nor'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] establish[es] 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, sec. 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 arise 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, 390 N.Y.S.2d 573, 575). 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 caseby-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 em

ployees 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, 315 N.E.2d 9, cert. den. sub nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656, 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" (Ill. Const., art. XIII, sec. 2, quoted in 57 Ill.2d p. 518, 315 N.E.2d 9, 12). No similar provision may be found in the Constitution or statutes of this State.

Shapp v. Butera, 22 Pa.Cmwlth. 229, 348 A.2d 910 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, 348 A.2d p. 914). By contrast, the present executive order was designed to be mandatory, not merely an invitation to voluntary compliance.

In Opinion of Justices, N.H., 360 A.2d 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 "[h]owever 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 the executive" (N.H., 360 A.2d, 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, eg., Shapp v. Butera, 22 Pa.Cmwlth. 229, 348 A.2d 910, supra; Opinion of Justices, N.H., 360 A.2d 116, 122, supra; Opinion of the Justices, N.H. 360 A.2d 116, 122, supra; cf. Illinois State Employees Assn. v. Walker, 57 Ill.2d 512, 518, 315 N.E.2d 9, 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 N.Y. 27, 57, 168 N.E. 817, 827 [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 law-making power where none otherwise exists.

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

COOKE, Judge (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 A.D.2d 92, 98, 248 N.Y.S.2d 792, 800, affd 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627).

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.

JASEN, Judge (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" (N.Y.Const., art. IV, sec. 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" (N.Y.Const., art. IV, sec. 3). Not only do these constitutional man

dates 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 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595.) 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 (N.Y.Const., art. III, sec. 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, sec. 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, sec. 74, subd. 2.) This statute announces the policy of the State, to prevent even the slightest taint of a con

Discussion Notes

1. For a similar analysis, see Buettell v. Walker, 59 Ill.2d 146, 319 N.E.2d 502 (1974).

2. How does the New York Court of Appeals' description of gubernatorial power compare with descriptions we have seen earlier, characterizing state governmental power as "plenary"? Which would be the more often occurring questions with

People v. Herrera

516 P.2d 626 (Colo. 1973)

LEE, Justice.

In these eight cases, consolidated for appeal, appellants seek post-conviction review of their sentences, under 1971 Perm.Supp., C.R.S.1963, 40-1-101 et seq. Section 40-1-510(1)(f), as amended, authorizes post-conviction review where it is alleged:

That there has been a significant change in the law, applied to applicant's conviction

flict 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.

respect to executive power, those relating to implied powers or implied limitations?

3. On executive orders generally, see Note, "Gubernatorial Executive Orders as Devices for Administrative Discretion and Control," Iowa Law Review 50 (Fall 1964): 78.

4. What is different about the nature of the executive power asserted in the following case from that which was asserted in Rapp v. Carey?

or sentence, allowing in the interest of jus-
tice retroactive application of the changed
legal standard. (Emphasis added.)1

The Colorado Criminal Code, effective July 1, 1972, redefined many offenses and completely revamped the penalty provisions. Sentences were reduced for most offenses. The appellants, all of whom had been convicted and sentenced under prior criminal statutes, sought a review of their sentences under Section 40-1-510(1)(f), as amended. The trial courts denied review in all eight cases.

1Prior to the amendment of April 19, 1973, the word “allowing" read "requiring."

It is clear that the legislature intended by Section 40-1-510(1)(f) to confer a right of review of sentences, to the end that sentences might be equalized in light of the changes in the Colorado criminal laws. All appellants qualify for review under the terms of the statute, in that their sentences either exceeded the maximums authorized by the new code for the same offenses, or exceed by three years the minimums provided by it. 1971 Perm.Supp., C.R.S.1963, 40-1-509.

We recognize and agree with the laudable, beneficent purposes motivating the enactment of Section 40-1-510(1)(f). We also are aware that the criminal justice process sometimes results in imperfect justice which in extreme cases cries out for correction. This is particularly so in the area of imposition of sentences for criminal misconduct. The methods and means by which correction of such inequities and injustices may be attained, however, are circumscribed by constitutional limitations.

Article III of the Colorado Constitution divides "[t]he powers of the government of this state... into three distinct departments,—the legislative, executive and judicial" and further provides that:

[N]o person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as is in this constitution expressly directed or permitted.

The judiciary can no more exercise a power constitutionally conferred upon the legislature than can Discussion Notes

1. With respect to the gubernatorial clemency power, and its relationship to legislative power,

The power of commutation, with which we are here concerned, is the power to reduce punishment from a greater to a lesser sentence....

By Section 40-1-510(1)(f) the legislature sought to confer upon the courts the express power to review sentences after conviction and exhaustion of appellate remedies. Implied in this provision is the authority to reduce a sentence after a final conviction-the power of commutation. Nowhere does the constitution vest the power of commutation in the courts.2

In People v. District Court, Colo., 502 P.2d 420, we observed that the governor has the exclusive power to grant reprieves, commutations and pardons after conviction. We affirm that declaration. Any attempt, therefore, to exercise such power by the judicial department, even though legislatively sanctioned, would be a violation of the doctrine of separation of powers under Article III of the Colorado Constitution. Other states with similar constitutional provisions have reached like conclusions....

2By contrast, the legislature provided in Section 40-1-509 for appellate review of sentences during the appeal process, which imports the exercise of a proper judicial function before finality of a judgment of conviction.

see also In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla. 1976).

2. Can you make an argument against the outcome in the Colorado case?

Although, in the early history of state constitutions, the executive veto was not favored, now all state constitutions except that of North Carolina authorize governors to veto legislation. The specific provisions vary in their details. See generally John A. Fairlie, "The Veto Power of the State Governor," American Political Science Review 11 (August 1917): 473.

The states of Alabama, Illinois, Massachusetts, Montana, New Jersey, South Dakota and Virginia have further refined the gubernatorial veto to provide for a "conditional" or "amendatory" veto. For example, Article VI, section 10(2) of the Montana Constitution provides:

(2) The governor may return any bill to the legislature with his recommendation for amendment. If the legislature passes the bill in accordance with the governor's recommendation, it shall again return the bill to the governor for his reconsideration. The governor shall not return a bill for amendment a second time.

In all but a few states, though, the governor must exercise the veto in an "all-or-nothing" fashion. In other words, he or she must either accept or reject a bill as a package, without being about to approve certain sections while rejecting others. One of the few exceptions to this rule is in Washington. See Timothy P. Burke, "The Partial Veto Power: Legislation By the Governor," Washington Law Review 49 (February 1974): 603; Note, "Washington's Partial Veto Power: Judicial Construction of Article III, Section 12," University of Puget Sound Law Review 10 (Spring 1987): 699.

The general "all-or-nothing" quality of the veto power began to cause significant problems in the area of gubernatorial review of appropriation bills, which often include many, even hundreds, of appropriations of government funds for various programs. As a re

sponse to this problem, the "item veto" was devised, whereby the governor could disapprove of items or parts of appropriation bills. Interestingly, it first appeared in the provisional constitution of the Confederate States, adopted on February 8, 1861. Subsequently, the item veto mechanism, with some variations, has been adopted in the constitutions of more than 40 states. House Committee on Rules, Item Veto: State Experience and its Application to the Federal Situation, 99th Cong., 2d Sess. (Comm.Print 1986) pp. 201-202.

In 1921, Oregon amended its constitution to add the following provision to the item veto power contained in Article 15, section 15a:

The Governor shall have power to veto single items in appropriation bills, and any provision in new bills declaring an emergency, without thereby affecting any other provision of such bill.

For the reasons behind this change, see Lipscomb v. State of Oregon, in Chapter 5, Section C, p. 190.

The item veto has been the subject of a wide range of rulings by the courts. The following two cases illustrate some of the issues that can arise, and the judicial approaches that have been applied to the item veto.

State ex rel. Sego v. Kirkpatrick 86 N.M. 359, 524 P.2d 975 (1974) OMAN, Justice.

We are here concerned with vetoes and attempted vetoes of certain language contained in the General Appropriations Act of 1974, commonly and hereinafter referred to as House Bill 300 (Ch. 3,