Council struggles to understand charter commission legalities

At Tuesday’s Common Council meeting, council members discussed with Mayor Ann Thane and Corporation Counsel Gerard DeCusatis the issues associated with the recent formation of two groups charged with revising the city’s charter. The council passed a resolution appointing a “Charter Review Committee” in April. Mayor Thane appointed her own “Charter Review Commission” in June.

According to DeCusatis, the mayor’s commission could effectively block any other changes to the charter from going to a referendum. He cited a 2008 NY State Appellate Court decision in regards to a conflict between the City of Troy’s Mayor and Council that clarified a section of NY State law on the matter.

Alderwoman Diane Hatzenbuhler opened the discussion and said,“Last night the [Charter Review Committee] more or less resigned because of the 2008 [appellate] ruling that said only the mayor can appoint a charter commission.”

“It doesn’t say that,” said DeCusatis, “it says that if there are competing charter commissions, and the mayor’s commission puts something on for a [referendum], that precludes other charter commissions from putting something on for a [referendum].”

“They’ve already spent a good six weeks…doing work and now they feel like what ever they want to put on the ballot is going to be shot down because your commission will not approve it,” said Hatzenbuhler.

“[It] Supersedes it,” said Alderman Ron Barone, “I told you I want it all in writing. I want a decision…if I have to go to the Supreme Court, I’m going there. I want it in writing. I just don’t understand how one thing supersedes everything locally.”

“It’s in writing…I think that’s not a problem,” said Thane.

“Do you want a [legal] opinion…?” asked DeCusatis.

“Yes,” said Barone, “which commission supersedes what and how and when and where. And how can we change it?”

“It’s state law…lobby your local representative,” said DeCusatis.

“If I have to I will,” said Barone.

“My next question is, are we wasting time by passing this local law appointing these people to the council’s charter commission?” asked Hatzenbuhler, “Is everything that they’re doing a waste of time?”

“That’s for you to determine,” said Thane, “I mean they can do the work…they can talk with the other commission about their impressions as well…I had said that from the start.”

“So they can continue, and they can sit down and discuss everything among both groups. Does that mean you’re going to be there telling them they can’t do this?” asked Hatzenbuhler.

“No it means that my commission will consider whatever they bring to the table. And my commission is going to put up the changes for referendum. So maybe they have some good ideas. Maybe they should share,” said Thane.

Alderman Richard Leggerio asked, “If there’s room for some people on your commission, your charter review board, then could they possibly be added to your board?”

Thane said she couldn’t recall what the limit was and DeCusatis said he would look it up. The answer came later in the meeting.

Hatzenbuhler added, “I just feel they have already put in almost two months worth of work, very diligently. And they’ve come up with some good ideas. I’m pleased with what they are doing…I will tell them that they can go ahead an continue to meet. Because both the groups.. have already talked. And they did want to sit down and discuss everything.”

“Unless this local law is passed they are not properly constituted. They cannot put a proposition directly on the ballot, just so you understand that,” said DeCusatis, referring to a new piece of legislation introduced at the meeting, specifying the already appointed group as a “commission” rather than a “committee.”

“So if this local law is passed, then they can put something on the ballot?” asked Hatzenbuhler.

“If the mayor’s commission does not, they could put something on the ballot,” answered DeCusatis.

“If the mayor’s commission does not on a specific item?”

“On any item whatsoever,” said DeCusatis.

“It’s unfortunate how this happened,” said Thane, “And this, I think, is what happens when there is not enough communication between my office and the council….So I would suggest if that they wish to continue, to talk to members of our commission and compare and contrast their ideas, maybe they have something to bring to the table that would be considered by my commission.”

DeCusatis then reported that NY State’s guidelines for the number of people on the mayor’s commission was between 9 and 15 people.

“So I could take some of the people from your commission and appoint them to my commission,” said Thane.

In regards to the state law being discussed, DeCusatis said, “It was interpreted in a way by the appellate division to clarify the meaning of the section [of state law].”

“I’m assuming you did not know that when we passed our resolution, because it was not discussed, it was not brought up,” said Hatzenbuhler.

“Did you bring this for review…initially, did you go to your corporation counsel and discuss that to begin with?” asked Thane.

“The corporation counsel is not representing us, he is representing you, that’s the problem,” said Hatzenbuhler.

“No, that’s not the case. If you are introducing legislation you should…have the corporation counsel review it. Why would you not?” asked Thane.

“[The resolution] was put on in the very same manner that these things were put on,” said DeCusatis referring to the current charter commission law that was introduced at the meeting, “I see them when I come and sit down.”

In regards to the previous piece of legislation appointing the charter review committee he said, “That [resolution] was on my desk when I came to sit down. It said ‘charter committee’. I had no idea what your intentions were. It was not discussed with me what your intentions were and I had no time to review it ahead of time. It was a surprise.”

DeCusatis added sarcastically, “Surprisingly – [the resolution] didn’t do anything near what you thought it was going to do. Despite the excellent advice you appear to be receiving from what I’ve seen.”

“But why didn’t you advise us at that time that we weren’t getting the proper advice?” asked Hatzenbuhler.

DeCusatis responded, “Because it was on my desk the night of the meeting. And surprisingly enough I don’t have an entire knowledge of every single appellate…decision that’s been made since the dawn of time. And therefore I wasn’t able to know …what the statutory structure was which creates a charter revision commission or anything else…[the resolution is] not even styled as a commission, it’s styled as a committee. So I thought you wanted a group of people to look at the charter and [give] advice as to local laws. Seemed like a reasonable thing to do…I think that’s what [the appointees] thought they were doing based on their comments in the paper, was that they were going to make recommendations and the council would act on them and put them up for referendum based on that…If you’re not going to talk to me and ask me how to do things, don’t be surprised when things are not what you expect.”

“I thought that we sat here and we said ‘charter review commission’ not committee,” said Hatzenbuhler.

“It said ‘committee’ right on the resolution,” said Thane.

“Then I structured it wrong. It should have said commission,” said Hatzenbuhler.

Tim Becker

Tim Becker is the owner of Anthem Websites Inc. which publishes The Compass. He serves as both editor and a writer.