Desso LynchDecision-012210

8/14/2019 Desso LynchDecision-012210

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STATE OF NEW YORKSL"REME COURT COTINTY OF RENSSELAERJEFFREY ALLEN SPENCER andKIM HALLORAN,

Plaintiffs,-against-

MICHAEL P. CRISTO, JR. & PHILIP J. DANAHER,constituting Town Councilman for the Town of EastGreenbush and constituting County Legislators -Electto the Rensselaer County Legislature for District 2 ofthe Rensselaer County LegislatureandLINDA KENNEDY, constituting theTown Clerk of the Town of East Greenbush,

Defendants.

DECISION ANDORDER/JUDGMENT

JANICE LIBERTY andROSE R. DILL,Plaintiffs,

-against-LOUIS DESSO, constituting Town Councilmanfor the Town of North Greenbush and constitutingCounty Legislator for the Rensselaer CountyLegislature District 2 of the Rensselaer CountyLegislatureandKATHRYN A. CONNOLLY, constituting theTown Clerk of the Town of North Greenbush,

Defendants.


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(Supreme Court, Rensselaer CountyIndex No. 231651; RJI No. 41-0004-2010lndex No. 231699; RJI No. 41-0003-2010)(Justice Michael C. Lynch, Presiding)APPEARANCES: JAMES E. LONG, ESQ.Attomey for Plaintiff

668 Central AvenueAlbany, New York 12206DAVID L. GRUENBERG, ESQ.Attomey for Defendants Michael P. Cristo,Philip Danaher and Linda Kennedy54 Second StreetTroy, New York 12180HENRY BAUER, ESQ.Attorney for Defendant Louis Desso20 Corporate Woods BoulevardAlbany, New York l22llSTEPHEN A. PECHENIK, ESQ.Rensselaer County AttomeyAttomey for Defendant Rensselaer CountyRensselaer County Office BuildingTroy, New York 12180

LYNCH, JBy companion Orders to Show Cause (Hummel, J.) signed January 4,2010,

plaintiffs seek a declaratory judgment precluding the defendant candidates fromholding the dual offices of Rensselaer County Legislator and Town Councilman.The three defendant candidates, Cristo, Danaher and Desso were each elected tothe office of Rensselaer County Legislator at the Novemb er, 2009 generalelection. Each candidate also serves as an elected town councilman for a term


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ending December 3l,20IL Plaintiffs' thesis is that County Law g4l1 precludeseach defendant candidate from holding both offices. Counsel have stipulated thatthe actions should be consolidated and since there are no triable issues of fact, asummary disposition of the dispute is in order.

To begin, the Court deems the action timely. The challenge has beenprompted by the election of the defendant candidates to the office of RensselaerCounty Legislator for a term commencing January 1,2010, with each candidatecontinuing to serve as a town councilman. The submissions indicate thatdefendant Desso has already taken the oath of office as a County Legislator, whiledefendants Cristo and Danaher have held off taking the oath pending the outcomeof these actions. A failure to take and file an oath of office within 30 days ofcofllmencement of the term creates avacancy in that office (Public Officers Law$30[1][h]). While calling into question the viability of Rensselaer County LocalLaw No. 1 for 1969, the challenge seeks to enforce the dual office holdingrestrictions of County Law $411 and is thus timely. The Court is mindful thatdefendants have identified six other elected officials who previously have heldthese dual offices. That history, however, does not dictate the outcome of thisaction. Nor is the Court convinced that plaintiffs' challenge in the Town of EastGreenbush action should be barred due to plaintiff Kim Halloran's history of


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acceding to two democratic candidates from the the town holding dual offices (seeCristo, et al. Answer, "Fourth Defense"; attached as Exhibit "B" to Cristo, et al.Notice of Motion). Even were the Court to accept the argument with respect toplaintiff Halloran, there is no basis presented to preclude the remaining plainiffs.

County Law $411 provides in pertinent part as follows:ho,dat,il";;,llliil:ilTln:fl ffi illlhi'3ili'.::,,

There is no dispute here that a county legislator is an "elective county officer" andthat a town councilman holds an elective town office (see Matter of Knauf v.County of Monroe, 53 Misc 2d917, afftmed2T AD2d 440).

In Matter of Brayman v. Stevens (20 NY2d 868, decided8125167),the Courtof Appeals determined that a county officer was prohibited from also serving as atown supervisor under the restrictions imposed by County Law $41 1. This rulingwas made notwithstanding the fact that a Dutchess County local law, enacted aspart of the County's "reorgantzatron necessitated by reapportionment" (Matter ofBrayman v. stevens , at 54 Misc 2d 97 4, 97 5) qeated a "County Board ofRepresentatives" and authorized such dual office holding. The Court effectivelydetermined that since County Law $411 was a "general law" it could not besuperceded by local law (Id, at 978; see Shilbury v. County of Sullivan, 54 Misc2d 979,980-981).

Two years later, however, in Abate v. Munde (25 NY2d 309) the Court of4


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Appeals approved a "two hat" provision premised on the enactment of MunicipalHome Rule Law (MHRL) $10 (subd 1, par. a, cl 13, sub cl [b]) (see L. 1969 ch834 eff. 5122169) (Id at p. 3 l7-3 18). That provision specifies that

,n,,,,oo1ljll"iiTilffi ffi :ffi1::::1i3,!olnf vunderlegislative bodies of...towns...shall be eligible to be electedas members of the county legislative body"

In effect, MHRL $10 partially superceded County Law g411 (see Ingenitov. Jobson, 153 AD2d 710, app den74 NY2d 69).

A month after the amendment of MHRL $10, the Rensselaer County Boardof Supervisors enacted Local Law No. 1 for 1969 providing as follows:

forthe"i,:JJ:?8:ffff ;.:ff ffii::nffi'ffi i'i,l:.T.::]fl ,*.Bodies of...Towns...shall be eligible to be elected as membersof the County Legislative Body" (see Exhibit..A" annexed toOrder to Show Cause).Plaintiffs maintain that this provision is not a "plan of apportionment"

within the embrace of MHRL $10. By its terms, Local Law No. 1 for 1969 doesnot speak to the apportionment of districts within the County.

Citing to Matter of Ingenito v. Conklin, (113 Misc 2d 420), defendantsmaintain that Rensselaer County was authorrzedto adopt a "two hat" provision bylocal law as Rockland County did in the Ingenito case. In l969,Rockland Countyadopted a plan of apportionment by resolution approved by Court decree, thatestablished a County Legislature (Abate v. Munde, supra; Matter of Ingenito v.


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Conklin, supra). That plan, upheld by the Court of Appeals in the Abate case,included a "two hat" provision authorrzing town supervisors to also serve aselected county legislators (see Matter of Ingenito v. Conklin, supra, atp. 423). ByLocal Law No. 4 for 197I, the Rockland County Legislature expanded the "twohat" provision to include "any other elective town office" (Id). In finding LocalLaw No. 4. valid, the Court rejected the argument that a "two hat" provision couldonly be authorized pursuant to a plan of apportionment under MHRL $ 10.

The point made is that as a charter county, Rockland County was authortzedto enact a "two hat" provision by local law. Where a county operates under acharter form of government, its apportionment plans are adopted pursuant to itscharter authority, not MHRL $10(lXaXl3) (see League of Women Voters ofWestchester v. Countlz of Westchester,2lS AD2d 730). A charter county isexpressly authorized to define the structure of the county government and themethod of nomination and election of county officers, provided that structureincludes an elective board of supervisors (MHRL g33t2l). There are definedlimitations on a charter County's abilify to supercede general laws, but thoselimitations do not include County Law $411 (MHRL g3at3lta-gl). It follows thata charter county may adopt a local law authorrzingdual office holding by Countylegislators (cf. Matter of Bra.'*man v. Stevens, supra, 20 NY2d 863 finvolving a


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reorganvation of the county legislative bodyl).The situation here, however, is distinguishable from that in the Rockland

Counfy scenario. It bears emphasis that Local Law No. I for 1969 was adoptedby a Board of Supervisors statutorily comprised of the supervisors of the severalcities and towns within the County (County Law $150). The discrepancy is thatRensselaer County had not yet established an alternative, charter form ofgovernment and thus its authority to supercede County Law $411 was limited to aplan of apportionment under MHRL $10. As noted above, Local Law No. I for1969 does not expressly address apportionment. The submissions document thatRensselaer Counfy did not establish the alternative structure of a countylegislature until the Rensselaer County Charter was approved by the voters ofRensselaer County at the general election held on November 7, 1972, to becomeeffective on January 1,1974 (see Exbhibit "B" annexed to the order to ShowCause). Correspondingly, by Local Law No. 4 (Introductory) for 1973,the Countyadopted a redistricting plan establishing legislative districts for not more than 2llegislators (Id.) Subsequent redistricting plans were adopted by Local No. 7 for1981 and Local Law No. 3 for 2001(Id). By its terms, the Rensselaer CountyCharter defines the "qualifications" for a legislator as follows: "Each membershall,at the time of his nomination and election and throughout his term of his


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office , be and remain a qualified elector of the district from which he is elected"(see Exhibit "D" annexed to Desso motions, Rensselaer County Charter, revisedJuly 1 2,2007 , at section 2.03). There is no express language in the charter or thelocal laws adopting redistricting plans providing for dual office holding by aCounty Legislator. The Charter continues existing laws, except to the extent ofany inconsistency with the Charter (Id at section 1.04).

Given this structure, the Court finds that Local Law No. I for 1969 does notqualify as a plan of apportionment under MHRL $10 and that with the absence ofexpress "two hat" language in the Rensselaer County Charter or decennialredistricting laws the defendant candidates are precluded under County Law $411from holding the dual offices of county legislator and town councilman. As such,the defendant candidates are eligible to serve as County Legislators, but are noteligible to simultaneously hold the office of town councilman (see Matter ofKnauf v. County of Monroe, supra, atp.44l-442). In an instance where apartyhas been elected to dual offices, upon accepting and qualifying for the secondoffice, the first office is deemed vacant (Matter of Dykeman v. S)rmonds,54 ADzd159, 163-164; Matter of Knauf v. County of Monroe, supra 27 ADzd at 441-442;Matter of Smith v. Dillon,267 App Div 39,43). Applied here, defendant Dessohas filed his oath of office for the position of county legislator, and thus his town


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councilman seat is deemed vacant. Since defendants Cristo and Danaher have yetto file an oath of office for their respective county legislative seats, whether theseseats or the town councilman seats will become vacant necessarily depends onwhether either candidate accepts and qualifies for the office of County Legislatoron or before January 30, 2010.

This Memorandum constitutes the Decision and Order/Judgment of theCourt. This original Decision and Order/Judgment is being returned to theattorney for Plaintiff.

Counsel is not relieved from the provision of that rule regarding filing, entry, or

notice of entry.DATED: January ,2010Albany, New York

Michael C. LynchJustice of the Supreme Court

Papers Considered:1. Order to Show Cause (Hummel, J.) dated January 4,2010 - Spencer, et alv. Cristo, et al.

lndex No. 231651 with Affidavit of James Long dated January 4,20T0; Summons andComplaint dated January 4,2010; and Exhibits "A" -"C";


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2.

J.

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Order to Show Cause (Hummel, J.) dated January 4,2010 - Liberty, et al. v. Desso, et al.Index No. 231699 with Affidavit of James Long dated January 4,2010, Summons andComplaint dated January 4,2010; and Exhibits "A" -"C";Notice of Motion by defendant's Cristo dated January 12,2010, with affidavit of DavidGruenberg dated January 12, 2010 and Exhibits "A" - "C", together with separate 4 pageattachment; Verified Answer dated January 12,2010;Notice of Motion by defendant Desso dated January 12,20l0,with Affirmation of HenryBauer, Esq. dated January 12,2010; Affidavit of Janet Marra dated January 11, 2010; andExhibits ('A" - "G"; including answers of defendant Desso dated Janaury 12,2010;Memorandum of Law of Rensselaer County dated January 12,2010 in Spencer, et al. v.Cristo, et al.;

Memorandum of Law of Rensselaer County dated January 72,2010 in Liberty, et al.v.Desso, et al.; andReply Affidavit of James Long, dated January 14,2010.

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