Will Hevesi's Confession Bring Him Absolution?

We have ourselves a bit of a situation here in the Empire State. In November, we elected Alan Hevesi as state comptroller, despite the fact that he had admitted to using a state employee to drive his wife to and from doctor’s appointments. Apparently, he was supposed to reimburse the state for any work by this employee that was not security-related, but did not do so -- until some time over the summer, when his opponent in the election made Hevesi’s actions public and accused him of breaching the public’s trust. According to an article in this week’s New York Magazine, Hevesi has since repaid over $80,000 for the employee’s time (covering a period of three years), and may be required to reimburse as much as $200,000 more.

In what was left of the election campaign by the time the story became public, Hevesi’s strategy became one of aggressive admission. He launched an ad campaign in which he confessed his missteps, apologized, and asked for the voters’ forgiveness. Perhaps it worked; in all events, the voters reelected him by a seven-point margin, although reportedly 92% had heard about the scandal. But perhaps at least some portion voted for him with some expectation that he could very well be removed or forced to resign. Such a vote would have been not so much a vote for Hevesi, but rather an expression of a view that whomever Eliot Spitzer (whom everyone expected to with the governorship quite handily) would nominate to replace Hevesi would be more appealing than Hevesi’s opponent.

Now, however, several news sources (most of which refer back to the same report in this week’s New York Magazine) are citing an article that State Senator Michael Balboni co-authored for the Fordham Urban Law Journal in 1987, which reportedly concludes that if the public has received full disclosure of a politician’s misconduct before an election and elects him or her anyway, the election works as an “exoneration” and the politician cannot be impeached or removed based on that misconduct. According to these reports, Hevesi could use this argument to resist attempts to remove him, perhaps even suing in court to block impeachment proceedings.

Senator Balboni’s article predates the coverage of the Fordham Urban Law Journal on Lexis and Westlaw, and I have been unable to find a single document that cites it prior to the recent articles about Hevesi. But if it turns out that Hevesi’s pre-election confession was complete -- that is, if his transgressions went no farther than what he publicly admitted in advance of the election -- then Balboni’s argument undoubtedly raises a difficult issue. It does seem inherently undemocratic to remove someone duly elected by the people based on alleged wrongs that the people fully knew about when they elected him. On the other hand, what precisely did the people “know”? Did their knowledge include, for example, the fact that it was widely believed that if Spitzer was elected governor (as he was, by a margin of victory greater than Hevesi’s), he would seek Hevesi’s removal or impeachment? If Hevesi is indicted (as he reportedly may be), will that constitute an additional “fact” that the voters cannot be said to have agreed to accept?

As big a fan as I am of courts, it is not at all clear to me that they are suited to resolve these kinds of questions. Rather, I strongly suspect that if the matter goes that far these issues will have to be decided by the state legislature, in the context of an impeachment proceeding. Hopefully, the members of that body will be able to find a way to deciper what we, their constituents, were actually thinking.