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December 21, 2016 The Honorable Andrew M. Cuomo The Honorable John J. Flanagan Governor of the State of New York N.Y.S. Senate Temporary President & Maj. Leader N.Y.S. Capitol Building N.Y.S. Capitol Building, Room 330 Albany, NY 12224 Albany, NY 12224 The Honorable Carl E. Heastie The Honorable Andrea Stewart-Cousins Speaker of the N.Y.S. Assembly N.Y.S. Senate Democratic Conference Leader Legislative Office Building 932 Legislative Office Building 907 Albany, NY 12248 Albany, NY 12247 The Honorable Brian M. Kolb The Honorable Jeffrey D. Klein Minority Leader of the N.Y.S. Assembly N.Y.S. Senate Coalition Leader & IDC Leader Legislative Office Building 933 Legislative Office Building 913 Albany, NY 12248 Albany, NY 12247 Dear Governor Cuomo and Legislative Leaders: I write to express my strong opposition to the creation of a criminal special prosecutor for state procurement. The proposal would create a new appointed position within the executive department, serving at the pleasure of the governor, to police the procurement practices of State agencies. Such a scheme violates the fundamental checks-and-balances principle that underlies our State constitution, as it does not establish the independence required of a procurement watchdog and therefore will not achieve the real accountability and reform our State desperately needs. It is also likely unconstitutional. As the criminal indictments related to State contracting brought by both the Office of the Attorney General and the United States Attorney for the Southern District demonstrate, State procurement practices cry out for reform. We commend the Governor for proposing measures to reform this process, but to be effective, these reforms must strengthen the powers of independent officials to combat corruption in public procurement. Indeed, while several executive agencies have subpoena power and could have probed into questions of impropriety at SUNY, they did not. Instead, independent law enforcement agencies uncovered the alleged systemic abuses at SUNY Polytechnic Institute and brought criminal charges.
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Indeed, over the past five years, the Office of the Attorney General and the Office of the State Comptroller have been effective in rooting out public corruption. Through the Operation Integrity Task Force, a joint initiative between the two offices, we have prosecuted more than 70 corrupt public officials and their associates, including executive branch employees, and obtained more than $11 million in restitution. Strikingly, these successes have come even though the Office of the Attorney General has long requested – and long been denied – original criminal jurisdiction to prosecute public corruption cases without first obtaining a specific referral from the Governor, Comptroller, or another State agency. It makes little sense to establish a new executive branch prosecutor to oversee a procurement process that takes place almost entirely within the executive branch, rather than empower the Attorney General—an independent statewide constitutional officer—to do so. Notably, the Governor requested this power when he served as Attorney General. Now, he could issue a so-called standing referral and
unilaterally
expand the ability of the Attorney General to act against corrupt public officials and others who abuse the public trust. No new legislation, additional referrals, or new government bureaucracy would be required. The recent indictments related to SUNY procurement are also notable given that the Office of the State Comptroller was stripped of certain key powers to oversee SUNY procurement in 2011. As a result, the Comptroller now lacks the ability to review large portions of the state budget, including CUNY and SUNY construction projects like those at-issue in the SUNY Polytechnic Institute prosecutions. In 2015 alone, $6.8 billion in state contracts were not subject to Comptroller review. To ensure that government procurement is subject to meaningful scrutiny, and to prevent fraud in the first instance, the Legislature should accede to the Comptroller’s request and restore his powers to independently review all large State contracts. In short, the proposal to create a special prosecutor for procurement should be rejected as a distraction from real and necessary reforms. I instead urge you to fully empower the Office of the Attorney General to police state procurement—and public corruption generally—and to restore and expand the State Comptroller’s contract oversight authority over all state procurement. Moreover, the proposal also appears to be unconstitutional. The Constitution vests prosecutorial authority exclusively in the Attorney General and County District Attorneys. The existing special prosecutor for crimes against those with special needs has faced vigorous challenge, including in
People v. Davidson
. Although the Court of Appeals declined to reach the constitutional question on technical grounds, Judge Rivera observed that, “if the Act were construed to permit the gubernatorial appointment of a nonelected special prosecutor, independent of the District Attorneys and with unfettered prosecutorial power,
such legislative delegation would be unconstitutional
.” The same concerns would apply to a special prosecutor for procurement.
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Nor can the constitutional issues plausibly be resolved simply by characterizing the new prosecutor as a “district attorney,” in view of the fact that the new prosecutor lacks the critical attributes of the office of district attorney created by the constitution, namely being an elected county officer.