WPCNR COUNTY CLARION-LEDGER. February 11, 2003: Westchester County’s Board of Legislators voted 9 to 5 Tuesday evening to increase property taxes 14.8% and enact $10 Million in spending cuts to balance the county budget for 2003.
The budget cuts $3.6 Million in county pay raises, eliminates $2 Million in funding for private and public organizations, and $1.9 Million from the District Attorney’s budget. Fifty-nine layoffs are planned and 300 jobs will be cut. Other areas reportedly cut include legal aid, day care, and drug treatment programs. No county police cuts are planned.
Bradley Intros Medicaid Cap; Says Cty Prop Tax Hike Eased By Deductibility
WPCNR Afternoon Tribune. By John F. Bailey. February 11, 2003: UPDATED WITH CORRECTIONS, February 12, 2003 Adam Bradley announced to WPCNR Tuesday that he is very “sensitive” to Westchester County’s argument that state Medicaid mandates increase county costs and has introduced a bill today to “cap” all New York State counties at last year’s Medicaid spending level. “This will force the state to look more closely at the need to increase Medicaid,they will be required to pay for the increased mandated costs,” Bradley said.
Assemblyman Adam T. Bradley also told WPCNR today that Westchester County legislators have overstated the impact of the possibilities of an increased county property tax. This direction is reportedly being considered Tuesday by the County Legislature . Bradley said, any increase in the property tax is tax deductible on New York State and Federal Income Tax returns, reducing any increase by as much as one-third so in his view, any increase is only 1/3 of the stated amounts of increases.
These increases range, by WPCNR’s estimate from $104 per $1,000 Accessed Valuation in White Plains (for an $18,000 accessed home with a county-estimated 14.8% property tax increase)), to as much as over $400 per $1,000 in a typical bedroom community like Hastings.)
Challenged in Senate.
WPCNR asked what chances his Medicaid bill had of being passed by the Republican-controlled New York State Senate, Mr. Bradley said he was working with Senators to introduce the legislation.
Bradley said the bill would transfer the burden to the state for all increase in state-mandated Medicaid payments, in future years, capping the county’s shares at the 2002 level if the bill were passed this year. In Westchester County, the county pays 50% of state Medicaid costs, the state, the other 50%, and the Federal Government the remaining 50%. The bill if passed would keep Westchester County at the 2002 level of spending for the current year, providing, Bradley said budget pressure relief for the county.
WPCNR asked if this was too little, too late, in that the Assembly delegation from Westchester refused to sponsor an increase in the 1% sales tax. Bradley said rhetorically, “does that mean we should do nothing, I am committed to working with the county to providing other ways to relieve these budget pressures.”
WPCNR asked what measures were forthcoming, and Bradley said he and the rest of the delegation were “committed to looking into more gap-closing measures for the county.” He also said that he would be concentrating on working to restore some of the cuts in education another area of great concern.
Medicaid Bill Combats “Great Tax Shift.”
Mr. Bradley said “Governor George Pataki campaigns as a tax-cutter, but what he has really done is preside over The Great Tax Shift, passing tax increases deguised as mandates, that counties have to pass along to localities and school districts have to pass along in the form of property taxes and sales taxes, the most regressive forms of taxation.” Bradley characterized this as a taxation mistake.
Bradley added that he did not feel that Westchester County had made the right choices in how to cut the County budget without the 1% sales tax, but added that he stood by to work with the county in mitigating the impact.
Mr. Bradley observed on the Westchester County dilemma, “You cannot cut property taxes three years in a row, then use a tobacco settlement to cut taxes just before elections without someday having to raise taxes.”
Bill is a Start.
In the official news release announcing his Medicaid Cap Bill, the bill is described as “landmark legislation would have the state bear responsibility for any increase in escalating state mandated Medicaid payments. The state currently passes on 25% of the total costs of Medicaid to the counties. Bradley’s legislation would cap the counties’ share of Medicaid payments at the level set at the close of the immediately prior fiscal year (2002, if the bill is passed and signed by the Governor this session). By accepting responsibility for any Medicaid costs above the current level the state would significantly aid the counties during difficult budgetary periods, Bradley’s release said.
Bradley’s official statement
“We need sensible long-term solutions to the current fiscal difficulties our counties are facing. This measure will provide relief to Westchester and other counties for years to come. Importantly, it will provide the state an incentive to contain its own escalating Medicaid costs”
Meanwhile: Silver would not advance the sales tax without Delegation Consensus.
Bradley provided details to WPCNR on the reported conference held Monday between New York State Assembly Speaker, Sheldon Silver, and the Westchester Assembly delegation. Bradley said the conference took place by telephone because Assembly Speaker Silver was absent from the capitol yesterday for personal reasons.
Bradley reported that Silver learned yesterday the Assembly delegation from Westchester still did not have a consensus agreeing that the Westchester County requested bill increasing the county sales tax 1% to cover the county budget gap should reach the floor. “Assemblyman Silver is not in favor of presenting bills the Assembly delegation did not have a consensus on.”
White Plains ½% Sales Tax to be advanced to the Assembly Floor as a separate bill.
On the issue of the White Plains biannual request to extend their “sunset” ½% sales tax, Bradley reported that he is personally sponsoring the bill as a measure separate from the traditional omnibus spending bill passed routinely later in the year.
Bradley said he is working to get the bill onto the Assembly floor, and is working in cooperation with Senator Nick Spano to get it introduced in the State Senate to get the bill passed faster.
Property Tax Impact Overstated due to tax’s deductibility.
Mr. Bradley voiced his opinion to WPCNR that the property tax as advanced to the Assembly delegation by the county was appropriated only 25% to the communities, and 75% to the county to help cover the county budget deficit, and he felt this was not appropriate, given that the cities were allowed to keep 100% of their sales tax.
He added that the impact of the increased property tax on homeowners was mitigated by the advantage of being tax deductible against the federal and state-income tax rates.
Quo Warranto Waltz Continues. Recuse Motion Has Capacity to Extend Case
White Plains Law Journal. By John F. Bailey. February 11, 2003: Councilman Glen Hockley has now been in office since March, 2002, just about 11 months now, and Thursday’s latest move (WPCNR, February 7), could extend the process perhaps another four months to a year.
The remedy of quo warranto as being the speedy process his attorney, Adam Bradley championed 11 months ago, is becoming clearly not speedy at all. It took the Attorney General seven months to bring a quo warranto proceeding after the Delgado legal team (who eschewed quo warranto in the first place, adding to the delay), marshalled the evidence for a quo warranto proceeding.
First there was the Hockley effort to throw out the concept of looking at the voting machine, which Judge Francis Nicolai refused to go along with, saying, “I wear these robes to right wrongs.” The judge ordered the machine to be examined. Then, when all present examining machine (19 persons) agreed it had jammed, the Judge called for a new election in District 18.
The Hockley camp objected to this as the wrong procedure violating Article 16 of the Election Law and not within the scope of the Election Law. The Appellate Court in Brooklyn threw that appeal out, and Hockley took it to the Court of Appeals, which based on off-the-record remarks WPCNR has been told, upheld Hockley’s appeal because “it was afraid of having the courts swamped with election cases.”
Enter the Innocent.
Until now, the only persons hurt by the long Hockley-Delgado saga, have been the voters of White Plains District 18, but with Mr. Hockley’s new motion to dismiss, two others stand to be hurt personally: Diane Lundin, Judge Francis Nicolai’s law clerk, and Judge Nicolai himself.
Diane Lundin, an innocent professional, is playing an unwitting new role, by applying for the vacant White Plains City Judgeship. She has given the Hockley camp a new life.
“Cloud of Questionmarks”
The Hockley attorneys imply in their new motion for recusal of Judge Nicolai, that Ms. Lundin’s application for the judgeship creates a conflict of interest for Judge Nicolai.
The brief, written by new player in the Hockley lineup, Elizabeth Shollenberger, noted as assistant to Counsel Thomas Abinanti, takes note that Judge Nicolai himself announced Ms. Lundin’s application at the January 23 Preliminary Conference, and said he would entertain any questions for recusal at the next convening on the matter.
Hockley’s motion to dismiss brings Ms. Lundin in as a reluctant player putting her in an uncomfortable position as her application for a judgeship with the city is considered, and raises this question in its brief:
The brief muses that Mr. Hockley and Judge Nicolai (to whom according to the brief, Ms. Lundin is described as “a key member of his staff, he relies on professional expertise” would be open to question on motivations in light of the Lundin judgeship candidacy:
Whatever action Mr. Hockley takes on Ms. Lundin’s candidacy (or,indeed, if he should sit on his hands, allowing others to make the decision, observers could conclude that Judge Nicolai’s decision in this case were affected by Mr. Hockley’s action or reaction on Ms. Lundin’s candidacy, or on the other side of the coin, could conclude Mr. Hockley’s votes as a Council Member were influenced by this policy matter.
The brief raises further questions:
Not only would the motivations of both the Council Member (Hockley) and the Judge be thrown into question if Ms. Lundin succeeds in ascending to the bench (either by filling this current vacancy or by appointment later in 2003 to another anticipated vacancy), she would be starting her judicial career under a cloud of question marks – observers could speculate on the motivation for her appointment.”
The section on Lundin concludes that Judge Nicolai recusing himself would promote public confidence in the integrity and impartiality of the judiciary, and allow Mr. Hockley to perform the functions of his council office without concern about the appearance or reality of undue influence.
What about the Lundin Viewpoint?
From Ms. Lundin’s standpoint, she could question the Mayor’s Selection Committee if they do not select her, because Mr. Hockley has raised this issue. If she is not selected, Ms. Lundin might assume that she was unfairly excluded from consideration by the Mayor’s Committee, because of her employment with the Hockley judge. She might have a legitimate complaint against Mr. Hockley and his attorneys for prejudicing the Mayor’s Selection Committee against her, giving them a reason not to select her for the city judgeship.
The sad situation Ms. Lundin finds herself is due to Mr. Hockley’s legal bid to get another judge to consider his case all over again, with no thought at all to the position in which her mention in his motion places Ms. Lundin.
There are conflicts of interest everywhere, it seems. Judge Nicolai did not have a problem with her application, and brought it to everyone’s attention at the Preliminary Hearing.
The brief rests its motion to recuse , in part, reguarding the Lundin question on the judicial law prohibiting the appearance of impropriety.”
Of course, considering that approximately 40 or more persons have applied for that judgeship, it would be very curious if Mayor Delfino’s committee selected her. The odds are long.
What is even more curious is that Mr. Hockley is quoted as saying it would be a conflict of interest for him to vote on her if he was sitting on the council. Does this mean that Mr. Hockley would vote against her? Or vote for her because her application furthered his case? Or that, if Mr. Delgado were returned to the council by Judge Nicolai, perhaps Mr. Delgado might vote against Ms. Lundin as a judgeship in a vindictive move?
But, does Ms. Lundin’s application become a conflict of interest for anyone until Mayor Delfino’s committee selects her from the 50 or so applicants? Obviously, in order for Ms. Lundin to figure as a conflict of interest, we just have to wait and see until the Committee makes its recommendation. So Judge Nicolai might very well simply declare a wait and see attitude, and not rule on the motion.
Hockley Will Not Abdicate
Of course, now that a quo warranto suit has been joined, Mr. Hockley could resolve this problem of having to vote on Ms. Lundin’s appointment, or any appointment by taking a leave of absence from the Common Council, until it is resolved. He was not appointed to the council until after the original lawsuit was resolved.
WPCNR asked Mr. Hockley last week if he would consider resigning from his council seat and abdicating in favor of Mr. Delgado as a good will gesture to bring the matter to a close, and he said he absolutely would not. Of course, the Common Council President, Benjamin Boykin, would then have the responsibility of appointing Mr. Delgado.
Journal-News, Quote of Judge Nicolai at issue.
Section (b) of the motion moves that Judge Nicolai recuse himself for commenting “I don’t see any reason to recuse myself” when asked for comment by Journal New reporter Susan Elan about the quo warranto proceeding in which Attorney General spokesperson Marc Violette noted that the Attorney General had requested Nicolai be given the case for an efficient resolution to the case.
According to Ms. Shollenberger’s brief, Nicolai violated The Rules of the Chief Administrator of the Courts Governing Judicial Conduct, which read: A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.
The brief points out that if the quote is accurate, it appears that Judge Nicolai had already been considering the possibility of recusing himself, and had made up his mind not to recuse. This, the brief maintains, would indicate that Judge Nicolai has violated this rule of judicial conduct, and the brief is maintaining this “preprejudiced position” as a second reason for Judge Nicolai to recuse himself.
Judge accused of preducial attitude towards the case
Ms. Shollenberger’s motion, continues to her third argument for Judge Nicolai to recuse himself: statements the Judge made in the Preliminary Conference indicating he was not inclined to reexamine the evidence and previous findings of fact.
Her argument draws on the definition of quo warranto : “entitling the defendant the right of discovery, including the right to a jury trial. The returns and certificates are deemed only prima facie evidence and the parties are permitted to go behind them and show what took place at the election, the number of votes cast…and in controversies of this character that they will be shown by any available legal evidence.
Ms. Shollenberger contends that Judge Nicolai both in the original Article 16 proceeding last year and in the Preliminary Conference of January 23, “has prejudiced the scope and outcome of this proceeding.”
She cites Judge Nicolai’s remarks at the January 23 conference, where he mused on what the effect was of the Attorney General’s finding that Mr. Delgado won the election. Shollenberger argues that the attorney general’s “finding” is akin to a District Attorney’s fact-finding in a case, and she concludes, “only a jury can act as the finder of fact in this proceeding.”
She notes the Judge listened to Mr. Abinanti’s request for discovery and the notion of accepting the attorney general’s findings as fact, and the judge responded, “There are no questions of fact here.” She quotes Judge Nicolai’s retort to Mr. Abinanti’s request for discovery:
I don’t know what there is to discover. There cannot be any question in any reasonable, logical, clear-thinking person that this machine was not broken, can’t be. Nineteen people came in and said that.
She notes his subsequent remarks to Thomas Abinanti “if you waste my time, I’m going to sanction you. Do not make the simple complicated, gentlemen. I sense this may be the goal here. I won’t have it. We’re in recess.”
The brief notes “A judge does not customarily state that there are no disputed factual issues in a plenary action even before a defendant has answered . Judge Nicolai’s view of this proceeding is colored by his having presided over the Article 16 case.”
“Narrow Prism of Facts”
Ms. Shollenberger underscores the point, noting also, that Judge Nicolai appears “impatient with any factual or legal issues not directly connected with one voting machine in one election district and that has prejudged the issues herein, and for this additional reason, Mr. Hockley moves herein for his recusal.”
Citing People vs. Zapacosta, Shollenberger points out that the bench in ruling that the judge should have recused himself because of prior knowledge of a case involving the defendant, was also aware that the defendant was faced with the option of choosing a jury trial or a trial in which the judge had that prior knowledge. Shollenberger accuses Nicolai of viewing the case through “the narrow prism of facts” he encountered in the Article 16 Delgado vs. Suderland case. In People vs. Zapacosta, according to the brief the defendant confessed to a crime, then implicated the defendant who was then tried by the same judge based on testimony of the previous defendant’s confession.
The Quo Warranto Marathon Descends into Murky Gloom thanks to The Court of Appeals.
The irony at work here is that if a new election were held in White Plains today, Mr. Hockley, based on his performance on the Common Council, his walkabouts, his voting record, and his 11 months of accomplishment, might very well defeat Mr. Delgado in District 18, and he might certainly win if the election were held citywide.
Mr. Hockley, by refusing to go along with an election in the first place, now with this motion to recuse, shows he was never interested in finding out the will of the voters ever. It is all about keeping his seat.
By possibly compromising an honest effort of Diane Lundin to further her career, as a means to get Judge Nicolai thrown off the case, Mr. Hockley’s legal team is embarrassing Ms. Lundin, making her an innocent victim of this exercise in election law semantics and procedures.
Speaking of Procedures: Did Attorney General err by requesting Judge Nicolai?
In another thought on this matter, this entire conflict of interest question has been precipitated by the Attorney General’s specifically asking for Judge Nicolai to consider the case.
Perhaps this was not the most brilliant thing for the attorney general’s office to suggest.
A Legacy of Dubious Effectiveness.
The questioning of Judge Francis Nicolai, the interference with Ms. Lundin’s career to buttress a case, the questioning of a reporter’s asking a judge for comment, all have been the net effect of the New York State Court of Appeals refusing to interpret Election Law (allowing the courts to fashion a remedy), in the original Delgado-Sunderland appeal last March.
The New York State Court of Appeals Justices apparently wear their robes for different reasons than Judge Nicolai does.
Judge Nicolai’s reason for wearing his robes was heard by this reporter in December of 2002, when I heard him say as he touched his black robed sleeve, last December “I wear these robes to right wrongs.”
Board of Education Meeting Rescheduled for Wednesday at 6:30 PM
WPCNR SCHOOL DAYS. From Michelle Schoenfeld. February 11, 2003:The Special Meeting originally scheduled for 7:30 P.M. (Annual Budget Committee) will begin at 6:30 P.M., with the business meeting originally scheduled for Monday, February 10th that was cancelled due to weather conditions.
The 6:30-7:30 portion of the meeting will take place in the Board Room at Education House, 5 Homeside Lane, and is open to the public. At 7:30, the Annual Budget Committee meeting will take place, as planned, in the Assembly Room.
The Special Education and Section 504 discussion originally planned for February 10th will be rescheduled for a later date.