RCBJ-Audible (Listen For Free)
With Not Enough Votes To Repeal Law, Town Officials Seek To Replace Term Limit Law That Would Reset Clock; Dems Call Move Hypocrisy
By Tina Traster
Town of Clarkstown officials are taking a two-pronged – and perhaps foolproof approach – to effectively eliminate term limits, which would clear the path for Town Supervisor George Hoehmann to run again in Nov. 2023. Hoehmann has served the maximum eight years under the existing law.
On Tuesday, the town at its 7 pm town board meeting is set to discuss ways to “repeal” or “amend” the town law passed in 2015 that limited board members to serve for no more than eight consecutive years. If amended, the new law would establish a 12-year term limit beginning Jan. 2024. Past years would not count against the new limits.
It is widely believed that three of the five board members favor the repeal of term limits, but the law requires a “supermajority” of four votes to repeal the act.
Seeking an alternative path, the board has raised the specter of “amending” the law, saying its language is legally flawed. The board, based on legal opinion from the Town Attorney, says that the “eight years” referred to in Chapter 263-1 set the length of a single term, and did not intend to impose term limits. This interpretation is clearly contradicted by both the legislative notes, as well as the title of the law, “Chapter 263 Term Limits.” Additionally, comments made in the original public hearings and passage of the law in 2014 make it clear that the intent was to establish term limits.
“This is the most hypocritical action that the board can take,” said former Town Supervisor Alex Gromack, a Democrat who sat on the board at the time the law was passed. “The law was legally drafted. It was reviewed by the State of New York, by attorneys. They’re just making up stories about the integrity of the law so they can amend it and restart the clock.”
In addition to holding the two public hearings tonight, the board is set to vote on a resolution that reads “Removing Law 263-Term Limits From The Town Code of the Town of Clarkstown.”
The town board enacted the law at the same time it changed over to the ward system, which divided the town into four separate blocs with individual representation. Several high profile Clarkstown Democrats have pointed out that Hoehmann was among the architects of the law, as well as being vocal about requiring a supermajority to strike it.
In August, the Clarkstown Democratic Committee publicly took issue with the potential reversal of the law being contemplated by the Republican-dominated town board.
At the time, they said in a written letter, “We all voted for term limits in 2015 and assumed that any elected official, especially ones who voted for the law and were strong proponents of it, would abide by the law even if it meant they limited their own terms of office.”
“If the resolution passes, the Democrats plan to pursue litigation,” said Monica Ferguson, the Clarkstown Democratic Committee’s co-chair.
It is widely believed that Councilmen Frank Borelli and Patrick Carroll, the board’s only Democrat, both oppose repealing the law. When the law was originally penned, Borelli had said “the concept had merit.” More recently, Borelli indicated he was not in favor of doing away with term limits. Nothing in the existing law would preclude Borelli from running for Town Supervisor as it specifically allows an elected officer to seek a “different elective public office.”
It is unclear as to whether Borelli and Carroll will find it palatable to vote for amending the law.
“This political stunt is a way for board members to say ‘I believe in term limits’ while voting to amend the law,” added Gromack. “It’s a pretense. The law does not need fixing or clarifying. This is just a way to say what they need to say to amend the law.”
Councilman Franchino, who has said he supports ending term limits, has suggested the town “hold a referendum on the issue.” But with public hearings and a resolution already scheduled, it does not appear there will be a referendum on the issue.
If the board ends term limits, based on legal recommendations by Town Attorney Craig Johns, it will set up the town for a legal challenge at taxpayers’ expense.
In a column RCBJ published on Sept. 7, local attorney Michael Starvaggi wrote “If the law were to be challenged, it would likely be on the basis that the use of the word “term” makes the meaning of the law vague. The argument, it would seem, is that the word “term” may refer either to the entirety of the length of time in office of the official or of just one period for which the candidate is elected to serve, which is commonly referred to as a “term.”
“A court would then have to rule on the issue of whether the law is enforceable as written. The standard that would be applied in such a legal challenge has been articulated in several other cases that have interpreted local term limit statutes.”
In the piece, Starvaggi says the legal matter, if pursued, will boil down to ordinary commonsense.
“Term limits are common and exist at all levels of government,” he wrote. “An ordinary person reading the law as it is written would certainly understand it to mean that the eight consecutive years is the maximum total amount of time that an elected official may serve. It seems unlikely that a court will allow a tortured parsing of the word “term” to frustrate that intent. The Town intended to create an eight-year maximum and a court is very likely to interpret the law to do so.”
The town attorney has proffered a legal theory that “term lengths” can only be set by a mandatory referendum. Because there was no referendum in 2014, the law, which he believes established “term lengths” instead of “term limits,” is null and void.