To Remove a Mayor: Both Too Easy and Too Hard

With Mayor Eric Adams under an unprecedented five-count federal indictment and other key members of his administration under investigation or resigning, the City is facing a potential crisis of governance. Whether because of the seriousness of the charges against the mayor or the well-grounded fear that fighting the criminal case will leave him too distracted to do his job effectively, many of the city’s political and opinion leaders have called for his resignation. According to a recent poll, more than two-thirds of New Yorkers think he should go. But Adams, proclaiming his innocence of the charges against him, has insisted he will “reign,” not resign. The mayor would forfeit his office if he is convicted of a felony, but his trial is likely to be many months away. Until then, the City could be in a governance limbo if he refuses to quit. 

Putting aside whether the mayor ought to resign, can he be removed from office if he insists on holding on?

Both the City Charter and state law address this. Under the City Charter, it would be very hard — practically impossible — to remove him against his will. Under state law, by contrast, it would be extremely easy, maybe too easy, to remove him. Either way, removal would be followed by a period of uncertainty and, potentially, a sharply different administration from the one the voters chose three years ago. Whatever happens to Adams, the current scandal should be a wake-up call for paying renewed attention to the questions of mayoral removal and succession.

Turning first to the City Charter, the city’s highest legal document, there is no provision for mayoral impeachment by the Council, unlike the federal and state constitutional impeachment provisions for the president and the governor, respectively. Instead, there is an extremely complex and cumbersome set of rules that vest initial responsibility in something called the Committee on Mayoral Inability. This committee consists of the corporation counsel, the comptroller, the speaker of the Council, a deputy mayor designated by the mayor, and the most senior borough president. This Committee, with the vote of at least four of its five members, can declare the mayor either temporarily or permanently unable to “discharge the powers and duties of the office of mayor.”

If the inability is temporary and the mayor resists, the Charter sets up an intricate process. The mayor can reject the committee’s finding and hold on to power. However, if that happens another entity called the Panel on Mayoral Inability — which happens to be the City Council — can step in. Within 21 days of the mayor’s action , the Panel, by a two-thirds vote, can determine he is temporarily unable to discharge the powers and duties of the office. If the Committee (that’s the smaller group) declares the mayor permanently unable, the Panel (that’s the City Council) then has 21 days to decide by a two-thirds vote whether the mayor is permanently unable.

Three things about this law stand out. First, whether we are talking about temporary or permanent inability, the process can be started only by the five-member Committee on Mayoral Inability. The Committee needs four out of five votes to act, but two of the five members — the corporation counsel and the deputy mayor — are mayoral appointees, so it will be a very rare occasion when the Committee acts against the mayor. Currently, there is no Council-confirmed corporation counsel, so the four members of the Committee would have to agree unanimously that Mayor Adams is unable. It seems doubtful to say the least that a first deputy mayor (whoever replaces Sheena Wright, who just resigned) or any other Adams deputy mayor would agree to his involuntary removal.

Second, the Council can play a role only after the Committee on Mayoral Inability acts. If the Committee never acts, or the Committee declines to find inability, there is no role for the Council.

Third, the Charter does not define “inability,” but that term — and the extensive attention to temporary inability — suggests that, like the 25th Amendment to the U.S. Constitution, it means inability resulting from a health or medical issue. That is probably why such removal requires the consent of appointees of the mayor. Still, it is not limited to health issues, and there would be nothing to stop the Committee and the Panel (that is, the Council) from finding inability based on distraction and maladministration — but only if the deputy mayor agrees.

Turning to the state, state law gives the governor absolute and unfettered authority to remove the “chief executive officer of every city,” including the mayor of New York City. All she has to do is give him “a copy of the charges against him and an opportunity to be heard in his defense.” Period. The law does not address the substantive basis for removing a mayor. “Charges” suggests criminal charges, but the law does not expressly require that and at least one early 20th-century case indicates that “incompetency in and maladministration of his office” is enough. Nor does the state law address the evidence needed to support removal, or the standard of proof. Courts would surely require the mayor to be given due process and be removable only “for cause,” but such “cause” could be pretty open-ended.

In short, the Council has no power on its own to remove the mayor, but the governor has nearly plenary authority to do so.

Then there is the question of succession. Under the Charter, the public advocate becomes acting mayor immediately upon the removal of the mayor, and then has to call an election within 80 to 90 days, with the timing of that election affected by how late in the term, and how close to the next election, the removal occurs. If Adams were removed in October, the special election would be in January. So, there could be three different mayors in a 15-month period.

All three sets of laws — the Charter on inability, state law on removal, and the Charter again on mayoral succession — raise problems. As a matter of local self-government, it is upside-down that the City’s elected officials cannot remove a mayor without the approval of his appointees while the governor has virtually unlimited removal authority. To be sure, the Charter acknowledges the governor’s power and even extends it by providing that “pending the preparation and disposition of charges, the governor may suspend the mayor for a period not exceeding thirty days.” But vesting such unlimited power in the governor is completely inconsistent with the idea of home rule. There needs to be more limits — some limits! — on the governor’s power, on the one hand, and more ability for the City’s elected officials on the other to remove a mayor unable to discharge the powers and duties of his office. 

Exactly how to fix the city and state laws is far from clear. With a unicameral Council, the city cannot follow the federal and state model of impeachment by the lower house of the legislative, with ultimate removal decision in the upper house. But solely for the sake of putting some ideas on the table and getting the discussion started — and without suggesting these are the ways to go — in one possible scenario, the Council could act alone, but with a very high three-quarters supermajority and a serious substantive standard. Alternatively, local and state law could be united, with a Council impeachment vote, by a two-thirds supermajority, submitted to the governor for her decision whether or not to remove, and state law amended to make her removal power contingent on a council impeachment vote. Again, the point is not that these are necessarily the right removal rules, but that the current removal situation is highly flawed and alternatives need to be considered.

And the Charter needs to reconsider mayoral succession. Unlike the federal and state chief executives, the mayor would not be succeeded by someone on his team who could continue the policies and work of his administration, but by someone elected to another office with very different, and far more limited responsibilities — with another election, and potentially more administrative disruption, soon to follow. The right answer isn’t obvious. It’s not clear New York City needs or wants an elected vice- or deputy mayor just to have someone on hand in case of a mayoral vacancy. But the current succession process would likely prolong the turmoil posed by a distracted mayor.