Examining Sources: It Pays To Check Citations, Some Lawyers Don't 'Always Take The High Road'

Chief Judge Lawrence H. CookeIf odd sounds were heard on the evening of Tuesday, September 18th coming from the vicinity of Rock Ridge Road, five blocks east of Village Hall, they may have been the sound of the Honorable Chief Judge Lawrence H. Cooke turning over in his grave.

That night, an attorney from Nyack who consults with the Village of Monticello Board of Trustees in the absence of a duly appointed corporation counsel for the Village, attempted to twist the words of the late esteemed Chief Judge of the NYS Court of Appeals for his own purposes, creating a meaning other than the one intended by the Chief Judge.

Wisely, the board took no action on the criminal indemnification proposal after the public hearing [full audio]. The best course would be to drop the matter and not bring it back before the board.

Pushing for a Local Law authorizing interest-free loans to public officers and employees of the Village of Monticello who are or who may in the future be charged with crimes (to be "reimbursed" to the Village after a criminal conviction), Nyack lawyer Dennis Lynch inappropriately cited the case of Corning v. Laurel Hollow (48 N.Y. 2d 348 [1979]), which was decided by the late Chief Judge Cooke; as well as NYS Comptroller's Opinion 2000-1.

Although Mr. Lynch was asked roughly a week before the meeting to answer certain "Questions of Law" put to him in an e-mail, he chose not to exercise his duty to properly advise the Board of Trustees. Instead, he waited until a public hearing was in progress to rattle off the two citations to support his bald-faced false assertion that a Local Law drafted by him to defend Village Manager John LiGreci and others who have been subpoenaed in connection with a pending Grand Jury investigation complies with New York State law.

In fact, the contrary is true.

Chief Judge Cooke, writing on behalf of the majority of the highest court in New York State, was faced with a claim by former village officials for reimbursement of costs and legal fees incurred after concluding a successful defense to a civil rights action brought against them in their official capacities.

Though Mr. Lynch cited it in support of adoption of his proposal of interest-free loans to pay legal bills of Village officials accused of crimes, this case is not relevant to the measure proposed by Mr. Lynch, in which he rationalizes advance payment of personal legal fees for officials charged even with criminal misconduct.

Our esteemed Monticello native, former Chief Judge Cooke, included these words in his decision, which Mr. Lynch conveniently failed to note in his two-minute report to the board on this matter:

"One of the risks traditionally associated with the assumption of public office is that of defending oneself against charges of misconduct at one's own expense (Matter of Chapman v City of New York, 168 N.Y. 80, 85-86). The public owes no duty to defend or even aid in the defense of such a charge. As was said in Matter of Chapman (supra, at p 86): 'Whoever lives in a country governed by law assumes the risk of having to defend himself without aid from the public, against even unjust attempts to enforce the law, the same as he assumes the burden of taxation' * * * (see, also, Leo v Barnett, supra; Buckley v City of New York, 289 N.Y. 742, affg 264 App Div 116; Matter of Guarino v Anderson, supra; Matter of Kilroe v Craig, 238 N.Y. 628, affg 208 App Div 93; 17 Opns St Comp, 1961, p 125; 12 Opns St Comp, 1956, p 479)."

Chief Judge Cooke carefully emphasized that Corning vs. Laurel Hollow pertained to civil matters only, not criminal defense:

"Insofar as here relevant, section 18 generally requires a village which has adopted the provisions of that section to provide for the defense of its officers and employees in any "civil action or proceeding" arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties (Public Officers Law, §18[2][a])."

Mr. Lynch may not appreciate the place of honor which Chief Judge Cooke holds in the memories of the people of Monticello who knew him.

With regard to Comptroller's Opinion 2000-1, Mr. Lynch was equally negligent with his mis-advice to the Board of Trustees. A careful reading reveals that the Opinion referred to a law modeled after Section 19 of the NYS Public Officers Law (which does indemnify State employees against criminal charges in some limited instances, but allowing reimbursement only after the accused official has been aquitted - not turned upside-down, as Mr. Lynch's proposal would have it).

The Opinion cited by Mr. Lynch, the meaning of which he yet again stood on its head (evidently assuming no one one the board would dare to question his expertise as a high priest of jurisprudence), states:

"The provisions of section 18, however, do not authorize a municipality to provide a defense in a criminal proceeding (see Zimmer, supra; 1986 Atty Gen [Inf] 6; cf. Wassef v State, 98 Misc 2d 505, 414 NYS2d 262 [analogous provisions of Public Officers Law, §17 do not require State to provide defense in a criminal matters]; compare Public Officers Law, §19, relative to defense and indemnification of State officers and employees in criminal proceedings). To the extent that an investigation by a district attorney into the potential commission of a crime may be considered either an 'action' or a 'proceeding' (compare General Construction Law, §§11-a, 16-a, 18-a; CPLR, 105[b], [d]; Criminal Procedure Law,§1.20[16], [18]; People v Van Der Beek, 18 AD2d 205, 238 NYS2d 676), it must usually be considered criminal in nature (see Criminal Procedure Law, §1.20[18], defining 'criminal proceeding' in part as 'any proceeding which occurs in a criminal court and involves a criminal investigation'). Similarly, a grand jury proceeding is generally regarded as a criminal proceeding (see People v Van Der Beek, supra; People ex rel Nuccio v Eighth Dist. Prison Warden of City of New York, 182 Misc 654, 45 NYS 2d 230; but see Hunt v Hamilton County, 235 AD2d 758, 652 NYS2d 402 [grand jury proceeding held to be civil action or proceeding within meaning of Public Officers Law, §18 when district attorney admitted no intention of pursuing criminal charges]). Accordingly, it is our opinion that the village in this instance may not pay the police officers' legal expenses pursuant to the provisions of section 18 of the Public Officers Law."

The Local Law Mr. Lynch proposes depends on Section 18 of the Public Officers Law. He evidently prefers to rely on Section 18 (which the very authorities he cites confirm do not apply to criminal defense) because that section allows indemnification (against civil suits) in advance; while Section 19 (which applies to criminal defense) only permits repayment to a public officer after an acquittal or dismissal.

During the September 18th public hearing, attorney and recently retired Acting Village Justice Leo Glass offered the following public comment on the proposed law:

"Mr. Lynch has provided us with certain legal citations and legal authorities which I am not prepared to answer to at this time because I was not aware of what he was going to bring up. I think this is an ill-conceived idea. The Village, I am sure, has liability insurance covering the actions of certain employees, including the board. And I think for this Village, with its high tax burden, to now assume the responsibility for legal fees for anybody and everybody who commits any crime of any sort is absolutely absurd. It is beyond the realm of probability that we should pass this, and I would ask that the matter be adjourned until such time as I have an opportunity to respond to Mr. Lynch's legal citations because, just as you know, every time somebody cites a law in their favor, there is a law cited against them."

The taxpayers of Monticello will be grateful to Judge Glass for any professional legal analysis, opinion, or other services that he is able and willing to offer in response to Mr. Lynch's "ill-conceived idea".

Interest-Free Loans To Village Employees For Criminal Defense Lawyer Fees Get No Support

At tonight's public hearing, no one spoke in favor of the local law proposed by Nyack attorney Dennis Lynch, and a broad spectrum of members of the public, and officials, spoke against it. After the hearing, no one on the board moved for its passage.

Click here for full audio of the board meeting.

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.

Rockland County consulting attorney Dennis Lynch, who is paid by the Village of Monticello for advice

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.

John J. LiGreci, Sullivan County Democrat photo

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:

Dennis,

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.

Come to MONTICELLO DAY on August 5th!

Please take notice that all "Broadway Craft & Farm Fest" events previously scheduled by the Board of Trustees to be held between July and September have been cancelled by the Village Manager. Vendors who were signed up for these events should immediately contact Village Manager John LiGreci at (845) 794-6130, ext. for a full refund.

As an alternative, I am pleased to recommend bringing your family, friends, and vendor tables to MONTICELLO DAY on Sunday, August 5th. For information on this event, call Les Kristt at (845) 794-6639.

The latest Monticello Day announcement reads:

MONTICELLO DAY was born out of a cherished respect for our history combined with a strong commitment to the future of our community.

MONTICELLO DAY on Sunday August 5 will be a fabulous wholesome family Event with something for absolutely everyone.

The festivities will start at 12noon right after the Monticello Rotary Monster race winds down.

Broadway will be closed and have on it a large hook and ladder fire truck with a giant American Flag. Also on Broadway … a Mazerati, a Farari, The Steelhorse race team from Bethel Speedway, an ambulance, a school bus, large oil trucks, fancy 18-wheeler cabs, back hoes, Harleys, a few antique cars, fancy convertibles, the DARE Corvette and more.

We will have food vendors, merchandise vendors and non-profit information vendors on Rotary Corner. We will have Boxing demos, martial art demos, an animal clinic, gymnastics, Zumba and walking demos on the Court House lawn … with a band. We will also have Tom Rue and John Conway our Village and County Historians to speak and answer questions.

Monticello is coming together to uplift everyone’s spirits … join us August 5 … MONTICELLO DAY … we promise you a whole lot of great family fun.

Download 2012-2013 Village of Monticello Budget

The 2012-2013 Village of Monticello budget is available for download here. Included in this zip file are the budget summary, general fund, sanitation fund, and water/sewer fund.

With the hard work of the Board of Trustees and Treasurer, there is a 1.8% tax increase, which follows zero percent increase last year.

My Opinion Of An Attorney's Attacks On The Monticello Police Department

MEMORANDUM

July 8, 2012

Mayor and Board of Trustees
The Village of Monticello
Village Hall, 2 Pleasant Street
Monticello, New York 12701

To Whom It May Concern:

This memo summarizes why I said I was not prepared to vote in favor of a Resolution prepared by the Nyack law firm of Feerick, Lynch & MacCartney at a regular meeting of the Board of Trustees on July 5, 2012.

It was irrelevant to my decision that night whether anyone was guilty or not of any pending charges, as all are innocent before the law until proven otherwise. My hope is that the Mayor and all others involved will receive fair and competent treatment and legal representation during upcoming legal processes.

July Fourth Broadway Parade

As part of a recent series of major special events on Broadway and elsewhere in our community, the Village of Monticello is pleased to announce a 4th of July parade. Click the image below to download details an an application to participate with a float or as vendor.

Graphics by Helen Budrock

Monticello Antique Car Show, August 12th

Graphics by Helen Budrock

Village of Monticello Hosts Memorial Day Picnic, Yellow Ribbons

MONTICELLO - Mayor Gordon Jenkins and the Board of Trustees of the Village of Monticello are pleased to invite the public to a free old-style family Memorial Day barbeque on May 27th, 11:00 AM to 4:00 PM, at DeHoyos Park.

Corn on the cob, hot dogs, hamburgers, chicken, and cold salads will be served. Organized games will be available for children of all ages.

Commemorative yellow ribbons, which will adorn decorative lamp-posts on Broadway, are available for a small donation, to memorialize those who have served in the military.

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