Supervisor, Attorney admit changing law

By Geoff Samuels
Supervisor Marge Miller and Attorney Kevin Young admitted last week that they are responsible for changing a Middletown law without authorization from the town board.

As reported in the May 21 issue of this paper, Middletown Attorney John Fairbairn had discovered in April that an entire page had been replaced in the New York State Department of States’ (DOS) copy of Middletown’s 2012 Sewer Use Law.

Section 3.07 on page 15 of the document relates to the ability of the city to place a moratorium on new sewer connections. The newly altered page contained the word “notification” in place of the original word “consultation.” However there had been no prior approval for this revision by the town board, and there was no evidence of any of the supporting correspondence that is legally required to be on file at the DOS.

Mystery solved
“I can solve the mystery” claimed Attorney Kevin Young as he responded to a call by Middletown Supervisor Marjorie Miller to speak at last Tuesdays’ meeting of the town board. In his 25-minute argument, Young, an attorney who works with both the Department of Environmental Protection (DEP) and various local municipalities on environmental issues, conceded that he and Miller had “unfortunately” deemed they had the authority to make what he termed a “technical revision” to the law. “We went back and forth,” said Young, “and at some point, we believed we had authority to file a corrected page.”

Many in town believe that this act was clearly in violation of regulations that govern how local laws are filed with the DOS.

What really happened?
Public records on file at the town clerks’ office in Middletown allege that during the summer of 2012, Supervisor Miller tried to persuade Town Clerk Patricia Kelly to submit a letter containing the aforementioned word change to the DOS, saying that Young had advised her that this was merely a typographical error and would only require a simple letter from the clerk to remedy the situation.

Kelly refused to carry out Miller’s request, fearing that the change was substantive and would need the approval of the board. Her fears were supported by former Town Attorney Carey Wagner who submitted a letter to the town indicating that the clerk had acted correctly in not yielding to Miller’s request. Mr. Wagner resigned his position a short time after the incident.

After the suspicious change in the DOS copy of the law surfaced, Kelly filed a complaint with the NYS Office of the Inspector General advising them that no amendment of that law had come from her office, and that there had been no approval of such amendment by the board.

Mistakes were made
Young explained to meeting attendees that he had been persuaded by the DEP to substitute “notification” for “consultation” in that section of the law, and that he thought the change was of little consequence. He said that somehow, he had neglected to get the new wording into the draft of the law before it was sent off to the board for approval. In addition, he claimed that he had been told by both the town and the village that he didn’t need to attend the public hearing on the law, but only needed to send in a brief description of his intended revision.

At that point Supervisor Miller chimed in, “And I dropped the ball as well, because I knew that’s what had been agreed to and what had been arranged…I definitely dropped the ball.”

The board ended up rejecting Young’s proposed change, and passed the law as it stood with the word “consultation” remaining.

The pitch
Young’s narrative had two other motives: to show how benevolent the city has been towards the area, and to minimize the difference between the words “notification” and “consultation.”

“I want to go back to 1958…and explain what this program did, and how it benefited us” he said. Young was quick to point out that under the current agreement; the DEP has granted free usage of a city-supplied sewer system in perpetuity, but that under that agreement, if the sewer plant should become overloaded, both the city and the state would retain the ultimate right to prohibit the addition of new sewer extensions, regardless of whether “notification” or “consultation” had been adopted in the law.

“I’m sorry to say,” said Young, “‘consultation,’ as used in the MOA that we all live by… means nothing more than ‘notification.’ That’s the way it is, that’s the way it was intended.”

Another blunder
Now that Young and Miller’s plot to revise the law had been revealed, Kelly asked Young why she hadn’t been sent a copy of the new page after it had been filed at the DOS. After all, the town clerk is legally required to have all current local laws on file. Young replied “That was our mistake, my wife, a paralegal, sent the letter out, and when I looked at the copy…I died…because she hadn’t copied the town on that…”

Word has since come back that the New York State Inspector General has turned the investigation of why there is no paper trail of this page substitution over to the DOS for internal review, an investigation that could drag on for some time.