Approved
Minutes
January
4, 2007
6:00 PM
Meeting was called to order at 6:10 PM by Chairman Brown, followed by the Salute to the Flag.
The Clerk took Roll Call with all members recorded as present with the
exception of Mr. Clark who was excused. Mr. VanDonsel, County Attorney was
represented by Assistant County Attorney Ron Walsh.
Chairman Brown announced that the new Legislative Rules allow privilege of the floor to those who sign up prior to the meeting. She asked that comments be limited to three minutes, that individuals identify themselves and be respectful and courteous.
Patti Riotto, 548 McLean Road, Cortland, New York thanked the Chairman, stating she had read in the media the salary issue with the Election Commissioners. She searched the internet and discovered that some counties pay $4,000 to their Commissioners and in New York City, they are paid $12,500 plus a stipend for every meeting they attend. She told legislators that they have been very generous with the Commissioners salaries in the $30,000 range with health benefits, something that the public sector doesn’t receive for part time work and suggested they take the $30,000 and divide it between them and reduce benefits to part time status.
Chairman Brown opened the
discussion to appoint special legal
counsel for the lawsuit against Cortland County, the Cortland County
Legislature, the County Administrator and Personnel Director brought by
William J. Wood and Robert C. Howe. She said that she had a discussion with
Mr. VanDonsel on Tuesday (January 2, 2007) on this issue and she indicated to
Mr. VanDonsel that he had a conflict. He
did not disagree. Chairman Brown stated that she would like to recommend Gregg
Gates to represent the County and County Legislature as he has represented the
County in the past. Mr. VanDonsel said he would recommend another attorney
from Chenango County. I asked for more information and did not receive any
information from Mr. VanDonsel. Mr. Walsh has brought up the local law that
indicates that if there is a conflict that other attorneys can be appointed.
Mr. Schrader and Ms. Barber have the right though the same local law to have
their own attorneys defend them. She said it was her understanding that both
will join for one attorney and we will choose representation for the County
and the Legislature. She asked for Ms. Barber’s response to that. Ms. Barber
stated that she is comfortable with the County’s choice however if there are
any sort of amended complaints she reserves the right to retain an attorney to
represent her interests. The Chairman reminded legislators that the issues
against the County and the Legislature are different than those against Mr.
Schrader and Ms. Barber.
Mr. Williams asked whether these discussions should be moved into
executive session since the subject involves litigation. Chairman Brown said
that since this has become a public issue and we are so often accused of
meeting behind closed doors that there is no reason we are unable to discuss
this in public. Mr. VanDee agreed.
Ms. Price asked if before we agree to hire an attorney, do we, as a body
wish to consider negotiations to drop the suit. Chairman Brown said that
neither Commissioner has approached anyone to reconsider. Instead, the day
after session ( December 22, 2006) they hired an attorney, the same gentleman
who spoke at the Public Hearing. Papers were signed on December 22nd
which makes me believe they had no intention of wanting to negotiate with us.
Ms. Breed agreed with the Chairman. Mr. Williams asked Ms. Price whom she
would suggest to do the negotiating. Ms. Price said the first choice would be
our County Attorney unless he is uncomfortable doing that. Chairman Brown said
that the County Attorney has already indicated that he has a conflict.
Mr. Willcox asked what the cost of this litigation would be, outside of
the legal fees. Mr. Troy gave his estimate of $11,400. He arrived at that
amount by adding $4,351. to Mr. Woods salary for 2006 and then adding both
Commissioners increases at $3,582. each.
Mr. Cornell said he talked to Mr. Wood today and he said he would waive
in writing the back pay. Chairman Brown said she would take that for what it
is worth. Mr. Cornell continued by asking what our legal fees might amount to.
Chairman Brown answered that Mr. Gates charges $130 per hour and Mr. Corcoran
charges $200 per hour.
Chairman Brown said that Mr. Walsh has explained to her that Local Law
#3 of 2004 has to do with conflict and that the County Attorney has the right
to provide a list of attorneys to be used when there is a conflict. Mr. Walsh
does not feel we are in compliance with that local law. Chairman Brown
continued saying that on Tuesday, Mr. VanDonsel indicated he would get a list
to me and I have not received one. He said he thought Mr. Gates was a
reputable attorney and would be on his list, however I do not have a list and
we have to make a decision.
Ms. Tytler asked in reference to the suggestion of negotiations, how
confident are we that we can win this case. Chairman Brown replied that she
couldn’t answer that question and need to leave that up to our attorneys. We
need to decide to move forward as I don’t believe there is any interest to
negotiate on the Commissioners part. Ms. Tytler said her intent is to save
taxpayers dollars and she is extremely disappointed in the lawsuit, as she
believes the Commissioners have been more than compensated for regarding the
work they do and the time they put in.
Chairman Brown told legislators that the money spent is forever. There
has never been a case filed on this issue. There have been opinions issued by
the Comptroller back in the 50’s but no case law.
Ms. Tytler asked for the recent increases that Mr. Howe has received.
Mr. Schrader answered that in 2005, upon the adoption of the amended
Management and Compensation Salary and Grade Plan, he received a retroactive
check for $5,000. to recognize his time and service in that position. I
believe he went from about $23,000. to $28,000. Ms. Tytler said that in
hindsight she questions whether our decision to place the position in that
plan was a correct decision in light of the knowledge that the pay is required
to be equal under the law. Chairman Brown said that all local laws that are
passed have been approved by an attorney and as legislators we have to rely on
the content as being legal. Mr. Schrader added, if you read the letter of the
Election Law alone you might well conclude that they have to be paid an equal
salary. However, in my opinion, you need to read it in concert with County Law
201 that allows the legislature to create a step and increment system as we
did. Here is where the subject become divergent and is why I justify separate
counsel for myself, as I believe the Legislature acted legally. The base rate
was set at a dollar amount that was equal for both. What caused the difference
was their time in service. I believe personally, we met the letter of the law.
With no case law to substantiate anyone’s claims it is up to the judge to
decide. Until it is deemed illegal, it is legal.
Mr.VanDee disagreed, although neither of us are lawyers. He said he has
no problem with hiring an attorney however, if the attorney says we can’t
win this then let’s not go to court. Ms. Breed remarked she thinks we ought
to go with Ms. Riotto’s suggestion.
Ms. Price asked, if we hire an attorney, does this body have an
opportunity to hear from that attorney to assess where we want to go or are we
to just to hire the attorney and go full speed ahead? Chairman Brown said she
can’t imagine that we wouldn’t rely on the advice of the attorney. If we
have no case then why would we go to court? Ms. Price asked if it is the
intent that the attorney report back to this body and let us know? Chairman
Brown said that in one form or another, the legislature needs to know the
advice of the attorney. We have a time frame; we have to file papers 72 hours
before January 19th.
Mr. Williams asked if the conflict of the County Attorney extends to his
staff. Chairman Brown said her understanding is yes. Mr. Schrader said
regarding counsel to represent my office, there is a local law provision for
conflicts of interest and there is a process where the County Attorney provide
a list of three attorneys to the parties named in the conflict. Because the
entire office is conflicted, I am asking that this provision be waived on my
behalf so that I do not have to rely on a list from a conflicted attorney to
engage an attorney to represent my office. Mr. Van Dee said that this is the
law. Ms. Brown responded that we have no list and no time. Ms. Tytler asked if
we can wait 24 hours for the County Attorney to provide a list and if we don’t
receive it then proceed with the waiver. Chairman Brown said she was not in
favor of that as she was promised a list from him before session. Mr. Schrader
asked how he can rely on a list from a conflicted office that is less than
desirable for adequate defense of my office or to the Legislature as a whole.
There is a huge potential for that list to be tainted. Time is of essence
here. We have 10 days and it is not practical to do it that way.
Mr. Tagliente said that they had met with an attorney who has
represented us in the past today and saw no reason not to move forward. Mr.
VanDee said that the goal was to hire that attorney tonight. Mr. Willcox asked
if we had latitude in our response to the judge. Mr. Schrader said we are
required to respond by the 19th of January with notice 72 hours
before. Ms. Price said she believed we should act on it, however if we asked
for time to retain counsel that it could be possibly postponed.
Mr. Tagliented called for the vote.
On the motion of Ms. Brown, second by Mr. Spaulding the proposed
Resolution was introduced. Mr. Troy asked that a limit be set on the attorney
fees as he is concerned with the costs. Mr. Cornell asked if it should be in
writing that the legislators have an opportunity to talk with the attorney
before proceeding to court. Chairman Brown said he will not proceed without
talking to us. Mr. Tagliente moved the motion. A Roll Call vote was taken with
all members present voting aye, except Mr. Troy voting nay. After the Roll
Call vote was taken, Mr. Cornell requested his vote be changed to nay.
Proposed Resolution became Resolution No. 01-07: Authorizing the
Engagement of Legal Counsel for the County Cortland, County Legislature, the
County Administrator and the County Personnel Director in the Defense of the
Action Commenced by the County Election Commissioners.
Mr. Schrader announced that based upon the adopted Resolution that he
will be engaging attorney, John Corcoran from the firm of Hancock and
Estabrook of Syracuse to represent his office.
The Chairman recognized County Auditor, Dennis Whitt who stated that you
have authorized an attorney independent of conflict and should instruct the
attorney to represent the County and proceed in the best interest of the
County and the taxpayer.
Mr. VanDee asked for clarification. Mr. Willcox asked who would be
paying for this and did they have the same privilege. Ms. Tytler also asked
for clarification. She said she believed we just voted on Greg Gates to
represent us and questioned if that included the County Administrator to hire
his own attorney. The Chairman answered that the County pays for the attorney
fees and legislators do have the same option. This was included in the
resolution just passed. The County Administrator’s issues are different than
ours. Mr. VanDee said he wished then to change his vote.
Ms. Tytler asked if there was an agreement to give Mr. Schrader
permission to go to his own list of lawyers. Chairman Brown said he has a
right to counsel. Mr. VanDee said if he chooses other counsel then why are we
required to pay. Mr. Schrader said that there is a divergent interest in the
filed complaint. I do not believe I will receive adequate defense from the
attorney representing the County Legislature. I do not have the same arguments
as the County Legislature has as the County Administrator. They are making a
claim that the grade and step system and its implementation was illegal. I
believe it to be legal. Mr. Wood is asking for back pay retroactivity for a
salary set by that plan, the same plan they deem illegal. Mr. Howe received
the benefit of that system of $5,000. and is now claiming that illegal because
Mr. Wood did not receive that same salary. Ms. Breed asked how that becomes
divergent when it was the Legislature that enacted that plan. Mr. Schrader
answered because I was named and given the fact that the Legislature removed
them from the plan and comments that they shouldn’t have been in the plan to
begin with. I disagree with that opinion and believe that what we did as a
County was legal. Because they named me, I have the right under the local law
to choose counsel to protect my office. Mr. Williams questioned how we can
circumvent the local law.
Mr. VanDee said he wished to change his vote and made a motion to
reconsider Resolution No. 01-07, second by Ms. Tytler. Roll Call was taken by
the Clerk, all members present voting aye, except Mr. Tagliente and Ms. Brown
voting nay.
A roll call vote commenced on the previous resolution, all members
present voting aye, except Ms. Breed, Mr. Cornell, Mr. Dafoe, Mr. Troy, Ms.
Tytler, Mr. VanDee, Mr. Willcox and Mr. Williams, voting nay. Ms. Breed asked
for the final vote. Mr. Schrader said that a weighted vote of 24,300 is
required to pass. Resolution passed by weighted vote of 27,180.
Prepared by Susan Morgan, Clerk of the Legislature