Mayor Ron Kim has initiated an appeal of Judge Jeffrey Wait’s decision in the case of City v Church Street Trust (Jeffery Dumont). This was the case in which Mayor Kim failed to appear before Judge Wait who reversed Jeffery Dumont’s earlier guilty plea and dismissed the compliance issues. It is not clear what the city can gain from this appeal, and there is an alternative to this costly litigation which Kim apparently is not considering.
There Is a Simple Solution
Mr. Dumont was in Judge Wait’s court because he had proceeded with construction without the required city building permit. Mr. Dumont still does not have the required permit and has yet to get the approval he needs from the Design Review Commission. My understanding is that the most that could come out of a successful court appeal of this case, however, would be to require that it be sent back to Judge Wait’s court to be reviewed again.
If the goal of the city is to require Mr. Dumont to come into compliance with the city’s building requirements, that does not require expensive litigation. Instead, the city’s Code Enforcement Department (which is under the Mayor) can simply cite Dumont again for whatever outstanding issues remain.
What then is the purpose of expending tax dollars on this appeal?
The only additional advantage that a court appeal could have would be to reinstate Mr. Dumont’s original guilty plea. I wonder who cares that Mr. Dumont, a seventy- plus-year-old contractor has a record of being found guilty in a code enforcement matter? The goal after all is to get him to comply.
This is clearly a waste of taxpayer money.
Shouldn’t The Mayor Seek City Council Approval to Spend Money on This Appeal?
Mayor Kim has employed the law firm Miller Manix to appeal Judge Wait’s decision. This law firm is on retainer to the city but a reasonable reading of their contract indicates that the scope of their work is limited to representing the land-use boards. The Dumont case does not involve a project before the land use boards. It is a code enforcement case.
This is the language in the contract with Miller Mannix. Would code enforcement fit here?
STATEMENT OF SPECIFICATIONS: Land Use Board Legal Counsel
The applicant shall advise and represent the City land use boards (inc. Planning Board, Zoning Board of Appeals, and Design Review Commission) [JK: Emphasis Added] and render legal services relating to applications before such boards, as well as general counsel on an as-needed basis, as requested by the Mayor, or his/her designee.
The applicant shall provide the following legal services on an “as-needed” or “on-call” basis for this project, and shall be provided at the direction of the Mayor, or his/her designee, including but not limited to:
A. Occasional attendance at land use board meetings and workshops.
B. Preparation of draft land use board decisions and/or resolutions.
C. Provision of legal advice on applications before the City land use boards.
D. Provision of guidance to the City land use boards for compliance with the New York State Environmental Quality Review Act (SEQRA).
E. Litigation pursued or defended at the direction of the Mayor.
F. General counsel.
The applicant assumes full responsibility for the provision of the productsContract of City with Miller Mannix
The heading of the agreement clearly states: “Land Use Board Legal Counsel”. The specifications state that Miller Manix will “advise and represent the City land use boards…” All the legal services listed, A-F, should be viewed in that context.
The specifications also include, though, this vague language: “as well as general counsel on an as-needed basis, as requested by the Mayor…”
I think it could be argued that this vague language allows the Mayor to utilize the attorneys’ services beyond land use board issues, but I think a reasonable person would agree that this is a stretch given that this provision is embedded in an agreement to engage Land Use Board Legal Counsel. Code enforcement is not within the purview of the land use boards.
There is, I think, a reasonable argument to be made that the existing Miller Mannix contract does not cover the Mayor’s request to pursue this appeal. In that case, the Mayor needs to seek approval from the Council to hire outside counsel according the City Charter. The conservative and transparent approach that would show respect for the other Council members and the public would be to have a public discussion of this move and to seek Council approval for the appeal. This seems especially apt given real questions as to whether an appeal is worth the cost.
Unfortunately to date, Mayor Kim’s colleagues at the Council table seem unwilling to challenge him on pretty much anything.
An Email To The Mayor
I have written to the Mayor asking him why he is pursuing this appeal when other less expensive solutions are available to him. I will post his response to this site when I receive it.
An Email to Finance Commissioner Minita Sanghvi
I have written to Finance Commissioner Sanghvi asking what the estimated cost for the Miller Mannix appeal would be. Her reply:
Thank you for your inquiry. As you know it’s the weekend and City hall is closed. I will speak to the people involved on Monday and we’ll get back to you next week.
Thank you, Minita”