Amd S30, add Art 3-A SS45 - 49-c, Art 3-B SS50 - 57, Pub Off L; amd S3-102, El L
Establishes a process for the conducting of recall elections for state and local elected officials; such provisions shall not apply to judges and justices.
STATE OF NEW YORK
________________________________________________________________________
5516
2011-2012 Regular Sessions
IN SENATE
May 27, 2011
___________
Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and
when printed to be committed to the Committee on Investigations and
Government Operations
AN ACT to amend the public officers law and the election law, in
relation to the recall of state and local elected officials
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph h of subdivision 1 of section 30 of the public
2 officers law, as amended by chapter 209 of the laws of 1954, is amended
3 and a new paragraph i is added to read as follows:
4 h. His or her refusal or neglect to file his or her official oath or
5 undertaking, if one is required, before or within thirty days after the
6 commencement of the term of office for which he or she is chosen, if an
7 elective office, or if an appointive office, within thirty days after
8 notice of his or her appointment, or within thirty days after the
9 commencement of such term; or to file a renewal undertaking within the
10 time required by law, or if no time be so specified, within thirty days
11 after notice to him or her in pursuance of law, that such renewal under-
12 taking is required. The neglect or failure of any state or local officer
13 to execute and file his or her oath of office and official undertaking
14 within the time limited therefor by law, shall not create a vacancy in
15 the office if such officer was on active duty in the armed forces of the
16 United States and absent from the county of his or her residence at the
17 time of his or her election or appointment, and shall take his or her
18 oath of office and execute his or her official undertaking within thirty
19 days after receipt of notice of his or her election or appointment, and
20 provided such oath of office and official undertaking be filed within
21 ninety days following the date it has been taken and subscribed, any
22 inconsistent provision of law, general, special, or local to the contra-
23 ry, notwithstanding[.]; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11559-04-1
S. 5516 2
1 i. His or her removal from office pursuant to article three-A or
2 three-B of this chapter.
3 § 2. The public officers law is amended by adding two new articles 3-A
4 and 3-B to read as follows:
5 ARTICLE 3-A
6 RECALL OF STATE ELECTED OFFICIALS
7 Section 45. Definitions.
8 46. Application for recall.
9 47. Petition for recall.
10 48. Filing of petition.
11 49. Recall election.
12 49-a. Judicial review.
13 49-b. Grounds for recall.
14 49-c. Rules and regulations.
15 § 45. Definitions. For the purposes of this article:
16 1. "Recall committee" means a committee of three sponsors of an appli-
17 cation for recall who agree, in writing on such application, to repre-
18 sent all sponsors and subscribers of a recall conducted pursuant to this
19 article.
20 2. "Sponsor" means any person who signs an application for recall and
21 who also agrees, in writing on such application, to circulate a petition
22 for recall.
23 3. "State elected official" means the governor, the lieutenant gover-
24 nor, the comptroller, the attorney general or a member of the state
25 legislature.
26 § 46. Application for recall. 1. The recall of a state elected offi-
27 cial shall be proposed by the filing of an application therefor with the
28 state board of elections. A filing fee of one hundred dollars shall be
29 included with each such application. Such fee shall be refunded to the
30 applicant if the application is properly filed pursuant to this section.
31 In the event an application is not properly filed, such fee shall be
32 transferred to the comptroller for deposit into the state general fund.
33 2. No application for the recall of the governor, lieutenant governor,
34 comptroller or attorney general shall be filed within the first two
35 hundred forty days of his or her term of office; or for the recall of a
36 member of the state legislature, during the first one hundred twenty
37 days of his or her term of office. Furthermore, no application for the
38 recall of any state elected official shall be filed during the final two
39 hundred days of his or her term of office.
40 In addition, no application for the recall of any state elected offi-
41 cial shall be filed if a recall election shall have been held relating
42 to such official during his or her current term of office.
43 3. Every application for recall pursuant to this section shall
44 include:
45 (a) the name and office of the state elected official sought to be
46 recalled;
47 (b) the grounds for recall described in detail in a statement of not
48 more than two hundred words;
49 (c) a statement that the sponsors who signed the statement of grounds
50 for recall are registered voters in this state, except, in the case of
51 the recall of a member of the state legislature, are registered voters
52 in the assembly or senate district from which such member was elected;
53 (d) the designation of a recall committee of three sponsors who agree
54 in writing to represent all sponsors and subscribers relating to the
55 recall;
S. 5516 3
1 (e) the designation of not less than one hundred registered voters in
2 the state, except, that in the case of the recall of a member of the
3 state legislature, not less than one hundred registered voters in the
4 assembly or senate district from which such member was elected, who
5 subscribe to the application as sponsors thereof and agree to circulate
6 the petition for the recall in such application; and
7 (f) the signatures and addresses of registered voters in the state,
8 except, in the case of the recall of a member of the state legislature,
9 of registered voters in the assembly or senate district from which such
10 member was elected, equal in number to not less than ten percent of the
11 votes cast in the last election of the state elected official sought to
12 be recalled.
13 4. Upon final submission of an application for recall pursuant to this
14 section, the state board of elections shall review such application, and
15 thereafter provide notice by first class mail to any member of the
16 recall committee of such board's acceptance or rejection of such appli-
17 cation. The state board of elections shall reject any application for
18 recall that it determines:
19 (a) is not substantially in the required form;
20 (b) was filed in violation of subdivision two of this section;
21 (c) the person named in the application is not a state elected offi-
22 cial;
23 (d) there is an insufficient number of signatures of any type; or
24 (e) the state elected official sought to be recalled has been
25 subjected or is subject to a separate recall proceeding during such
26 official's current term of office.
27 5. The local boards of elections shall provide such assistance to the
28 state board of elections as shall be necessary to determine the number
29 of votes cast during the election of any state elected official.
30 § 47. Petition for recall. 1. (a) Upon approval of an application for
31 recall submitted pursuant to section forty-six of this article, the
32 state board of elections shall prescribe the form of and prepare a peti-
33 tion containing:
34 (i) the name and office of the state elected official to be recalled;
35 (ii) the statement of the grounds for recall included in the applica-
36 tion;
37 (iii) the statement of warning required in paragraph (b) of this
38 subdivision;
39 (iv) sufficient space for signatures and addresses of signatories; and
40 (v) such other provisions required by the state board of elections to
41 assure proper handling and control.
42 Petitions, for purposes of circulation, shall be prepared by the state
43 board of elections in a number reasonably calculated to allow for full
44 circulation throughout the state, except, in the case of a member of the
45 state legislature, throughout the appropriate assembly or senate
46 district. The state board of elections shall number each petition it
47 issues and shall maintain a record of the petitions delivered to each
48 sponsor.
49 (b) Any person who signs a name other than that person's own name to a
50 petition for recall or who knowingly signs a petition for the same
51 recall of a state elected official or who knowingly signs a petition for
52 the recall of a state elected official when he or she is not eligible to
53 vote for the office held by such official shall be guilty of the class A
54 misdemeanor of perjury in the third degree as defined in section 210.05
55 of the penal law. Each page of a petition shall include a statement of
56 warning relating to such offense.
S. 5516 4
1 2. Petitions may be circulated only by sponsors and only in person
2 throughout the state or, in the case of the recall of a member of the
3 state legislature, throughout the assembly or senate district from which
4 such member was elected. No single page of a petition shall be circu-
5 lated in more than one county. The board of elections for such county
6 shall certify to the state board of elections the sufficiency of the
7 signatures on the petition pages for that county. Any registered voter
8 entitled to vote for the state elected official sought to be recalled in
9 the petition, shall be authorized to subscribe to such petition by sign-
10 ing his or her name and address, as it appears on his or her voter
11 registration. A person who has signed his or her name to a petition may
12 withdraw his or her name and support by providing written notice thereof
13 to the state board of elections prior to the date such petition is filed
14 with such board. All necessary signatures for the filing of a petition
15 shall be secured within ninety days of the delivery of the petition by
16 the state board of elections to the recall committee. All signatures on
17 a petition shall be in ink. Illegible signatures, unless accompanied by
18 a legible printed name, may be rejected by the state board of elections.
19 3. Prior to filing with the state board of elections, each petition
20 page shall be certified by an affidavit of the sponsor who personally
21 circulated such page. The affidavit shall state in substance that (a)
22 the person signing such affidavit is a sponsor, (b) such sponsor is the
23 only person who circulated such petition page, (c) the signatures were
24 made in the sponsor's actual presence, (d) to the best of the sponsor's
25 knowledge, the signatures are those of the persons whose names they
26 purport to be, and (e) the sponsor circulated the petition in accordance
27 with the provisions of this section.
28 4. No petition for recall shall be filed within one hundred eighty
29 days of the end of the term of office of the state elected official
30 sought to be recalled.
31 5. Every petition for recall of a state elected official shall be
32 signed by a number of registered voters eligible to vote for the office
33 held by the state elected official sought to be recalled, in an amount
34 equal to or more than twenty-five percent of the votes cast in the
35 election for such office during the previous election.
36 § 48. Filing of petition. 1. The state board of elections, with the
37 assistance of the local boards of elections, shall determine the suffi-
38 ciency of each petition for recall filed with it within thirty days of
39 the receipt thereof. After the review of a petition, the state board of
40 elections shall immediately provide notice of the sufficiency of the
41 petition to the recall committee and the state elected official named in
42 the petition. A petition shall be deemed to have been improperly filed
43 when the state board of elections finds that (a) there is an insuffi-
44 cient number of signatures of qualified registered voters, or (b) the
45 petition was filed within less than one hundred eighty days of the end
46 of the term of office of the state elected official sought to be
47 recalled.
48 2. Upon receipt of notice that the filing of a petition is improper or
49 insufficient, a recall committee may amend and correct such petition by
50 circulating a supplementary petition within twenty days of notice from
51 the state board of elections, if such supplementary petition is filed
52 with the state board of elections prior to the one hundred eightieth day
53 before the expiration of the term of office of the state elected offi-
54 cial sought to be recalled.
55 3. If the state board of elections shall determine that a recall peti-
56 tion is properly filed, it shall establish the ballot form and shall
S. 5516 5
1 call a special election to be held pursuant to the election law not less
2 than sixty days, nor more than ninety days after the determination that
3 the petition was properly filed. Provided, that if a primary or general
4 election is to be held during such period of time, the recall special
5 election shall be held on the same date and ballot as such primary or
6 general election. The ballot for a recall special election shall be
7 designed with the question of whether the state elected official shall
8 be recalled, placed on the ballot in the following text: "Shall (name of
9 state elected official) be recalled from the office of (state office
10 held)?", with provision made for marking such question "Yes" or "No".
11 § 49. Recall election. 1. The state board of elections shall provide
12 each board of elections, except, in the case of a recall election for a
13 member of the state legislature, provide to each board of elections in
14 such member's assembly or senate district, with four copies of the
15 statement of the grounds for recall of the state elected official which
16 was included in the application and a rebuttal thereof, of not more than
17 two hundred words, submitted by the state elected official sought to be
18 recalled. The state elected official sought to be recalled may provide
19 the state board of elections with his or her rebuttal statement within
20 ten days of the notification that a petition has been properly filed.
21 Every board of elections shall post copies of the statements for and
22 against recall at each polling place.
23 2. If a majority of the votes cast on the question of recall are in
24 favor of recall, the state elected official shall be removed from his or
25 her office.
26 § 49-a. Judicial review. Any person aggrieved by a determination made
27 pursuant to this article may seek judicial review thereof in a proceed-
28 ing pursuant to article seventy-eight of the civil practice law and
29 rules commenced in supreme court for the county of Albany or for the
30 county in which the state elected official sought to be recalled
31 resides.
32 § 49-b. Grounds for recall. The grounds for recall pursuant to this
33 article shall be misconduct in office, or incompetence or failure to
34 perform the duties of the office of the state elected official. No
35 recall submitted to voters shall be deemed void on the basis of insuffi-
36 ciency of the grounds, application or petition therefor.
37 § 49-c. Rules and regulations. The state board of elections is author-
38 ized to promulgate such rules and regulations as shall be necessary to
39 implement the provisions of this article.
40 ARTICLE 3-B
41 RECALL OF LOCAL ELECTED
42 OFFICIALS
43 Section 50. Definitions.
44 51. Application for recall.
45 52. Petition for recall.
46 53. Filing of petition.
47 54. Recall election.
48 55. Judicial review.
49 56. Grounds for recall.
50 57. Rules and regulations.
51 § 50. Definitions. For the purposes of this article:
52 1. "Local elected official" means any officer elected to a position
53 with a county, city, town, village, school district or district corpo-
54 ration, or any agency, department, division, board, commission or bureau
55 thereof; provided, that, such term shall not include any judge or
56 justice of a court.
S. 5516 6
1 2. "Recall committee" means a committee of three sponsors of an appli-
2 cation for recall who agree, in writing on such application, to repre-
3 sent all sponsors and subscribers of a recall conducted pursuant to this
4 article.
5 3. "Sponsor" means any person who signs an application for recall and
6 who also agrees, in writing on such application, to circulate a petition
7 for recall.
8 § 51. Application for recall. 1. The recall of a local elected offi-
9 cial shall be proposed by the filing of an application therefor with the
10 board of elections for the county in which the office held by the local
11 elected official sought to be recalled is located. A filing fee of
12 fifty dollars shall be included with each such application. Such fee
13 shall be refunded to the applicant if the application is properly filed
14 pursuant to this section. In the event an application is not properly
15 filed, such fee shall be transferred to the county treasurer for deposit
16 into the county general fund.
17 2. Subject to the rules and regulations of the state board of
18 elections, the recall of a local elected official shall be conducted by
19 the board of elections in which the petition is required to be filed.
20 3. No application for the recall of a local elected official (a) serv-
21 ing a term of four years shall be filed within the first two hundred
22 forty days of his or her term of office or (b) serving a term of two
23 years shall be filed during the first one hundred twenty days of his or
24 her term of office. Furthermore, no application for the recall of any
25 local elected official shall be filed during the final two hundred days
26 of his or her term of office.
27 In addition, no application for the recall of any local elected offi-
28 cial shall be filed if a recall election shall have been held relating
29 to such official during his or her current term of office.
30 4. Every application for recall pursuant to this section shall
31 include:
32 (a) the name and office of the local elected official sought to be
33 recalled;
34 (b) the grounds for recall described in detail in a statement of not
35 more than two hundred words;
36 (c) a statement that the sponsors who signed the statement of grounds
37 for recall are registered voters of the electorate for the office held
38 by the local elected official sought to be recalled;
39 (d) the designation of a recall committee of three sponsors who agree
40 in writing to represent all sponsors and subscribers relating to the
41 recall;
42 (e) the designation of not less than forty registered voters, who
43 subscribe to the application as sponsors thereof and agree to circulate
44 the petition for the recall in such application; and
45 (f) the signatures and addresses of registered voters of the elector-
46 ate for the office held by the local elected official sought to be
47 recalled, equal in number to not less than ten percent of the votes cast
48 in the last election of the local elected official sought to be
49 recalled.
50 5. Upon final submission of an application for recall pursuant to this
51 section, the board of elections shall review such application, and ther-
52 eafter provide notice by first class mail to any member of the recall
53 committee of such board's acceptance or rejection of such application.
54 The board of elections shall reject any application for recall that it
55 determines:
56 (a) is not substantially in the required form;
S. 5516 7
1 (b) was filed in violation of subdivision three of this section;
2 (c) the person named in the application is not a local elected offi-
3 cial;
4 (d) there is an insufficient number of signatures of any type; or
5 (e) the local elected official sought to be recalled has been
6 subjected or is subject to a separate recall proceeding during such
7 official's current term of office.
8 § 52. Petition for recall. 1. (a) Upon approval of an application for
9 recall submitted pursuant to section fifty-one of this article, the
10 board of elections shall prescribe the form of and prepare a petition
11 containing:
12 (i) the name and office of the local elected official to be recalled;
13 (ii) the statement of the grounds for recall included in the applica-
14 tion;
15 (iii) the statement of warning required in paragraph (b) of this
16 subdivision;
17 (iv) sufficient space for signatures and addresses of signatories; and
18 (v) such other provisions required by the board of elections to assure
19 proper handling and control.
20 Petitions, for purposes of circulation, shall be prepared by the board
21 of elections in a number reasonably calculated to allow for full circu-
22 lation throughout the electorate for the office held by the local
23 elected official sought to be recalled. The board of elections shall
24 number each petition it issues and shall maintain a record of the
25 petitions delivered to each sponsor.
26 (b) Any person who signs a name other than that person's own name to a
27 petition for recall or who knowingly signs a petition for the same
28 recall of a local elected official or who knowingly signs a petition for
29 the recall of a local elected official when he or she is not eligible to
30 vote for the office held by such official shall be guilty of the class A
31 misdemeanor of perjury in the third degree as defined in section 210.05
32 of the penal law. Each page of a petition shall include a statement of
33 warning relating to such offense.
34 2. Petitions may be circulated only by sponsors and only in person
35 throughout the electorate for the office held by the local elected offi-
36 cial sought to be recalled. The board of elections shall certify the
37 sufficiency of the signatures on the petition pages. Any registered
38 voter entitled to vote for the local elected official sought to be
39 recalled in the petition, shall be authorized to subscribe to such peti-
40 tion by signing his or her name and address, as it appears on his or her
41 voter registration. A person who has signed his or her name to a peti-
42 tion may withdraw his or her name and support by providing written
43 notice thereof to the board of elections prior to the date such petition
44 is filed with such board. All necessary signatures for the filing of a
45 petition shall be secured within ninety days of the delivery of the
46 petition by the board of elections to the recall committee. All signa-
47 tures on a petition shall be in ink. Illegible signatures, unless
48 accompanied by a legible printed name, may be rejected by the board of
49 elections.
50 3. Prior to filing with the board of elections, each petition page
51 shall be certified by an affidavit of the sponsor who personally circu-
52 lated such page. The affidavit shall state in substance that (a) the
53 person signing such affidavit is a sponsor, (b) such sponsor is the only
54 person who circulated such petition page, (c) the signatures were made
55 in the sponsor's actual presence, (d) to the best of the sponsor's know-
56 ledge, the signatures are those of the persons whose names they purport
S. 5516 8
1 to be, and (e) the sponsor circulated the petition in accordance with
2 the provisions of this section.
3 4. No petition for recall shall be filed within one hundred eighty
4 days of the end of the term of office of the local elected official
5 sought to be recalled.
6 5. Every petition for recall of a local elected official shall be
7 signed by a number of registered voters eligible to vote for the office
8 held by the local elected official sought to be recalled, in an amount
9 equal to or more than twenty-five percent of the votes cast in the
10 election for such office during the previous election.
11 § 53. Filing of petition. 1. The board of elections shall determine
12 the sufficiency of each petition for recall filed with it within thirty
13 days of the receipt thereof. After the review of a petition, the board
14 of elections shall immediately provide notice of the sufficiency of the
15 petition to the recall committee and the local elected official named in
16 the petition. A petition shall be deemed to have been improperly filed
17 when the board of elections finds that (a) there is an insufficient
18 number of signatures of qualified registered voters, or (b) the petition
19 was filed within less than one hundred eighty days of the end of the
20 term of office of the local elected official sought to be recalled.
21 2. Upon receipt of notice that the filing of a petition is improper or
22 insufficient, a recall committee may amend or correct such petition by
23 circulating a supplementary petition within twenty days of notice from
24 the board of elections, if such supplementary petition is filed with the
25 board of elections prior to the one hundred eightieth day before the
26 expiration of the term of office of the local elected official sought to
27 be recalled.
28 3. If the board of elections shall determine that a recall petition is
29 properly filed, the commissioners of such board shall jointly call a
30 special election to be held pursuant to the election law not less than
31 sixty days, nor more than ninety days after the determination that the
32 petition was properly filed. Provided, that if a primary or general
33 election is to be held during such period of time, the recall special
34 election shall be held on the same date and ballot as such primary or
35 general election. The ballot for a recall special election shall be
36 designed with the question of whether the local elected official shall
37 be recalled, placed on the ballot in the following text: "Shall (name of
38 local elected official) be recalled from the office of (local office
39 held)?", with provision made for marking such question "Yes" or "No".
40 § 54. Recall election. 1. The board of elections shall provide each
41 polling place with four copies of the statement of the grounds for
42 recall of the local elected official which was included in the petition
43 and a rebuttal thereof, of not more than two hundred words, submitted by
44 the local elected official sought to be recalled. The local elected
45 official sought to be recalled may provide the board of elections with
46 his or her rebuttal statement within ten days of the notification that a
47 petition has been properly filed. Every board of elections shall post
48 copies of the statements for and against recall at each polling place.
49 2. If a majority of the votes cast on the question of recall are in
50 favor of recall, the local elected official shall be removed from his or
51 her office.
52 § 55. Judicial review. Any person aggrieved by a determination made
53 pursuant to this article may seek judicial review thereof in a proceed-
54 ing pursuant to article seventy-eight of the civil practice law and
55 rules commenced in the supreme court for the county in which the recall
56 petition is required to be filed.
S. 5516 9
1 § 56. Grounds for recall. The grounds for recall pursuant to this
2 article shall be misconduct in office, or incompetence or failure to
3 perform the duties of the office of the local elected official. No
4 recall submitted to voters shall be deemed void on the basis of insuffi-
5 ciency of the grounds, application or petition therefor.
6 § 57. Rules and regulations. The state board of elections is author-
7 ized to promulgate such rules and regulations as shall be necessary to
8 implement the provisions of this article.
9 § 3. Section 3-102 of the election law is amended by adding a new
10 subdivision 16-b to read as follows:
11 16-b. administer the provisions of article three-A of the public
12 officers law and promulgate such rules and regulations as shall be
13 necessary to implement the provisions of article three-B of the public
14 officers law.
15 § 4. This act shall take effect on the first of January next succeed-
16 ing the date on which it shall have become a law; provided, that, effec-
17 tive immediately, any rules and regulations necessary to implement the
18 provisions of this act on its effective date are authorized and directed
19 to be completed on or before such date.
