When Politicians are Appointed, Rather than Elected, We the People Don’t Get to Choose
Filling vacancies when a politician steps down is a hot topic today. Witness the mess in Virginia. Closer to home in Ulster County, we likewise are facing a controversy, albeit of a smaller scale. Ulster County Executive Michael Hein recently announced that he will shortly resign to become the commissioner of the New York State Office of Temporary Disability Assistance. This will create a vacancy in the county’s top elected executive position for the first time since we adopted our charter in 2006. So we find ourselves learning now about how we must fill the vacancy. And some of us are not happy.
Ulster County Democratic Committee Chairman Frank Cardinale and his Republican counterpart, Roger Rascoe, have asked that governor Andrew Cuomo intervene in the process. More on that, shortly.
The bigger picture is that we miss the significance of this kind of issue because our governmental system is so decentralized. There are more than 500,000 elected offices in the United States. After looking at some demographics and mortality tables, I reached a rough estimate that about 3,000 incumbents will die in office this year. And that does not count those who will resign, or get sick and can’t work, or move away, or are removed for cause. Nor does it consider offices that must be filled because no one runs for them. In total, that’s likely several thousand more. So we need to think hard about what is at stake.
When I worked on the question of filling vacancies in elective office for the New York City Charter Commission in the 1980s, I learned of the mix governmental and political considerations embedded in this process: continuity in governance; legitimacy of representative government; and political career advancement. Unfortunately, too often the latter priority overwhelmed the other two more noble goals, and careers in “elected” office were regularly launched and advanced by appointment. For example, for the period 1961 to 1987 most of the city’s Borough presidents started their jobs by appointment, not election. I wrote about this in some detail in a book I edited with Frank Mauro in 1989 on Restructuring the New York City Government. Years later, when I headed the Ulster County Charter Commission, I sought to assure that this would not happen here.
Continuity requires that there be no abrupt change in partisanship or policy priorities as a result of a vacancy. That’s why we provided for advance designation by the county executive of a potential Acting County Executive. Too often, however, the power to appoint to fill a vacancy turns into what is, in practical reality, the ability to appoint a long-term successor. The longer an appointed person serves in the acting role, the more likely it is that he or she will come to be regarded as a natural successor and gain the advantages of incumbency in the following election. This is especially the case in places where one of the two major parties is dominant.
Moreover, my colleagues on the Ulster County Charter Commission and I thought that, as a matter of principle, in a representative democracy the service of appointed persons in elected offices should be as brief as possible.
The existing charter provision therefore seeks to limit the service of an appointed person in the job of County Executive, and fill the job with an elected person as soon as practicable, either at the general election or by special election. This minimizes the degree to which an incumbency advantage in the next election for county executive may accrue to that person if he or she seeks to run, and honors our county’s commitment to representative democracy.
The vacancy created by Mike Hein’s resignation will occur early in the final year of his current four-year term. This means that if we follow the charter we will need two elections for county executive this year: a special election to fill the vacancy and an election in November for the four years starting on January 1, 2020. And both of these elections will require nominating processes. Many think that this is too many elections for one office in too little time, and that it’s expensive and unnecessary.
Could we avoid a special election? Mike Hein could have tried to delay his departure from office, or his confirmation by the State Senate, until past the time that a special election is required by the charter. This however would have required that the governor agree to extend the length of the vacancy in the commissionership Hein is scheduled to take up in Albany.
Another possible path arises from ambiguity in the county charter’s language and the specifics of state law. The charter gives the job of holding a special election for county executive to the County Board of Elections, but does not say who shall “proclaim” the election. (In contrast, for example, the New York City Charter explicitly gives this proclamation job to that city’s mayor.) New York State’s Election Law and Public Officers Law require a gubernatorial proclamation to call a special election. In the absence of an explicit preemptive local charter provision, the argument is, if the governor makes no such proclamation, a special election may be avoided. That’s the argument put forth by Cardinale and Rascoe. Give Cuomo the chance to save what’s estimated to cost the county $300,000 for the special election, and just let this be worked out by voters in June’s primary vote and November’s general election.
Should we bypass a special election, if we can? This solution is attractive. The person who will act as county executive, Hein’s chief of staff, Adele Reiter, has expressed no interest in running for the office; so there is no issue of creating an incumbency advantage. If we follow state law, and the governor is amenable, we can avoid the expense and political inconvenience of multiple elections in one year for the same job.
The problem is that taking this path violates the reason we adopted a charter in the first place: to gain local home rule. We took advantage of the opportunity given us in the NYS constitution to create a system for governing ourselves, including a way to fill vacancies in elected office. Now many of us dislike one of the consequences. It’s the old question of pragmatics vs. principles. Do we advocate for home rule only when it is convenient? Another question is whether abdicating home rule in this instance might undermine our authority to exercise this right in the future.
Further, if we took a principled home rule stand, and pushed ahead for a special election to fill this vacancy, a judge responding to a legal challenge might find that our charter language does not assure the realization of our home rule intent. We might be directed to follow state law, not an uncommon outcome in home rule litigation. This tells us that we need a charter revision to make our intent more explicit.
If the county executive vacancy had occurred last year, or the year before, or the year before that, we would likely be going forward with a special election without question. But it happened this year, in the fourth year of the term, and a flaw in the provision was revealed. The balance we seek between democratic legitimacy and governmental continuity is not wrong; we need to see if we can amend the charter to find better ways to strike that balance.
Learning to govern by governing is the hallmark of local democracy.