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County Executive vs Legislature Lawsuits To Be Heard Today

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ElmiraTelegram    124

Christina Sonsire posted a new blog on her site, titled "Oral Argument In Moss v. Legislature To Be Heard On July 19th". Looks like they're set to start here in the next few minutes as this is posted. 

Christina posted all the legal documents for the public to review. There's a lot of "whereas" and "thereto", but you can look it over. 

The most interesting takeaway from this post is the following:

Quote

 

It is interesting to note that New York State’s Appellate Division for the Third Department issued a unanimous ruling today in the case of Krusen v. Moss. The case stems from allegedly defamatory statements made by Moss during last year’s campaign involving Krusen’s use of a county-issued gas card. 

Aside from upholding Krusen’s claims, the Third Department found Moss was not acting in his official capacity when he made the statements, meaning he is not protected from being sued and arguably cannot ask taxpayers to cover his attorney’s fees.

 

That document is also available on her site to be read. 

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KReed    442

Two separate cases.....I didn't delve into the Krusen case, but from what I recall when Krusen first posted his complaint durng the campaign for County Exec, it was disturbing that a court decided that the previous Exec had the power to authorize "personal use" of public resources. 

As for the Moss v Legislature case, this point speks for itself:

image.png.2e41aa65ce0fc48e5869645932f7ba77.png

 

I have yet to see any Legislative member (perticularly CBS) answer this question when constituents have asked why a retroactive law was needed if the Legislature's action had been in compliance with the existing Charter. The responses to the constituents were evasive (and rather condescending).

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Adam    19
16 minutes ago, KReed said:

Two separate cases.....I didn't delve into the Krusen case, but from what I recall when Krusen first posted his complaint durng the campaign for County Exec, it was disturbing that a court decided that the previous Exec had the power to authorize "personal use" of public resources. 

As for the Moss v Legislature case, this point speks for itself:

image.png.2e41aa65ce0fc48e5869645932f7ba77.png

 

I have yet to see any Legislative member (perticularly CBS) answer this question when constituents have asked why a retroactive law was needed if the Legislature's action had been in compliance with the existing Charter. The responses to the constituents were evasive (and rather condescending).

thing is i have posed like questions to many of the legislature and the Exec, so far have not really gotten answers from any BUT CBS.... i also asked why, if none in legislature wanted it to go to court, had none of them proposed to Exec that the question be put to the public ie "shall/should/can the Legislature be represented by their own appointed attorney and if so shall/may the Charter be amended to allow such action?"...at this point however i get the impression no one REALLY wants to settle the matter outside of a court.

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The question of why the Legislature passed a Charter Amendment subject to a permissive referendum is straightforward.

The Legislature is unanimous in its position that it can appoint its own attorney, and that the Legislative Attorney  can draft resolutions. We passed the Charter Amendment after being sued the first time to clear up any potential ambiguities between Local Law #2 of 1987 (a law that detailed the County Attorney’s duties, none of which include involvement with the Legislature), New York State’s Civil Service creation of the position of Legislative Attorney position in 2000 which changed the job from one set by contract to an official county job), and past practice in Chemung County since 1984. All of this is set forth in detail in our papers.

Article 1, Section 9 of the New York State constitution makes clear that most changes to a charter are not subject to a mandatory referendum. The rationale is straightforward and is articulated in many appellate cases - the act of placing every small change on the ballot is cumbersome and a waste of time and resources. Unless an elected official’s power is being diminished, the charge does not need to appear. 

A good example was the creation of the Chemung County Public Advocate’s Office about ten years ago. No elected official lost power, and the amendment to the charter to create the office was not put to a vote.

In this case, Moss could have circulated petitions to place the issue in the ballot as it was subject to a permissive referendum, but he chose not to do so. I cannot comment on why as I don’t know.

More fundamentally, the issue keeps shifting and at this point I don’t know what question would appear. In court yesterday Moss’ lawyer conceded the Legislature has the power to create the position of Legislative Attorney, and Moss has stated to me and many others that he agrees we should be able to choose our own lawyer. The remaining issue involves the drafting of resolutions. Most people seem to agree the Legislative Attorney should draft Legislative-side revolutions and the County Attorney should draft Executive-side resolutions with the option for them to work together whenever they see fit. In fact, this is exactly what the Charter Amendment provides.

I met with Moss one week ago to try to determine where the issues are. It turns out we agree on most things, yet the litigation continues.

Please continue to keep in mind which party brought the two actions. It was not the Legislature. 

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One brief additional point...

The Onondaga Legislature found itself in a disagreement with their Executive over the Legislative Attorney under very similar circumstances a few years ago. It took the same steps including a small change to the charter subject to a permissive referendum to make the charter align with past and current practices. This is also set forth in our papers. 

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Chris    951

Christina, is there any reason why there couldn't just be one attorney drafting resolutions for both the Executive and the Legislature? I get that in an event where there's a beef of some kind it wouldn't work. But more often than not the two entities are playing for the same team, the county residents. 

Or is there is that much work and rhat many resolutions being drafted it takes two attorneys?

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This is the crux of the issue.

Imagine an event where the Legislature passes a route slip (what comes before our Committees) about something the County Executive doesn’t support. The County Attorney, acting at the direction of the Executive, could stop it by simply failing to draft the resolution and thereby preventing a vote by the Full Legislature. In essence this gives the Executive the ability to veto resolutions, a power explicitly not given under the charter.

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Chris    951

Ok, my brain doesn't hurt quite as much now. ;)

Let me say again I appreciate you coming on here and talking with county residents, even if they're not in your district. Hopefully someday more elected reps will follow suit. 

(And hey, don't forget to check out the more fun topics now and then!)

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KReed    442
Posted (edited)
13 hours ago, Adam said:

thing is i have posed like questions to many of the legislature and the Exec, so far have not really gotten answers from any BUT CBS.... i also asked why, if none in legislature wanted it to go to court, had none of them proposed to Exec that the question be put to the public ie "shall/should/can the Legislature be represented by their own appointed attorney and if so shall/may the Charter be amended to allow such action?"...at this point however i get the impression no one REALLY wants to settle the matter outside of a court.

Yes, Christina is the only one who HAS answered publicly. In fact she is one of the few that even provides any public venue for communication at all (most FB pages set to full privacy unless they are campaigning).

My point was even those answers have seemed to skirt the specific point of.... why not ask the voters what they want?

I gather that Moss could have initiated a referendum and did not, and understand that's on him....but I have never seen any explanation that says the Legislator is prohibited from putting their decisons to public vote. (Only references that this is not a situation where it is mandatory that they do).

Of course, the decision is not up to one Legislator to make the call for the body to voluntarily put matters to public referendum.

Since other elected officials refuse to participate in discussions that she openly engages in (here, her CCM blog, social media), I imagine it puts her in an extremely awkward position to be unable to speak for them and averse to relaying her opinions (good or bad) of what she has been privy to that other officials say/do outside public view.

Edited by KReed

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You are right that I am only speaking for myself in this and other forums. 

On the question of putting the question to the public...at first I didn’t really care one way or the other, but the more this has developed, the stronger I feel it is not necessary and even harmful for two reasons:

1. The Charter Amendment doesn’t change anything, but rather clears up any ambiguities to make it consistent with established local laws and the practice in our county for the past 40 years. In other words, the amendment wasn’t necessary but rather done to make things more clear in the event the issue ever arises again.

As I have stated many times, the amendment should have happened in 2000 when the civil service position was officially created, but it wasn’t. My best guess is that it was simply an oversight due to lack of controversy. 

2. As I stated above, I don’t know what issue would be presented in a referendum. Moss agrees we can appoint our own lawyer and that the lawyer can draft resolutions. This is much different than what his papers say.

The sole issue seems to be oversight by the County Attorney. The judge asked many questions about this yesterday, and seemed skeptical about how the legislative attorney could possibly be expected to act independently of the County Executive if he ultimately answers to the County Attorney who answers to the Executive, and therefore could be fired for taking positions as odds with what the Executive wants. 

At this point I assume the answers will all come from the judge. We should have a decision within a month or so.

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Chris    951
6 minutes ago, Christina Sonsire said:

The sole issue seems to be oversight by the County Attorney. The judge asked many questions about this yesterday, and seemed skeptical about how the legislative attorney could possibly be expected to act independently of the County Executive if he ultimately answers to the County Attorney who answers to the Executive, and therefore could be fired for taking positions as odds with what the Executive wants. 

Knowing the amount of work involved drafting resolutions on behalf of both parties, this now makes more sense to me. 

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KReed    442
35 minutes ago, Christina Sonsire said:

The sole issue seems to be oversight by the County Attorney. The judge asked many questions about this yesterday, and seemed skeptical about how the legislative attorney could possibly be expected to act independently of the County Executive if he ultimately answers to the County Attorney who answers to the Executive, and therefore could be fired for taking positions as odds with what the Executive wants. 

If the crux of the matter is simply which branch oversees the position (as opposed to anyone maintaining the position should be abolished, etc), then I can understand that a referendum doesn’t necessarily make sense.

However….doesn’t the “and Special Districts” part of the title indicate Sewer and Solid Waste, which fall under the Exec not Legislature?  If so, then the converse argument could be made:

If he ultimately answers to the Legislature, the Exec would have no authority if he takes positions at odds with what the Executive wants concerning those Special Districts under his control.

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I can understand that argument and personally don’t have a strong position either way as to whether or not the attorney continues to represent those districts.

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KRSullivan    122

So the resolution was drafted and passed to bring everything in alignment with what has been done for 40 years.  What is to say what has been done for 40 years is the right thing and followed the county charter?  Just because "that's how it has always been done" doesn't mean it's how it is supposed to be done.

 

 

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Chris    951
22 hours ago, KRSullivan said:

What is to say what has been done for 40 years is the right thing and followed the county charter?  

Well in fairness, no one brought it up in the past 4 decades. 

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Chris    951

Honest to God, I was tumbling down the newspapers.com rabbit hole and found this:

Screen Shot 2019-07-22 at 10.31.42 AM.png

Which led to this:

Screen Shot 2019-07-22 at 10.39.44 AM.png

Screen Shot 2019-07-22 at 10.40.54 AM.png

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KReed    442

Interesting finds.... 

It's a good thing that's a paid site, otherwise I might be convinced to go hopping into rabbit holes myself. 

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Chris    951

Let me tell you, HOURS will pass by without realizing it  

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(Sorry about that!!)

A. I spend waaaaay too much time on the SG archives. Don’t go there if you have not already. Minutes turn into hours turn into days...

B. Have to say this is quite a find!!! Wow - great work, Chris! It doesn’t change my opinion, but it’s crazy to think this debate has been going on for 40 years!!

I interned for Tom Tranter for two summers in 1994 and 1995 when he was County Executive and John Flory was Legislative Chairperson. Flory was one tough force in there for sure!! 

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Chris    951
9 hours ago, Christina Sonsire said:

B. Have to say this is quite a find!!! Wow - great work, Chris! It doesn’t change my opinion, but it’s crazy to think this debate has been going on for 40 years!!

No kudos deserved, I honest to God saw the letter as I was browsing through looking for pics. Then I went looking for the article. 

But yeah, the point of posting that was to show that this isn't the first time this topic has come up. 

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