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.
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.
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.
Standing up for the separation of powers established in the charter is important work too. “Looking bad” means you folks didn’t competently do your jobs. You go ahead and move on to other topics. Lets hope the county executive doesn’t turn you and the rest of the legislature into nothing more than figureheads.Loading...
[…] published a blog post two days ago about the Legislative Attorney position, found here, that concluded by stating, “[h]opefully this is the last post I will have to make on this […]Loading...
So after tabling your law suit to try and work this out justly and swiftly with the need for litigation the county executive turns around and files suit against the legislature. Remember my last post where I said there is no way the legislature comes out looking good on this one? Well, that may have been an understatement. Do you still want to talk about my pseudonym? You are going to need something to deflect the discussion from this embracement.Loading...
My reasons for not using my name have to do with the vindictive bloodshed that has been going on in the county since the first of the year. The choice of a pseudonym is in deference to your continual use of the word. With that out of the way let get back to the fact that despite all the bluster when tested… Well let the people decide.Loading...
I don’t know when this turned into a game to see if which branch of government turns out looking worse in this matter. I am confident the Legislature is right on the law, and I guess we now have no choice but to see what a judge will do. In the meantime the countless issues we were elected to address – poverty, crime, the economy in Chemung County, sales tax distribution, Elmira High School, the Arena, Broadband, airport maintainable, and broadband just to name a few – remain in need of our attention, and I am going to focus my efforts there. To say I am disappointed in the state of affairs within County government is a gross understatement. Instead of focusing on that feeling, I am going to channel my energy into something good for the community while this matter is sorted out by the courts. I could frankly care less which branch “looks bad”. Chemung County is in terrible shape, and I ran for office to do something about it – not engage in petty political power games against my colleagues.Loading...
Ask ask your former attorney and the other six unemployed people.Loading...
Vindictive bloodshed? What are the examples of that?Loading...
Saber rattlers that never pull the saber look weak and foolish. It would have been better to have not brought the article 78 to a vote at all. Thirteen of you are on record saying we feel this issue is so important and our standing is so strong that we are willing to let the court decide. Four days later, when it was time to pull the saber from its scabbard and engage an attorney, the legislative chairman and others, showing their jellyfish like spines, tabled the vote. You and Mr. McCarthy looked like the only true leaders that night. Based on your most recent post it appears the jellyfish have won you over. There is no way to explain this where you and the legislature don’t look bad. You either lost your nerve and backed away from the fight or, upon further review, decided that your initial reaction was poorly conceived and your chances of success were not good. Either way the county executive has much to celebrate and you folks don’t look good. The first big test of this “new legislature” has come and you have been found wanting.Loading...
Actually for me it’s a lot simpler than that.Loading...
I proposed a top litigator from the Southern Tier (Ray Schlather) who was willing to bring an Article 78 Petition on the Legislature’s behalf at no cost. The Resolution to hire Attorney Schlather was tabled last week, and this week a new Resolution, which was also tabled, called for appropriating funds to pay for outside counsel to represent the Legislature, Executive and Treasurer in this matter. Spending taxpayer money on this is an entirely different scenario, and I therefore believe it is in everyone’s best interest to do what we can to justly and swiftly resolve the issue without the need for litigation.
Might I ask why you are unwilling to use your name when you comment on this blog, something you do with some frequency? The irony of the pseudonym “Citizen for Transparency” is certainly not lost on anyone who reads your remarks.
As always, thank you for the comprehensive reporting to the public.Loading...
Well said and well done Christina. Did Mr. Moss ever provide his reason or logic for the firing?Loading...