Image: Lawyers Niagara

Anyone following Chemung County government over the past few weeks is aware that an unfortunate impasse arose between the Legislative and Executive branches concerning the Legislature’s power to appoint an attorney to handle matters such as researching and drafting resolutions, local laws and other related documents.

The purpose of this post is to succinctly (I did my best!) and clearly set forth the history of the County Charter and legislation surrounding this issue, and update the public on where things stand now.

History

Chemung County was governed by a Board of Supervisors until 1973 when, through a public referendum, a County Charter was passed creating a Legislature and County Executive as well as several other governmental departments.

One of those departments was called the “Department of Law.” Under the original County Charter, there was just one law department headed by the County Attorney who oversaw all legal functions throughout the county.

County Charter Article XVI, Section 1602 (a-e)

However, by 1984 the Legislature recognized it needed its own attorney, and began contracting with a lawyer (Louis Mustico) for legal services.

By that time there were many other lawyers who did not work under the County Attorney as well such as the District Attorney and assistants, Public Defender and assistants and lawyers working for the Department of Social Services.

The next year the Legislature adopted a similar Resolution (Resolution 85-268), hiring Dick Keyser to serve as its attorney.

Attorney Keyser continued to serve as Attorney to the Legislature under contract and similar yearly Resolutions until 2001.

Throughout that time Attorney Keyser’s functions included researching and drafting resolutions, local laws and other related documents. These functions were not inconsistent with the County Charter, because they did not deprive the County Attorney of also undertaking these tasks if he or she saw the need to do so.

However, a Local Law passed unanimously by the Legislature in 1987 clarifies that, as of that time, the County Attorney’s job did not include any involvement with legislative drafting whatsoever. To the contrary, the law set forth an itemized list of what the County Attorney’s jobs duties entailed:

To be clear, this description shows the County Attorney was not paid to perform any legislative functions, because by that time all duties related to the Legislature were handled by the Legislative Attorney.

In 2001 documents were filed with the Civil Service Commission to combine the position of Legislative Attorney with the Attorney for the Special Districts into one official position as opposed to hiring a lawyer via contract.

The documents said the position was being created in the “Department of the Legislature”, and they outlined the duties of the Attorney for the Legislature.

The Civil Service Documents also set forth the titles of the supervisors to the position – and do not mention the County Attorney.

In 2001, prior to approval by the Civil Service Commission, the Legislature passed a resolution appointing Dick Keyser as the Attorney for the Legislature and the Special Districts.

It remains unclear why the Resolution was phrased this way, as nothing in the Civil Service documents indicate the County Executive has the power to appoint or oversee the Legislative Attorney. It simply may have been an oversight.

Indeed, Attorney Keyser was appointed three additional times (2011, 2012 and 2015) to serve as the Attorney to the Legislature, and Bryan Maggs was appointed once (2019). Each of those appointments came from the Legislative Chairperson under Article II, Section 203 of the County Charter.


Where things stand

On February 27, 2019 County Executive Moss said he was firing the Legislative Attorney effective March 1 despite Resolution 19-003 which unanimously appointed Bryan Maggs to serve a four year term.

On February 28, 2019 the Legislature unanimously passed a Resolution affirming our appointment and making clear that, in our eyes, Attorney Maggs remains the Legislative Attorney, as County Executive Moss does not have the power to unilaterally veto Resolution 19-003. The Resolution further directed all employees, officials and departments to refrain form taking any steps that interfere with the Legislative Attorney’s ability to do his job.

Since that time, however, the Legislative Attorney’s access to email has been cut off, and there has been an attempt to stop his pay.

There has been a lot of talk about Court action, but I – and I believe most other Legislators – have come to the conclusion that litigation may result in more harm than good. We have so many important issues to address, and spending time on this has become a distraction.

To that end, the Legislature passed a Local Law last night by a vote of 14-1 that simply amends the County Charter to make it consistent with the law and practice in Chemung County since 1984 – i.e. the Legislature has the power to appoint a lawyer of its choosing, and that lawyer can draft resolutions, local laws and other documents. (I did not embed the law below as it is a bit long, but it can be found here.)

County Executive Moss has the option to veto the Local Law, but it looks like the Legislature almost certainly has the votes to override it as a veto override only requires 10 votes. County Executive Moss would then have the option to circulate petitions to place this matter on the ballot for a public vote next November.

Why any of this matters

By 1984 the Legislature realized that having the County Attorney draft legislation does not coincide with separation of powers, and since that time a system where both branches have separate counsel of their choosing has worked abundantly well.

The cleanest thing would have been for the Legislature to amend the County Charter years ago. But, it didn’t, and therefore we are taking that step now. It is hard to envision why this is would be controversial.

More fundamentally, the Legislature needs to have fully independent counsel of its choosing for the occasions when matters it wants to pursue are different from what the Executive branch desires. This was clear to County officials by 1984, and our vote of 14-1 last night shows all but one current member of the Legislature agrees.

Hopefully this is the last post I will have to make on this issue, and we can all get back to doing the important and tough work we were elected to do.

–Christina Sonsire