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March 13th, 2013

BOL leaders in Westchester win a ruling against Astorino



WHITE PLAINS – Acting Justice New York State Supreme Court Barry E. Warhit released his decision recently in favor of the three leaders of the Westchester County Board of Legislators (BOL) - Chairman Jenkins (D-Yonkers), Vice Chair Lyndon Williams (D-Mount Vernon) and Majority Leader Peter Harckham (D-Katonah) - in their lawsuit against County Executive Rob Astorino regarding the County’s Board of Acquisition and Contract (A&C), which handles contracts for capital projects worth hundreds of millions of dollars yearly for Westchester.

In December 2011, the BOL voted to change the composition of the three-member A&C Board, replacing the Commissioner of the Department of Public Works and Transportation (DPWT) with the County Budget Director. Both positions are named by the County Executive and are subject to BOL approval. The County Executive and BOL Chairman make up the other two A&C members.

Even after the law, which the County Executive vetoed and the BOL overrode, was duly filed with New York State, and in actions clearly violating the law, Astorino continued to direct the DPWT Commissioner to sit at the A&C meetings - and vote.

In March 2012, the three BOL Democratic leaders filed a lawsuit to determine, once and for all, whether Astorino had to follow a duly enacted law.

Judge Warhit’s decision orders that the County Executive must "implement and enforce" the Resolutions, Acts and Local Laws adopted by the BOL.

"This ruling confirms one the major tenets of our democracy: A law is a law, and the rule of law must apply to everyone, regardless of their position or office," said Williams, a practicing attorney. "Also, the County Attorney should have advised the County Executive to follow this law rather than ignore it. Only a court can decide a disagreement of law - not the county attorney."

Exacerbating the issue further, Jay Pisco, named by Astorino as DPWT Commissioner, had his appointment sent to committee by the BOL, which the BOL did not send to Committee. Warhit declined to rule on Pisco’s appointment, and instead rules Pisco may no longer serve on the A&C Board as a result of the court’s decision.

"My Board colleagues and I undertook this legal action reluctantly, after many attempts to settle our differences with the Astorino Administration," said Jenkins. "But the Administration’s refusal to follow the law is not something that could be taken lightly. It was not just a matter of ‘running to court’ for a superfluous reason. Our oaths of office demand that we respect, follow and stand up for the law and the rules of governance as determined in the County Charter. Ignoring this law posed a grave threat to Westchester and put all of our contracts at risk."

In his decision Judge Warhit agrees with the three plaintiffs that County Executive Astorino failed to enforce the provisions of a local law, thus violating his statutory duty.

The law changing the A&C Board became a major issue for the BOL when Jenkins, Williams and Harckham were troubled in February 2012 by the Astorino Administration, thus operating illegally and without transparency in the County’s Board of Acquisition & Contract (A&C), "approved" a $13 million capital project on February 16 without first presenting it to the BOL - contrary to the laws set in the County Charter - for any discussion, vetting or due diligence whatsoever regarding the funding, despite information about bonding options that could have saved the County over $1 million. As it stands, this project would be subject to a public referendum since it exceeds the County’s bond cap of ten million dollars. Moreover, the 2-1 vote at A&C included a vote from Pisco.

"The County Charter and local laws need to be followed for our government to work properly and our residents to have confidence in what their elected leaders are doing," said Harckham. "Judge Warhit has provided the clarity and closure that we are seeking."


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