author: Jasen, J. Fuchsberg, J.

text:
    In the Matter of Peter Toro, Respondent, v Benjamin J. Malcolm, as Commissioner of the Department of Correction of the City of New York, et al., Appellants.
    Argued January 11, 1978;
    decided March 29, 1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Irving Cohen, L.

      Kevin Sheridan and Leonard Koerner of counsel), for appellants.
    I. Petitioner’s position as a correction officer was vacated pursuant to section 30 of the Public Officers Law upon his felony conviction. He was not entitled to salary for the period between his conviction and his reinstatement upon the reversal of the conviction. (Matter of Breslin v Leary, 35 AD2d 794; Matter of Davis v Impelliteri, 197 Misc 162; Matter of Obergfell, 239 NY 48; Matter of Pauley v Noeppel, 1 Misc 2d 928; Matter of Smith v Noeppel, 204 Misc 49; Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Mason v Perrotta, 41 AD2d 916.) II. Petitioner’s claim is barred by laches. (Matter of Peruzzin v Test, 282 App Div 550; Matter of Tilt v Krone, 31 AD2d 561; Kunz v City of New York, 286 App Div 252, 3 NY2d 834; Matter of Foy v Brennan, 285 App Div 669; Thoma v City of New York, 263 NY 402; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement System, 27 AD2d 265, 23 NY2d 213; Matter of Fryer v Broome County Bd. of Supervisors, 37 AD2d 755; Austin v Board of Higher Educ., 5 NY2d 430.)

      Robert Rivers, P. G, for respondent.
    I. Petitioner was not "convicted” within the meaning of section 30 (subd 1, par e) of the Public Officers Law. (Matter of Keogh v Wagner, 20 AD2d 380, 15 NY2d 569; Thaler v State of New York, 79 Misc 2d 621; Matter of Obergfell, 239 NY 48.) II. The courts below were correct in awarding petitioner his back pay. (Matter of Pauley v Noeppel, 1 Misc 2d 928; Matter of Mason v Perrotta, 41 AD2d 916; Matter of Lytle v Christian, 47 AD2d 824; Matter of Yeampierre v Gutman, 52 AD2d 608; Matter of Jerry v Board of Educ., 35 NY2d 534.) III. Petitioner’s cause of action is not barred by laches. (Reynolds v Snow, 10 AD2d 101, 8 NY2d 899; Varconi v Unity Tel. Corp., 11 Misc 2d 191; Prince Hall Grand Lodge F. & A. M. of N. Y. v Supreme Council of U. S. Sovereign Grand Inspectors Gen. of 33rd & Last Degree A & A Scottish Rite, 32 Misc 2d 390; Matter of Maurer v Cappelli, 42 AD2d 758; Austin v Board of Higher Educ., 5 NY2d 430; Matter of Amkraut v Hults, 21 AD2d 260, 15 NY2d 627.)
   OPINION OF THE COURT

Jasen, J.

The issue posed on this appeal is whether a public officer whose felony conviction is reversed on appeal is entitled to an award of back pay from the date of his conviction to the date of his voluntary reinstatement.

Respondent, Peter Toro, was appointed on September 8, 1969 as a Correction Officer of the New York City Correction Department. On August 30, 1971, respondent was arrested and charged with burglary, petit larceny, and impersonating a police officer. After a jury trial, he was convicted of these charges and was sentenced to a maximum term of four years’ imprisonment. On October 4, 1973, respondent was notified that, pursuant to section 30 of the Public Officers Law, his office was vacated effective May 24, 1973 — the date of his conviction and sentencing for the felony of burglary in the third degree.

Upon appeal, the Appellate Division reversed respondent’s conviction and dismissed the indictment. The court concluded that the complainant’s eyewitness identification of respondent was tainted and should have been suppressed. Absent this identification, noted the court, the People’s case rested on the uncorroborated testimony of a self-confessed participant. Additionally, the court believed that respondent’s testimony concerning his whereabouts on the day of the crime raised a reasonable doubt as to his guilt. It was the interaction of these factors which led the Appellate Division to reverse respondent’s conviction and dismiss the indictment.

After the Department of Correction voluntarily reinstated the petitioner as a correction officer, he commenced an article 78 proceeding to recover back pay for the interim between his suspension and reinstatement. Special Term awarded respondent back pay from the date of his suspension to the date of his reinstatement. The Appellate Division, with two Justices dissenting in part, modified the order and judgment of Special Term by excluding from the award 30 days’ pay. (See Civil Service Law, § 75.) The dissenters would also have excluded from the award back pay for the period between respondent’s conviction and his voluntary reinstatement.

We hold that a public officer whose felony conviction is reversed on appeal and who is voluntarily reinstated is not entitled to recover back pay for the period between his conviction and voluntary reinstatement.

The directive contained in section 30 of the Public Officers Law is clear and unqualified: every public office becomes vacant upon the officer’s conviction of a felony. A conviction of the incumbent constitutes an abridgement of the office, automatically terminating its duration. (Matter of Obergfell, 239 NY 48, 50; Matter of Breslin v Leary, 35 AD2d 794, 795; see, generally, 3 McQuillin, Municipal Corporations, pp 432-433.) It follows that once an office becomes vacant, the contingency of reversal of the judgment of conviction does not defeat the operation of this statutory directive. (Matter of Obergfell, supra; Officer — Conviction of Crime, Ann., 71 ALR2d 593, 600.) Nor does the actual reversal of the judgment of conviction require the reinstatement of the former officer (Matter of Breslin v Leary, 35 AD2d, at p 795, supra; Matter of Smith v Noeppel, 204 Misc 49, 51; Matter of Pauley v Noeppel, 1 Misc 2d 928, 931; Tourjie v Noeppel, 120 NYS2d 478, 482), and the award of back pay for the intervening period (Matter of Breslin v Leary, 35 AD2d 794, supra; 15 Opns St Comp, 1959, p 437).

As a matter of policy, the Legislature did not choose to provide merely for suspension from office upon an officer’s conviction of a felony, but chose instead to declare the office vacant upon conviction. Hence, during the hiatus between petitioner’s vacatur of office and voluntary reinstatement, he was not a correction officer, nor did he render services as a correction officer. Absent his continued status as a correction officer, no statutory authority exists for the payment of petitioner’s salary, or to permit him to render services as a correction officer. (See Matter of Davis v Impelliteri, 197 Misc 162, 164.)

The automatic termination of a public office upon the officer’s conviction of a felony is not a punishment meted out in consequence of the conviction. (Officer — Conviction of Crime, Ann., 71 ALR2d, at p 600.) But rather, it is a legislative decision borne of the recognition that a public officer’s conviction of a felony does not permit the cessation of governmental functions for the period required to exhaust the appellate process. Continued performance of governmental functions necessitates the existence of a point in time at which the affected office may be filled without concern for the possibility that at some future date a former officer’s conviction may be reversed. Certainly, a government agency should not be faced with the possible dilemma of having two officers for the same position.

Admittedly, a situation, and perhaps this case may be construed as one, may arise in which an innocent officer is unjustly convicted of a felony, necessitating a reversal of the conviction on appeal. In that event, the unfortunate officer’s loss of public office and its accompanying financial remuneration would, of course, be tragic. But such a hard case should not lead us to make bad law. To adopt a general rule, as the dissenters propose, that public officers whose convictions have been reversed be automatically reinstated to their former office and awarded back pay, would apply to all public officers whose convictions were reversed regardless of the basis for the reversal. For example, notwithstanding conclusive evidence of guilt — a voluntary admission or confession — a conviction may be reversed on the ground of double jeopardy or that the applicable Statute of Limitations has run. Similarly, convictions may be reversed where evidence sufficient to establish guilt indisputably exists, but because of certain police or prosecutorial irregularities or violations of law, the evidence must be suppressed. Also possible is the reversal of a conviction solely because of the absence of a transcript deemed necessary to demonstrate the existence of appealable issues. (See, e.g., People v Rivera, 39 NY2d 519.)

While we are sympathetic to the plight of a truly innocent officer unjustly accused and convicted, we are opposed to establishing a general rule which would provide unjustified relief to others not equally deserving.

To urge that a public officer whose conviction is reversed on appeal on a legal technicality, and who is automatically reinstated and awarded back pay, may nevertheless be discharged for misconduct pursuant to a disciplinary proceeding misses the point. The fact that the reinstated officer may be ultimately discharged would have no effect on his right to receive back pay. Pursuant to section 75 of the Civil Service Law, an officer found guilty of misconduct and discharged is entitled to receive his salary from the date of suspension to discharge, less 30 days’ pay. (See, e.g., Matter of Mason v Perrotta, 41 AD2d 916.) Thus, notwithstanding an eventual finding of misconduct, the officer would be entitled to receive back pay for a period which would include the interim between the date of conviction and the date of discharge. Where a conviction is reversed for a legal technicality in no way indicative of innocence, the public should not be required to continue to pay the officer’s salary until its interest is ultimately vindicated.

In weighing the interest of a public officer convicted of a felony, whether justly or unjustly, against that of the public, the balance must be struck in favor of the public’s right to rest assured that its officers are individuals of moral integrity-in whom they may, without second thought, place their confidence and trust. (See Matter of Pauley v Noeppel, 1 Misc 928, 931, supra; 30 Col L Rev 1045, 1050.) A felony conviction, notwithstanding its reversal on appeal, may in many cases shatter this ideal. To avoid this occurrence, we believe the Legislature has chosen to vacate a public office upon the officer’s conviction of a felony. More than 50 years ago we so held in Matter of Obergfell (239 NY 48, supra) and the Legislature has not changed or amended the substance of section 30 since our decision. In the face of this clear statutory directive, the courts lack the power to order the reinstatement of a former officer or an award of back pay based upon the subsequent reversal of the officer’s conviction.

In a similar vein, an attorney, as an officer of the court, who is convicted of a felony is ipso facto disbarred. (Matter of Mitchell, 40 NY2d 153, 156; Matter of Barash, 20 NY2d 154, 157; Matter of Ginsberg, 1 NY2d 144, 147.) Reversal of the conviction does not automatically restore the attorney to the Bar. (Matter of Ginsberg, supra.) To attain this relief, the attorney must make a motion for reinstatement. (Matter of Barash, 20 NY2d, at p 158, supra.) In deciding whether to grant a motion to reinstate, the Appellate Division has discretion under section 90 of the Judiciary Law "to take a realistic view of all of the circumstances in the case in order to prevent injury to clients or to the public.” (Id., at p 159.) To this extent, an attorney’s restoration to the Bar cannot be said to be automatic. Nor if and when granted is such restoration retroactive — there remains the period of disbarment from the date of the conviction to the date of restoration.

Moreover, unlike the power exercised by the Appellate Division in determining whether a disbarred attorney should be restored to the Bar, it is not the courts which possess the discretion to reinstate a public officer whose felony conviction has been reversed on appeal. That decision, as in the case of an initial appointment to public office, lies in the discretion of the governmental agency in which the officer was employed. (Matter of Pauley v Noeppel, 1 Misc 928, 932, supra.)

For the reasons stated, the certified question is answered in the negative and the order of the Appellate Division modified, with costs, to provide that petitioner is not entitled to back pay for the period after May 24, 1973, the date his office as a correction officer became vacant.

Fuchsberg, J.

(dissenting). A matter of great public interest indeed is involved in this case. It is that a statute not be unnecessarily interpreted in a manner resulting in the unconscionable treatment of members of the public.

Peter Toro, a New York City Corrections Officer who enjoyed a blameless prior record, was suspended as the immediate result of criminal charges brought against him on the basis of an incident unrelated to his employment. After a flawed trial produced a conviction, the Appellate Division, Second Department, in an opinion in which it minced no words, found that Toro’s arrest had been the result of an erroneous identification which had led to a complete miscarriage of justice. Under no circumstances does the language of that court justify the characterization of the basis for the petitioner’s vindication as a "legal technicality”, whatever place such a term may possibly have in some other jurisprudential context. Accordingly, it dismissed the charges on the merits both on the facts and on the law (People v Toro, 44 AD2d 848).

The Department of Corrections, acting sua sponte, thereupon promptly ordered Toro’s unconditional reinstatement. Toro made application for payment of the wages of which he had been deprived during his suspension. After delaying for a year, during which his departmental superiors supported his right to be paid, the city rejected his demand. This article 78 proceeding followed.

The Supreme Court Justice who heard the case at Special Term awarded judgment directing payment of all wages which Toro would have received between the date when he was suspended and the date when he was reinstated, inclusive of contract raises which became effective in the interim, but less uniform allowances, vacation pay and any moneys he had earned during that period. The Appellate Division, First Department, by a divided court, upheld that decision, except to the extent of disallowing payment for the first 30 days of the suspension. Notedly, the two dissenters differed from the majority only in that they would have limited the back pay to the period preceding the date of conviction at trial; all five Justices agreed on the injustice suffered by the petitioner, the majority terming it "grave”, the dissenters "great”.

On this appeal to us, the issue is whether a civil servant who ultimately is found innocent of any criminal culpability whatsoever is within the embrace of section 30 (subd 1, par e) of the Public Officers Law, which provides that every office becomes "vacant upon * * * [the] conviction [of the incumbent thereof] of a felony, or a crime involving a violation of his oath of office”. Is it not a fundamental precept of justice that, once it is finally decided that an accused has been falsely charged and, on this basis, has been proved guiltless, he is, so far as reasonably possible, to be treated as though he had never been accused at all?

The question answers itself. It does not do so for the first time here. Legal philosophers have long wrestled, not with whether the wrong should be righted, but with how best to do so (see Nixon, Voltaire and the Calas Case [1962], p 198; Borchard, Convicting the Innocent: Errors in Criminal Justice [1932], p 37).

The salutary effect on public confidence in government that flows from realization of the natural societal urge to return a falsely accused individual to his or her status quo ante is not to be underestimated. The moral values so indorsed far outweigh the alarums sounded by the majority. So far as any dislocation of personnel is concerned, it would hardly call for much administrative ingenuity to arrange that appointment to a post vacated by an occupant whose case is still in the appellate process be conditioned on the possibility of a reversal. In Toro’s case the reality not only is that his position remained available but that, having been vindicated on the merits, he was welcomed back with open arms. Certainly, in any event, "the prospect of financial impact” should not "dictate the judicial outcome” (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90).

Significantly, section 30 of the Public Officers Law itself provides no specific guidance with regard to suspended wages in circumstances where a conviction has been rendered nugatory by a superseding determination that it was totally unfounded. The statute’s complete silence on the subject makes it difficult to imply an undeserved forfeiture.

It is familiar doctrine that a statute imposing a penalty or forfeiture is to be strictly construed (Osborne v International Ry. Co., 226 NY 421, 426; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 271, 273; 82 CJS, Statutes, § 389). Unless plain and unequivocal language so requires, "a 'penalty cannot be raised by implication, but must be expressly created and imposed’ ” (Health Dept. of City of N. Y. v Knoll, 70 NY 530, 536; see, also, United States v Weitzel, 246 US 533, 543 [Brandéis, J.]; Verona Cent. Cheese Co. v Murtaugh, 50 NY 314, 317). This principle of sound statutory construction especially interdicts an interpretation of section 30 which unnecessarily would run counter to the quest for fundamental fairness to persons who ultimately are found to have been entirely innocent of any wrongdoing. An opposite view would literally add injury to insult.

Matter of Obergfell (239 NY 48, 50), relied on by the majority, does not require a contrary result. That case arose in a much different matrix. The petitioner there was an elected official. A Mayor who had obtained a stay pending the appeal of his criminal conviction, he sought an order directing the board of elections to disregard the city clerk’s certification that his office was vacant. At the time the court affirmed the denial of the application, the conviction was still in full force and effect and there was therefore at most a "possibility” that it eventually might be reversed. Thus, the decision in Obergfell represents only an application of the rule that the term "conviction”, as used in statutes providing for disabilities, disqualifications, or forfeitures, should be construed to mean an undisturbed judicial finding of guilt (see, e.g., Matter of Mitchell, 40 NY2d 153; Matter of Robinson v Board of Regents, 4 AD2d 359, mot for lv to app den 3 NY2d 708; cf. Matter of Keogh v Wagner, 20 AD2d 380, 384-385, affd 15 NY2d 569). It did not determine the issue before us, i.e., the effect of an unmistakable and unqualified final exoneration.

For these reasons, the certified question should be answered in the affirmative and the order affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones and Cooke concur with Judge Jasen; Judge Fuchsberg dissents in part and votes to affirm in a separate opinion in which Judge Wachtler concurs.

Order modified, with costs, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

      . The Appellate Division believed subdivision 3 of section 75 of the Civil Service Law required the modification. Since Toro has not cross-appealed, it is unnecessary to reach the merits of that question (see Little Joseph Realty v Town of Babylon, 41 NY2d 738, 746; People v Consolidated Edison Co. of N. Y., 34 NY2d 646, 648; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474).

      . Matter of Pauley v Noeppel (1 Misc 2d 928), Matter of Smith v Noeppel (204 Misc 49), Tourjie v Noeppel (120 NYS2d 478) and Opinions of the State Comptroller (vol 15, 1959, p 437), all cited by the majority, are premised on a far broader reading of Obergfell than that decision warranted. Compare Matter of Learman v Roche (176 Misc 980).


source: Caselaw Access Project

author: Chief Judge Breitel. Cooke, J. Jasen, J.

license: Public Domain

text:
    Susan Rapp et al., and All Other Similarly Situated Employees of the State of New York, Respondents, v Hugh L. Carey, as Governor, et al., Appellants.
    Argued January 12, 1978;
    decided March 29, 1978

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Michael F. Colligan, Ruth Kessler Toch, Peter M. Fishbein, Richard C. Seltzer and Ettie Ward of counsel), for appellants.
    I. The Governor’s issuance of the executive order is a valid exercise of his constitutional authority and responsibility to oversee the executive branch. (Matter of Di Brizzi [Proskauer], 303 NY 206; Evans v Carey, 40 NY2d 1008; Exchange Nat. Bank of Chicago v Abramson, 295 F Supp 87.) II. The executive order is a proper implementation by the Governor of legislative policy. (Matter of Broidrick v Lindsay, 39 NY2d 641; Illinois State Employees Assn. v Walker, 57 Ill 2d 512, cert den sub nom. Troopers Lodge No. 41 v Walker, 419 US 1058; Matter of Di Brizzi [Proskauer], 303 NY 206.)

      Bartley J. Costello, III, and Bernard J. Malone, Jr., for respondents.
    I. An executive order may supplement or implement constitutional or legislative mandates. (Youngstown Co. v Sawyer, 343 US 579; Matter of Broidrick v Lindsay, 39 NY2d 641.) II. The New York State Constitution does not grant power to the Governor to promulgate Executive Order No. 10.1. III. The Legislature has not provided the Governor with authority to issue Executive Order No. 10.1. (Matter of Small v Moss, 279 NY 288; Matter of Goelet v Moss, 248 App Div 499, 273 NY 503; Edenwald Contr. Co. v City of New York, 86 Misc 2d 711, 47 AD2d 610; Fifth Ave. Assn. v Lindsay, 73 Misc 2d 111, 41 AD2d 1031; Matter of Di Brizzi [Proskauer], 303 NY 206; Matter of Weil v New York State Comm, to Investigate State Agencies in Relation to Pari-Mutuel Harness Racing, 205 Misc 614, 283 App Div 808; Fischer v Citizens Committee, 72 Misc 2d 595; Matter of Sigety v Hynes, 38 NY2d 260; Matter of Littleton, 129 Misc 845; People ex rel. Steckler v Warden of City Prison, 259 NY 430; Farmer’s Bank of Fayetteville v Hale, 59 NY 53; 103 Park Ave. Co. v Exchange Buffet Corp., 242 NY 366.) IV. Executive Order No. 10.1 mandates an additional test for qualification for public office in violation of the State Constitution. (People ex rel.

      Devery v Coler, 173 NY 103; Matter of Benzow v Cooley, 22 Misc 2d 208.)
   OPINION OF THE COURT

Chief Judge Breitel.

Defendants, the Governor and the State Board of Public Disclosure, appeal from the Appellate Division’s unanimous affirmance of an order granting summary judgment to plaintiffs, State employees, and declaring the Governor’s Executive Order No. 10.1 (9 NYCRR 3.10) unconstitutional. The disputed order purports to require a wide range of State employees within the executive branch to file multidetailed personal financial statements with the Board of Public Disclosure, and to abstain from various political and business activities.

The issue is whether under the State Constitution the Governor may, by executive order, without benefit of authorizing legislation, mandate on State employees, many not subject to removal by the Governor, the filing of financial disclosure statements, and the abstention from activities not prohibited by statute. Not at issue is the wisdom of requiring such statements and prohibiting the proscribed activities, or the hardly doubted power to impose such requirements by appropriate legislation.

There should be an affirmance. Neither in the Constitution nor in the statutes is there express or implied authority for the Governor to exact of State employees compliance with the requirements of Executive Order No. 10.1. Nor does the Governor’s order merely implement existing legislation relating to conflicts of interest. The order reaches beyond that, and assumes the power of the Legislature to set State policy in an area of concededly increasing public concern.

The executive order was promulgated by the Governor on October 22, 1976. Paragraph II, which requires annual filing of a financial disclosure statement, prohibits service in political party office, and regulates outside employment and activity, applies to the following employees: (1) employees of the executive department and other State departments and agencies headed by gubernatorial appointees or nominees (a) whose annual State salary is at least $30,000; or (b) who hold nonsecretarial, nonclerical positions classified as managerial or confidential; and (2) members of the governing bodies of State entities, if the member is appointed or nominated by the Governor and receives more than $15,000 per year in compensation from the State. Paragraph III, which also requires filing of a financial disclosure statement, but does not contain the same prohibitions on outside activity, applies to members of governing bodies of State entities, if the member is appointed by the Governor and receives State compensation which amounts to no more than $15,000. The State Board of Public Disclosure, first established by the Governor in Executive Order No. 10 (9 NYCRR 3.10), an earlier more limited attempt to regulate potential conflicts of interest, was continued to administer the new executive order.

The agencies purportedly covered by the executive order are not confined to the executive department, a department that is but one of many in the executive branch. It also extends to other State departments and many so-called independent agencies, such as public authorities, over which the Governor had no general control or powers of supervision or operation.

On November 1, 1976, the State board directed covered employees to complete financial disclosure statements and return them to the board by December 1. This action was brought by covered employees to have the order declared unconstitutional and to enjoin its enforcement. Special Term granted the requested relief, and a unanimous Appellate Division affirmed.

Not at issue is the constitutionality of a statute requiring financial disclosure by public employees and officers. It was implied, necessarily, that a statute to that effect would be valid in Evans v Carey (40 NY2d 1008, affg 53 AD2d 109; see, also, Hunter v City of New York, 44 NY2d 708, decided simultaneously with this case, affg on opn at 58 AD2d 136). In Evans, however, although, as here, an executive order was involved, no contention was made that a statute, rather than an executive order, was necessary to compel the desired financial disclosure or prohibit the described activities. Plaintiffs in Evans instead argued that financial disclosure could not be required of public employees at all.

In Hunter v City of New York (58 AD2d 136, 140-141, affd 44 NY2d 708, supra), Mr. Justice Birns provides a framework for evaluating contentions that financial disclosure requirements intrude on an asserted right of privacy. The issue is actually one of due process of law, since privacy is but a subcategory of liberty, which may not be denied without due process. The test, then, is whether there has been " 'protection of the individual against arbitrary action’ ” (58 AD2d, p 141, quoting Ohio Bell Tel. Co. v Commission, 301 US 292, 302 [Cardozo, J.]). This issue of privacy, if that it be deemed, was and is determined by the Evans case and the Hunter case, decided simultaneously with this.

The executive power of the State, vested in the Governor, is broad (see NY Const, art IV, §§ 1, 3; Executive Law, arts 2, 3). In his capacity to oversee, even beyond his responsibility to operate, the Governor may investigate the management and affairs of any department, board, bureau, or commission of the State (Executive Law, § 6). This investigatory power, which includes the power to subpoena witnesses, as well as to require the production of books and papers, and which authorizes the Governor to delegate the investigatory function to persons appointed by him for that purpose, permits the Governor to exercise considerable vigilance, but not necessarily direction, in protecting against conflicts of interest. The Constitution and statutes thus recognize explicitly the need for and the power in the Governor to oversee, but again not necessarily to direct, the administration of the various entities in the executive branch.

The Governor may also direct the Attorney-General to inquire into matters "concerning the public peace, public safety and public justice” (Executive Law, § 63, subd 8). Implementation of this power is illustrated by Governor Dewey’s creation in 1951 of the New York State Crime Commission to investigate the relationship between organized crime and State government (see Matter of Di Brizzi [Proskauer], 303 NY 206, 211-216).

There are, however, limits to the breadth of executive power. The State Constitution provides for a distribution of powers among the three branches of government (see NY Const, art III, § 1; art IV, § 1; art VI). This distribution avoids excessive concentration of power in any one branch or in any one person. Where power is delegated to one person, the power is always guided and limited by standards. In fact, even the Legislature is powerless to delegate the legislative function unless it provides adequate standards (Packer Coll. Inst. v University of State of N. Y., 298 NY 184, 189). Without such standards there is no government of law, but only government by men left to set their own standards, with resultant authoritarian possibilities.

Defendants cite numerous instances, reaching far back into the State’s history, in which the Governor has acted by "executive order”, although not usually so denominated. But, until 1950, none of those orders had any rule-making component. They were emergency measures later submitted to the Legislature for ratification, actions taken pursuant to an unchallenged constitutional or statutory power of the Governor, or proclamations without significant legal effect. (See, e.g., 3 Lincoln, Messages from the Governor, pp 38-40 [proclamation calling Legislature into Extraordinary Session].) After 1950, there were a number of different types of orders which were seemingly cast in a rule-making mold, but were repetitive of existing legislation as to standards and implemented the enforcement of those standards by voluntary arrangements, directions for co-ordination, or the interposition of mediatory bodies (see, e.g., Executive Order Establishing Code of Fair Practices, 1960 Public Papers of Governor Nelson A. Rockefeller, p 1130; Executive Order for Resolution of Employee Complaints, 1950 Public Papers of Governor Thomas E. Dewey, p 613). Assuming they were valid, as they undoubtedly were in large measure, the order in this case goes beyond any of them.

It is true that in this State the executive has the power to enforce legislation and is accorded great flexibility in determining the methods of enforcement (see NY Const, art IV, § 3). But he may not, as was recently said of the Mayor of the City of New York, "go beyond stated legislative policy and prescribe a remedial device not embraced by the policy” (Matter of Broidrick v Lindsay, 39 NY2d 641, 645-646). And, as noted in the Broidrick case, decided unanimously by this court, the flexibility allowed the executive in designing an enforcement mechanism depends upon the nature of the problem to be solved (id., p 646). Where it would be practicable for the Legislature itself to set precise standards, the executive’s flexibility is and should be quite limited.

Defendants seek to justify the executive order as an implementation of section 74 of the Public Officers Law. That statute, called a code of ethics for State officers and employees, provides guidelines designed to eliminate substantial conflicts of interest between State duties and private interests. Together with section 73 of the Public Officers Law, which, as opposed to guidelines, contains absolute rules and proscriptions, section 74 constitutes the legislative policy of the State in the conflict of interest area.

Crucial is the contrast between sections 73 and 74, enacted together in 1954 (L 1954, chs 695, 696). In section 73 the Legislature enacted a blanket prohibition of conduct by State employees thought to be detrimental to State interests. The prohibited conduct and the employees to which each prohibition applies are carefully described. In addition, subdivision 6 of the statute mandates public disclosure of a circumscribed category of investments by certain State employees and officers. Thus, in section 73 the Legislature demonstrated its ability and readiness to proscribe specified transactions peculiarly vulnerable to conflicts of interest, transactions in "definable areas on which there should be no disagreement” (Governor’s Memorandum on Approval, 1954 Public Papers of Governor Thomas E. Dewey, pp 304, 305).

Section 74 is a different type of statute. Designed to cover "areas where distinctions are close, and the differences between right and wrong not always easily ascertainable, [it] establishes] broad standards of conduct, leaving to advisory committees the process of developing a body of rules and precedents on the basis of continuing experience and trial and error” (id.).

As Mr. Justice Harold J. Hughes succinctly stated at Special Term in holding the executive order invalid, first quoting from the declaration of legislative intent accompanying enactment of section 74 (L 1954, ch 696, § 1), " 'Government is and should be representative of all the people who elect it, and some conflict of interest is inherent in any representative form of government. Some conflicts of material interests which are improper for public officials may be prohibited by legislation. Others may arisé in so many different forms and under such a variety of circumstances, that it would be unwise and unjust to proscribe them by statute with inflexible and penal sanctions which would limit public service to the very wealthy or the very poor. For matters of such complexity and close distinctions, the legislature finds that a code of ethics is desirable to set forth for the guidance of state officers and employees the general standards of conduct to be reasonably expected of them’ * * * [t]he inflexible proscriptions of the Executive Order are clearly at variance with this declaration of legislative intent” (Rapp v Carey, 88 Misc 2d 428, 431). In short, this order is not an implementation of section 74; it is a nullification of it — a nullification, however benevolent in purpose, without benefit of legislative action.

The challenged order presumes to prohibit service in political party office by all State employees covered by paragraph II, not just by the small group of officials of high rank named in subdivision 8 of section 73 of the Public Officers Law. The order, again without any apparent statutory authority, would also prohibit, except on permission of the Board of Public Disclosure, all types of privately compensated employment by State employees. That the dual loyalties engendered by this dual employment may rightly be condemned is not the issue. The crux of the matter is the determination by the Legislature, implicit in its enactment of the code of ethics, that the existence of conflicts in these areas is to be determined on a case-by-case basis, not by use of blanket prohibitions.

None of this is to say that the Governor may not require that his appointees, serving at his will, abstain from transactions or business associations that potentially conflict with State duties. The Governor is, of course, free to regulate the business activities of employees serving at his pleasure. The same cannot be said, however, of employees who have civil service tenure, or even gubernatorial appointees who serve for fixed terms. These employees may not be removable except for cause, and are thus not subject to summary dismissal by the Governor. The challenged executive order exceeds the Governor’s power of appointment and reaches employees who could be neither directly appointed nor summarily dismissed by the Governor. As to these employees, the Governor is without power to impose the strictures contained in the executive order.

The restriction on political activities is particularly troublesome. While the restriction on the merits would be supported by many or even most, it involves a broad question of policy, hardly resolvable by other than the representatively elected lawmaking branch of government, the Legislature.

The out-of-State cases relied upon by defendants are not on point. True, in Illinois State Employees Assn. v Walker (57 Ill 2d 512, cert den sub nom. Troopers Lodge No. 41 v Walker, 419 US 1058), the Illinois Supreme Court upheld the Governor’s power to issue an executive order requiring financial disclosure statements. But that holding rested squarely on the Illinois Constitution which provided that all "holders of state offices and all members of a Commission or Board created by this Constitution shall file a verified statement of their economic interests, as provided by law” (111 Const, art XIII, § 2, quoted in 57 111 2d, p 518). No similar provision may be found in the Constitution or statutes of this State.

Shapp v Butera (22 Pa Commw Ct 229) involved the status under the Pennsylvania "Right to Know Act” of financial disclosure statements filed pursuant to an executive order issued by the Governor. The Commonwealth Court of Pennsylvania, in concluding that the statements filed were not subject to public examination, inspection, and copying, noted that "[t]he financial statements requested by the Governor had no more legal effect than a request by the Governor to have birthday greetings sent to him” (id., p 237). By contrast, the present executive order was designed to be mandatory, not merely an invitation to voluntary compliance.

In Opinion of Justices (— NH —, 360 A2d 116) the New Hampshire Supreme Court sustained a resolution adopted by the Governor and council to the extent that the resolution stated a policy prohibiting employment of elective officials in the executive branch, but struck down provisions restricting the right of elective officials to do business with the State. The court concluded "[hjowever desirable comprehensive legislation in the area of conflict of interest may be, the enactment of such legislation is the prerogative and responsibility of the legislature and not of the executive” ( — NH —, —, 360 A2d, p 122).

The sister State cases, therefore, present problems different from the ones created by the instant executive order. Moreover, they do not and could not bear significantly on the issue in this case, arising as it does under this State’s particular constitutional and statutory provisions. The sister State cases are useful principally to show how other States have reacted to the use of executive orders in the conflict of interest area, and as such, they are either inconclusive, or largely supportive of the general principles here discussed.

The crux of the case is the principle that the Governor has only those powers delegated to him by the Constitution and the statutes. On the principle, there is general agreement (see, e.g., Shapp v Butera, 22 Pa Commw Ct 229, supra; Opinion of Justices, — NH —, 360 A2d 116, 122, supra; cf. Illinois State Employees Assn. v Walker, 57 Ill 2d 512, 518, supra). There should be no less agreement on application of the principle to the facts of this case. On no reasonable reading of the Constitution, the Executive Law, or the relevant provisions of the Public Officers Law can the Governor’s exercise of legislative power, exemplified in the executive order, be sustained.

Under our system of distribution of powers with checks and balances, the purposes of the executive order however desirable, may be achieved only through proper means. No single branch of government may assume a power, especially if assumption of that power might erode the genius of that system. The erosion need not be great. "Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department” (People v Tremaine, 252 NY 27, 57 [concurring opn per Crane, J.]).

Finally, it is quite significant that in the Hunter case (supra) in which this court has sustained, in large part, the validity of the local law, the City Council of the City of New York enacted, as a legislative matter, the financial disclosure requirements imposed on city employees. The Governor’s objective may be achieved by obtaining the requisite legislation. Critical, however, is that any difficulty or even impossibility of obtaining legislation through the constitutionally prescribed mechanisms may not be made a source of executive lawmaking power where none otherwise exists.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Cooke, J.

(dissenting in part). I respectfully dissent.

The power and position of the Governor of the State of New York should not be thwarted by a declaration that his order is unconstitutional and invalid — either as a matter of law or State policy. Executive power of the State is vested constitutionally in the Governor and by statute he is authorized at any time to examine and investigate the management and affairs of any department, board, bureau or commission of the State. The Governor was empowered within this framework, therefore, to issue the order requiring applicable officers and employees of the State to file financial statements, the exercise of this power being consistent with and in implementation of the State code of ethics. Far from nullifying and completely counteracting the force and effectiveness of the code of ethics, the order in this respect would implement its provisions and thus breathe life into the legislative scheme. When acting in the exercise of his executive powers, as in this respect, the Governor of the State should be immune from judicial interference (Gaynor v Rockefeller, 21 AD2d 92, 98, affd 15 NY2d 120).

As a matter of law, as head of the executive department, the Governor is authorized to regulate the activities of those officers and employees functioning wholly within that department. From the standpoint of policy alone, it would be anomalous indeed to hold the Governor responsible for the faithful execution of the laws, if at the same time he is refused control over the human agencies whom he must necessarily employ for that purpose.

Executive Order No. 10.1 represents an attempt by the Governor to provide a framework pursuant to which he might ascertain whether certain State officers and employees (hereafter referred to as "employees”) are abiding by high ethical standards required of them in the performance of their duties. That order, to the extent that it is grounded on powers conferred expressly or by necessary implication either by the Constitution or by statute, thereby voicing the will of the people or the Legislature, should be upheld and enforced.

Briefly, Executive Order No. 10.1 (9 NYCRR 3.10) establishes rules and regulations with respect to conflicts of interest and ethical standards for certain high-level State employees to be administered, but not enforced, by the Board of Public Disclosure (Board). A broad prophylactic device, the order: requires covered employees to file a detailed financial disclosure statement with the Board; prohibits these employees from holding any office in a political organization or from serving as a member of a political party committee or the national committee of a political party; and, subject to such exceptions as the Board may make, prohibits covered employees from holding any public office or engaging in any outside employment for which direct or indirect compensation is received. Upon finding a conflict of interest or breach of ethical standards, the Board must communicate this to the Governor, who may take appropriate action in accordance with the law.

Being bound by this court’s determination that the financial disclosure portion of the order is substantively constitutional (Evans v Carey, 40 NY2d 1008), plaintiffs instituted this action for a declaration that the order is unconstitutional in that it is an executive usurpation of power residing wholly within the legislative domain and, hence, is violative of the separation of powers doctrine. Both Special Term and the Appellate Division found the order an unconstitutional exercise of legislative power by the Governor, inasmuch as it expands and extends existing legislation relating to conflicts of interest and ethical standards for State employees (Public Officers Law, §§ 73, 74). For the reasons which follow, the order of the Appellate Division should be modified to provide: (1) that Executive Order No. 10.1 is valid and enforceable in toto with respect to State employees whose functions are wholly within the executive department; and (2) that the portion of the order pertaining to financial disclosure is similarly valid and enforceable with respect to all other covered State employees.

I — Executive Department Officers and Employees

As chief executive officer of the State, the Governor functions in a dual capacity. His primary responsibilities, as delineated in the Constitution, include the power to make recommendations to the Legislature, the duty to approve or veto legislative enactments and the requirement that he "take care that the laws are faithfully executed” (NY Const, art IV, §§ 3, 7). Although an equal partner with the legislative and judicial branches of the government, the Governor, as head of the executive department, bears sole responsibility with respect to the oversight and internal functioning of that department (NY Const, art IV, § 1; Executive Law, § 30). In acting upon that responsibility, the Governor may promulgate any rules and regulations he determines are necessary to ensure the efficient operation of the executive department (Opinion of Justices, — NH —, 360 A2d 116; cf. Myers v United States, 272 US 52).

Thus, by virtue of the authority vested in him as chief of the executive department of the State government, the Governor possesses both the power and the duty to regulate the eligibility for employment and the conditions to be met for continued employment of persons within that department (Exchange Nat. Bank of Chicago v Abramson, 295 F Supp 87, 92; Opinion of Justices, — NH, at p —, 360 A2d, p 121, supra). So long as the Governor confines the scope of the order to employees wholly within the executive department (see Executive Law, § 31) and the scope of the order is not violative of any specific constitutional proscriptions (Evans v Carey, 40 NY2d 1008, supra; cf. Powell v McCormack, 395 US 486), neither the legislative nor judicial branches are free to interfere, "it being a basic part of the organic law that each department should be free from interference, in the discharge of its own functions and peculiar duties, by either of the others” (Matter of Gottlieb v Duryea, 38 AD2d 634, 635, affd 30 NY2d 807, cert den 409 US 1008; see, also, Matter of Davies, 168 NY 89, 101-102; People ex rel. Burby v Howland, 155 NY 270, 282).

Thus, insofar as Executive Order No. 10.1 regulates the activities of State employees whose duties are confined wholly within the executive department, its promulgation represents an exercise of the Governor’s ancillary powers to effectuate the proper workings of that department. The Governor has not only the right to ascertain whether conflicts of interest or unethical behavior exist in his department, he has an affirmative duty to assure that none of his subordinates responsible for execution of executive duties are tainted by outside interests which would undermine his responsibility to "take care that the laws are faithfully executed” (NY Const, art IV, § 3). Should the Governor fail in this duty, he may be impeached. Apart from impeachment, the electorate may refuse to grant him another term of office. The Governor’s reputation and honor are unmistakably intertwined with the ability to do those things that his constitutional duties require. His control over those subordinates he must employ should not be circumscribed by the judiciary under the guise of a separation of powers inquiry.

II — Financial Disclosure by Covered Officers and Employees

Whereas the power of the Governor to promulgate Executive Order No. 10.1 with respect to employees in the executive department arises from his position as head of that department of government, a different analysis is necessary with respect to application of the order to nonexecutive employees. Ours is a system in which governmental powers are distributed among three branches — the executive, legislative and judicial. This separation of governmental powers, however, does not inflexibly ordain that the functions of each branch of government be kept wholly and entirely separate and distinct; rather "[t]he true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other depart-merits” (Story’s Constitution [5th ed], p 393; see, also, Madison, The Federalist, No. XLVII, p 268). The validity of Executive Order No. 10.1, then, is dependent upon a showing that it was promulgated to effectuate the provisions of the Constitution or an act of the Legislature (see Matter of Broidrick v Lindsay, 39 NY2d 641, 646; Matter of Di Brizzi [Proskauer], 303 NY 206, 216). Absent this afore-mentioned showing of purpose, the act of the Governor would be tantamount to legislation by executive fiat, a clear violation of the separation of powers doctrine (see, e.g., People ex rel. Ingenito v Warden, 267 App Div 295, 299-300, affd 293 NY 803).

It is therefore necessary to examine the statutory scheme evidenced by the prohibition against conflicts of interest (Public Officers Law, § 73) and the code of ethics (Public Officers Law, § 74) in order to ascertain whether Executive Order No. 10.1 does in fact usurp legislative prerogatives. Section 73 of the Public Officers Law, forbidding certain enumerated conflicts of interest, was enacted in recognition of an express desire to guarantee that the governmental process not be subverted by official corruption and inefficiency, as well as the necessity of the "maintenance in public affairs of moral and ethical standards which are worthy and warrant the confidence of the people” (Message from Governor Dewey to the Legislature, Jan. 6, 1951). At the same time, it was recognized that it would be nothing less than a Sisyphean task for the Legislature to identify and proscribe all conflicts of interest in the myriad settings in which they might arise (cf. Fritz v Gorton, 83 Wn 2d 275, app dsmd 417 US 902), thus necessitating the establishment of a code of ethical standards for all State employees in the performance of their duties (Public Officers Law, § 74).

Accordingly, in a preamble to the code of ethics the Legislature recognized that because improper conflicts "may arise in so many different forms and under such a variety of circumstances”, that it was not only impractical but "unwise and unjust to proscribe them by statute with inflexible and penal sanctions” and that "[f]or matters of such complexity and close distinctions, the legislature finds a code of ethics is desirable to set forth for the guidance of state officers and employees the general standards of conduct to be reasonably expected of them” (L 1954, ch 696, § 1). Of necessity, then, the code of ethics is couched in broad, general terms. Thus, subdivision 3 of section 74 of the Public Officers Law provides that no State employee: (a) "should accept other employment which will impair his independence of judgment in the exercise of his official duties”; (e) "should engage in any transaction as representative or agent of the state with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties”; (g) "should abstain from making personal investments in enterprises which he has reason to believe may be directly involved in decisions to be made by him or which will otherwise create substantial conflict between his duty in the public interest and the private interest”; and that (i) "No officer or employee of a state agency employed on a full-time basis nor any firm or association of which such an officer or employee is a member nor corporation a substantial portion of the stock of which is owned or controlled directly or indirectly by such officer or employee, should sell goods or services to any person, firm, corporation or association which is licensed or whose rates are fixed by the state agency in which such officer or employee serves or is employed.”

Although the code of ethics does make provision for the discipline of a State employee in violation of its proscriptions (Public Officers Law, § 74, subd 4), it would be folly to place reliance on the individuals subject to its coverage to determine the limits of their proper conduct and to reveal the circumstances in which their own improprieties may exist. Hence, in order to make the code a viable one and to accomplish the legislative purpose, executive action is not only proper; it is of manifest necessity. It is in precisely this context that we so recently stated: "Where it is impracticable for the legislative body to fix specific standards for enforcement without destroying the flexibility necessary to meet the variety of circumstances likely to be encountered in carrying out the legislative will, broad flexibility in determining the proper methods of enforcement will be sustained” (Matter of Broidrick v Lindsay, 39 NY2d 641, 646, supra).

Concededly, there is no express provision in the code of ethics empowering the Governor to require disclosure of the financial interests of those State employees subject to Executive Order No. 10.1. On the other hand of course, there is no language in the code which would lead to the conclusion that the Legislature intended to exclusively occupy the field of governmental ethics. Indeed, the Legislature explicitly recognized that it was necessary that the code be implemented in a manner consistent with its purpose. It is in such a context that executive enforcement of a general legislative statement is proper (St. Nicholas Cathedral v Kedroff, 302 NY 1, 31). Here, the disclosure sought by the Governor is consistent with the. policies underlying the ethics legislation and should be upheld (see Illinois State Employees Assn. v Walker, 57 Ill 2d 512, cert den sub nom. Troopers Lodge No. 41 v Walker, 419 US 1058; Shapp v Butera, 22 Pa Commw Ct 229). In short, there is no going "beyond stated legislative policy”, but rather adherence to it (see Matter of Broidrick v Lindsay, 39 NY2d 641, 645-646, supra).

The Governor’s authority to order financial disclosure of State employees by means of Executive Order No. 10.1 is fully supported by section 6 of the Executive Law, which empowers the Governor "either in person or by one or more persons appointed by him for that purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state.” This power to investigate whether State agencies are operating efficiently is coexistent with the power to ascertain whether State employees are performing their duties free from corruption or conflicts of interest in discharge of the Governor’s duty to "take care that the laws are faithfully executed” (see 1915 Opns Atty Gen 353, 354). Moreover, it is essential that the Governor obtain the information sought by Executive Order No. 10.1 so that if there are defects in the present code of ethics which affect the "condition of the state” (NY Const, art IV, § 3), the Governor might communicate them to the Legislature together with appropriate recommendations for their elimination (Matter of Di Brizzi [Proskauer], 303 NY 206, 216, supra; see, also, Matter of Sigety v Hynes, 38 NY2d 260, cert den 425 US 974).

In sum, Executive Order No. 10.1, in requiring a statement of financial disclosure of nonexecutive State employees is a proper vehicle for implementation of the broad legislative policy evidenced in sections 73 and 74 of the Public Officers Law which have the salutary purpose of eliminating corruption and conflicts of interest in State government. Here, the Governor has not encroached upon legislative prerogatives; rather, he has merely supplied the ingredients required to fill in the interstices of the statutes by fashioning a discovery device necessarily absent from the statutory scheme. In such an instance, "[t]he exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers” (Matter of Richardson, 247 NY 401, 410 [Cardozo, J.]).

While separation of powers is one of the principal features of our Constitution, it is the plain duty of that branch of government which is called upon to interpret the laws of this State to avoid slavish formalisms which serve only to ossify the executive without any corresponding benefit. Clearly, the function of making the laws is peculiar to the Legislature. But that is not to say that whenever the Legislature speaks on a particular subject, that subject is perforce removed from the scope of executive power. Rather, the answer is that there are some fields that are peculiar to the legislative branch, some peculiar to the executive, and others common to both. The duty of fixing the moral tone of State government and of ensuring that public servants conform their official conduct to those standards is a responsibility shared coextensively by all branches.

It is beyond cavil that the office of the Governor was deliberately fashioned as one necessarily imbued with power and independence. It is equally obvious that the framers of our Constitution did not intend to create an office in which an autocratic incumbent might arrogate any power unto himself at any time. But neither was it intended that the Governor be an automaton, constitutionally impotent to exercise the powers bestowed upon him — this being especially important at a time when, due to the events of recent years, the people demand that their public servants be free from even the barest trace of the taint of impropriety. Here, the Legislature has provided merely the bare framework within which the Governor may accomplish this task. Executive action, insofar as validly supplied by Executive Order No. 10.1, is necessary to complete it and adapt it to present day realities.

The Constitution does not denominate the Governor as merely an agent of the Legislature; nor does it ennoble him as the powerless titular head of the State. Rather the Governor is the agent of the people of the State of New York, deriving his power from them and directly responsible to them. Taken collectively, the provisions in the Constitution, providing that the Governor shall take care that the laws are faithfully executed and that the executive power shall be vested in the Governor, conclusively demonstrate that his is the office to which the people look for integrity in State government. The fact that the Legislature has perfunctorily addressed the subject does not of necessity preclude further executive action. Indeed, that the Legislature has recognized that conflicts of interest by those in State government should be avoided and that these conflicts arise in myriad settings indicates that it is incumbent that the Governor take steps to combat these conflicts and the attendant official corruption they might engender. There is no cause to fear executive tyranny so long as the laws are being faithfully executed. Certainly there is no basis for fear of executive usurpation of legislative prerogatives when the Governor acts, as he did in this case, to further the workings of a program which the Legislature itself recognized as incapable of statutory completion.

Jasen, J.

(dissenting). I would reverse the order of the Appellate Division and hold the challenged executive order constitutional in its entirety.

The Governor of the State of New York derives his power from the State Constitution, which declares that "[t]he executive power shall be vested in the governor” (NY Const, art IV, § 1), and that "[h]e shall expedite all such measures as may be resolved upon by the Legislature, and shall take care that the laws are faithfully executed” (NY Const, art IV, § 3). Not only do these constitutional mandates vest broad powers in the Chief Executive, but they also charge him with far-reaching responsibilities to effectuate the laws enacted by the Legislature. (Matter of Broidrick v Lindsay, 39 NY2d 641.) Performance of so demanding a task would indeed be impossible if executive power were not commensurate with executive responsibility. Although broad, the powers of the executive are, of course, not unbounded; the Legislature alone is constitutionally empowered to enact law (NY Const, art III, § 1), and while the Governor is forbidden to trespass into the legislative sphere, where the Legislature has spoken he is mandated to implement its will.

Executive Order No. 10.1 is not an executive incursion into the legislative realm, for it finds ample support in a legislative predicate — the code of ethics. (Public Officers Law, § 74.) In broad but clear language, the code prescribes ethical standards for officers and employees of all State agencies. "No officer or employee of a state agency* * * should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.” (Public Officers Law, § 74, subd 2.) This statute announces the policy of the State, to prevent even the slightest taint of a conflict of interest from infecting any governmental agency. No qualification attaches to this policy; its scope is not limited to one branch of government or one sort of activity. It is rather a sweeping pronouncement that ethics in government must be scrupulously promoted and preserved. Executive Order No. 10.1 is unquestionably consistent with this policy. All of its provisions — the requirement of financial disclosure, the proscriptions against holding positions in political organizations and engaging in private employment for compensation or holding other public office or employment unless authorized by the Board of Public Disclosure — implement the statutorily mandated policy of the State. In helping to assure that the legislative purpose will be achieved, the challenged executive order, rather than an unconstitutional arrogation of power, is a constitutional discharge of executive responsibility.

Since the executive order owes its validity to its legislative underpinning, the continued existence of supportive legislation is imperative to the continued validity of the order. The Legislature’s exclusive lawmaking powers, however, are in no way circumscribed by this or any other executive action. Should the Legislature adopt further measures relating to ethics in government, the executive order would have to be measured against those enactments. Only so long as the order implements the will of the Legislature, as expressed by statutes, will it remain valid.

Judges Gabrielli, Jones and Wachtler concur with Chief Judge Breitel; Judge Cooke dissents in part and votes to modify in a separate opinion; Judge Jasen dissents and votes to reverse in another opinion; Judge Fuchsberg taking no part.

Order affirmed.

APPENDIX

Executive Order No. 10.1

I. The Board of Public Disclosure established by my Executive Order No. 10, dated May 22, 1975, is hereby continued, as set forth in Paragraph III thereof. In all other respects, the provisions of Executive Order No. 10 are hereby revoked.

II. Any officer or employee of the Executive Department or of any other State department, division, board, commission, council, authority, public benefit corporation or agency, the head of which is appointed or nominated by the Governor, whose State salary is $30,000 per year or more, or who holds a non-secretarial or non-clerical position which has been classified as managerial or confidential pursuant to Section 201.7(a) of the Civil Service Law (or the equivalent thereof as determined by the Board), shall, upon the filing of an oath of office and annually on July first thereafter, file with the Board a Financial Disclosure Statement in the form prescribed by the Board, including a sworn statement of assets and liabilities, and income sources.

Any member of the governing body of any State board, commission, council, authority, public benefit corporation, or similar entity, appointed or nominated by the Governor, who receives compensation from the State, the amount of which exceeds $15,000 per year shall, upon the filing of an oath of office and annually on July first thereafter, file with the Board a Financial Disclosure Statement in the form prescribed by the Board, including a sworn statement of assets and liabilities, and income sources.

No such person shall serve as an officer of any political party or political organization, or serve as a member of any political party committee, including political party district leader (however designated), or member of a political party’s National Committee.

No such person shall engage in any activity which interferes or is in conflict with the proper and effective discharge of such person’s official duties, as determined by the Board.

Except upon a specific determination by the Board that any such activity will not interfere or conflict with the proper and effective discharge of any such person’s official duties, no such person shall:

—Hold any other public office or public employment for which compensation, direct or indirect, is received;

—Expend time or otherwise engage in any private employment, profession, business or other activity from which compensation, direct or indirect, is derived;

—Serve as director or officer of any profit making corporation or institution.

The Board may allow such activity only upon written application, and after a specific finding that such activity does not violate the intent of this Order and in no way interferes or conflicts with the proper and effective discharge of the official duties of the person making the request. In reaching its determination, the Board shall also apply the provisions of Sections 73 and 74 of the Public Officers Law. The Board shall make a determination in each such case, which shall be final. The determination of the Board in every such case shall be filed for public inspection with the Department of State in Albany. The Board shall promulgate rules governing the procedure by which such application will be considered.

The Board is hereby empowered to make such determinations with respect to defined categories of activities or defined categories of persons, which shall be applicable to all such persons.

III. Any member of the governing body of any State board, commission, council, authority, public benefit corporation, or similar entity, appointed or nominated by the Governor, who receives compensation from the State, the amount of which is $15,000 per year or less, shall, upon the filing of an oath of office and annually on July first thereafter, file with the Board a Financial Disclosure Statement, in the form prescribed by the Board.

No such person shall engage in any activity which interferes or is in conflict with the proper and effective discharge of such person’s official duties, as determined by the Board.

IV. The Board shall review Financial Disclosure Statements to assure adequate compliance and to evaluate any claims of privacy. The Board shall report to the Governor any conflict of interest or violation of this Order.

Any person required to file a Financial Disclosure Statement may request the Board to delete an item, which may be deleted by the Board only upon a finding that any such item is of a highly personal nature, does not in any way relate to the duties of the position held by such person, and does not create an actual or potential conflict of interest.

The Board shall file Financial Disclosure Statements for public viewing with the Department of State in Albany, and shall establish a procedure, to be implemented by the Secretary of State, by which the Statements may be viewed by the public.

V. The provisions of this Order shall not apply to the members of the governing body of any State board, commission, or council which performs solely advisory functions, as determined by the Board.

VI. Upon request of the Governor, the Board shall review information submitted to the Governor by any prospective appointee, and shall advise the Governor whether any actual or potential conflicts of interest exist.

VII. Any procedure, opinion or determination of the Board in effect on the date of this Order, shall remain in effect, unless modified by action of the Board.

VIII. Every State agency shall develop appropriate disclosure requirement and standards for conflict of interest, for application within the agency. Such requirements and standards shall make specific reference to employees who are not covered by the provisions of this Order. Such requirements and standards shall be submitted to the Board prior to January 15, 1977. The Board shall review these submissions and report to the Governor.

Signed: Hugh L. Carey

Dated: October 22, 1976

       The complete order is set forth in an appendix.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Andre W., Appellant.
    Argued February 10, 1978;
    decided April 4, 1978

      POINTS OF COUNSEL

      Rowan Peter Kirchheimer and William E. Hellerstein for appellant.
    I. The refusal to disclose the identity of a witness who observed the perpetrators but was unable to select a photograph of appellant from an array, without determing whether the failure to identify reflected the witness’ belief that appellant was not the youth at the scene of the crime, was error. (Simmons v United States, 390 US 377; People v Consolazio, 40 NY2d 446; People v Testa, 40 NY2d 1018; Brady v Maryland, 373 US 83.) II. The prosecutor’s summation, in which he lied about facts not in evidence, suggesting that his fear for the second little girl’s safety was the reason she was not produced, and made numerous other improper statements, deprived appellant of his right to a fair trial. (People v McDonald, 49 AD2d 589; People v Roberts, 26 AD2d 655; People v Jackson, 40 AD2d 1006; People v Ashwal, 39 NY2d 105; People v Wright, 41 NY2d 172; People v Shanis, 36 NY2d 697; People v Torres, 51 AD2d 225; People v Steinhardt, 9 NY2d 267; People v Gonzalez, 38 NY2d 208; People v Crimmins, 36 NY2d 230.)

      Robert M. Morgenthau, District Attorney (Charles H. Solomon, Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Joyiens, 39 NY2d 197; People v Seppi, 221 NY 62; People v Ledwon, 153 NY 10; People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173.) II. The Trial Judge did not abuse his discretion in denying defendant’s request that the prosecution disclose the identity of the 11-year-old companion of one of the witnesses at trial. III. Defendant was not prejudiced by the prosecutor’s summation. (People v Ketchum, 35 NY2d 740; Berger v United States, 295 US 78; People v Brosnan, 32 NY2d 254; People v Arce, 42 NY2d 179; People v Broady, 5 NY2d 500; People v Ashwal, 39 NY2d 105; People v Roberts, 26 AD2d 655; People v Jackson, 40 AD2d 1006; People v Eanes, 43 AD2d 744; People v Shanis, 36 NY2d 697; People v Lombardi, 20 NY2d 266.)
   OPINION OF THE COURT

Fuchsberg, J.

One afternoon at about 4:00 p.m., a cleaning woman alone in an empty classroom in the school where she was employed was accosted and raped by two teenagers. She immediately reported the crime and was taken to the hospital, but that day was unable to do more to identify her attackers than pick out "look-alike” photographs from an array exhibited to her by the police. However, one day about four months later, upon seeing the defendant Andre W. in the school building, she advised others then present that he was one of her assailants. This led to his arrest and subsequent adjudication as a youthful offender after a jury found him guilty of attempted robbery in the second degree and of possession of a weapon as a misdemeanor. The Appellate Division affirmed.

On this appeal, defendant contends that he was deprived of his constitutional right to a fair trial, essentially on two grounds. One is the trial court’s refusal to order disclosure of the identity of a particular witness. The other is the alleged prejudical nature of the prosecutor’s closing argument. For reasons which follow, we believe the matter should be remitted to the trial court for further proceedings in accordance with this opinion.

The trial here revolved about the issue of identification. Not surprisingly, in view of the nature and circumstances of its commission, the crime’s only witness was the victim herself. At the identification hearing, however, her testimony was so "vague and confused” that the Trial Judge commented that he would "not allow a guilty verdict to stand on the basis of this woman’s testimony”. Proof from others able to put the defendant close to the scene at the time the crime occurred therefore loomed important. Four people took the stand for that purpose.

The testimony of three of these was of limited value. Each, a school staff member, had observed Andre in the building somewhat earlier in the afternoon in question. But cross-examination elicited that Andre’s mere presence in the school was not remarkable; at that time on most days he would be there at 2:00 p.m. to pick up his younger brother and then would return somewhere between 3:00 and 4:00 p.m. to participate in an after-school activities program.

The fourth witness, a nine-year-old pupil whom we will identify by her given name Jackie, had more pointed things to say. She related how she saw the defendant and another boy with the cleaning woman at about the time of the crime in the vicinity of the very classroom in which the attack took place, and that she remembered the occasion because she and another girl who was then with her had run away when Andre had told them to "go in the staircase” and the other boy had tried to grab them. It developed that she had never reported the incident, not even when she saw defendant in the school later on; it was not until almost a year and a half later, when she was 11 and the case was about to be tried, that the girls were unearthed as witnesses and interviewed by the police for the first time.

The People never called Jackie’s companion and they refused either to produce her or supply her identity. Defendant’s counsel, arguing that this refusal constituted suppression of potentially exculpatory evidence, then moved for a mistrial. The court, on the basis of the prosecutor’s statement that the witness had exhibited an "inability to identify the defendant” when a detective had shown her an array of photographs which included one of the defendant, decided her testimony would not be exculpatory. It thereupon denied the application. The Assistant District Attorney’s remark had been made in the course of the colloquy in which he argued the motion for disclosure. Counsel also sought to obtain more detailed information concerning the contents of the conversation between the detective and the witness, specifically requesting "what she said”. This too was denied. Neither the second girl’s identity nor what she said to the police was ever disclosed.

Generally, since at least the advent of compulsory process (US Const, 6th Arndt; Washington v Texas 388 US 14, 19), it has been recognized that a prosecutor has broad discretion in the preparation and presentation of his cases (People v Fein, 18 NY2d 162, 172, app dsmd 385 US 649). Unlike the far less adversarial practice that prevailed under the old common law, when an accused had no right to call witnesses in his own behalf (8 Wigmore, Evidence, § 2190, p 67; 2 Wigmore, Evidence, § 575, p 685) and it was the State that was obligated to call and examine all persons with knowledge of the material facts (Keller v State, 123 Ind 110), a prosecutor need not put on any witness, even an eyewitness, whose testimony his own investigation convinces him would be unreliable, cumulative or irrelevant (People v Buckler, 39 NY2d 895, 897; People v Stridiron, 33 NY2d 287, 292).

Yet the prosecutor’s freedom in that regard is not absolute. He must disclose information favorable to an accused and material to guilt or punishment (Brady v Maryland, 373 US 83, 87). So, where a request is made and there is "some basis” for believing that the prosecutor may be in possession of potentially exculpatory material, "deference to the prosecutor’s discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court” (People v Consolazio, 40 NY2d 446, 453, cert den 433 US 914; see, also, People v Testa, 40 NY2d 1018, affg 48 AD2d 691, 692; People v Bottom, 76 Misc 2d 525 [Roberts, J.]). Put another way, "When there is substantial room for doubt, the prosecutor is not to decide for the court what is admissible or for the defense what is useful” (Griffin v United States, 183 F2d 990, 993).

It goes without saying that "some basis” is not a term capable of precise definition. In the context in which it is used here, it certainly contemplates more than purely subjective assertion of a defendant’s desire for information. On the other hand, a defendant is not required to demonstrate, in advance of the holding of the inquiry he seeks, that that inquiry will in fact necessarily result in a finding of materiality. Between these extremes, in most instances, disclosure rests within the compass of the Trial Judge’s sound discretion, exercised in the perspective of the issues in the particular case, the nature of the other proof known to him and other relevant circumstances, including the risk of reprisal, if any, against the witness whose identity is revealed. Beyond that, except to the extent that we do so by our decision in cases such as the present one, the quest for what Brandéis called "the true rule” must await the step-by-step and case-by-case evolution characteristic of the common law.

Thus, when confronted with an application of this type, a perfunctory inquiry generally will not do. Among other reasons, a reviewing court will not, without the benefit of a meaningful record, be in a position to know what effect the evidence would have had if it were disclosed (People v Bottom, 76 Misc 2d 525, 530, supra).

Perforce, once the Trial Judge has made sufficient inquiry, he must be allowed great leeway (see Louisell, Criminal Discovery: Dilemma Real or Apparent, 49 Cal L Rev 56, 99-101). In some cases, a statement by the prosecutor that the evidence is inculpatory (i.e., that this witness and several others have identified the defendant) may end the inquiry and lead to a denial of disclosure; in others, it may suffice for the Judge to interview the witness privately in chambers; in still others, a formal hearing, with counsel present, is required (see, e.g., Xydas v United States, 445 F2d 660, cert den 404 US 826; Pollard v United States, 441 F2d 566, 568; Levin v Katzenbach, 363 F2d 287).

In choosing his course, a Judge should be conscious that courts are not impotent to protect witnesses. For instance, fictitious names may be employed during the hearing (cf. People v Stanard, 42 NY2d 74, 84) and, if disclosure be ultimately directed, it can be delayed until the eve of trial (People v Lopez, 60 Cal 2d 223, 247, cert den 375 US 994). And it goes without saying that a court, in support of the protection it chooses to apply, has a right to call for the full cooperation of counsel as officers of the court.

The availability of a legal arsenal of protections is significant since the right of a defendant to discover a potentially material witness must be balanced against a founded fear that such discovery might lead to intimidation of the witness or the influencing of his testimony. Yet, with proper safeguards, if the evidence is of material importance to the defense on the question of guilt or innocence it should be disclosed (cf. People v Goggins, 34 NY2d 163, cert den 419 US 1012).

Returning to the present case, here there was "some basis” for further inquiry. The District Attorney’s statement characterizing the detective’s exhibition of the photographic array to the nondisclosed witness was both hearsay and conclusory in form. It could have been of but little assistance to the court. Its acceptance had the effect of yielding to the prosecution the court’s responsibility to determine the import of the requested material.

The District Attorney’s statement to the court said no more than that the pictures she had viewed in the array were not those of either of the boys she had seen on the afternoon of the crime; at no time was it suggested that the witness was or was not able to describe and remember what the youths looked like and by that description appreciably eliminate or further implicate Andre as one of the perpetrators (cf. Grant v Alldredge, 498 F2d 376; Matter of Kapatos, 208 F Supp 883). Notedly, it was not stated that the second girl had claimed a lack of recollection of initial observation. While the failure to identify could stem from a number of other unprobed possible causes, the circumstances of the initial viewing, as described by Jackie, make it unlikely that the opportunity and reason to notice the appearance of the youths was any greater in the case of one girl than the other.

Moreover, Jackie’s testimony was crucial in the framework of a case that otherwise was established only by the victim’s woefully weak identification testimony and its far from conclusive bolstering by the three people who had seen Andre at the school that afternoon. Guilt or innocence in this case hinged on identification and it was on her testimony on this issue that the People placed their main reliance. Whether the second girl’s version corroborated or negated Jackie’s story could make all the difference in the world. (Cf. United States v Agurs, 427 US 97, 112-113; United States ex rel. Meers v Wilkins, 326 F2d 135.)

The second girl’s testimony could also be vital because Jackie, though her testimony went to the heart of the issue, was not an invulnerable witness. The record reveals that she was unusually vague on dates, not an inconsequential factor in identification testimony. This shortfall was compounded by the long interval that had elapsed between the date of the crime and that of her initial interview. Also, while the Judge and jury could gain an impression of Jackie’s personal qualities — her intelligence, her imagination, her potential for making observations under stress, her ability to recollect these observations and her capacity to communicate them — her credibility could be illuminated by juxtaposition with the capacities of the other child of the same age who, seeing things from the same vantage point, ended up remembering and describing them differently. Thus, even if Jackie’s version was not directly negated by the second girl, the latter’s testimony still would not be cumulative.

Finally, save for an objectionable prosecutorial comment for which there was no support in the evidence, there is nothing to indicate that there would have been any danger to the witness had her identity been disclosed. The Assistant District Attorney pressed no such consideration upon the court during his successful argument for denial of disclosure. On this appeal, aside from its argument on materiality, the People confine themselves to the general observation that an 11-year-old child is best not exposed to the pressures of a public trial. In any event, fuller preliminary inquiry, at which any reasonable concern for the safety of one of her tender years could have been explored, would have created a better basis for the determination of what precautions, if any, were called for incident to a hearing in this case.

We conclude therefore that there should have been a hearing on the materiality of the undisclosed witness. It is for that purpose that the case is remitted to the Supreme Court, New York County.

Additionally, some observations on the summation issue are in order. In closing argument, the prosecutor, without any basis in the evidence, made a not too subtle statement from which it could be gathered that, had the second girl been called, she would have been threatened by or on behalf of the defendant; this he sought to justify because of defense counsel’s perfectly proper allusion to the fact that she had not been produced as a witness by the People. Despite the trial court’s instructions that he desist, he also persisted in repeat-, edly referring to uncharged crimes. True, objections to these were sustained, but the sting is not always completely extracted thereby. Furthermore, he actively engaged his adversary in unseemly charges and countercharges of misconduct. However, taking the present record as a whole, we do not disagree with the Appellate Division’s determination that these errors in context were not significant enough to warrant reversal. Of course, should the outcome of the hearing for which we are remitting this case result in a new trial, this issue will in any event have become academic.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order modified, and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       To be distinguished are situations in which discovery is sought of witnesses that the prosecutor intends to call at trial. While statements of potential prosecution witnesses are expressly nondiscoverable by statute (CPL 240.20, subd 3, par [b]), the lower courts have divided on the question of whether their names and addresses may be obtained prior to trial (compare, e.g., People v Green, 83 Misc 2d 583; People v Barnes, 74 Misc 2d 743; and People v Bennett, 75 Misc 2d 1040, 1056-1057, with People v Hvizd, 70 Misc 2d 654, 657). This case does not present us with occasion to resolve this conflict (cf. People v Lynch, 23 NY2d 262, 271-272).