Executive Orders Actions the Governor can take to make New York government more open, accountable and democratic. GERALD BLAIR HORNER JOHN KAEHNY LAWRENCE BENJAMIN New York Public Reinvent Albany NORDEN Center for Research, Interest Reseach Brennan Center Regional Education Group for Justice at and Outreach, SUNY NYU School of Law New Paltz NOVEMBER 2010 INTRODUCTION Executive Orders: A governor’s declaration which has the force of law, and does not require legislation to take effect. November 2010 government information and track what agencies are doing; others create a more transparent budget process; and others reduce, barriers to voting. All of Executive Orders them are crafted to be cost-effective, and result in Actions the Governor can take to large public benefits. make New York government more open, accountable and democratic We hope our report inspires both immediate action, and more innovative thinking about the significant Like all New Yorkers, we wish Governor-elect potential of executive orders to promote better Cuomo good luck as he tackles the state’s enormous government. Along with the model orders, our problems. In this report we offer eleven model report includes important new research by noted executive orders for the Governor to use to promote New York government scholar Gerald Benjamin. more open, accountable and democratic New He documents the evolution of executive powers York State government. Our model orders have in New York, their modern use, and important been endorsed by leading civic and public interest findings on the limits on the Governor’s authority to groups. They are pragmatic, innovative, and offer use them to reorganize state agencies. the governor an opportunity to show New Yorkers that rapid, positive, change is achievable. We urge Governor-elect Cuomo to use these model orders, and this report, as part of a wider Much of Governor Cuomo’s political energy will public campaign to reinvent New York State be spent grinding out a tough, probably frustrating, government, and to make it more open, accountable budget with the state Legislature. The fiscal crisis is and democratic. not an accident. It is the direct result of New York having an unaccountable and often irresponsible Sincerely, state government. Few New Yorkers know what John Kaehny their government is doing. Even experts have Executive Director, Reinvent Albany trouble deciphering the convoluted budget, or keeping track of last minute legislation. That’s by P.S. Special thanks to my co-authors for their hard design. Our ignorance is Albany’s bliss. We the work, innovative thinking, and tireless advocacy for people can’t hold our government accountable if we New York. don’t know what it is doing. That has to change. Governor-elect Cuomo has pledged to reform Albany. We hope he does. He can start by issuing the eleven model orders in this report. They are tools designed to empower the citizenry, and the Governor. Some orders use the internet to open up 2 Executive Orders PROMOTING DEMOCRACY AND OPENNESS IN NEW YORK STATE GOVERNMENT November 2010 EXECUTIVE SUMMARY Eleven Model Orders Governor-Elect Cuomo Can Use To Launch His Reform Efforts This report includes eleven model executive orders that Governor-elect Andrew Cuomo can use to open up New York State government, increase the accountability of state agencies and reduce barriers to voting. The orders are centered on the basic goal of empowering the citizenry with more and better information about what its government is doing, and how it is spending tax payer dollars. During his campaign, Governor-elect Cuomo pledged to make fundamental reforms to end the dysfunction in Albany. These model orders are specific, realistic actions he can use to launch his reform efforts. The Governor Has The Power To Make Government More Open and Accountable Executive orders are formal instructions and policies the governor can issue unilaterally to the state agencies under his control. As our report makes clear, under the New York constitution, the Governor has broad powers to use executive orders to make state government more open and cost effective. In particular, the advent of the Internet has created enormous opportunities to save money by making government more transparent to the public. Even within areas where the Governor’s authority is constrained by the Constitution, he can still use executive orders to create meaningful reforms. For instance, the Governor can make the budget process more transparent and rational. Broad as the Governor’s executive order powers are, there are clear constraints; among them, the Governor has a limited ability to reorganize state agencies established through legislation. New Scholarship Which Describes The Evolution and Extent of Executive Order Powers In addition to the eleven model orders, our report includes news scholarship by Gerald Benjamin which describes the evolution, recent use and limits of executive orders. Professor Benjamin recommends granting the Governor new reorganization authority using New Jersey as a model. Executive Orders PROMOTING DEMOCRACY AND OPENNESS IN NEW YORK STATE GOVERNMENT November 2010 3 EXECUTIVE SUMMARY CONTINUED Extensive Resource Section with a Description of All Orders Dating to Rockefeller The report also includes an extensive Resource section. Here, numerous tables and charts document and describe executive orders dating back to Nelson Rockefeller. This section provides valuable context for our proposed model orders, and suggest that innovative and energetic governors can use their executive order powers to great effect. Executive Orders Which Promote Openness, Accountability, Ethics Reform, and Voting Our report includes four chapters containing eleven executive orders. The chapters address the following issues: • Open Up New York State Government Using the Internet • Increase the Accountability of State Government • Strengthen Ethics Reform • Expand the Franchise and Improve the State’s Election Performance The model orders are diverse in scope and intent. But all of them are intended to help the citizenry better understand and participate in their government, and thus help bring about more open, accountable and effective government. 4 Executive Orders PROMOTING DEMOCRACY AND OPENNESS IN NEW YORK STATE GOVERNMENT November 2010 ACKNOWLEDGEMENTS Executive Orders was published by Reinvent DISCLAIMER Albany. It was written and edited by John Kaehny Executive Orders represents the position of Blair Horner, Lawrence Norden, Gerald Benjamin The Brennan Center for Justice at NYU Law and Zack Keck. School other than the model executive order on dedicated funds, as this issue falls outside the Special thanks to Mark Gorton, and another organization’s expertise and mission. As a matter of benefactor who prefers to be uncredited, general practice, the Center for Research, Regional for helping to make this report possible. Education and Outreach (CRREO) at SUNY New Paltz does research on public policy, and identifies Many thanks to those involved in the production alternatives and best practices, but takes no of the report, including copy editor Mark O’Malley, institutional position on policy proposals Anita Merk, and Aleks Gryczon at Flyleaf Creative, Seamus McKiernan at Reinvent Albany, We gratefully acknowledge the comments Mike DeSutter and Brian Cohen at Drill Team and suggestions that many of the endorsing Marketing, and Andrew Hoppin, Noel Hidalgo and organizations provided. Philip Ashlock. We are grateful to Erika Wood, Eric Lane, Peter Surdel, John Travis, Lee Rowland, Kelly Williams and Wendy Weiser of the Brennan Center for their assistance in reviewing, drafting, © 2010. This paper is covered by the Creative Commons Attribution -Share Alike 3.0 license (see http:// editing and researching sections of this report. creativecommons.org). You are free to share and remix this work under the following conditions: you must attribute Executive Orders represents the positions the original work to Reinvent Albany, list Reinvent Albany’s of Reinvent Albany and NYPIRG. Additional Web-site, and credit the authors listed on the About the organizations and individuals have endorsed Authors page; and you must Share Alike—If you alter, individual model executive orders within the transform, or build upon this work, you may distribute the resulting work only under the same or similar license report, and they are identified at the end of each to this one. model order. Executive Orders PROMOTING DEMOCRACY AND OPENNESS IN NEW YORK STATE GOVERNMENT November 2010 5 ABOUT THE AUTHORS John Kaehny Founded in 1973, NYPIRG is a non-partisan, not- EXECUTIVE DIRECTOR, REINVENT ALBANY for-profit research and advocacy organization. NYPIRG’s principal areas of concern include Before working at Reinvent Albany, John was a consumer protection, environmental preservation transportation policy consultant to environmental and government accountability. sustainability groups, and prior to that executive www.nypirg.org director of Transportation Alternatives. He has been immersed in freedom of information, Lawrence Norden environmental and transportation issues SENIOR COUNSEL IN THE DEMOCRACY involving New York State government since 1990. PROGRAM, BRENNAN CENTER FOR JUSTICE Reinvent Albany was founded in the spring of AT NYU SCHOOL OF LAW 2010 to promote open, accountable New York State government, and is a tax-exempt (501c3) Senior Counsel in the Democracy Program, organization. [email protected], Brennan Center for Justice at NYU School of Law