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Wednesday, January 23, 2019

Tick, Tock...

HELD v. HALL Supreme Court, Westchester County, New York. Lucille HELD et al., Petitioners, v. Dave HALL, Also Known as David Hall, Respondent. Decided: March 18, 2002

...just one of several court cases used by the NYS Attorney General's office to form the basis of their opinions on compatibility of office and the Whitehall Doctrine.

From the court decision:
"Although not addressed by either side of this litigation, whether for tactical reasons or otherwise, the law governing the consequence of incompatible office-holding has been established in New York since at least 1874, when our State's highest court declared that when incompatibility exists, “one office is ipso facto vacated by accepting another” (People ex rel. Ryan v. Green, supra, 58 N.Y., at 304)."

"As further explained almost 60 years ago in Matter of Smith v. Dillon:"

"It is a well-settled rule of the common law that a public officer cannot hold two incompatible offices at the same time.   The rule is founded upon the plainest principles of public policy.   It is embedded in the common law and has obtained from very early times.   At common law and under constitutional and statutory prohibitions against the holding of incompatible offices, a person who accepts and qualifies for a second and incompatible office is generally held to vacate, or by implication resign, the first office, so that no judicial proceedings are necessary to determine the title.   The successor may at once be elected or appointed.  (Supra, 267 App.Div., at 43, 44 N.Y.S.2d 719)."
As a rule, Municipal Home Rule Law cannot be used to supersede general law that applies to all towns in New York...Town Law 64-5 is a general law that applies to a other towns in the State of New York.

However, there are exceptions cited in many NYS Attorney General opinions:
Attorney General Opinion 1984

"We have also concluded, however, that the town board in determining public policy on behalf of the town may, by local law supersede the common law doctrine of compatibility of office (Op Atty Gen [Inf] 83-50).

For example, in a small town there may not be enough residents willing to serve the town or there may be few persons possessing required expertise. In situations such as these, the town board may find it necessary, in furthering the public interest, to establish exceptions to the common law rule of compatibility of office."
Attorney Cully tried that one; the Park Director job vacancy was never advertised and it is a civil service position so more than likely the town would have no problem filling the vacancy. Plus, how does the town attorney justify the statement that we are a small town? How many times have officials touted that we are the largest town in Oneida County?  Besides, why does a small town need a 50,000 square foot town hall and a police force to try to rival the City of Utica?
N.Y. Att'y Gen. 1988

"In considering such a local law, it is necessary that the town board weigh the incompatibility against the public benefit to be derived from retention of the employee. In our view, the perception of the person as a valued and competent employee is an insufficient basis for retention if there are other competent persons willing to serve."
Again, Cully used all of Miscione's qualifications to reason that his appointment as Parks Director is in the public interest. While it is wonderful that our supervisor has so many talents; it does not fit the criteria under the "public interest" rule; I would guess there are many in town with the same talents. 

Cully also said we don't have any money. That may now be true, but there was money for a Parks Director in the 2018 budget, but instead of continuing to budget for the director position, Miscione used the money to give luxurious raises to some employees and to pay for some of his pet projects. Perhaps, it would have been wise to "settle in" to his supervisor role before spending the town's money and bonding for almost $6,000,000 of additional debt within weeks of taking office. Perhaps, Miscione should call the NYS Attorney General and ask if lack of money fits the "public interest" test! LOL!

Absent an ability to show the appointment of Miscione as Parks Director is in the public interest, there is little left to be done except follow Town Law 64-5. The time is way overdue.

Miscione accepted the Parks Director position months ago; and in reality, by Town Law 64-5, at this point (ipso facto), he is no longer the town supervisor.  His insistence on ignoring town law in an effort to remain in both positions is starting to draw questions from town residents.

Perhaps, he better act quick to determine which hat he wants to wear before someone else makes the choice for him!

Should Attorney Cully go down the road of advising the town board to just not appoint anyone as Parks Director thinking that Miscione would automatically have the Parks Director position like was mentioned at the last town board better check your "blue book", Attorney Cully. I've already looked it up in my copy of the "blue book"; your opinion is not in conformance with law.

And, I just have to ask...anyone out there know what does Oneida County; Town of New Hartford;  pro bono work to redesign the Rec Center; and the Whitehall Doctrine have in common?

Just wondering...don't really expect an answer from the "people in the know out there".

Monday, January 21, 2019

King Cuomo and the big squeeze...

Recent reports are that Cuomo's 2020 budget proposes cuts in AIM funding (Aid and Incentives to Municipalities). These cuts would affect almost every town and village in New York State; cities' funding would remain level.

I prepared a spreadsheet showing the effect the cuts would have on cities, towns ad villages in Oneida County:

Click here for a pdf copy

The Democrat & Chronicle had a recent article, "A cut in Andrew Cuomo's budget Sends town, villages officials scrambling".

Is Cuomo playing politics and looking to get a bigger "prize" by putting the squeeze on local governments or is he really serious? We won't know until the 2020 budget is finalized which could be April 1 or later.

In the meantime, New Hartford's 2019 budget has already been adopted and the town stands to loose $118,301 in AIM funding. The Village of New Hartford will lose $17,021 and the Village of New York Mills is looking at a $28,737 loss of AIM revenue.

Misicone has called a Special Town Board meeting where he plans to ask the town board to vote for bonding to purchase extra land next to the new town hall; the discussion will take place at 5:30 p.m. on Thursday, January 24, 2019 in the new town hall.

Will the town board be willing to gamble that Cuomo is playing "chicken" in hopes of getting some other "prize" item in the budget and AIM funding will be restored?

Will Miscione take a step back and reconsider whether or not the town "needs" more land next to the town hall which has yet to be completely finished?

Based on Miscione's lack of financial savoir faire, I am guessing Miscione will add on more debt because in Miscione's eyes HIS "small town who has no money (according to the town attorney)" absolutely "needs" the is no option. Let's not forget the town attorney's opinion in another financial matter...just do it and worry about the specifics later!

So unless either the town board gets some gumption and does not unanimously adopt a bonding resolution or taxpayers voice their opinions by attending the meeting on Thursday the bonding to purchase the land will take place.

Sunday, January 20, 2019

A Man of Many, Many Hats….

At the January 16, 2019 town board meeting, the town board unanimously voted “to reaffirm and appoint Town Supervisor Paul Miscione as Project Manager” for the renovation of the new town hall.

Hmmm….Reaffirm…Now, that's funny!  I’m not sure how you reaffirm something that you never affirmed in the first place.  I guess that's what lawyers are try to right a wrong after the fact!  ROFLMAO

My website, New Hartford, N.Y. Online, has searchable town board minutes going back several years. I found no resolution previously naming Supervisor Miscione the Project Manager for the town hall renovation project. Here is a pdf copy of the resolution unanimously adopted at the January 16, 2019 town board meeting.

I suspect this resolution came about because I just FOILed all change orders for the project; none of which have ever come before the town board for approval so I don’t believe that any board members were ever even aware of the specific changes that were being made and no one asked when Miscione briefly mentioned at town board meetings that there were change orders, but he never produced any documentation.

Apparently (or so it was said at the last meeting) Laird Petrie, of the NYS Comptroller’s office, was contacted by the town and he said it's perfectly fine to sign the change orders and just bring any to the next town board meeting for approval for approval after the fact.

So, incorporated in the Project Manager resolution is:
RESOLVED, that as Project Manager, Town Supervisor Paul Miscione is authorized to approve change orders in an amount of less than $20,000.00 so long as they are brought to the Town Board at its next meeting...
However, it’s hard to believe that the state comptroller’s website would have an online course for Continuing Professional Education (CPE) credits under the New York State Education Department that would contain false information.

According to the online course, titled “The Academy for New York State's Local Officials – Budgeting - Capital Planning and Budgeting: A Tutorial for Local Government Officials”:
Module 3 - From Plans to Projects

“Because the governing board authorizes construction contracts and professional service contracts, it must also review proposed changes to these agreements. Change orders must be presented to the board for approval in a timely manner and should be reviewed by the board as promptly as possible to ensure the change order is approved before any additional work is started.”
Were the contractors made aware that Miscione had no authority to sign change orders because he never bothered to get town board approval?

So, basically, what we have before us is an elected town supervisor who is now also the town’s Project Manager for the new town hall and he appears to also be trying with all his might to secure the Parks Director gig even though he is the one that pushed the local law to create a Parks Commission!

Will the town board proceed with a Public Hearing to adopt an illegal local law to supersede the Whitehall Doctrine and Town Law 64-5? Or more appropriately, if the Public Hearing is still held after receiving my email outlining the law, how many of our elected officials will vote to put a finger up to NY Town Law in order to name Miscione Parks Director? Not only that, but Miscione and the town attorney better start reviewing the Town of New Hartford Ethics's not in Miscione's favor at this point.

Oh, have I told everyone about the town’s Procurement Policy that Miscione updated shortly after taking office? Or, how woefully insufficient HIS policy updates are because unlike the previous version of the Procurement Policy, it doesn't comply with General Municipal Law and Miscione doesn't always bother to comply with the new policy either? However, the town board unanimously adopted it at the March 7, 2018 town board meeting! Wait until I show you the video of the vote! ROFLMAO….

It’s how Miscione thought he could just hire GYMO as the architect for the new town hall without any input from the town board or any town board authorization to sign a contract with GYMO as required by town law; of course, that is assuming that there even is a contract. Can we expect a reaffirmation of the GYMO hiring and contract resolution after my next FOIL request? ROFLMAO!

Who is GYMO and why is GYMO, a firm from Watertown, willing to do pro bono work to redesign the town’s recreation center? What are they redesigning and how much is it going to cost New Hartford taxpayers in the long run?  Are there future expectations involved in their offer?

Or did I mention how Miscione "threw the assessor under the bus" when it was found out that the changes to start taxing Operation and Maintenance costs to ALL sewer users on their 2019 town tax bill didn't happen when in actuality it was Miscione sticking his nose in when it wasn't needed that caused the mess? Then he has the gull to say he doesn't understand the statement I made in my email to the town assessor that I copied him on so as not to be accused of talking to HIS employees behind HIS back!

My statement was:
"When Paul realizes that he is not a one-main show, the town will be in a better place. I am not counting on that happening anytime soon."
Unbelievable! Is there anyone out there that doesn't know at this point what I mean by Miscione being a "one-man show"?

You just can't make this stuff up...only in New Hartford! Things are getting out of control, folks!

Stay tuned!

Friday, January 18, 2019

Special Town Board Meeting Notice and video of the January 16, 2018 town board meeting...


A Special town board meeting has been called for 5:30 p.m. Thursday, Jan. 24, at the New Hartford Town Hall. The meeting will focus on the acquisition of land and bonding.

The town hall is located at the former Gander Mountain building at 8635 Clinton St.

Below is the January 16, 2019 town board meeting in its entirety including discussion after the executive session.

Agenda for meeting

Totally telling "Little White Lies"...

...or is the truth buried within the details?

So part of the discussion regarding the Parks Commission I wrote about in my last blog included the appointment of Supervisor Miscione as Parks Director; the appointment which was revealed to the public after an executive session.

Attorney Cully said that they were made aware of something called the Whitehall Doctrine; though he didn't say who brought the Doctrine to their attention. (wink! wink!)

According to Attorney Cully, the town wanted to lean on the side of caution so they did some research and found out that the town could supersede the Whitehall Doctrine by adopting a local law showing that it is in the public interest for Supervisor Miscione to continue as Parks Director.

To that end, Attorney Cully drafted a town board resolution listing how the public interest would be served if Supervisor Miscione were to remain as Parks Director (perhaps on a temporary basis). It was also stated that if there were no Parks Director, it would be Supervisor Miscione's job without an appointment.

Well, they are partly correct, however, Town Law 64-3 gives the authority for "management, custody and control of town property" to the town board as a whole and Miscione is only one (1) of five (5) members of that group. No section of town law gives a town supervisor complete authority to manage any property in the town.

Anyway, I won’t go into the specific list of reasons read by Attorney Cully at the January 16th town board meeting to justify using local law to supersede the Whitehall Doctrine; you can view the video, but two (2) of the reasons he enumerated were 1) we are a small town and 2) we don’t have any money.

Really? Then why is such a small town renovating a 50,000 square foot retail space to the tune of $5 million or more (the final tally hasn’t been officially disclosed yet) to house town offices? And why is the town in negotiations to buy more property next to the "new" town hall?

I have a plethora of NYS Attorney General opinions...I can usually find one to fit every occasion! I readily shared the appropriate opinions with Miscione, but apparently they went right over his head...or...maybe he is just a man on a mission and the mission hasn't yet been revealed!

At any rate, in this instance, a similar NYS Attorney General Opinion and an article written by the counsel to the NYS Association of Towns in a publication of the NYSBA/MLRC titled Municipal Lawyer which addresses the current town's situation led me to Town Law 64-5 which clearly states:
Section 64 - General powers of town boards

5. Vacancies. Whenever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy. If the appointment be made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term. If the appointment be made to fill a vacancy in an elective office, the person so appointed shall hold office until the commencement of the calendar year next succeeding the first annual election at which the vacancy may be filled. A person, otherwise qualified, who is a member of the town board at the time the vacancy occurs may be appointed to fill the vacancy provided that he shall have resigned prior to such appointment. [emphasis added]
Further, Miscione and the town attorney have supposedly been communicating with the Association of Towns; and according to them, they were told by the Association there is no problem with the town board adopting a local law to supersede the Whitehall Doctrine by local law to allow Miscione to remain Parks has been done by several towns!

Interesting...particularly since a brochure from the Association of Towns clearly says:
4. Vacancies

Another very important matter to be addressed is the filling of vacancies that exist in any town office at the time of the Organizational Meeting. In such instances, the board appoints a qualified person to fill the vacancy.

The town board should fill such vacancies pursuant to §64(5) of the Town Law, ...
The Association brochure then goes on to cite Town Law 64-5; the same law I cited above.

Town Law 64-5 that both the NYS Attorney General and NYS Association of Towns acknowledge must be taken into consideration when filing vacancies means that the choices for Miscione are to either continue in his role as elected Town Supervisor and hire someone else as Parks Director...or... resign as Town Supervisor and apply for the open Parks Director position which, by the way, is the same conclusion contained in the NYS Attorney General's Opinion Letter! Or, I suppose the town board could decide to just let the Parks Commission do their job in accordance with the adopted New Hartford Town Code which is based on General Municipal Law 243.

So to get back to the local law that Attorney Cully presented to the town board to adopt after holding a Public Hearing; anyone who knows law should know that a local law cannot supersede NYS Town Law! This actually reminds me of the time Attorney Cully tried to convince the town board that an auditor's "Yellow Book" took precedence over the NYS Freedom of Information Law.

Here is a pdf copy of the email that I sent to all town board members; the town atty; and the town clerk the day after the town board meeting.

Incidentally, all the NYS Attorney General opinions I have read disqualifies the statement “we are a small town with a lack of money” as evidence of the public interest being served so I don't know where Attorney Cully thought he was going with this.

And, I must ask...what do all you taxpayers think when hearing that the town attorney has submitted a proposed local law to the town board stating that we are a small town suffering from a lack of money especially considering that we are investing $5 million plus in a 50,000 square foot former retail building to house our new town offices?

I can't wait to hear about the 3.7% "miscalculated" tax increase in the 2020 budget next October which will most likely include payment for the serial bonds needed to pay all this debt!

It's supposed to be a snowy weekend; in case you are bored, I will be posting the entire meeting including the executive session later today.

I will also be blogging further on this meeting as my time permits...there's plenty more to analyze!

Stay tuned!

Thursday, January 17, 2019

Adopted without even bothering to understand what the local law means...

...apparently that is the case when the local law was adopted to form the Parks Commission. Either that or someone (not naming anyone (Paul Miscione) misrepresented why he wanted to create the Parks Commission in the first place.

To understand the law, one has to review Article 13 of General Municipal Law in its entirety...not just a section of that law.

General Municipal Law section 242 gives the town board options as to how to establish and maintain their park.

One of the options available to a municipality is to create a Parks Commission. The highlighting is done by me for emphasis.
The authority to establish and maintain playgrounds and neighborhood recreation centers may be vested in the park board or other existing body or in a recreation commission as the board of estimate and apportionment, common council, board of aldermen or corresponding legislative body, or the governing board of any such county, town or village, shall determine.
At the February 7, 2018 town board meeting, Town of New Hartford Local Law Introductory “A” of 2018 was unanimously adopted and the Public Hearing to create a Parks Commission was set for March 7, 2018.

No one on the board asked what exactly would be the duties of the Commission although Councilman Reynolds did ask if the Parks Advisory Committee was going to be dissolved and Miscione replied "No". However, according to town board minutes:
"The Town Attorney submitted proposed legislation to create a Parks and Recreation Commission – in place of a Parks and Recreation Standing Committee – and which Commission would supervise and manage various operations and programs at the Town’s three (3) parks and the Recreation Center. The Commission would have no budgetary authority."
Hmmm...sounds like the town attorney knew in February 2018 what a Parks Commission is according to General Municipal Law 243!

Back to General Municipal Law 242 which states that once the local authority (in the town's case it was proposed that a Parks Commission is going to be the designated authority by adopting the local law):
The local authorities of any such municipality designated to equip, operate and maintain playgrounds and neighborhood recreation centers as authorized by this article, may equip such playgrounds and recreation centers, and the buildings thereon, and may construct, maintain and operate in connection therewith public baths and swimming pools.  Such local authorities may, for the purposes of carrying out the object of such playgrounds or recreation centers, employ play leaders, playground directors, supervisors, recreation secretary, superintendent or such other officers or employees as they deem proper.
Holy, Moly...looks like the Parks Commission pretty much runs the Parks except for the budgetary powers which the proposed adopted local law does exclude!

So, without hesitation at the March 7th town board meeting, town board members, apparently unknowingly, unanimously gave their complete authority minus the budgetary power over to five (5) people by adopting the local law to create the commission.

In July, the board unanimously expanded the Commission to include two (2) additional members making a seven (7) member Commission. The two (2) additional members were never officially appointed by the town board (although Miscione had a different story on that last night). At any rate, Miscione at some point apparently hand-selected two people who were already taking part in the Commission meetings; they were finally appointed by the town board at last night's meeting.

The rest of General Municipal Law, Article 13 determines:
  • Section 243 of Article 13 Gen. Mun. Law - Recreation Commission, which was cited in the town's local law as the basis for creating the Parks Commission, sets the "ground rules" for how the Commission is to be formed.

    From Town of New Hartford Code:
    § 19-1 Commission created.

    The Town of New Hartford does hereby create and establish the New Hartford Parks and Recreation Commission as authorized pursuant to General Municipal Law § 243.

    § 19-2 Legislative intent.

    The intent of this chapter is to create a Parks and Recreation Commission to supervise the operation of the Town Parks and Recreation Programs in the Town of New Hartford.

    § 19-3  Powers and duties.
    The Commission shall supervise, oversee, manage and direct the operations of each of the Town parks and all of the recreation programs provided at any of the playgrounds, parks or recreation centers by the Town of New Hartford. The Commission will have no budgetary authority. (Looks quite similar to Gen. Mun. 243 language!)
  • Section 244 of Article 13 Gen. Mun. Law - Organization of Commission details how a chairman and secretary and other necessary officers to serve for one year are to be determined. The town law modified that section.

  • Section 244-a of Article 13 Gen. Mun. Law - Acceptance of Donations allows the Commission to accept donations; that part was not addressed in the town's local law.

However, Miscione and the town attorney now appear to have a different opinion on the intended role of the Parks Commission. Here's a snippet from last night's meeting:

...I think General Municipal Law Article 13 is pretty clear and definitely is in direct opposition to Miscione's interpretation of the Law!

The town already had a Parks Advisory Standing Committee which was abolished when the commission was established so what was the real reason for forming the Parks Commission under General Municipal Law? Does anyone on the town board know?

What do you think boys! Time to go back to the drawing board or are you really ready to abdicate your role in how the town's parks are managed to a Parks Commission of seven people that were not elected by your constituents?

Or does General Municipal Law just not matter in the Town of New Hartford?