Middletown law change questioned

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By Geoff Samuels
A curious and unauthorized version of a law that was passed by the Middletown Town Board in July of 2012 has surfaced at the New York Department of State (DOS). The doctored document was discovered after Middletown Attorney John Fairbairn, at the request of Margaretville Mayor Diana Cope, asked the DOS to send a copy of the law back to the town for review.

Upon its arrival, it was noted that section 3.07 on page 15 contained wording that had previously been recommended by representatives of the Department of Environmental Protection (DEP) to both the village and town boards for inclusion in the new law, but had been flatly rejected by both those boards, and was not present in the law as it was officially filed. It was also noted that the entire page containing the unauthorized wording now had a different typeface and pagination than the rest of the document.

A little history
Roughly six years ago, the Town of Middletown passed a Sewer Use Law (SUL) entitled “Local Law #3 of 2007,” which was intended to clarify some of the sewer usage issues that had emerged between the town and city from at least as far back as the 1997 Memorandum of Agreement. On July 10 of 2012, at the request of the DEP, the town board voted to replace the 2007 law in its entirety with a new one called “Local Law #3 of 2012.” The new document was filed with the DOS on July 18 by the Town of Middletown Clerk, the only person who is legally allowed, on behalf of the town board, to file a town law or make any changes to an existing one.

Motivations for new law
One of the main motivations for enacting the new law was to remove a sunset clause, thereby extending the duration of the law and alleviating potential permit issues between the DEP and the Department of Environmental Conservation (DEC).

Another reason was to change some of the wordings in four sections of the older law which relate to the how the town and city interact legally concerning sewer usage issues.

We have a problem
All would have been well if it weren’t for the fact that the phrase “consultation with the town” had been replaced by the phrase “notification of the town” in the DOS’s copy of the law, without any apparent authorization for the change. The alteration occurred in the section of the law that dictates the circumstances under which the city can impose a moratorium on new sewer construction in the town, and would give the city considerably more leeway to impose such an action.

“This presents a clear problem…” said Fairbairn in a letter to Middletown Supervisor Marge Miller dated May 7, 2013. He goes on to state in the letter that even though the DOS’s version of the law was improperly filed, the town’s current law is now that version.

Though the other sections in the DOS copy of the law remain intact, Middletown Board member Brian Sweeney characterized the situation during last Tuesdays’ Board meeting as: “…huge…that one word changes the focus of the whole document,” he said.

The plot thickens
In the May 7 letter and again at Tuesday’s meeting, Fairbairn reiterated how the town had begun receiving correspondence urging them to replace the word “consultation” with the word “notification” in the new law. These letters, he said, came from the DEP through Kevin Young, an Albany-based attorney with Young/Sommer LLC who has been representing both the village and town on sewer usage matters for years. At one point, it was suggested that the word “consultation” should be replaced because it was a “typo.”

airbairn also recounted his efforts to uncover the cause of the rewording through contact with the legal department of the DOS, only to be told that a different page had been “slipped in” sometime during the month of October, but that no specific date could be given, and no letter of authorization from anyone, let alone the town clerk could be found either.

“So the ultimate outcome here” said Fairbairn, “is that the Department of State has no proof of how the change was made, but they have a changed copy.”

Actions taken
In his presentation at the board meeting, Fairbairn said that he had advised the town clerk to send a letter to the State Records and Law Bureau with the correct page 15 and direct them to amend the document to the way it was originally, and also to preserve everything that they have in terms of records. “We don’t know who made this change happen,” he said, “but that’s critical…to finding out everything.”

On May 9, a complaint was also filed with the Office of the Inspector General advising him of the situation and restating the fact that no letter of authorization had come from the clerk’s office, and would not have without the approval of the town board.