As reported in my previous blog, I recently received an email from the Department of State (DOS) definitively affirming that, contrary to Mayor Ron Kim’s many assertions, the City Attorney is a public official and therefore subject to a residency requirement. We reported earlier that the residency requirement could be waived by the passage by the NY State Legislature of a Home Rule bill as had been done many times for many municipalities throughout the state.
Foothills Business Daily followed up with the New York State DOS and spoke with someone in the DOS press office.
That office did not dispute their department’s earlier determination that, contrary to Mayor Kim’s assertions, the City Attorney is a public officer. The office, according to the story, “seemed” to agree with Mayor Kim, though, that the residency requirement could also be changed through the passage of a local law. They hedged on this, recommending that the New York State Attorney General should be contacted for further clarification of its opinions on this issue
All of this prompted me to do more research.
I knew that recently the city of Mechanicville similarly wanted to remove the residency requirement for their City Attorney. They enlisted the help of Assemblywoman Carrie Woerner and Senator Daphne Jordan to get the state legislature to pass a Home Rule bill that would exempt the city from the requirement. The bill was passed just seven months ago on June 11, 2021. As noted in an earlier post, Section 3 has many similar additions exempting the residency requirement for other municipalities.
It was interesting to me that Mechanicville chose not to take the seemingly simpler route of passing a local law. What I found in my research, consistent with the caution shown by the DOS press secretary, was that the history of the Public Officers Law on residency is marked by conflicting opinions and court cases. Attorneys that I spoke with offered that the conservative approach was to opt for the state legislative solution Mechanicville chose rather than a local law.
The Path Forward
As people may recall, Mayor Kim originally crafted a resolution that was submitted for the pre-agenda meeting of the City Council regarding the City Attorney. The resolution included a whereas clause that incorrectly asserted that the City Attorney was not a Public Officer. Apparently, Mayor Kim simply assumed that if he asserted that the City Attorney was not a public officer, there was no need to even address the residency obstacle.
While Mayor Kim has steadfastly held to his position that the City Attorney is not a public officer, at Tuesday night’s meeting he allowed for its possibility and offered that a local law could circumvent the problem.
A local law is different from a simple resolution. I don’t understand all of the distinctions except that it requires a public hearing and must be registered with the state upon adoption.
I can only say that had the Mayor enjoyed the assistance of the two attorneys who he chose not to reappoint, he might have avoided the torturous and prolonged process he has followed and Saratoga Springs might now have a City Attorney.
I know he believes he is saving money by personally providing legal counsel to the city. One might hope that this experience would humble him to acknowledge that whatever his background as a bankruptcy attorney, it is not sufficient when it comes to municipal law. He would be better served by focusing on his role as Mayor and relying on an attorney with expertise in municipal law.