Judge Amy Puerto Allows Clarkstown Term Limits Case To Proceed While Potential Attorney Conflict Remains Unresolved

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Judge Raises Issue Of ‘Appearance Of Conflict’ In First Court Hearing On Term Limits Litigation

By Tina Traster

Judge Amy Puerto in Rockland County Supreme Court on Monday allowed the case that is challenging the legal validity of term limits in the Town of Clarkstown to move forward but did not rule on whether the town attorney should be disqualified from the case because he either has or might have a conflict of interest.

What remains unclear is who will defend the town.

Kevin Conway, from the town attorney’s office, argued in court he is not personally conflicted and said attorney Daniel Szalkiewicz “mistakenly believes he’s been hired by the town board” to defend the town in a lawsuit filed last month by Town Supervisor George Hoehmann and Councilman Donald Franchino.

“He knows he wasn’t hired by the board,” Conway said. “His clients (Patrick Carroll and Frank Borelli) could intervene in the case.” Conway is alleging that councilmen Carroll and Borelli hired Szalkiewicz, and not the town board. The confusion is rooted in a 2-1 vote taken by the three council members to hire outside counsel. Before the vote, Hoehmann and Franchino recused themselves. The town argues that the two votes for hiring outside counsel did not represent a majority of the five-member board, but Szalkiewicz alleges the two recused members, who are the plaintiffs in the case, created a three-member board for the vote in this matter — that is, that recused board members who sue the town should not have a say in who the town hires to defend itself. Councilman Michael Graziano voted against hiring outside counsel.

In the meantime, the judge adhered to plaintiffs’ attorney Robert Spolzino request, who asked the case to proceed because of the tight deadline Hoehmann faces in collecting signatures for the upcoming election while she decides on the conflict of interest matter.

The judge said she’d make a decision on the conflict “forthwith,” and as fast as is humanly possible.

The judge must decide whether three members constituted the board because two had recused themselves, and more importantly, even if the majority argument holds, she will have to consider whether town counsel’s office is conflicted in this case or if there is an appearance of conflict, if not an actual conflict.

Spolzino told the judge that petitions to run for town elected offices must be filed by the first week in April but that petitioning begins on Feb. 28th.

Though the attorneys met in private with the judge during the hearing, in open court Puerto raised the issue of conflict of interest.

Addressing Conway, she said: “What about the appearance of conflict?”

Conway argued he has no conflict of interest and that he filed his response on behalf of the town promptly and if he had not done so, the town would have been in default.

Szalkiewicz argued to the contrary.

Conway, Szalkiewicz said is “inherently conflicted, intertwined with conflict,” and is part of the town attorney’s office that has been drafting the papers on how the term limits law can be overturned. “He has worked under the town supervisor. He serves on behalf of the town. Clearly the person who is paid by the town board should not be defending plaintiffs who’ve sued the town board.”

Spolzino has filed a motion for summary judgment asking the court to decide if the term limit law is illegal. The judge directed both Conway and Szalkiewicz to file defenses to summary judgment in the case, and said she would disregard the filing of whichever attorney is disqualified or not recognized.

This will be a high-profile case for newly elected Supreme Court Judge Puerto. Hoehmann and others have been campaigning in several public forums to do away with term limits, saying at various times they are illegal because of the wording, while later pointing to what the case alleges – that term limits would have needed a voter referendum eight years ago to have been legal in the first place. He’s taken on this fight on the eve of his eight-year term.

Clarkstown’s term limit law only allows for repeal by a super-majority of the board — that is a majority plus one vote. As written, to repeal the term limit law would require four votes. The current law was passed eight years ago by a unanimous vote of the town board. Hoehmann championed the law and voted affirmatively for term limits at the time.

For months, Hoehmann, assisted by town attorney Craig Johns, toyed with trying to get rid of term limits by claiming the language of the law was vague.

But in a fresh turn, the suit alleges the law should be voided because residents “never had the opportunity to decide the issue at a public vote.” Plaintiffs are essentially saying that the term limit law was not valid because it was not passed by a public referendum and contains a provision for repeal only by super-majority.

To support their claims, plaintiffs argue that because New York law requires that every “act, motion or resolution” be passed by a majority of all of the members of the Town Board, and that imposing a requirement for a super-majority to repeal the law “curtails the voting power of elective officers” to pass laws by simple majorities. Public referendums are required whenever a local law, “abolishes, transfers or curtails any power of an elective officer.”  The suit is essentially arguing that because the law only allows for repeal by super-majority and was passed without a public referendum, it is illegal.