The consultants from Hazard, Young & Attia, the search firm hired by the City School District to present candidates for a new Superintendent of Schools are coming to town January 10, 11, 13 and 16 to hear White Plains speak out.
The new WPCNR Poll at the right gives you a chance to target the issues of most concern to you. Simply click on the premier issues you care the most about. You can vote more than once, but only once a day.
Special to WPCNR A crash Common Council meeting held in Executive Session Thursday night, resulted in the Common Council holding off appointing a sixth interim councilperson to fill the seat currently being contested in Appellate Court. The Council will conduct Monday evening’s meeting with five councilpersons and the Mayor with one seat vacant.
A 9-page Confidential Brief by city Corporation Counsel Edward Dunphy, drawing on 5 cases from 1837,1926,1951, 1964 and 1972, cites city inability to determine which council seat is vacant, (former Councilperson Pauline Oliva’s seat or Larry Delgado’s seat) as the crucial factor in preventing Larry Delgado from continuing on the Common Council.
This ambiguity of whose seat it is, prevents the Public Officer’s Law from kicking in, allowing Mr. Delgado to holdover, in Mr. Dunphy’s analysis of these five decisions.
According to the key conclusion of the “Dunphy Doctrine,” The fact that Mrs. Oliva (Pauline) did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a (Delgado/Oliva) holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.”
The Public Officers Law holds that in a vacancy occurring through a normal expiration of term, with successor not chosen an incumbent holds over. (See previous WPCNR article on the holdover issue.)
Confidential Brief Delivered Thursday Morning to the Seating Five
The confidential brief analyzed the issue of a Delgado “holdover,” or a council interim appointment, was hand-delivered to all five seating councilpersons Thursday morning: Benjamin Boykin, Jr., Robert Greer, William King, Rita Malmud, and Thomas Roach. All but Robert Greer agreed to an Executive Session Thursday evening to discuss the issues with Mr. Dunphy. Mr. Greer, according to our correspondent, had a prior commitment he could not break.
Our correspondent advises us that the meeting apparently was held off until 8 PM, because city law requires that there be six hour notice before any meeting of the Common Council is held.
Dunphy brings Council Up to Date on Election Case
The meeting began in the Mayor’s council room, with Edward Dunphy taking center stage. Dunphy reported that as of 8 PM no decision had been reached in Appellate Court regarding the Adam Bradley-filed appeal of Judge Francis Nicolai, Jr.’s call for a continuation of the election. Dunphy, our reporter says, revealed that in the early years of his career, he was a law clerk in the Appellate Division.
Dunphy said, the Appellate Division usually moves very quickly in an election matter. He expressed surprise that the court will have had the Delgado/Hockley matter before it for three weeks as of Friday morning.
Dunphy is reported saying that no matter what the Appellate Court decides, it was likely that the losing interest would appeal to the Court of Appeals in Albany. Then the Council moved to Executive Session to discuss Mr. Dunphy’s brief.
After executive session briefing, Council releases “Dunphy Doctrine” to Public. Basis for their decision.
According to our CNR reporter, “The vote that was taken, after the public was invited back into the room (Mayor’s Council Chamber), at the conclusion of the executive session, was for the Common Council to waive the attorney/client privilege and to now authorize the release to the public of the heretofore confidential memo prepared by Corporation Council Ed Dunphy and which was distributed solely to the Common Council.
Boykin says no action contemplated. Awaiting Appellate Court Decision.
Our correspondent reports that after the executive session ended, Councilman Benjamin Boykin told reporters that “Dunphy’s memo spoke to the inability of former Councilman Delgado to take the position that he is a ‘holdover’ councilman and further (Boykin stated) that the Council would not be moving in the direction of appointing an individual, themselves, to fill the empty seventh seat on the Council.”
Our reporter adds that “the White Plains Common Council will be further instructed and guided by the eventual decision which will be issued by the Second Department of the New York State Appellate Division.”
Short Council has to vote ordinances twice to put them into law.
WPCNR’s correspondent reports Dunphy strongly urged the council not to appoint an interim councilperson. Our man on the scene advised that the Council will have to hear ordinances twice before they can be voted into law, as a consequence of having a “short” council. A meeting as been scheduled for 8 AM Wednesday, he says to hear a second reading of an ordinance on the Monday Council agenda.
Mr. Dunphy’s conclusion to his brief confirms this:
…When is a vacancy created, is not a novel issue; nor is the invocation andinterpretation of the controlling provision of the Public Officers Law, a question of recent vintage. Importantly, you can see, the holdover provision is not nearly as clear cut as first envisioned. As we have seen, its operation is very fact specific and it can be concluded that where the vacancy is identifiable, an incumbent can holdover. But in the facts confronting the City of White Plains, the vacancy certainly is not identifiable. Consequently, there can not be holdover.
Mr. Dunphy further reasons against vacancy identification,
An attempt to argue that a vacancy is identifiable in White Plains because incumbent Rita Malmud was re-elected and candidate Thomas Roach was elected and both certified by the Board of Elections, can be made. Mathematically it could be seen that these two were successful, in that they have filled two of the three positions on the Common Council, therefore, the third position is open and identifiable.
This argument has surface appeal, but when that strata is pierced, that argument evaporates rapidly.
And makes his play–
The vacancy is unidentifiable because two incumbents remain, Mrs. Oliva and Mr. Delgado. The fact that Mrs. Oliva (Pauline) did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a (Delgado/Oliva) holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.
A nod to the Appellate Court…
Additionally, we must also recognize that the Appellate Division instructed that Messrs. Delgado and Hockley are presently barred from taking any steps towards the filing of an oath of office. This directive must be tempered by the realization that a holdover is not required to execute and file an oath of office…
Mr. D. Concludes With a Strong Advisory Not to Appoint an Interim Replacement Councilperson
As a final matter, a controlling consideration is what does the City do without its full complement of legislative officials? This answer is proved by the Foley Court, wherein Special Term noted that this fact was of little consequence because the government does not fail to function with less than seven members. The work will proceed with six, until a successor is chosen and there will be no interruption in government.
Updated, New Information 1/6/02:On a light calendar Wednesday night, the Zoning Board of Appeals appeared willing to consider a variance in a setback to accommodate a modest swimming pool.
Solomon-Schechter School of Westchester made progress on establishing a day care center at their Rosedale campus for on-staff teachers only.
In a variance request being closely watched by residents who long for swimming pools, (if only they had a bigger yard), the Zoning Board of Appeals doggedly attempted to defend the 15 foot setback restriction in the request of a resident on Sterling Avenue hoping to build an above ground swimming pool.
The resident is seeking to install a 15-foot diameter pool, (owner had mistakenly referred to this as a 15-foot radius, as first reported), creating a setback of 8 feet instead of 15 feet, which the ZBA calculated to be a 45% variance they were not comfortable with approving. Paul Landesman , ZBA member, cautioned that the Board was reluctant to give such a variance because “every one else would want one.” Larry Fleischman, another ZBA member, pointed out that the Board has never given this large a variance.
The owner already has a 3-car garage on his property and seeks the 15-foot wide pool in a position by his outdoor deck, in order to preserve his workshop already existing in one of the garage bays, along with two bays where his antique cars are stored, to avoid consistently moving his two vehicles which he parks in the driveway.
He advised the board that the 15-foot wide pool could not be built into his existing off-the-house deck because of structural supports under the existing deck. His next door neighbor, and the owner’s mother, (an employee of the Planning Department, who administers Community Development funds and lives next door to the owner’s yard), testified on the owner’s behalf that the 8-foot setback would not bother them, and that the resident had done a lot to improve the appearance of his property.
The ZBA suggested several alternatives: 1.) Switching the workshop from one garage bay to another. 2.) Making the pool part of the housedeck. 3.) Decreasing the size of the pool from 15 feet wide to 12 feet wide.
After discussion, the owner said he would look into reducing the size of the pool to a diameter of 12 feet (6 foot radius), (suggested by a representative of the Building Department), which the zoning board appeared to agree to be willing to consider.
The 12-foot diameter still would result in only a 3-foot variance. The matter was continued to the February 6 meeting.
Solomon-Schechter Nears Day Care Approval February 6.
The ZBA closed the public hearing on the Special Permit to allow operation of a staff-only day care center. Cecilia Bikkal, Chairperson of the ZBA, promised a resolution at the Board February 6 meeting which would put “teeth” in the traffic management agreements the school has made with the Rosedale Residential Assocation and the city.
Elliot Spiegel, Headmaster of the school, said the school had agreed to the requests of the neighborhood association regarding the establishment of the Day Care Center.
He said the Day Care Center would be for no more than 12 children. All twelve would be offspring of staff employed by Solomon-Schechter. He said the center would be open only on a first-come, first-served basis, and that he would be willing to limit it to six children from the Greenburgh campus and six from the Solomon-Schechter Rosedale campus, or a 4-8 mix respectively.
Linda Harelick, Vice President of the Rosedale Association, pushed for tying the Day Care Center approval to enforcement of the Traffic Management Plan. (Solomon-Schechter agreed with the city to no standing or parking on the Dellwood and Elm Street right of ways leading to the school.) Harelick alleged these rules were violated flagrantly during September of 2001 when Solomon-Schechter began the current school year.
Hillary Markowitz, Solomon-Schechter parent liaison to the neighborhood, who personally educates Solomon-Schechter parents on the school-city policy towards public streets in the area, said the violations occurred as a result of parent World Trade Center anxiety after September 11, when more parents than normal wanted to pick up children personally. Ms. Harelick said the violations continued at least through September 25. Ms. Markowitz said the situation was now back to normal.
Ms. Bikkal, ZBA Chairperson, said there seemed to be great movement on both sides towards a solution, and the Zoning Board would craft a resolution regarding establishment of the Day Care Center at the February 6 ZBA meeting.
White Plains Honda put on Hold
White Plains Honda, seeking to rent a vacant building for a showroom at 350 Central Avenue, was told it had to work out a resolution of Traffic Commissioner Ted Gammon’s concerns that the proposed driveway into the facility had to be widened, and was continued to February 6. Honda legal representative, William Null, citing the fact that the paperwork on the facility had been in since October, pleaded with the Zoning Board to approve the usage, since his client was attempting to sign a lease. The Board refused.
Commenting to us afterwards, Ms. Bikkal, said that White Plains Honda application had had to be reviewed by the Building and Traffic departments. She reported the Zoning Board had just received those comments Wednesday, and therefore had to review them with Mr. Gammon, and could not in good conscience, approve a usage without knowing Mr. Gammon’s concern.
In other matters of note
The German School request for a Special permit to increase their student cap and Special Permit to configure an access drive through 800 North Street was continued to February 6.
Metro Auto Tech, Inc. on 7 Intervale Street to February 6.
Ronald Presser’s deck variance at 57 Ethelridge was postponed to February 6.
The Starr family room variance at 82 Havilands Lane did not appear. The representative from the Building Department gave the opinion that they had revised their plans so as not to require a variance.
Special to WPCNR:The Mayor’s office announced Thursday that Corporation Counsel Edward Dunphy has issued his opinion on Common Council right to appoint an interim councilperson in a hand-delivered letter to each Council Member. The letter presents Mr. Dunphy’s opinion on the composition of the first Common Councilmeeting of the new year Monday evening.
The Mayor’s Office announced a special meeting of the Common Council for 8 o’clock Thursday evening in Executive Session to discuss Mr. Dunphy’s opinion and the issues it raises.
George Gretsas, the Mayor’s Executive Officer, told WPCNR Thursday morning that Mr. Dunphy’s legal opinion on whether or not the council had the right to appoint an interim councilperson to fill the contested third seat on the Common Council, had been hand-delivered to members of the Common Council Thursday morning: Rita Malmud, Tom Roach, Benjamin Boykin, William King, Robert Greer.
Executive Session Called to Mull Dunphy Directive
Gretsas told WPCNR, “The Common Council will meet Thursday night at 8 to discuss the letter and ruling, and if they agree the letter (Dunphy’s) will be made public.”
City Hall refused to release the contents of Mr. Dunphy’s letter, citing attorney-client (Common Council being the client) privilege.
Delgado Oliva Not In Meeting
Asked if Pauline Oliva and Larry Delgado, previous incumbents of the Council, whose terms expired Monday evening at midnight, had been invited to the meeting, Gretsas said they had not.
Asked whether Tom Roach would be on the council, Gretsas said that Mr. Roach, and Rita Malmud, technically started their terms at midnight January 1, and that swearing in was strictly a formality. On the other hand, he said, Oliva and Delgado terms had officially ended at the same midnight hour.
The Dunphy Directive
Dunphy’s letter was expected to touch on a range of issues raised by the historic contested third seat which is currently unfilled by order of the Appellate Division, New York Supreme Court, Second Department, Brooklyn.
The Appellate Court is still reviewing Judge Francis Nicolai’s decision calling for a continuation of the November 6 election and a revote in White Plains District 18. A decision is expected either Thursday or Friday of this week
Armchair analysts think Delgado may “holdover.”
Legal analysts in the city, Jeffrey Binder, Delgado attorney, and John Martin,a former Councilperson who was himself appointed a councilperson by the Common Council, believe by virtue of the Public Officer’s law that Mr. Delgado could legally “continue” in his seat or “holdover,” until the seat is filled by a new election or a court ruling.
Other issues speculated as being covered in the Dunphy Letter are: whether the council has the right to appoint an interim councilperson (sources have told us that the Democratic council caucus would prefer reappointing Pauline Oliva); the mechanism for removing such an appointee; how long they would serve; and whose seat is vacant.