Taken together, Mayor Thomas’s actions have shown such repeated disregard for the Charter, only misplaced feeling of personal loyalty could lead someone to deny that an Imperial Mayor is now ensconced within City Hall.
- The Corporation Counsel’s Opinion: A Case of the Blind Leading the Blind.
After months of these repeated provocations, last week the City Council took extraordinary measures to reign in this enfant terrible by denying him any further assistance, in the commission of these legally questionable actions, from appointive Commissioners who do not reside in Mount Vernon, as the City Charter requires.
Unaccustomed to seeing the City Council flex its muscles so forcefully, supporters of Thomas raised a hue and cry across the blogosphere. The City Council had overstepped its power, they decried, parroting the specious legal opinion that Corporation Counsel Porcari released a day later. As we saw above, however, this cramped conception of the power of the city legislature rests on the false belief that the Council power is restricted to the enactment of law. At its disposal are additional powers that can be used to ensure that those laws , once enacted, continue to be faithfully executed by the Mayor.
Should it maintain its resolve, the Council has several arrows left in its legislative quiver that can be used to cut the imperial mayor back down to size. At this point, then, the real concerns supporters should have, is whether the Mayor will be able to avoid a mortal political wound if he gets entangled in a courtroom battle with the Council over these issues. For reasons stated below, the odds he’ll escape unscathed are doubtful.
- Blind Ambition: The Corporation Counsel’s Advice To The Mayor Is Clouded By A Conflict of Interest
Because Mr. Porcari himself is one of the officers who the City Council is seeking to remove for noncompliance with City’s residency rules, it is surprising that none of the Mayor’s defenders have paused a moment, and asked the obvious question. Is Porcari’s legal interpretation distorted by the fact he’ll be out of a six-figure salary if the residency laws are enforced? After all, Mayor Thomas never tires of dismissing critics of his policies and actions, who, he insists, are motivated by a crass desire for financial gain. It would be reasonable to conclude, by the Mayor’s own logic, that the Corporation Counsel’s legal opinion is also clouded by the fact he’s got a lot of money on the table. No less a body than the New York State Unified Court System warns about that possibility, when discussing potential conflicts of interest between lawyers and their clients.
“There is a significant risk that the lawyer’s professional judgment on behalf of the client will be adversely affected,” the Court cautions in its handbook on Rules of Professional Conduct, “by the lawyer’s own financial, business, property or personal interests.”
Evidently, Mr. Porcari’s failure to recuse himself means that he believes his financial stake in this matter doesn’t impair his ability to provide the Mayor with sound, well-reasoned legal advice. However, when one begins to look more closely at the City Charter and the pertinent statutes of New York State law, it is clear that this only the first of several misjudgments he’s made.
- It is Not True That City Council Is Powerless To Take Action On Information Uncovered As A Result of An Investigation
In presenting his legal opinion on the residency issue, Corporation Counsel Porcari chose to save the question of what the city’s residency laws actually require till last. The first reason Porcari gives to justify the Mayor’s defiance of the city’s residency laws focuses on what the City Council can do now that it has conducted an investigation, and determined that the appointees in question don’t in fact reside in the city. Even if one were to concede, for argument’s sake, that the appointees lived outside the city, and that this was a technical violation the charter, what, he essentially asks, could the City Council do to legally rectify this situation?
The answer to this question is plain, according to the analysis of the Corporation Counsel—absolutely nothing!
“Section 50 of the City Charter gives the City of Mount Vernon City Council investigative powers only,” he quotes. “There is no power conferred by that statue to take any action based upon that investigation.” When it’s all said and done, under this interpretation, the issue is moot, and the entire exercise pointless, because the City Council is powerless to do anything about it.
However, things are not nearly so cut-and-dry as this simplistic legal analysis suggests.
What the Porcari opinion neglects to mention, is that the City Charter, like the federal constitution itself, also includes a system of checks and balances to prevent City Hall from being taken over by a runaway, power-hungry Imperial Mayor. One mechanism for this is Article V, § 46 of the Charter, which gives the City Council the power to ensure all budgetary appropriations by the city are made in accordance with the law. To paraphrase, any moneys expended by the city must be approved by an ordinance specifying each item, amount, and department or purpose for the expenditure.
That the power of appropriation is given to the Council under the Charter is not an accident of history. Rather, it a longstanding prerogative, going back to the operations of the British Parliament, which was the first legislature to use the power of the purse strings to ensure the British crown acted in accordance with the law.
“The Founders were quite familiar with [this] parliamentary practice,” Berger notes. “With the power of appropriation goes the right to specify how appropriated moneys shall be spent.” Applied to the current controversy over the non-resident appointees, what the City Council authorizes the Mayor to the spend, for the commissioner’s salaries, it also has the power to take away—at least when it’s not spent in accordance with the residency requirement.
In addition to its power to withhold moneys that are not used in a lawful manner, there is another power under the City Charter that the Council can use to give real bite to the investigatory powers Porcari portrays as toothless. The last and final provision setting forth the duties and powers of the City Council under the Charter—entitled “Penalties for Violations of Ordinances”—grants it the power to “maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of any ordinance of the City Council…” Appropriations are ordinances; hence the Mayor can be taken to court, where the Council can ask it to issue a court order to comply with the city’s residency laws.
III. The City Charter and Public Officers Office Law Mandates That Both Appointive and Elective Officers Must Reside Within the City
After misstating the powers that the City Council exercises under the City Charter, in the second page of his legal opinion Corporation Counsel Porcari goes on to misrepresent the residency requirements that the Charter imposes on anyone who would serve as an appointive officer of the city government of Mount Vernon. Contrary to what Porcari opines, Section 15 of Article IV of the City Charter, entitled “Qualifications,” is plain: “Every person elected or appointed to office shall possess qualifications prescribed by § 3 of the Public Officers Law.” In his analysis, the Corporation Counsel tries to play on the limited legal knowledge of residents by implying—wrongly—that the only positions in city government to which this applies are those that are named in this section. More specifically, to the elective positions of Mayor, Comptroller, City Councilman (sic), City Judge and County Legislator, all of whom are stipulated to reside in the city. This is patently false, and any competent Corporation Counsel should know that.