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Family Fun Day, February 23, 2019

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New Hartford, N.Y. Online 2019-02-14 05:00:00

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At what point….

…does it become apparent that something is amiss?Take, for instance, town board meeting minutes. Where are they? The question has been asked several times and the same non-answer is given each time. It’s always the fault of someone else!No minutes…

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It is what it is!

Town of New Hartford Town Board Meeting – February 6, 2019Unfortunately, it would appear that there are limited electrical outlets in the new town hall meeting room. I am told that it would be necessary to bring a 30-50 foot extension cord to connect …

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Regarding the purchase of land from Larry Adler…

…Supervisor, you might want to put down your prospectors digging tools; sit for a spell and take a few steps backward. This is taxpayer money; not your own private venture money that you are spending!

A town cannot invest in land where they might build a firehouse (a town can’t own a firehouse unless they get the o.k. of the state legislature); or put in a pad at some point to maybe lease to a bank or other commercial venture; nor can a town make the purchase in hopes of perhaps selling the property at some point down the road to make money nor for any other non-town purpose.

Town Law 64 and Town Law 220 makes that very clear. A town board can:

“Purchase, lease, construct, alter or remodel a town hall, a town lockup or any other necessary building for town purposes [emphasis added by me] , acquire necessary lands therefor, and equip and furnish such buildings for such purposes, or to demolish or remove any town building.’

Notice the law says for town purposes! That law is noted in a pamphlet found online from Orrick, Herrington & Sutcliffe, LLP />

“A town, village or city cannot be in the landlord business as an investment, but it can acquire a property needed for a valid municipality purpose that is larger than current need as long as the entirety is reasonably expected to be needed by the town or village in the “foreseeable future.” Such temporary use by others if at fair market value is permissible, but if the property is bond-financed, “private activity” considerations are paramount and should be considered prior to leasing to the private user.”

“Private activity” in the above quote refers to Federal restrictions on tax-exempt financing.

As of now, taxpayers have not been given a definitive “need” for the extra parcel. Given that the “need” to purchase this parcel is one-year after the Gander Mountain purchase, one has to wonder why the land was not purchased at the same time. What “need” is there now that wasn’t apparent in 2018?

It was discussed that this purchase would be alleviating a safety concern because it would give rescue personnel access on both sides of the building. Shouldn’t the Planning Board have brought that point out in the open during their review of the Gander Mountain purchase?

This sudden need appears to actually be a little “too sudden”; what is the real purpose for this land purchase? Do we really need to take another commercial property off the tax rolls?  The Gander purchased already took $2.9 million off of next year’s tax roll!

The other troubling problem is that the one and only appraisal that the town sought really isn’t an appraisal at all. The first line of the letter states:

“I have completed a preliminary value for a section of land that surrounds the new town office building (former Gander Mountain building).

Preliminary???!!!

One of the last sentences states:

“The above results are subject to change based on actual survey and exact parcel size and completion of full appraisal.”

Subject to change??? Actual survey and exact parcel size were not part of the appraisal??? Are you kidding me???

Here is a pdf of the “appraisal” I was provided when I requested it.

Another point, having retired from the non-profit world, I am very familiar with donations and IRS requirements for a tax write-off. I will guarantee everyone in this town that no one at the IRS will take the word of Supervisor Paul Miscione and the Town of New Hartford as to the value of the property that Larry Adler is supposedly “donating” to the town purely based on the opinions in the town’s so-called “appraisal”.In fact, in their eyes, it isn’t even an appraisal.

According to the IRS:

Real Estate

Because each piece of real estate is unique and its valuation is complicated, a detailed appraisal by a professional appraiser is necessary.

The appraiser must be thoroughly trained in the application of appraisal principles and theory.

This whole thing is hilarious…where do they think they are going with this proposal?

Will Supervisor Miscione keep his word and take this land purchase off the table until he is willing to give taxpayers a better understanding of why this property is so urgently needed and until he gets two or three “real” appraisals and other data to satisfy the requirements of the IRS?

I do believe he has no other choice!

“The promises of yesterday are the taxes of today.”–William Lyon MacKenzie

“William Lyon Mackenzie (March 12, 1795 – August 28, 1861) was a Scottish–born Canadian–American journalist and politician. His strong views on political equality and clean government drove him to outright rebellion in 1837 after a career as mayor of Toronto and in the colonial legislative assembly of Upper Canada (Ontario). He led the 1837 Upper Canada Rebellion and during its bitter end he set up a small rebel enclave named “Republic of Canada,” where he served as president December 13, 1837 to January 14, 1838. After a period of exile in the U.S., he returned to Canada and served as elected member of the Legislative Assembly of the Province of Canada from 1851-1858.”

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Special Town Board meeting video of January 24, 2019

The meeting started with an approximately one (1) hour executive session. The video of the meeting in its entirety… There was no agenda.

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Purchase of land next to the new town hall…

in the Town of New Hartford.At the January 24, 2019, the town board discussed the purchase of land from Larry Adler next to the new town hall. The bond resolution is for $350,000 plus there were 2 considerations given to Larry Adler to adjust the pric…

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Special Meeting tonight…

5:30 p.m. at the new town hall…to discuss acquisition of property and bonding.The town board will be voting on a $8,541,929 serial bond resolution.  The year-end 2017 Audited Financial Statements show that the town had $8,113,291 of serial bond …

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Tick, Tock…

HELD v. HALL Supreme Court, Westchester County, New York. Lucille HELD et al., Petitioners, v. Dave HALL, Also Known as David Hall, Respondent. Decided: March 18, 2002

…just one of several court cases used by the NYS Attorney General’s office to form the basis of their opinions on compatibility of office and the Whitehall Doctrine.

From the court decision:

“Although not addressed by either side of this litigation, whether for tactical reasons or otherwise, the law governing the consequence of incompatible office-holding has been established in New York since at least 1874, when our State’s highest court declared that when incompatibility exists, “one office is ipso facto vacated by accepting another” (People ex rel. Ryan v. Green, supra, 58 N.Y., at 304).”

“As further explained almost 60 years ago in Matter of Smith v. Dillon:”

“It is a well-settled rule of the common law that a public officer cannot hold two incompatible offices at the same time.   The rule is founded upon the plainest principles of public policy.   It is embedded in the common law and has obtained from very early times.   At common law and under constitutional and statutory prohibitions against the holding of incompatible offices, a person who accepts and qualifies for a second and incompatible office is generally held to vacate, or by implication resign, the first office, so that no judicial proceedings are necessary to determine the title.   The successor may at once be elected or appointed.  (Supra, 267 App.Div., at 43, 44 N.Y.S.2d 719).”

As a rule, Municipal Home Rule Law cannot be used to supersede general law that applies to all towns in New York…Town Law 64-5 is a general law that applies to a other towns in the State of New York.

However, there are exceptions cited in many NYS Attorney General opinions:

Attorney General Opinion 1984

“We have also concluded, however, that the town board in determining public policy on behalf of the town may, by local law supersede the common law doctrine of compatibility of office (Op Atty Gen [Inf] 83-50).

For example, in a small town there may not be enough residents willing to serve the town or there may be few persons possessing required expertise. In situations such as these, the town board may find it necessary, in furthering the public interest, to establish exceptions to the common law rule of compatibility of office.”

Attorney Cully tried that one; the Park Director job vacancy was never advertised and it is a civil service position so more than likely the town would have no problem filling the vacancy. Plus, how does the town attorney justify the statement that we are a small town? How many times have officials touted that we are the largest town in Oneida County?  Besides, why does a small town need a 50,000 square foot town hall and a police force to try to rival the City of Utica?

N.Y. Att’y Gen. 1988

“In considering such a local law, it is necessary that the town board weigh the incompatibility against the public benefit to be derived from retention of the employee. In our view, the perception of the person as a valued and competent employee is an insufficient basis for retention if there are other competent persons willing to serve.”

Again, Cully used all of Miscione’s qualifications to reason that his appointment as Parks Director is in the public interest. While it is wonderful that our supervisor has so many talents; it does not fit the criteria under the “public interest” rule; I would guess there are many in town with the same talents. 

Cully also said we don’t have any money. That may now be true, but there was money for a Parks Director in the 2018 budget, but instead of continuing to budget for the director position, Miscione used the money to give luxurious raises to some employees and to pay for some of his pet projects. Perhaps, it would have been wise to “settle in” to his supervisor role before spending the town’s money and bonding for almost $6,000,000 of additional debt within weeks of taking office. Perhaps, Miscione should call the NYS Attorney General and ask if lack of money fits the “public interest” test! LOL!

Absent an ability to show the appointment of Miscione as Parks Director is in the public interest, there is little left to be done except follow Town Law 64-5. The time is way overdue.

Miscione accepted the Parks Director position months ago; and in reality, by Town Law 64-5, at this point (ipso facto), he is no longer the town supervisor.  His insistence on ignoring town law in an effort to remain in both positions is starting to draw questions from town residents.

Perhaps, he better act quick to determine which hat he wants to wear before someone else makes the choice for him!

Should Attorney Cully go down the road of advising the town board to just not appoint anyone as Parks Director thinking that Miscione would automatically have the Parks Director position like was mentioned at the last town board meeting…you better check your “blue book”, Attorney Cully. I’ve already looked it up in my copy of the “blue book”; your opinion is not in conformance with law.

And, I just have to ask…anyone out there know what does Oneida County; Town of New Hartford;  pro bono work to redesign the Rec Center; and the Whitehall Doctrine have in common?

Just wondering…don’t really expect an answer from the “people in the know out there”.

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King Cuomo and the big squeeze…

Recent reports are that Cuomo’s 2020 budget proposes cuts in AIM funding (Aid and Incentives to Municipalities). These cuts would affect almost every town and village in New York State; cities’ funding would remain level.I prepared a spreadsheet showi…

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