STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN

December 21, 2016

The Honorable Andrew M. Cuomo
Governor of the State of New York
N.Y.S. Capitol Building
Albany, NY 12224

The Honorable John J. Flanagan

N.Y.S. Senate Temporary President & Maj. Leader
N.Y.S. Capitol Building, Room 330
Albany, NY 12224

The Honorable Carl E. Heastie

Speaker of the N.Y.S. Assembly
Legislative Office Building 932
Albany, NY 12248

The Honorable Andrea Stewart-Cousins

N.Y.S. Senate Democratic Conference Leader
Legislative Office Building 907
Albany, NY 12247

The Honorable Brian M. Kolb

Minority Leader of the N.Y.S. Assembly
Legislative Office Building 933
Albany, NY 12248

The Honorable Jeffrey D. Klein

N.Y.S. Senate Coalition Leader & IDC Leader
Legislative Office Building 913
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.

120 BROADWAY, NEW YORK, NY 10271 PHONE (212) 416-8000 FAX (212) 416-8139

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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 Generalan independent statewide constitutional officerto
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
Comptrollers 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 procurementand public corruption generallyand to
restore and expand the State Comptrollers 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.1

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.

120 BROADWAY, NEW YORK, NY 10271 PHONE (212) 416-8000 FAX (212) 416-8139

WWW.AG.NY.GOV

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I look forward to working with you cooperatively to develop the kind of smart and
effective ethics reforms that are sorely needed. The special prosecutor for procurement proposal,
unfortunately, qualifies as neither.
Respectfully,

Eric T. Schneiderman
Attorney General

120 BROADWAY, NEW YORK, NY 10271 PHONE (212) 416-8000 FAX (212) 416-8139

WWW.AG.NY.GOV