A public employee is entitled to separate counsel to be paid for by the jurisdiction where representation by the jurisdiction's attorney may result in a conflict of interest

The Village Board of Trustees [Board] commenced a CPLR Article 78 proceeding to compel the Mayor of the Village [Mayor] to perform certain official duties. In his answer, Mayor sought a judgment declaring that he is entitled to separate counsel in this proceeding with reasonable fees to be paid by the Village. Supreme Court granted Mayor's counterclaim, declaring that Mayor was entitled to separate counsel in this proceeding, with reasonable fees to be paid by the Village. The Board appealed.

The Appellate Division held that Supreme Court properly declared that Mayor was entitled to separate representation in this proceeding without the requirement that he first comply with the procedures outlined in the Code of the Village relating to defense and indemnification of Village employees.

The Appellate Division conceded that an attorney generally may not be compensated for services rendered to a municipal officer, even if for the benefit of the municipality, unless the attorney has been retained in accordance with statutory authority. However, opined the court, "[n]otwithstanding lack of specific statutory authority, a municipal ... officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with ... his official duties where the municipal attorney ... was disqualified from ... acting", citing Cahn v Town of Huntington , 29 NY2d 451, among other decisions.

In this instance, the Village attorney was unable to represent Mayor due to a conflict of interest as he was representing the Board in the matter. Thus, said the court, Mayor was entitled to engage counsel who did not have a conflict of interest. Further, noted the Appellate Division, Board acknowledged as much when it approved of retention of "conflict counsel" for Mayor prior to the commencement of this proceeding when it became apparent that Mayor was taking a position contrary to the Board's.

The Appellate Division then observed, "As the Supreme Court properly determined, the amount the Village pays for [Mayor's] separate counsel shall depend upon [Mayor's] submission, and the Village's approval, of a claim for reasonable fees."

Click HERE to access the Appellate Division's decision posted on the Internet.

Veterans Internship Program Bill Passed by New York State Legislature to be delivered to the Governor

On June 7, 2023, Senator Jim Tedisco (R,C-44th Senate District) and Assemblymember Marianne Buttenschon (D-Utica/Rome) announced that both houses of the New York State Legislature have passed their bipartisan Veterans Internship Program (V.I.P.) legislation to enable honorably discharged veterans to participate in the legislature’s annual paid legislative internship program that could help lead them to future employment.

Tedisco and Buttenschon’s V.I.P. legislation (S.291/A.1347) sets aside 10 percent of the current legislative internship program positions in the Senate and Assembly for veterans to see the inner workings of the representative democracy they put their lives on the line to defend.

Veteran participants in the Veterans Internship Program would receive a stipend that’s equivalent to what graduate students currently receive in the Senate ($50,000) and Assembly ($17,000). The Senate and Assembly internship offices would work with county veterans services agencies to identify and recruit eligible candidates. There will be no additional cost to taxpayers to implement the V.I.P. law.

Click HERE for information about this Internship Program.

Local fire districts audits published by the New York State Comptroller

On June 6, 2023 New York State Comptroller Thomas P. DiNapoli announced the publication of the local fire district audits listed below.

Click on the text highlighted in color to access the full text of the audit. 

 

Fort Hunter Fire District – Capital Reserve Funds (Montgomery County) The board did not properly manage the district’s three capital reserve funds. As a result, the board reduced its transparency of financial operations, and the public did not have an opportunity to exercise its rights to approve reserves by a vote. The board also did not properly establish the equipment capital reserve fund, develop a multiyear capital plan or clearly identify the source of funding for the capital reserves as a part of the budgeting process.

 

Hamlin Morton Walker Fire District – Pumper Truck Procurement (Monroe County) The board did not procure a $748,676 pumper truck in accordance with statutory requirements and good business practices. As a result, officials have less assurance that the purchase was made in the most prudent and economical manner. District officials could not show they sought competition or properly used a valid exception to the competitive bidding requirements.

 

Upper Jay Fire District – Board Oversight (Essex County) The board did not provide adequate oversight of district financial activities, which hindered its ability to monitor financial operations and increased the risk that improper claims could be paid. In addition, the board, as a whole, did not audit and approve claims for 57 check disbursements totaling $37,561 before payment and did not audit the treasurer’s 2021 records. While the treasurer is required to sign all checks, she signed only six of the 247 checks issued by the district during the audit period, and the remaining checks were signed by the chairman of the board or the commissioner. Also, the treasurer did not provide the board with monthly budget status reports.

 

Upper Jay Volunteer Fire Department – Financial Activities (Essex County) Department officials did not ensure financial activities were properly recorded and reported and funds were safeguarded, which hindered their ability to make informed financial decisions and increased the risk that errors or irregularities could occur. The treasurer did not properly record all financial transactions or prepare the required annual reports. Bank reconciliations were not prepared monthly, 43 deposits totaling $33,918 were not supported by adequate documentation, and 63 disbursements totaling $23,585 were not approved before payment.

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