Proposed Local Law Gives Free Loans To Village Employees For Criminal Defense Costs
Taxpayers who object to public money being advanced to defend public employees and officials charged with crimes should attend the September 18th public hearing at 7:00 PM at Monticello Village Hall.
The obligation of each member of the Board of Trustees is to look out for and protect the best interests of the Village of Monticello as a whole, not for our own personal welfare. A proposed local law places any member of the Board of Trustees who might votes in favor in jeopardy of personal liability for theft and malfeasance.
The board voted 4 to 1 (Carmen Rue dissented) to hold the September 18th public hearing.
The public is invited to speak.
Lawyer Dennis Lynch of South Nyack (pictured at right), who drafted the proposed law and whose firm would substantially benefit from its passage, is expected to push Trustees to vote for its immediate approval the same night.
Presently, a Grand Jury at the Lawrence H. Cooke Sullivan County Court House is investigating if one or more Monticello officials, such as Village Manager John LiGreci and/or others, may be guilty of felonies while acting in their official capacities.
As of now, no Village officials are charged with any felonies, though several have been subpoenaed.
Lynch's proposed law would cover defense against crimes of all degree (both felonies and misdemeanors), regardless of the crime's nature, if the employee pleads Not Guilty and claims the offense was part of his or her official duties.
If officials are charged by the present Grand Jury or for any other crimes in the future, unless the law proposed by Mr. Lynch is stopped, the taxpayers of Monticello would pay legal fees to defend them.
Only if accused employee(s) are found guilty, under Mr. Lynch's proposal, would they be expected to "reimburse" the Village of Monticello for legal defense fees already paid to Feerick Lynch and MacCartney PLLC and other other lawyers benefitting from the local law.
Precisely how the Village could expect to collect such a debt from a former employee who would then be a convicted criminal is not addressed by Mr. Lynch.
In my opinion, an act designed to benefit one or more board members or their friends at Village Hall, giving interest-free loans in the form of advance payments prior to a finding of Not Guilty or dismissal is theft by those board members who pass this impermissible local law.
I would expect a restraining order prohibiting advance payment of criminal defense fees to be issued if the measure is passed on or after September 18th, and later challenged in court. Any Monticello taxpayer would have legal standing to file suit to stop the abuse of power and misuse of public money.
This law gives the false appearance of authorizing what amounts to Misappropriation of Public Funds. I believe that to pass such a law would constitute Malfeasance in Office and could be grounds for removal of an elected official by the Attorney General.
Despite the bad legal advice emanating from a high-priced Rockland County lawyer, Trustees should beware of the potential legal consequences that could be brought to bear upon them personally by appropriating public funds to benefit themselves or their friends.
Take, for example, the historical case of a Village employee convicted of stealing money from the Village Court in the early 1990s. If this law were in effect at the time of her arrest, once she was eventually convicted, the Village would have had to sue her in order to be “reimbursed” for legal defense fees already paid. It is not hard to imagine the difficulty the Village would encounter in collecting “reimbursement” by convicted criminals. (I am not talking about anyone presently charged, but about all the hypothetical situations that could arise in the future if and when Village officials or employees are ever charged with a crime committed during the performance of their duties.)
In some instances, the former official or employee, having been convicted, could be imprisoned – or file for bankruptcy. How would we collect then?
Mr. Lynch remains silent on this question.
When civil lawsuits are filed against the Village, legal defense fees have for many years been covered by our existing liability insurance policy. It excludes defense against criminal charges.
There is no money in the Village's budget to pay unlimited sums for the defense of officials who are now or who may in the future be charged with criminal actions in office.
As an elected Village Trustee, on Tuesday, September 11th, I e-mailed Mr. Lynch with the subject, "QUESTIONS OF LAW - PLEASE RESPOND". To date, he has failed to reply.
Here is my unanswered e-mail to the Village's consulting attorney who is pushing passage of this measure:
Please explain by what legal authority the Board of Trustees may lawfully apply Article 2, Section 18 of Public Officers Law (which is the basis for the local law you have proposed) to pay attorney fees in CRIMINAL defending against criminal charges.
Article 2, Section 19 of the that law provides for reimbursement of State employees who have been charged with criminal offenses by authorizing REIMBURSEMENT TO THE EMPLOYEE after being found Not Guilty or the charges are dismissed.
I could support policy or law by the Village of Monticello indemnifying Village employees who have been charged with crimes during the commission of their official duties in this manner, by means of reimbursing the officer or employee of the Village AFTER a disposition favorable to the defendant. In my view, this is entirely reasonable and consistent with New York State law.
The scope of this Section 18 is limited only to CIVIL proceedings, not CRIMINAL, as stated in this sub-section:
Article 2, Section 18 (3) (a): "Upon compliance by the employee with the provisions of subdivision five of this section, the public entity shall provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the public entity employing such employee."
If you will present a law based on the language and conditions of Section 19 (relative to criminal proceedings) rather than Section 18, I believe I could support such a measure.
Anyone who compares Section 18 to Section 19 of the Public Officers Law should readily see the difference between the two, and will understand that the point I am making is [not] personal. These two sections of law clearly distinguish between indemnification of employees and officers in civil lawsuits vs. defending against criminal charges.
Loaning money to employees or officers of the Village, by appropriating public funds to pay their legal defense bills in the hopes the officer or employee will not be convicted of any crimes, and hoping that they will then "reimburse" the Village [if they are], does not appear to me to be a lawful act. As I have said, it appears to me to be misappropriation of funds, malfeasance in office, and quite simply theft.
I also see no way to assure that the loan will ever be repaid if the person is convicted. If such an employee has declared bankruptcy, has no assets, or is incarcerated, how would the Village go about obtaining the money we are owed?
In order for the Board of Trustees [to] consider your proposed Local Law in an informed manner, please advise us what legal recourse we would have to assure "reimbursement" when an employee is convicted, and also provide the legal authority and precedents for adopting a Local Law of this nature. Thank you.
I respectfully ask Monticello voters, taxpayers, and New York State authorities interested in how the rule of law applies to the Village of Monticello to demonstrate that interest on September 18th and by following up with and supporting any necessary and appropriate action to stop this misuse of public money.