The New York Court of Appeals unanimously decided yesterday that in his capacity as liquidator of insurance companies the superintendent of insurance is not a state officer, and that the New York Liquidation Bureau acting as the liquidator’s agent is not a state agency. Furthermore, the Court determined that the assets of the estates under the control of the liquidator are private not state funds, nor are these assets funds held by a state officer or agency. Therefore, the State Comptroller has no authority to audit the Bureau or subpoena its personnel. A copy of the decision can be obtained from the Liquidation Bureau’s website at http://www.nylb.org/ or by sending a request to me at firstname.lastname@example.org.
Although the case seems to put to bed the Comptroller’s ability to force an audit of the Liquidation Bureau, there is an interesting footnote in the decision that reads as follows:
“This holding is not meant to imply that the Superintendent may not be subject to an independent audit. Although the Legislature does not have the authority under our holding in Blue Cross and Blue Shield to assign to the Comptroller the task of auditing the Bureau, it does have the authority to require the Bureau to retain independent auditors.”
This footnote seems to leave the door open for the Legislature to provide for forced, independent audits of the Liquidation Bureau, a move the Superintendent may have anticipated in the Liquidation Bureau’s press release on the decision where the Superintendent states:
“Although this case was about far more than transparency and outside oversight, transparency and accountability are nonetheless critical elements in successfully fulfilling the Bureau’s legal responsibilities.”
The Superintendent then goes on to talk about all the actions, including a “top to bottom” audit of the Bureau and each of the estates under its control. I will be commenting more fully on these “transparency” and “audit” issue in future postings. For my earlier comments on this case, made following the Appellate Division ruling, see my entry for March 22, 2007.