06/20/2013 11:22 am ET Updated Aug 20, 2013

In New York: Cuomo and Investigating the Legislature

The rash of indictments, accusations and convictions of state officials has prompted a wide range of legal and political responses. High on the list has been Governor Cuomo's repeated suggestion that he will convene a Moreland Act Commission to investigate corruption in the Legislature. "I want people to pass a reform package -- if they don't, there are other options I that I can consider, one of them is a Moreland Commission."

It's not uncommon for the threat of a Moreland Act Commission to be used as leverage in resolving political disputes with the Legislature. While the merits of a Moreland Act Commission can be debated, the legal basis for the governor's suggestion is at best uncertain, if not flat wrong.

The Moreland Act was enacted in 1907 at the behest of Assemblyman Sherman Moreland, in close cooperation with Governor Charles Evans Hughes, who sought broad investigative powers in an effort to oust his own Superintendent of Insurance, whom Hughes viewed as corrupt.

The Moreland Act has been used by governors on a broad range of subjects, from harness racing to alcohol control to ethical and political corruption. It was most recently invoked by Governor Cuomo, who, after Hurricane Sandy, convened "The Moreland Commission On Utility Storm Preparation And Response."

The Act itself empowers the governor to convene a Commission to "examine and investigate the management and affairs of any department, board, bureau or commission of the state." The State Constitution defines the terms "department, board, bureau or commission" in ways that leave little doubt that the Legislature is not included. In short, the Moreland Act was neither intended to or written to permit the executive branch to investigate the other co-equal branches of government. There's little real debate about this, as evidenced by Dean John Feerick, the Chairman of the last Moreland Act Commission to investigate public corruption They are empowered to investigate the Executive Branch, "not other branches of government, however."

While this language is simple and clear, in practice Moreland Act Commissions have been stretched to include a broad range of subjects. If the governor intends to focus on the Legislature he will have to use indirect and chancy means, and may need a partner in the effort.

The subpoena power of a Moreland Act commission may include subjects and persons not immediately within the scope of the Commission charter. In other words, the governor could try to use subpoenas to bring in legislators who are not the direct subject of the Commissions work. In Weil v. New York State Harness Racing Commission, an effort was made to quash subpoenas, because they "relate[d] to ... interests in harness racing outside of the State of New York," such activities having "no connection with New York State harness racing...." The subpoenas were found valid, because while "... there is no power in the Commission to investigate harness racing outside the State; nevertheless, ... their personal connection with harness racing and tracks outside is a legitimate subject of inquiry under the broad powers granted to the Governor by the Moreland Act..."

The governor would have to stretch that ruling to subpoena legislators while investigating a state agency, likely the Board of Elections. Whether legislators have the needed clear but indirect connection to such a Moreland Act inquiry is a difficult question. If not, the governor's ability to bring legislators into the process is very limited.

A second possible means of investigating the Legislature would require the governor to give up full control of the process, and take on a partner. In some cases, a Moreland Act Commission has been merged with a second investigative body empowered to conduct investigations that affect the public interest, including the Legislature. This happens only when the governor "refers" the matter to the attorney-general. "Whenever in his judgment the public interest requires it, the attorney-general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice."

An attorney-general-led investigation is not limited by the Moreland Act, and could include an inquiry into corrupt or unethical practices by members of the Legislature.1 This double-barreled approach has been used most notably by Governor Mario Cuomo when he appointed the Commission On Government Integrity, commonly known as the Feerick Commission. Chairman John Feerick served as a Deputy Attorney General, giving the Commission much wider powers than a Moreland Act Commission alone. Governor Andrew Cuomo could make such a referral to Attorney General Schneiderman, again creating a hybrid Moreland/Attorney-General Commission to investigate the Legislature. It remains to be seen if he is willing to lose full control over the process by making the AG the lead investigator.

There are also unresolved and important constitutional considerations about the ability of the Executive Branch to investigate the Legislature under any statutory scheme.

Governor Cuomo has keen political instincts. The governor's suggestion of a Moreland Act Commission to investigate the Legislature may have practical and political consequences, but the legal pathway is more complicated and difficult than he has yet acknowledged. It will not be easy to jump these hurdles. But not impossible either.

1 The hybrid jurisdiction of the Feerick Commission over the Legislature gave rise to a serious dispute, which was resolved by a voluntary agreement by the Legislature to appear and testify.