A Closer Look at NY's Gubernatorial Appointments & Senate Confirmation Process

With new governor Kathy Hochul now officially presiding over the Empire State’s executive branch, cannabis industry operators are hopeful that the relationship between the industry and New York’s top executive will undergo a much-needed reset. And one of the major industry priorities pursuant to this reset is the prompt and full appointment of the Cannabis Control Board (CCB), as well as associated appointments to the Office of Cannabis Management (OCM) as provided for in the Marihuana Regulation and Taxation Act (MRTA). Such appointments are the indispensable first step for getting the state’s adult-use cannabis industry up-and-running.

Gubernatorial appointments, generally speaking, allow the executive to exercise control over a wide range of regulatory and bureaucratic functions without necessarily being involved in day-to-day bureaucratic management activities. According to the National Governors Association: “The gubernatorial appointment process provides the personnel necessary to lead state departments and agencies and promote the governor’s policy objectives within state boards and commissions.”

Per the provisions of the MRTA, New York’s governor has three appointments to the CCB, including the chairperson, which will require confirmation by the State Senate. Hochul’s other two appointments are direct, meaning they are not subject to a check by the legislative branch. The governor is also charged with appointing the Executive Director of the OCM, a position requiring Senate approval as well. Thus, the full establishment of both the CCB and OCM require consensus between these two branches of government. As many blame the adult-use cannabis regulatory stalemate on the dysfunctional relationship between disgraced former governor Andrew Cuomo and the state legislature, Hochul’s ascension to the governor’s desk provides a welcome opportunity for a reset of the relationship between these all-too-often adversarial branches. Legislatively palatable appointments can simultaneously further Hochul’s support in the legislature as well. Per the National Governor’s Association: “Used effectively, the appointment process can build bridges with legislators and political and interest groups that will enhance support for the governor.”

Some states prescribe the manner and process for confirmation of gubernatorial appointments to boards and commissions via the internal rules of state legislative bodies. New York is a bit of an anomaly in this respect as the confirmation process is not embedded in state legislative rules but is rather vaguely referenced in the state constitution. Thus: “The Senate alone has the power to confirm the Governor's appointment on non-elected state officials and court judges. The Constitution provides that such appointments are subject to the advice and consent of the Senate, which approves or disapproves them, after hearings on the candidate's qualifications,” according to NYS Senate guidance.

Though vague, the above-described guidance raises the all-important question of timing. In order to realize a fully-appointed CCB and OCM by the end of the calendar year as many industry advocates are hoping, the Senate would need to convene in “special” or “extraordinary” session—that is, outside of its normal schedule which extends from January to June. Additionally, a floor vote may not be the only legislative hurdle to clear prior to confirmation. As referenced above, it is common for the Senate to hold hearings on a gubernatorial nomination prior to a vote by the full Senate. Whether and to what committee the nomination would be referred for a hearing is currently unclear, nor is it specified in the MRTA. Nonetheless, a public vote is required, forcing the Senate to convene in some special manner to vote on the governor’s nominees as lawmakers are not due back to the state capital until early January 2022.

With such vague parameters governing the appointment and confirmation process, it should not be surprising that there are stakeholders advocating for change. In late June, Senator Liz Krueger, Chair of the powerful Senate Finance Committee, introduced legislation that seeks to install some guiderails in this process. S7264 seeks to prohibit the appointment of registered lobbyists and executive chamber staff employed by the governor to board or commission seats that require Senate confirmation. The proposed legislation was referred to the Senate Rules Committee and, as it was introduced in the interim—the latter six months of the year when lawmakers work in their districts rather than in Albany—the bill has yet to receive a hearing. Its companion bill in the Assembly, A8175, sponsored by Assemblyman Harvey Epstein, was referred to the Committee on Government Operations.

While such reformatory ideas may improve the process, the cannabis industry just needs the current process to work—and soon. The MRTA established a legal framework for adult-use cannabis in New York, yet its full and successful implementation requires prompt action on the part of the governor and the state legislature. Appointments are merely the first step in a lengthy regulatory development process that will culminate in the licensing of adult-use businesses in the cannabis space. Governor Hochul has a golden opportunity to expedite the process, but she’s got to start somewhere. First things first, let’s see her appointments and, if acceptable, work with the legislature to get them confirmed.