Dispute over New York racing board appointment

The New York State Senate has confirmed Gov. David Paterson's appointment of Charles Diamond to one of three positions on the New York State Racing and Wagering Board, but the minority leader of the Senate has questioned the legality of the vote.

Diamond, a former city councilman for the town of Watervliet, N.Y., and former aide for retired New York Rep. Michael McNulty, a Democrat, was confirmed on Tuesday by a vote of 31-28, with all the votes split strictly on party lines. The Democrats hold a 31-30 edge over the Republicans in the Senate.

Sen. Dean Skelos, the leader of the Republicans in the Senate, said in a statement issued by his office that it takes 32 votes to approve any measures in the Senate.

"The Senate Rules clearly require that its business be done by a majority of 32 votes," Skelos said. "This dangerous precedent calls into question or invites litigation regarding any decision made by these individuals because the confirmation was illegal."

Senate Democrats had earlier enjoyed a 32-30 majority, but the expulsion of Democratic Sen. Hiram Monserrate in early February reduced their representation to 31 members. Monserrate was expelled after being convicted on a domestic violence charge.

Austin Shafran, a spokesman for the Senate Democrats, said that the state's constitution does not specify how many votes are necessary to confirm gubernatorial appointments. Therefore, "the default is a majority of senators present," Shafran said.

Shafran also pointed out that Republican members of the Racing and Gaming Committee and Finance Committee had earlier approved Diamond's confirmation.

"In committee, they voted on qualifications," Shafran said. "On the floor, they voted on politics."

Diamond, who most recently served as a director on the Cable Telecommunications Association of New York, would replace John Simoni, whose term expired in February, according to a board spokesman, Joe Mahoney. The position pays $101,600 a year.