infant, Appellant, v Martin Hogan, Respondent.
    Argued March 22, 1990;
    decided May 1, 1990

      POINTS OF COUNSEL

      Michael B. Doyle for appellant.

      Ralph F. Schoene for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiff, her husband and their three-year-old daughter, Dina, were residents in an apartment rented from defendant. Dina allegedly sustained injuries as a result of defendant’s negligence in failing to repair a window. A trial before a jury resulted in a verdict for defendant and, on appeal, the Appellate Division affirmed with a divided court. On plaintiffs appeal to this court we consider one issue: whether the trial court committed reversible error in permitting defense counsel to cross-examine plaintiff in contravention of the rule barring the use of extrinsic evidence to contradict a witness’s answers on collateral matters — here, her denial that she had received public welfare funds to which she was not entitled— for the sole purpose of impeaching the witness’s credibility (see, People v Schwartzman, 24 NY2d 241, 245-246; Richardson, EvideriCe § 491 [Prince 10th ed]). For reasons which follow, we conclude that the "collateral evidence rule” was violated and that, in the circumstances of this case, the violation constituted prejudicial error requiring a reversal and new trial.

I

The trial presented a sharp question of fact as to whether, prior to the accident, the window in Dina’s bedroom was broken and in need of repair. Plaintiff testified that there was a hole in the window and that, when she asked defendant to fix it, he merely placed a piece of cardboard over it. Defendant’s testimony was just to the contrary. He denied placing any cardboard over a hole in the window and said, moreover, that it was not broken prior to the accident. The critical issue for the jury was, thus, the credibility of the two witnesses.

On cross-examination of plaintiff by defense counsel, the following took place:

"Q: Ma’am, did you ever at any time take money that you weren’t entitled to?
"mr. albanese: Objection, your Honor.
"Q: Specifically from the Department of Social Services?
"the court: Approach the side bar.
"mr. albanese: Your Honor—
"(Side-bar discussion off the record)
"the court: The objection is sustained. Stay off of it. The people have civil matters all the time and strike it from your minds, members of jury. This has nothing to do with this case whatsoever.”

The exchange between defense counsel and the court, after the jury had been excused, revealed that defense counsel’s question referred to information contained in a confession of judgment plaintiff had "entered into with the Department of Social Services wherein she admitted that she received money improperly from the Department of Social Services and admitted and stated therein that she was promising to repay that money”. The court was emphatic in admonishing defense counsel to avoid the subject or risk contempt of court. The trial continued.

After considering the matter overnight, the court had a change of opinion and decided that defense counsel’s question should be permitted. Over plaintiff’s objection the following ensued:

"Q: Mrs. Badr, did you at any time receive money from the Department of Social Services to which you were not entitled?
"mr. albanese: Objection, Your Honor.
"the court: No, I will take it now. Did you receive any money that you weren’t entitled to?
"the witness: No.”

After the witness’s negative reply, the court — again over objection — permitted defense counsel to show the witness the confession of judgment which had been marked as an exhibit and to base his continued questioning on this document. Under questioning by the court and defense counsel, plaintiff identified the document as a confession of judgment, indicating that she had received $2,654.50 from the Department of Social Services and that it was her signature which appeared on it. She denied, however, that she had received any money to which she was not entitled. She insisted that the money received was rightfully hers.

The cross-examination ended as follows:

"Q: Did you agree to pay back money that you weren’t supposed to get?
"A: I agreed to pay back the money, yes.
"mr. schoene: Thank you. Nothing else. I will just offer [the confession of judgment] in evidence at this time. It does have a certification.”

The court received the confession of judgment as a defendant’s exhibit.

On his summation, defense counsel made repeated references to the confession of judgment including: "Now, I don’t bring this up to be judgmental in her having been on welfare; make no mistake about that. I bring it up only because this is extremely important in telling you, in aiding you, in assisting you in determining a witness’ credibility, in assisting you in determining whether Mrs. Badr was telling you the truth.” [and] "Now, I ask you, if Mrs. Badr is going to lie to the Department of Social Services in order to obtain $2,653 for herself, what do you think she would do for one million dollars? Do you think she’d do anything differently? Do you think that she wouldn’t lie to you when she lied for $2,653?” (emphasis added), [and] "even his honor made a mistake when he initially did not permit me to ask questions concerning the confession of judgment. He wouldn’t do it at first and then later on he changed his mind. He said I did have every good faith to ask that question. So he made a mistake.”

After the charge, the jury retired to commence deliberations at 3:40 p.m. At 4:06 p.m. the court received a note from the jury indicating that it had reached a verdict. In answer to the question which the court had submitted: "Was there a defective and cracked window on property of the defendant, Mark Hogan? Yes or No?”, five of the six jurors agreed with the answer "No”.

The Appellate Division held that the general rule precluding the use of extrinsic documentary evidence to contradict a witness on collateral matters did not apply. The majority of the court reasoned that "the cross-examiner may, subject to the trial court’s discretion, continue to question a witness in an effort to induce the witness to change his answer [citations omitted]”, and that "defendant’s counsel, in pursuing the line of questioning after plaintiff’s denial, did exactly what he was authorized to do under existing precedent and, thus, the trial court properly exercised its discretion in permitting such inquiry.” (153 AD2d 826, 827-828.) We now reverse.

II

It is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness’s credibility (see, People v Schwartzman, 24 NY2d 241, 244, supra). While the nature and extent of such cross-examination is discretionary with the trial court (see, Richardson, Evidence § 500 [Prince 10th ed]), the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue (see, Langley v Wadsworth, 99 NY 61, 63-64; People v Montlake, 184 App Div 578, 583; Richardson, Evidence § 499 [Prince 10th ed]; Fisch, New York Evidence § 455 [2d ed]).

In her brief to this court, plaintiff argues that her alleged receipt of funds "to which [she was not] entitled” did not, without more, suggest moral turpitude and that, therefore, the court should not have permitted any inquiry on this subject. It is not clear whether plaintiff voiced this specific objection to defense counsel’s line of inquiry after the court reversed its earlier ruling and decided to permit the initial question. Moreover, both the majority writing and the dissent at the Appellate Division appear to be based on the assumption that the questioning concerning plaintiff’s receipt of the funds was proper as bearing on her credibility. Neither writing addresses the issue plaintiff now raises and its resolution is unnecessary to our decision.

Whether or not plaintiff’s receipt of funds from the Social Services Department was a proper subject for cross-examination, the matter was unquestionably collateral. It was neither relevant to some issue in the case other than credibility nor was proof of it independently admissible to impeach a witness (see, People v Schwartzman, 24 NY2d 241, 245, supra; 3A Wigmore, Evidence § 1003 [Chadbourn rev 1970]). Unlike material facts in dispute, or matters such as a witness’s bias, hostility, or impaired ability to perceive which may be proved independently for impeachment (see, Richardson, Evidence §§ 491, 503, 507 [Prince 10th ed]), plaintiffs alleged prior misconduct had no direct bearing on any issue in the case other than credibility. If proven, it would show only that plaintiff had acted deceitfully on a prior unrelated occasion. The matter was, therefore, collateral and, under the settled rule, could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiffs denial (see, People v Pavao, 59 NY2d 282, 288; People v Schwartzman, supra, at 245).

Defendant argues, nevertheless, and the Appellate Division held, that defense counsel’s continued cross-examination was permissible under the rule that although "a witness’ testimony regarding collateral matters may not be refuted by the calling of other witnesses or by the production of extrinsic evidence [citations omitted], there is no prohibition against examining the witness [herself] further on the chance that [she] may change [her] testimony” (People v Sorge, 301 NY 198, 201 [emphasis added]; see, Richardson, Evidence § 491 [Prince 10th ed]). Certainly, as we pointed out in Sorge, a negative response should not preclude "further interrogation of the witness [herself], for, if it did, the witness would have it within [her] power to render futile most cross-examination.” (Id., at 200-201 [emphasis added].) But further examination of the witness is not what happened here.

When faced with plaintiffs denial that she had ever received welfare money to which she was not entitled, defense counsel did not simply continue with further questions in an effort to elicit a different response. Rather, he immediately produced extrinsic evidence of the fact she had just denied— the confession of judgment which was already marked as an exhibit for identification. In his very next question, defense counsel directed the witness’s attention to this exhibit. She identified it and admitted signing it. After some questions by the court and defense counsel as to the circumstances leading to her agreement to sign the document, it was received in evidence as a defendant’s exhibit. The record shows that defense counsel produced the confession of judgment, asked questions pertaining to it, and ultimately succeeded in having it received as an exhibit for the purpose of adducing direct evidence of what the document purported to prove — a fact flatly contradicting plaintiff’s denial on cross-examination that she improperly received funds from the Department of Social Services.

The decisions in People v Sorge (supra) and People v Summers (49 AD2d 611), cited by defendant, are distinguishable and illustrate the very sort of further interrogation which a court may, in its discretion, permit after a witness’s denial of a collateral fact on cross-examination. In those cases, the cross-examiners, on the chance that the witnesses might retract their initial denials, sought to press the questioning about the denied fact by asking questions of those witnesses based on contradictory information they possessed. Here, however, as the dissenters at the Appellate Division aptly explained (153 AD2d, at 829), defense counsel "did not simply continue to question the witness” after she denied ever receiving money to which she was not entitled. Instead, counsel proceeded to have the confession of judgment marked and introduced as evidence for the purpose of proving that she had in fact done so. It was error to admit this extrinsic proof for the sole purpose of contradicting her testimony on that collateral issue (see, People v Schwartzman, supra, at 245; People v Sorge, supra, at 201).

There is no basis for defendant’s argument that the confession of judgment was properly used for the purpose of refreshing plaintiff’s recollection. Nothing in the record suggests that plaintiff’s recollection of the confession of judgment or the facts surrounding that transaction was unclear or that it was in need of being refreshed (see, Richardson, Evidence § 466, at 457 [Prince 10th ed]).

In view of the emphasis given to the confession of judgment as bearing on the critical issue of plaintiffs credibility, both during the trial and in defense counsel’s summation, we reject the argument that the error was not sufficiently prejudicial to warrant a new trial (see, Barbagallo v Americana Corp., 25 NY2d 655, 656; Judson v Fielding, 227 App Div 430, 433, affd 253 NY 596). We do not address the other grounds for reversal urged by plaintiff.

The order of the Appellate Division should, accordingly, be reversed, with costs, and a new trial granted.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order reversed, etc.

      . The Department of Social Services apparently claimed that it had improperly paid money to plaintiff on the assumption that she was legally separated from her husband when, in fact, she was not. Plaintiff testified that she believed she was entitled to the receipt of the money, however, because she was actually separated and was supporting herself and her children. She told the Department that she and her husband were separated but that she did not file legally for separation "because it would have stopped his papers for permanent residence in this country”.

      . In the sworn confession of judgment in which Lydia Badr is defendant and the Rockland County Department of Social Services is the plaintiff, Lydia Badr (plaintiff here) confessed judgment for a debt justly due arising from the following facts: "[t]he defendant [Lydia Badr] received the said sum from the plaintiff when defendant was not entitled to same under the provisions of the Social Services Law of the State of New York, and does hereby agree to make restitution to the Rockland County Department of Social Services in the amount of $2,653.50”.