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Tuesday, January 12, 2010

Attorneys in a Pickle

Two controversial political picks for Deputy Town Attorney have placed the town and its courts in a new pickle according to the Troy Record. The two who are non residents, are ineligible to hold the positions because they must reside in the town as Public Officers. The problem of course, is that they were ineligible to be appointed in the first place and are automatically vacated under that same Public Officers Law.

Here's what the provisions of the law state which are available on line:

POL Sec 3)1.No person shall be capable of holding a civil office who shall not,at the time he shall be chosen thereto, ...and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised, and Section 30) Sub 1) Every office shall be vacant upon the happening of one of the following:
events before the expiration of the term:d)his ceasing to be an inhabitant of the political subdivision...of which he required to be a resident when chosen.

Plainly put, that means neither can continue to prosecute cases before the town court on behalf of the town because neither can legally hold the job. If they are challenged in town court, it is likely a judge would be forced to disqualify the attorney from representing the town and the ticket could be dismissed because of the town's failure to prosecute.

It appears that each should be dismissed until the matter is resolved by either appointing a qualified town resident or waiting months for the State Legislature to pass an exemption to the law if the town board makes the request. This would allow the board to appoint non residents to these positions.

Why would the town board want to appoint non residents if residents were available? Politics of course. One of the attorneys was a former Troy judge removed from the bench by the State's highest court for judicial misconduct. He was a City Councilman when first appointed with the vote of City Personnel Director and Councilman, Al Spain. Today he is defending Councilman Louis Desso in a civil court case regarding his eligibility to hold what may be a conflicting elective office. The question is whether he has a retainer agreement with the Councilman, his new boss in town, which means he is charging the Councilman a fee for the legal services. If he is not, then the Councilman's vote to reappoint him gives rise to the appearance of a quid pro quo, free legal representation in exchange for his vote and support for the paid public appointment as a deputy attorney.

The second attorney has more baggage than Samsonite. His criminal record includes a conviction in Colonie which has been documented here. Makes you wonder what else is in his past that he has not disclosed? But his political pull came from his representation of Councilman Spain's brother who was briefly the Democratic Chairman in town. The problem of course is that he too is providing legal representation to his brother representing the other Spain in Rensselaer City Court in a case against the current town Democratic Committee which is suing him to recover about $5,000 in donations he made with the party's checking account after loosing control of the party two years ago. Again, the question for Councilman Spain is whether his vote and support is a quid pro quo for the free legal representation being provided for his brother?

If each is paying a fee for these services, there would not be a current issue in their ability to vote on these appointment. Then the only issue is why one would appoint two non residents, political baggage or not, when town residents are available for the positions?

Spain seems to think in today's Record that he wants them to continue only because they are doing a good job. That didn't stop him from firing the last two attorneys including Kathryn Dell, a resident and John Darling, a non resident, who apparently was also ineligible for the appointment.

The difference is Spain has political ties to these appointees he did not have with the prior attorneys. It's true that a prior town board also made this mistake on residency when it appointed John Darling and potentially another attorney in the Special Districts. Two wrongs however, do not make a right. If the law prevents their appointment without a special exemption from the State, they cannot be appointed legally and they cannot continue to represent the town in court because their positions are automatically vacated under the law.

It will be interesting to see how the two new Board members vote on this issue. Whether they see the value of appointing local residents whose families vote here, pay taxes here and will build their bases of local support on the Board or whether they will do what Spain and Desso want to do, build personal favors at the expense of town residents who might need and want these positions.

It should make for an interesting meeting this Thursday at 7PM and a more interesting Town Court session tonight when attorney Ehrlich is scheduled to on duty illegally prosecuting tickets on behalf of North Greenbush when he is not legally appointed to the job. We can see it now, attorney after attorney making motions to the judge to disqualify Ehrlich and dismiss the ticket because of the town's failure to prosecute. That's why he should be suspended immediately and a legally appointed replacement handle the job while the town board sorts it all out.

1 comment:

Anonymous said...

This town is a joke......