At the onset it is important to note that I, and I believe many other members of the Legislature, have no interest in engaging in a dispute like this. Chemung County is facing many serious problems that demand our attention. We cannot afford these types of senseless distractions.
However, the Chemung County Executive is attempting to fire our attorney, a person we unanimously selected to serve as the Legislature’s legal advisor and counsel, and who serves as an employee of our Administrative Department. We offered the County Executive ways to work together to find a way through this but were not given any options. Hopefully we are able to move past this quickly and get back to the important work we were elected to do.
(It should be noted that this is just my take as I am not representing the Legislature in any sort of legal capacity in this action.)
The dispute boils down to two fundamental questions involving Chemung County government:
- Does the County Executive have the power to unilaterally veto a resolution passed by the Legislature?
- Does the Legislature have the power under the Chemung County Charter and various legislative acts to appoint its own attorney?
On January 1, 2019 the Chemung County Legislature unanimously voted to appoint Bryan Maggs to serve as the Legislature’s attorney.
Last week Dave Manchester, Chairperson of the Legislature, received a letter from County Executive Chris Moss challenging the validity of the appointment. It is my understanding Moss told Manchester that if Maggs was not fired, Moss would go to Supreme Court to challenge it.
On Wednesday I was at a meeting where Moss provided me and several other legislators with a very brief letter stating that he was unilaterally firing Maggs, apparently instead of challenging the validity of the appointment in court. We suggested ways to avoid a legal dispute such as mediation or arbitration, but were told the termination was final and we could take it up in court if we disagree.
The County Executive does not have the power to unilaterally veto a resolution passed by the Legislature.
Article II, Section 206 of the County Charter makes clear that the County Executive does not have the power to unilaterally veto a legislative resolution. A copy of the Charter is found here.
Chemung County enacted a charter in 1973 by public referendum. Article I, Section 101 of the Chemung County Charter states its purpose is, among other things, to bring about “separation of County Legislative and Executive functions and responsibilities. Article II sets forth the powers of the Legislature and Article III sets forth the powers of the County Executive.
Article II, Section 206 of the County Charter makes clear that the County Executive “shall have power, within fifteen (15) days after its passage to veto the budget and local laws only the budget and local laws only”. In other words, the County Executive’s veto power applies to just two types of legislative measures – the budget and local laws – and he must do so within fifteen days.
Here, the legislative measure in question is a resolution, not the budget or a local law, and the County Executive is attempting to de facto veto it nearly two months after the resolution passed – something that is patently improper. Simply put, he does not have the power to invalidate our resolution on his own.
The Legislature has the power under the Chemung County charter and various legislative acts to appoint its own attorney.
Similarly, the County Charter along with various legislative acts show the Legislature, not the County Executive, has the power to appoint the Legislative Attorney.
County Charter Section 302 provides that the County Executive shall “supervise and direct the internal organization and reorganization of each department or administrative unit, the head of which he has the power to appoint.”
Charter Section 309 authorizes the County Executive to “appoint, to serve during his pleasure, or for such term as may be specified in this Charter, the head of every department or other administrative unit not administered by an elective official.”
The County Charter does not give the County Executive the power to supervise or direct the internal organization or reorganization of any department or administrative unit, the head of which he does not have the power to appoint.
The County Legislature is an “administrative unit” of Chemung County, as that term is defined in Charter Section 105 (d). The Chairperson of the Legislature is an elected official, and is the head of the Chemung County Legislature.
Charter Section 309 further directs that the County Executive appoints non-elected department heads, but it is the head of each “administrative unit” (whether elected or appointed) who appoints all other officers and employees within those units of the Chemung County government: “All other officers and employees of each department or other administrative unit shall be appointed by the head thereof, unless otherwise provided by this Charter.”
As such, the County Executive has neither the authority to appoint nor remove the Attorney for the Legislature under the County Charter – only the Legislative Chairperson does.
Creation of the Legislative Attorney Position.
The position of “Attorney for the Legislature and Special Districts” is a civil service title that was created in 2001 by the Legislature. The Civil Service “new position duties statement” and “appendices amendment data supplement” asking for the position to be created by the State within Chemung County’s government (per Civil Service Law section 22) lists the “Department” within which the position is being created as “Legislature”, and the duties listed are consistent with this departmental placement.
The civil service position was created by resolution of the New York State Civil Service Commission in 2002, and the Legislative unit was asked to generate a Report of Personnel Change out of its department, for the incumbent attorney Mr. Keyser.
The procurement of legal advice for and at the direction of the Chairperson of the Legislature has a long history in Chemung County. Each and every attorney was selected and appointed by the Chairperson of the Legislature.
From 1983 – 2000, the Legislature contracted with an attorney selected by the Legislature to provide functions and duties assigned to him by the Chairperson of the Legislature. Subsequent to the creation of a civil service position within the Legislature in 2002, all appointments to the position were made by the Chairperson.
The Attorney for the Legislature was never appointed by the County Attorney.
Similarly, the position of Attorney to the Legislature and Special Districts was never appointed by the Chemung County Executive.
The County Executive at all times between May 2000 and December 2018 was Thomas Santulli. During that time Santulli never appointed the Attorney for the Legislature, as the power to appoint and confirm the Legislative Attorney rested at all times with the Legislature.
All of the resolutions before 2001 recognize that the Legislative Attorney is selected by the Chairperson of the Legislature, and all of the resolutions after 2001 similarly recognize that the selection of the Attorney to the Legislature is selected by the Chairperson of the Legislature.
In 2001 as the position of Attorney to the Legislature was being transitioned from a “contract” to “civil service”, former County Executive Santulli wrote a letter dated April 11, 2001, memorializing a conversation he had with John Flory, the Chairperson to the Legislature at the time. Former County Executive Santulli was not “appointing” Mr. Keyser to any position through this letter, but was instead coordinating with the Legislature the salary and benefits that would be paid to the position, which was being created through Civil Service in the Legislative department/unit of the County.
New clarifying resolution, proposed local law and measure to bring an action in Supreme Court.
To clarify the issue raised by the County Executive as to who has the authority to appoint and remove the Attorney for the Legislature, the Legislature unanimously adopted Resolution 19-192 on February 28, 2019, which states the following:
RESOLUTION AFFIRMING APPOINTMENT OF THE ATTORNEY TO THE LEGISLATURE AND SPECIAL DISTRICTS AND THE APPOINTING AUTHORITY OF THE CHAIRMAN AND MEMEBERS OF THE CHEMUNG COUNTY LEGISLATURE
WHEREAS, the Chairman of the Chemung County Legislature appointed Bryan Maggs to the position of Attorney to the Legislature and Special Districts by communication dated January 1, 2019, which communication was unanimously adopted by Resolution 19-003 of the Chemung County Legislature on January 1, 2019; and
WHEREAS, by letter dated February 21, 2019 Chemung County Executive Christopher Moss challenged whether the County Executive or Chairman of the Legislature has authority to appoint the Attorney to the Legislature and Special Districts; and
WHEREAS, Chemung County Charter section 101 separates the Executive from the Legislative branch by establishing “separation of Legislative and Executive functions and responsibilities”, and the engagement of a confidential attorney providing legal services for the Legislature, and selected by the Legislature has existed uninterrupted since Resolution 83-298; and
WHEREAS, County Law 204 vests this Legislature with exclusive authority to establish and abolish positions of employment; and Chemung County Charter empowers the Legislature to be the appropriating and policy-making body of County Government, to decide the terms of employment for all County employees, and to appoint employees within the Legislature to assist in discharging its functions; and
WHEREAS, the Attorney to the Legislature and Special Districts became a provisional employee of Chemung County pending New York State Civil Service jurisdictional classification, following Resolution 01-120, and received permanent jurisdictional classification in 2002; and
WHEREAS, the “unit” of County Government within which the civil service title was created was the Legislature, and the employee “maintains a confidential attorney-client relationship” with the Legislature; and
WHEREAS, the Chemung County Legislature is a unit of the County that is headed by an elected chairperson; and
WHEREAS, Chemung County Charter section 309 directs that while non-elected department heads are appointed by the County Executive, “all other officers and employees of each department or other administrative unit shall be appointed by the head thereof”; and
WHEREAS, the position of Attorney to the Legislature and Special Districts has in fact been selected and appointed by the Chairperson of the Legislature since its inception, in accordance with the power vested in the Legislature by Law and Charter; and
WHEREAS, by letter dated February 27, 2019 Chemung County Executive Christopher Moss served a letter upon the Attorney to the Legislature and Special Districts, terminating his employment effective March 1, 2019 exercising purported authority pursuant to Chemung County Charter Section 302(b); and
WHEREAS, Chemung County Charter section 302(b) permits the County Executive to supervise and direct the internal organization and reorganization of each department or other administrative unit, the head of which he has the power to appoint; and
WHEREAS, vesting the County Executive with authority to choose and appoint and remove at his pleasure the attorney that represents the Legislature would violate the “separation of County Legislative and Executive functions and responsibilities” specified in Charter section 101, and undermine the important role the Attorney to the Legislature serves in the performance of the Legislative branch of Chemung County’s government; and
WHEREAS, it is deemed prudent to clarify the appointment authority and going forward employment status for the Attorney to the Legislature and Special Districts; now therefore be it
RESOLVED, that the selection, appointment, reporting, duties, benefits, and all other terms and conditions of employment of the Attorney to the Legislature and Special Districts has been, and shall heretofore continue to be, vested within the exclusive authority and province of the Legislature of the County of Chemung; and be it further
RESOLVED, that the appointment made and confirmed in Resolution 19-003 is ratified and reconfirmed herein in accordance with Chemung County Charter sections 101, 105, 203, 203(b), 309, and other applicable provisions of law; and be it further
RESOLVED, that the present employment status of the Attorney to the Legislature and Special Districts, including duties, rights, authority, and payment of wages and benefits, shall not be cancelled or modified by any department, officer, or employer of the County of Chemung without further Resolution of this Legislature or a Court of Competent Jurisdiction.
The Legislature also unanimously passed a proposed Local Law through the Personnel Committee to amend the County Charter and further memorialize the contents of Resolution 19-192. The Local Law must be on the Legislator’s desks for 7 days before a vote of the full Legislature can be taken.
RESOLUTION ADOPTING LOCAL LAW INTRODUCTORY NO. 2 FOR THE YEAR 2019 IN RELATION TO THE AMENDMENT OF LOCAL LAW NO. 4 OF THE YEAR 1973 ENTITLED “A LOCAL LAW TO PROVIDE FOR THE ESTABLISHMENT OF A COUNTY CHARTER FOR THE COUNTY OF CHEMUNG, STATE OF NEW YORK” RELATING TO THE PROVISIONS OF ARTICLE 4 OF THE MUNICIPAL HOME RULE LAW OF THE STATE OF NEW YORK (FILED WITH THE DEPARTMENT OF STATE OF THE STATE OF NEW YORK AS LOCAL LAW NO. 3 OF THE YEAR 1973) (Attorney for the Legislature and Special Districts)
WHEREAS, Introductory Local Law No. 2 for the Year 2019 has been introduced and filed with the County Legislature seven (7) calendar days prior to consideration, exclusive of Sunday, upon the desks of the members of the Chemung County Legislature as required by Section 20 of the Municipal Home Rule Law; and the Clerk of the County Legislature has made her affidavit of service of filing the same; and
WHEREAS, Municipal Home Rule Law, Section 20 requires the Chief Executive Officer of the County to hold a Public Hearing thereon within the time limits as stated therein; and
WHEREAS, the Chemung County Charter, Article II, provides for adoption of Local Laws by the Chemung County Legislature; now, therefore, be it
RESOLVED, that the following Introductory Local Law No. 2 for the Year 2019, be and the same is hereby enacted and promulgated by the Chemung County Legislature as follows:
COUNTY OF CHEMUNG INTRODUCTORY
LOCAL LAW NO. 2 FOR THE YEAR 2019
A Local Law in relation to the amendment of Local Law No. 4 of the Year 1973 entitled “A Local Law to provide for the establishment of a County Charter for the County of Chemung, State of New York” relating to the provisions of Article 4 of the Municipal Home Rule Law of the State of New York (filed with the Department of State of the State of New York as Local Law No. 3 of the Year 1973) (Attorney for the Legislature and Special Districts).
BE IT ENACTED by the Chemung County Legislature of the County of Chemung, State of New York, as follows:
Article XVIII of the Chemung County Charter enacted by Local Law No. 4 of the year 1973 and filed with the Department of State of the State of New York as Local Law No. 3 of the year 1973 be and hereby is amended as follows:
By adding the following Section to Article II Legislative Branch
– Section 214. Attorney for the Legislature and Special Districts (Index)
Section 214. Attorney for the Legislature and Special Districts; Term; Duties.
The Chairman of the County Legislature shall appoint an attorney, duly admitted to the practice of law in the State of New York, who shall serve at the pleasure of the Chairman of the County Legislature during his term, and until his successor is appointed and has qualified.
The Attorney for the Legislature and Special Districts is the legal advisor to the Chemung County Legislature, and shall perform such duties as may be prescribed by law and directed by the Chairman of the County Legislature on behalf of the Chemung County Legislature and the County’s special districts, including, but not limited to the Chemung County Solid Waste District, Chemung County Sewer District No.1, and the Chemung County Elmira Sewer District.
The Attorney for the Legislature and Special Districts shall conduct public hearings of the Legislature, and shall prepare resolutions, ordinances, legalizing acts and local laws, together with notices and other items in connection therewith, to be presented for action by the County Legislature.
By amending certain Sections of Article XVI Department of Law
– Section 1602. Powers and Duties
The County Attorney shall:
(a) be the legal advisor to the County exclusive of affairs duly reserved by the Legislature to the Attorney for the Legislature and Special Districts;
(b) advise all County officers and employees in all County legal matters of a civil nature;
(c) prosecute or defend all actions or proceedings of a nature brought on or against the County;
(d) prepare resolutions, ordinances, legalizing acts and local laws, together with notices and other items in connection therewith, on behalf of the County Executive, to be presented for action by the County Legislature;
(e) perform such other and related duties as may be prescribed by law, the County Executive or the County Legislature.
Section 1603. Assistant County Attorneys: The County Attorney shall have the power to appoint Assistant County Attorneys as may be authorized by the County Legislature. All Assistant County Attorneys shall serve at the pleasure of the County Attorney.
This Local Law is subject to referendum on petition as provided by law.
. This Local Law shall take effect immediately upon appropriate filing with the Department of State pursuant to the provision of the Municipal Home Rule Law.
Finally, the Legislature voted to bring an action in Supreme Court to prevent County Executive Moss from firing its attorney.
A court filing is a drastic step that no one wants. Chemung County has a lot of very serious problems. Let’s use our energy to fighting them rather than fighting ourselves.
[…] A copy of the Minutes where this matter was decided is found here, a video of the Committee Meeting where it was thoroughly discussed is found here, and a blog post outlining my thoughts on the legal issues is found here. […]Loading...
Christina, I thought the appointment of the Legislative Attorney, was with the advice & consent of the Legislature, or did I miss something in the posting?Loading...
I am not seeing the real issue being addressed and that is the unethical practice of law. Seems like a case for the Attorney General if the county cannot police itself. Who appoints who seems irrelevant if there are moral and ethical behaviors that are not in concert with good government. Looks to me like there are folks getting rich on the taxpayer dime and the Legislature failed to take action once they were made aware. Are these the employees who we want working for the county? Let’s look at the big picture.Loading...
There are two aspects of this matter: (1) the power of the Legislature to make decisions for itself; and (2) the “conflict” issue that you raise.
At the onset, it should be noted that the termination letter from County Executive Moss does not articulate the basis of his argument that Attorney Maggs has a conflict.
Based on some statements I have read in the media, it appears the crux of his argument is that Attorney Maggs had a conflict when he served as County Attorney because his law firm – Barclay Damon – also represented the County in litigation matters.
This is not a conflict. A Local Law passed by the Legislature in 1987 created a system to allow for outside counsel on certain types of matters including litigation under a self-retention policy. The law states that the County Executive chooses the law firm to serve as outside counsel, and the Legislative Attorney – not the County Attorney – reviews the contract between the County and the firm.
From that time forward Tom Tranter followed by Tom Santulli served as County Executive, and Dick Keyser served as the Legislative Attorney. Neither Tranter, Santulli nor Keyser had any affiliation with Barclay Damon (formerly known as Davidson & O’Mara), and Bryan Maggs had no power to choose firm or the review the contract.
The unfortunate reality is that the County gets sued a lot. Over the past decade there have been some major cases including two gas line explosions and several serious car crashes, and dozens of cases are brought by inmates at the jail each year. This type of work is handled under the contract. If County Executive Moss wants to use other or additional law firms to do the work, he appears to be free to do so. However, none of this constitutes a conflict for Bryan Maggs.Loading...
It’s both. The Chairperson appoints, and the full Legislature approves.Loading...