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Ruling on the Rules

The war of dueling Troy charters just won’t die


Leave it to Troy to forge new legal terrain. As it stands now, on election day, Trojans will have an opportunity to vote for two different city charters: one proposed by a commission established by the mayor, and one proposed by the City Council’s commission. But if Mayor Harry Tutunjian has his way, the council’s charter proposal will never make it to the voting booth. There are still many questions, possible legal challenges, and an appellate court decision looming.

On Monday, Judge John Egan ruled in response to lawsuits brought by both commissions to knock the other commissions’ proposal off the Nov. 4 ballot. In his decision, he ruled that both proposals ought to go to the voters.

Mayor Harry Tutunjian answered that ruling with an appeal.

If the appellate court finds that Egan ruled incorrectly, as the mayor hopes, then the council’s proposal will be knocked off the ballot. If the court finds that Egan ruled correctly, however, then both proposals will continue to go to the voters. And if that happens, it will raise another legal question: The proposals are voted on as simple referenda, so what happens if both charters pass? Which will be adopted as the new legal infrastructure of Troy?

This is the question Troy Corporation Counsel David Mitchell, who represents the mayor, is asking. “That’s why we are appealing. Because there is no provision to that in the Municipal Home Rule Law or the election law that provides for that” scenario, in which two competing charter proposals pass. There is no obvious legal precedent, he said, for what should happen next.

However, according to attorney Tom Kenney, who represents Jim Conroy, the head of the council’s commission, it is a simple matter: The charter proposal that receives the most supporting votes will win.

“That is in the Municipal Home Rule law,” Kenney said. “It has been a while since I read that section, but that is my best recollection.”

Kenney was referring to Sec. 36 Sub. D, which reads: “If any question submitted by the charter commission receives the affirmative vote of a majority of the qualified electors of the city voting thereon, the proposal submitted thereby shall take effect . . . except that if there be a conflict between the provisions of two or more proposals approved by the electors at the same election, the proposal receiving the largest number of affirmative votes shall prevail.”

Mitchell argued that this refers specifically to multiple proposals generated by one charter commission, and not to multiple proposals by multiple commissions. “The intention of this . . . was that this was a conflict within one commission,” which leads to the heart of the mayor’s attack on the council’s charter. That lies in Mitchell’s interpretation of Municipal Home Rule Law: When there is a mayoral charter commission, no other commissions’ proposals are allowed on the ballot.

This is the interpretation that led the mayor to sue to have the council’s charter proposal removed from the November ballot.

The mayor’s appeal also hinges on Judge Egan’s disregard to tangential, yet substantial, arguments, the corporation counsel argued. “If you take a look at Judge Egan’s decision, he glossed over all the other substantive issues we raised with respect to the council’s commission. He was, in my opinion, in a hurry to get to the issue of competing charters without analyzing our petition.”

Some of these substantive issues included the argument that the council’s commission failed to present a final draft of its charter revision by deadline, and that it’s proposal question, which appears on the ballot, was worded identically to the mayoral commission’s proposition.

There is no case on point, Mitchell said, that one could look to for precedent. The closest is a case in 1998 between former New York City Mayor Rudy Giuliani and his City Council. “That essentially says that when there is a mayoral charter commission it bumps all other questions off the ballot.” It was decided at the appellate level.

“It’s an interesting case, for legal arguments’ sake, anyway,” Mitchell said.

The council’s charter commission obviously disagreed with the mayor’s legal arguments. In return, the council’s commission, headed by former mayoral candidate Conroy, sued to have the mayor’s charter proposal removed from the ballot. Egan, on Monday, also ruled against that suit.

Conroy said that he sees the legal battle as an attempt by the mayor to bully the council, and deny the voters the right to choose.

“We would hope that the appeal would be decided before the election,” Conroy said, as no one is quite clear what will happen if, say, the council’s charter is the winner on Nov. 4, and the mayor’s appeal is successful, but decided after the election. Will that mean that the voters’ choice will be nullified? That is a possibility, but not one Conroy believes will happen. “It is typical of the mayor’s stubborn streak. I just think it is indicative of how he runs the show. It is either his way or no way, and that is no way to have a participatory government. It is a waste of time, it is a waste of energy. But we are not going to be bullied.”

If the mayor’s appeal is successful, Conroy said that he intends to fight it in the courts.

Of course there are differences between the two proposed charters, the most significant being the handling of the City Council. In the council’s charter proposal, the terms of council people would be extended from two to four years, with consecutive terms served limited to two. In the mayor’s charter, the term length of the council people will remain as is, however, the number of the council’s at-large seats will be reduced from three to one, decreasing the overall size of the council from nine to seven.

“These charter changes are so minuscule [compared] to other issues facing people in their day-to-day lives,” said Councilman Bill Dunne (District 4). “If the council commission’s charter gets thrown out on the appeal, I am going to advocate that we don’t pursue this any further.”

—Chet Hardin

What a Week

Enemies Everywhere

Joseph Sullivan, who ran in the 21st Congressional District Democratic primary this year, decided this week to encourage voters to write his name in for the seat that will be vacated by Congressman Mike McNulty (D-Green Island). He announced his write-in candidacy on his blog, Sullivan has a history of making controversial claims, like his assertion that gun owners keep his neighborhood safe. In his blog post, Sullivan, a Democrat, criticized Democratic nominee Paul Tonko for supporting “special interests.” He also took the opportunity to do some last-minute fear-mongering when he wrote, “Our enemies are circling us like sharks in the water. Radical Jihadists have come to dwell amongst us, and are waiting to strike.”

Nonunion Blues

The budget Albany Mayor Jerry Jennings introduced this month has nonunion employees up in arms. Jennings’ budget proposes that nonunion workers would not get raises during 2009. However, some of the nonunion employees are the lowest-paid workers in the city. The Albany Common Council heard complaints this week from some of those workers. Councilman Dominick Calsolaro (Ward 1) pointed out that giving cost-of-living raises to nonunion workers making less than $40,000 a year would cost the city less than $500,000. Councilman Glen Casey (Ward 11) suggested making city workers who make more than $55,000 a year take unpaid days off to free up money to give raises to lower-paid workers.

Blame Microsoft

There have been no ramifications at the Rensselaer County Board of Elections after the Obama/Osama ballot-misspelling gaffe that made the county the butt of a nationwide joke. No firings, no resignations, no investigations. In fact, according to reports this week, the “typo” has been explained away as a computer error. “This error may have been due to a spellcheck function on the operating system of the computers utilized by the Board of Elections,” the commissioners of the BOE stated, according to The Record. So this mistake may have been due to a human’s inability to outthink a computer’s spellcheck, or this explanation may be the lame attempt by bureaucrats to sweep an embarrassment under the rug. Who knows?

October Mistake

Absentee ballots in Albany County leave a number of Democratic incumbents off the Independence Party line

The Rensselaer County Board of Elec tions no longer has to take the rap as the only local board of elections to royally screw up absentee ballots this election season. According to reports by the Times Union, thousands of absentee ballots sent out to Albany County voters left Albany District Attorney David Soares, Sen. Neil Breslin (D-Albany) and Assemblyman Jack McEneny (D-Albany) off the Independence Party line.

Initially, concerns were raised because Albany County Democratic election commissioner Matt Clyne is the brother of Paul Clyne, the man who Soares defeated four years ago to become district attorney. Matt Clyne has been vocal about his disdain for Soares in the past. And Republican commissioner John Graziano was instrumental in constructing the last-minute campaign of Republican Roger Cusick on the Integrity Party line to challenge Soares.

Accusations of impropriety have subsided in the wake of revelations that Breslin and McEneny also suffered mistakes made by the BOE. In fact, it was reported that on some ballots, McEneny was replaced by Assemblyman Ron Canestrari (D-Cohoes).

McEneny said he didn’t think “there was anything deliberate,” and said that Clyne had been helpful in figuring out where the ballot error originated. Clyne, whose appointment caused a rift in the party, is up for reappointment by the county Legislature this year.

Clyne blamed the mistakes on his staff being overworked, noting an increased number of registrations, in addition to new requirements put in place by the Help America Vote Act.

Clyne dismissed as absurd the charge that he deliberately left Soares off the Independence Party ballot line.

“That was a ridiculous comment without any basis,” said Clyne. “It was in fact actually an error with the Independence line. But they tried to cast it as though it was a thing with David Soares. It had nothing to do with David Soares. It had everything to do with sending a spreadsheet to the printer.”

Replacement ballots should reach voters this week.

Clyne said that the mistake on the ballot would have no direct impact on the race for district attorney.

“For one thing, this would have no perceptible impact on the race, and two, it’s not like it would go unnoticed,” said Clyne. “It’s not like fixing a machine to achieve a desired result.”

—David King

The Running Man

Presidential candidate and corporate foe Ralph Nader stated his case—and energized the faithful—in an appearance at the Egg

Ralph Nader had just finished his speech from the stage of the Egg’s Swyer Theatre in Albany’s Empire State Plaza last Thursday night (Oct. 16), and one of his aides had taken the podium. Was there anyone, he asked, willing to donate the full legal amount—$2,300—to the campaign?

The Swyer holds 450 people, and the near-capacity crowd got quiet. But less than a minute passed before a man raised his hand. The crowd stood and cheered.

The mainstream media haven’t paid much attention, but Ralph Nader and his running mate Matt Gonzalez, a California lawyer, are going to be on the ballot in 45 states this year—more states/ballots, Nader noted in his speech, than he was on in either 2000 or 2004.

This was Nader’s third public event of the day, following a Wall Street rally at which he railed against the recent $700 billion corporate bailout, and a campaign stop in New Paltz. In his speech, he said that both Republican John McCain and Democrat Barack Obama “have an aversion to challenging corporate power.”

Nader stated his case: There are approximately 35,000 full-time corporation lobbyists in Washington, D.C., he said, versus 1,000 lobbyists for citizen’s groups like the Sierra Club and the American Civil Liberties Union. That, along with the cynicism of voters and the complicity of the political parties, is why politics is a fixed game that “corporations always win,” and, he said, helps explain why thousands of American jobs and entire industries have been shifted to “fascist and communist dictatorships that know how to keep their workers in their place.”

To those who question why he’s running, Nader said, “First we need to vote our consciences. How can anybody not vote their conscience?” To those who call him a spoiler, he said, “What’s a spoiler? Who has spoiled America?”

He assailed the recent congressional bailout for having no strings attached, and reminded the crowd that when then-president Jimmy Carter made the deal to financially bail out Chrysler, it included stock warrants that, when the car maker rebounded, resulted in a $400 million profit for the U.S. treasury.

Nader saved some of his sharpest criticism for media. At a recent meeting with the Washington Post editorial board, he asked why they didn’t cover his campaign; he said that editor Fred Hiatt replied, “Because you can’t win.”

“Then why,” Nader asked Hiatt, “do you cover the Washington Nationals?”

Nader received his strongest crowd response when he called for the impeachment of George W. Bush. He said that our current situation reminded him of the beginnings of the country: “Then we were 13 colonies under George III. We’re now 50 colonies under George IV.”

Nader ended the evening with a book signing at the merch table.

—Shawn Stone

Loose Ends

-no loose ends this week-

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