New York Charter Schools Ass'n v. DiNapoli

Chief Judge Lippman (concurring).

While I agree with the *134majority that the challenged legislation directing fiscal and programmatic audits of all of the State’s charter schools by the end of March 2010 exceeds the authority conferred upon the Legislature to shape the mission of the State Comptroller pursuant to article V, § 1 of New York’s Constitution, I write separately to underscore that the issue before us has less to do with the power of the Comptroller than it does with the power of the Legislature. All we hold is that the Legislature could not, consistent with the express limitation upon its authority to define the Comptroller’s agenda contained in article V, § 1, direct the Comptroller to perform both fiscal and programmatic audits of entities that are neither political subdivisions of the State nor so intertwined with political subdivisions that their audit would be reasonably incidental to a political subdivision audit. We do not hold that charter schools may never be audited by the State Comptroller. Judge Graffeo has raised the possibility that a less plenary audit confined to economic matters might be permissibly directed under article V, § 1. It might also be borne in mind that while article V, § 1 is an important wellspring of the Comptroller’s power, it is not its only source. Under article X, § 5 of the Constitution, the Comptroller is expressly permitted to supervise the accounts of a public corporation and it appears that charter schools, which are indisputably corporate constituents of the public education system and share many of the salient characteristics of the public benefit corporations traditionally audited by the Comptroller under the authority of article X, § 5 (see 20 Misc 3d 235, 259-266 [2008] [same case]), may well be deemed public corporations within the meaning of that provision. If so, they would clearly be auditable by the Comptroller—but at his or her discretion, not the direction of the Legislature (see Patterson v Carey, 41 NY2d 714, 723-724 [1977]). These alternative theories pursuant to which the accounts of charter schools might be brought under the Comptroller’s supervision are not now before us. They are properly raised only to show that we have not, by enforcing the constitutional limitation upon the Legislature’s prerogative to make use of the Comptroller’s office, thereby placed charter schools beyond the Comptroller’s power.