“Democracy is a form of government that substitutes election by the incompetent many for appointment by the corrupt few.” - George Bernard Shaw
It should come as no surprise to anyone that the Town of Clarkstown is the defendant in a lawsuit which seeks to prevent Clarkstown, and other Towns in NY State, from stripping the NY State Law statutory powers away from elected Highway Superintendents. The case against Clarkstown was filed by Attorney Dennis Lynch of Nyack and names the Town of Clarkstown as a defendant. Two other Towns have taken similar steps to that of Clarkstown and apparently have not faced a court challenge to date. The issue is deemed by some to be a problem of archaic State law which should be changed to allow Towns to operate with more efficiency in the use of its union employees. Prior to the appointment of a fleet manager in Clarkstown mechanics could be sitting around idle having finished work on the police or mini trans vehicles and could not be used to work on the Highway Department vehicles.
Clarkstown's story begins with the need to consolidate the Town’s three garages at the Seeger Drive complex: the highway department, the town police garage and the Clarkstown Mini Trans. At a town board meeting in June, 2012 the Supervisor presented a report in which the savings were estimated to be over $1 million through the elimination of many staff members, such as store keepers of the garages and mechanics, and decrease in the amount of parts and equipment needed.
In order to accomplish the consolidation the Town attempted to have a local law passed by a referendum at the General Election of November 8, 2011. This proposed law would have abolished the position of an 'elected' Superintendent of Highways and replaced it with an 'appointed' Superintendent of Highways in the Town of Clarkstown". The proposed law did not explain why consolidation could only happen under an 'appointed' and not under an 'elected' superintendent. However, the citizens of Clarkstown appear to have understood that if they passed this referendum then the power that they had to 'hire or fire' the Superintendent of Highways could possibly become a patronage appointment with an incumbent serving not at the will of the people but at the favor of someone at the heart of Clarkstown's already encumbered political patronage machinery.
On election day the referendum failed by a landslide.
On June 05, 2012 the Board held a workshop and the subject of consolidation of the garages was again discussed. At this meeting a fact emerged that damaged Ballard’s claim that his responsibilities as an elected official were being usurped by the Town Board. It was revealed that Ballard, in what appeared to many of his supporters to be an unprincipled and cynical betrayal of his elected office, had agreed with the Board prior to the 2011 referendum that if he could be assured of his appointment to the position for a six year term he would not oppose passage of the 2011 referendum. The Board offered a four year term and Ballard declined this offer.
The next act played out on June 19th, 2012 under the maxim that 'if at first you don’t succeed, try, try again’. The Town held a public meeting and presented a plan which, according to Town Attorney Mele, "would not require a referendum". The Board put forward a 'proposed local law' that would allow consolidation of the garages under a fleet manager reporting to the Town Board, not to the Highways Superintendent.
"Not requiring a referendum" appeared to mean that the proposal would allow the Town Board to void the referendum defeated at the 2011 election and according to the Town's new mantra the mechanics would repair service and maintain the equipment used by the Highway Department under a law which would "not usurp or diminish" Highway Superintendent Ballard’s duties or authority.
And so at a Town Board meeting on July 24, 2012 the proposal to consolidate the Town garages under Dennis Malone was approved. Malone, a highly regarded employee of the Town, was managing the Clarkstown Mini Trans and would now become Fleet Manager for all three of the Town's garages.
Prior to the vote Supervisor Gromack presented a lengthy rationale for the consolidation saying that the referendum that was held in 2011 had "very little, perhaps nothing at all, to do with consolidation". He pointed out that the present Highway Superintendent previously supported having the office appointed rather than elected but had since "changed his mind". "What we are discussing tonight has nothing to do with the powers or duties of the Superintendent of Highways", Gromack continued.
During the Board meeting a document was passed out expressing a 'legal opinion' from 'outside' counsel, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, on the proposed law which read in part:
“You have asked us to review whether the Town Board may lawfully re-assign mechanics who work in the highway department to a central vehicle maintenance facility that is not under the supervision of the Highway Superintendent. Our opinion is that the Town Board may do so.”
Councilman Borelli then moved and Councilwoman Hausner seconded a motion to adopt the proposed local law consolidating all town mechanics under a new Town garage department to be supervised by a Fleet Manager reporting to the Town Board. The Supervisor called for all those in favor to say 'aye' at which point Councilwoman Lasker offered that she was voting 'No' and made the following 'post-vote' statement:
"The reason for my voting 'No' is I have had extensive discussions with the Association of Towns Attorneys. I believe this is illegal and I think it is going to be overturned in court. There were compromise negotiations that were going on. Unfortunately they failed. That's the basis of my voting 'No' on this."
Given that Mr Gromack had specifically invited members of the Town Board to participate in the discussion, it is quite incredible that Lasker remained silent especially when the supervisor had handed out copies of the legal opinion from outside counsel, Wilson, Elser, Moskowitz, Edelman & Dicker LLP supporting the proposed law. In fact her action was not in conformance with the intent of the Open Meetings Law because she had knowledge of numerous other legal opinions that may have trumped, the single legal opinion handed out by Supervisor Gromack and represented as the Board's complete legal support for the motion.
In Lasker's interview with New City Patch after the Board meeting she revealed that she had consulted with the attorneys for the State Association of Towns and that she had read State comptroller opinions and given all of this she could declare that the Board's action was "illegal and I think it’s going to be overturned in court". None of these facts were brought up in the Board meeting. Had the Board conducted a full review in public of Lasker's findings with respect to the legality of the Board's actions, the Town might not today find itself in the situation that it is going to put the taxpayers of Clarkstown to the expense of attempting to defend what may prove to be indefensible.
Lasker listened mutely while Mr. Gromack described the expertise that Mr. Malone would bring to the position of Fleet Manager and she did not raise the fact that Malone, who had run and narrowly lost against Ballard in the 2011 election, was highly critical of the maintenance and operation of the highway garage under Ballard and found himself unable to report to the person that he considered was directly responsibile for the poor operation of the highway garage and the morale of its mechanics.
Here is what Councilwoman Lasker said to Patch but kept secret from the public prior to the vote:
"Unfortunately a compromise that was in negotiations failed. That option would have had Dennis Malone, who currently runs the Mini Trans and is the expected candidate for fleet manager, work under Ballard (the Superintendent of Highways). Malone declined that possible resolution".
Taxpayers were kept in the dark about the differences between Ballard and Malone over management and maintenance philosophy as to how the Town's garages should be operated in the most efficient and economical manner. As Johnny Depp opined:
“You gotta be careful: don't say a word to nobody about nothing anytime ever.”
I have supported the Highway Superintendents' legal position in this matter on numerous occasions. The action of any group of elected officials that attempts to take oversight of any function of another elected official is fraught with many perils for the functioning of a democracy. I believe the Highway Superintendents' position ought to prevail though his perfidious behavior in attempting to negotiate away an elected office for a pre-agreed appointed term has undercut the legal position. He has further weakend his position by making a shameful patronage appointment.
As many believe, looking towards the 2013 election, when he will almost certainly be opposed again by Malone, Ballard to County Legislator, Frank Sparaco. This appointmet was a classic case of bathos seeking banality. Supervisor Gromack mentioned that, on the question of the 'appointed' versus 'elected' status of the Highway Superintendent, Ballard had "changed his mind". With Ballard this appears to be in danger of becoming a permanent condition because, before hiring Sparaco, he gave the impression in presentations to the Town Board that the Constituent Services job was a low level position, not requiring a high level of educational accomplishment and most people expected him to fill it at $20-$25 per hour.
Ballard may not have "changed his mind" on the low educational requirements for the job but he appears to have changed his mind radically on the matter of the compensation to be paid.
But then it is said in the best of political circles that if one doesn't frequently change one's mind, why have one? One will only end up going around in circles.
According to the Rockland County Times, Sparaco, is a 'powerhouse' in the Independence party and was instrumental in having his mother-in-law, Debra Ortutay, placed in a position of leadership in that party prior to her conviction and imprisonment for illegal activities in that role. He is also minority leader in the County Legislature in addition to his role in the Independence Party; a party which I have referred to as a 'Cuckoo Party' in previous articles because it runs no candidates of its own. The Independence Party in Rockland appears to endorse whatever major party candidate might be willing to provide some benefit in return - such as a good paying patronage position. Ballard provided Sparaco with a part-time patronage job after rejecting 260 non-politically connected applicants.
Ballard's behavior was so atrocious that The Editor of the Journal News wrote a scathing editorial on August 22, 2012 entitled "Clarkstown puts political clout before all else in hiring of Frank Sparaco" stating:
Rockland County Legislature Minority Leader Frank Sparaco has been appointed “Constituent Representative” for the Clarkstown Highway Department — keeping alive the town’s penchant for hiring political operatives, even amid cost-cutting and consolidation. As a Republican legislator, Sparaco has fought pay raises for county employees; and tried to eliminate the county’s Youth Employment program. Now he earns $75,000 for a 25-hour-a-week town post. That’s $57.69 per hour. Besides his GOP leadership role, Sparaco also had been a key player in the county’s Independence Party. Highway Superintendent Wayne Ballard, like Sparaco, is a Republican. But in Clarkstown, that’s of little matter. The Democratic supervisor, Alex Gromack, has various party leaders in his employ, and election after election, he and Ballard have been cross-endorsed and rarely challenged. Sparaco has owned a tanning salon and vending machine business. Patronage is an institution in Clarkstown. Sparaco said he was eager to help town residents with road, drainage and other problems. Some of the 260 people who applied for the town Highway Department post were likely eager, too, to fulfill the position that pays a salary “commensurate with experience,” according to a Careerbuilder ad. But they didn’t have the right connections.
What the Journal News failed to mention when speaking about Gromack's employment of party leaders is that its Editor has repeatedly endorsed Gromack and Ballard for re-election and ought to accept some responsibility for the situation that is being decried. It might be noted that Malone, a fifteen year employee of the Town, who is a certified motor vehicle examiner, had to pass two civil service examinations to become the Mini Trans supervisor. He is now in charge of the whole fleet of Town vehicles, Mini Trans, Police, and Highway (400+ vehicles) and earns $44 per hour.
What expertise does Sparaco bring to the Highway Department to warrant nearly $58 per hour? Under a by-line written by Hema Easley in the Journal News on August 22, 2012 Sparaco provided the following rationalization:
“I’m very excited about my new job, my favorite part of the job is helping people.” Ballard and Sparaco acknowledged the appointment was political in nature and that other elected officials get the opportunity to appoint people of their choosing to certain jobs. “If I lose an election, he loses his job.” Ballard said he selected Sparaco from 260 candidates. After a series of interviews, he said, he found Sparaco most qualified because of his familiarity with Clarkstown, ability to read blueprints and specifications, public-speaking skills and knowledge of the issues facing Clarkstown. Sparaco said there was nothing underhanded about his appointment. “There was absolutely no quid pro quo,” Sparaco said. “What is it that I have that Wayne wants?”
The answer to this question might be that "Wayne wants" the Independence and Republican election lines when he runs for office in 2013. Under Lettre's control of the Conservative party and Sparaco's influence in the Independence Party, Ballard's action leads one to ask if he is just another puppet on a string. Guy Gervasi, Former President Clarkstown Taxpayers, addressing Ballard, at one Board meeting elaborated on this point:
"Are you telling me and the other residents of Clarkstown that out of the 260 resumes that you received, it just happened that Legislator Sparaco, who controls, behind the scenes, the local Independence Party and who is a close associate of Vinny Reda - the head of the local Republicans, just happened to rise to the top of the pile? If you weren’t trying to make this a patronage job, don’t you think that in these hard economic times that you could have found someone qualified to answer phones and handle residents’ inquiries for under $20/hr? You said that this $75,000/yr position doesn’t cost the taxpayer any extra money because there is money left over in the budget. Well, I have a little secret for you, the extra money in the budget belongs to the taxpayers not for you to use on this foolish patronage appointment.
Ballard's case against the Town has been weakened by his willingness to surrender the elective position of Highways Superintendent to an appointed position if he could get a deal that suited his own self-interest and his case to be re-elected in 2013 has been devastated by his willingness to surrender the integrity of his office to political patronage. On the other hand, the Town Board's position that it has the power to have the Town's Highway Department vehicles serviced and maintained in the manner desired by the Board, even when the Superintendent of Highways disagrees, has been weakened by its unwillingness to establish control over who is employed in the Highway Department as illustrated by the Board's actions following the Sparaco appoinment.
Consider the following two examples ....
1) Tom Nimick, a New City Resident, suggested that the Town Board should exercise its prerogative over the Sparaco hiring by eliminating the position that the Board had created at Ballard's request in the Highway Department. Nimick said:
"Last meeting I asked whether the Board would consider rescinding its decision to establish the part-time position in the Highway Department that has been handled differently than was represented to the Board when the position was proposed. Ms. Mele confirmed to me that rescinding the position would be a legally acceptable action. I would like to point out to you that you have the power as the Board convened in an open meeting to entertain that motion now. If you chose to take no action at this time, I should inform you that your inaction will be understood as approval of the position and approval of how it was filled, as a part-time position for $75,000 taxpayer dollars, by Mr. Sparaco."
Councilman Borelli replied to Nimick as follows:
"Mr. Nimick, Mr. Ballard as the 'appointing authority' has the right to fill positions and he has control over his budget. You recall last Fall the electorate in Clarkstown - the taxpayers had the opportunity to decide whether they wanted his (Ballard's) position to be continued to be elected or to be appointed by the Town Board. Overwhelmingly, the public said 'No', we want that person accountable to us ... we want it to be elected. You know, I don't want to take a position ... you decide what you want to do ..... if you don't think it was the right decision you do what you do next year ... that's what the public asked for. That's the reason why at this point that I am not moving the resolution to rescind the position."
Thus the Board has gone on record as noting that as the 'appointing authority' Mr. Ballard has 'control over his budget'. Mr. Ballard's budget is also the budget that covers the Highway Department's vehicles and by that same reasoning he has 'control' over how and where those vehicles are serviced.
2) Supervisor Gromack attended the Bardonia Civic Association (BCA) of October 08, 2012 and was asked to explain the Sparaco appointment by Bardonia Resident, Melanie Powell. During his response the Supervisor again stated unequivocally that Ballard has sole responsibility for his budget and as to how his department is run. The following is a transcript of the questions to Gromack and his answers:
Powell: I just want to know a little bit ... the part time assistant that was hired at $75,000 per year ...
Gromack: Wayne will answer that .....
Powell: If we eliminate something in Clarkstown but then we come up with this wonderful part time position that pays $75,000 per year what did we do? ... Did we really accomplish a lot by merging positions?
Gromack: Absolutely, because again ... Mr Ballard will explain that ... he does set budget he has to decide and he makes decisions about how his department is run........
Powell: I don't know, Mr Gromack, Seventy-five thousand dollars per year for a part time position ...
Gromack: Mr Ballard can explain that ..
We now have the following three incredible situations:
a) The Town has twice admitted that Ballard is not responsible to the Board in matters that pertain to how he runs his department and manages his budget because he holds an elective office.
b) Ballard was willing to surrender his elective office in exchange for a backroom deal to give him an appointed job for a period of six years.
c) Sparaco sits in the County Legislature that is threatening to sue the Town of Clarkstown over who has the right to open or close Samuel Road after Clarkstown's Highway Department vehicles were used to close it. He has a patronage job in Clarkstown's Highway Department; a department that is party to a lawsuit against the ClarkstownTown Board over its dysfunction in determining who has the right to service the Town's own highway vehicles.
On whose side did Sparaco vote in the County's proposed lawsuit against the Town? Gromack told us in his letter to the County Legislators of August 12, 2012:
"I just learned you voted (with the exception of Legislator Frank Sparaco) on Tuesday, August 7, 2012 to sue the residents of the Town of Clarkstown for reverting Samuel Road in Nanuet to its former dead end status .... Your two hour long debate on this matter would have been more fruitful trying to solve the many problems confronting County Government. What a shame, what a shame."
Sparaco voted 'No'! But this should not come as a surprise if he was planning to slip out the back door of the Legislature's chamber and go over to the 'enemy' camp in Ballard's fiefdom there to be employed in a patronage position answering the telephone for $75,000 part-time while his boss sued the Town. The virus that is Rockland's dysfunctionality has now mutated to Clarkstown. Supervisor Gromack should cry - "What a shame - what a shame"! - but that might cost him the Independence and Conservative Party lines when he runs with Ballard for re-election next year; thus he is muzzled. Presumably, after the Journal News' 'scathing' editorial, he has now lost that newspaper's routine endorsement for the 2013 election?
But I wouldn't bet on it - you know what they say in the best of political circles.
This has now gone beyond shame to become farce! A farce that should be brought to an immediate end by the Town acceding to the merits of the lawsuit and thereby saving taxpayers thousands of dollars pursuing an unnecessary and perhaps doomed defense. Why? Because resolution of this matter can be left safely in the hands of the voters who have retained their right to hire or fire the Highways Superintendent and will likely remove Ballard from his 'elected' position in 2013 and replace him with a candidate who will agree to:
1) Merge the three garages,
2) Give taxpayers their $1 million in consolidation savings, and
3) Send the $75,000 part-time telephone assistant back to the County Legislature and to the tanning salon and vending machine businesses from whence he came.
Charity begins at home - not at taxpayers' expense in the 'hollowed halls' of Clarkstown.
Michael N. Hull is a member of the Clarkstown Taxpayers Group the goals of which are to reduce local taxes and local government expenses and make local government and local public officials more responsible and accountable to the citizenry.
Picture Courtesy of TeamShatter.com http://www.teamshatter.com/wp-content/uploads/2012/03/Lawsuit.png
