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  • Auerbach Lawsuit vs. Ulster County Budget

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    Daily Freeman
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    December 2016

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    December 2016

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    669 Ansichten254 Seiten

    Auerbach Lawsuit vs. Ulster County Budget

    Hochgeladen von

    Daily Freeman
    December 2016

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    © All Rights Reserved
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    Markieren Sie unangemessene Inhalte
    von 254
    At Pat Dubie Supreme Court of te Site Ww Sf Now Yer, held in and for the Com of ‘Uses, athe Courthouse teen ated 785 Wall Steet, Kington, New York on the, Pe Ls Deceber, 2016 In The Matter of ELLIOTT AUERBACH, ULSTER COUNTY COMPTROLLER, JENNIFER FUENTES and STEVEN GREENFIELD, CITIZEN VOTERS of ‘ULSTER COUNTY. IndexNo. |o-~ BBB Pettoners)/Ptaintin) ORDER To SHOW CAUSE against — ‘WITH TEMPORARY RESTRAINING ORDER MICHAEL . HEIN, ULSTER COUNTY EXECUTIVE, snd THE ULSTER COUNTY LEGISLATURE RECEIVED Respondent(s/Defendant(s) DEC 21 206 ‘For a Judgment Pursuant fo Article 78, and/or Section 3001 and a of the *ractice Law and Rul cour cues ore Article 63 of the CPLR Practice Law and Rules. sre SURF SLSR x ‘Upon the annexed Affidavit of Petitioner Elliott Auerbach, swom to on the 20 day of December 2016, Petitioner Jennifer Fuentes, swom to on the 20" day of December 2016, Petitioner Steven Greenfield, swoin io on the 20 day-of December 2016, and all of the affidavits, affirmations, and exhibits annexed hereto, andthe Memorandum of Law dated the 20" day of December 2016, and upon all of: the proceedings heretofore had herein, let the Respondents, or tei atiomeys show eause at Part “T eS hal in and forthe Suprene Court of the State of New York, in and for the a Wall Stret, ge ee forenoon of that day ot as soon thereafter as counsel can be heard why an Order should not be made and entered granting the Plaintiff the following relief 1. An Order pursuant to Atle 78 of the CPLR. andlor CPLR § 3001 and Article 63 of the CPLR. staying the enactment of the 2017 Ulster Couty Bugets 2 A Declaration tht the 2017 Uber County Budget i Invalid under The User County Charter and Section 23 (2) ofthe Home Rule Law of New York Stats, in that it abolishes, tansfrs, or curtlls powers of an Blestive" Offices, the PettonedPlintiff Ulster County Comptroller, without the required mandatory ‘eferendum; and thatthe budget as enacted was based on false aud extremely ‘awed premises; On eng eRe) ety it Dag ii AE days comectng the Statutory inequity contained therein, 4, Awarding Attomey Fees and Court Costs io the Petitioner Ulster County Comptroller, 5. Together with such other and further relief as this Court may deem just, proper and equitable. ‘TEMPORARY ORDER: SUFFICIENT REASON APPEARING THEREFORE, itis le ie ‘ORDERED, that service of « copy of this order, arid the papers which it 2 Ly ‘was granted upon Defendants respective Offices by personal servis on o before the DA say of December 2016, be deme good and sufcient and timely seve. NO PERSONAL APPEARANCES, ‘ON THE RETURN DATE. ‘ALL ORIGINAL PAPERS MUST BE FILED IN THE COURT CLERK'S orrice. ‘SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER ‘ELLIOTT AUERBACH, ULSTER COUNTY COMPTROLLER, JENNIFER FUENTES and STEVEN GREENFIELD, CITIZEN VOTERS of ‘ULSTER COUNTY Index No. Petitioner(s)/Plaintif(s) ‘YERIIED COMPLAINT ~against— ‘MICHAEL P. HEIN, ULSTER COUNTY EXECUTIVE, and THE ULSTER COUNTY LEGISLATURE Respondent(sDefendant(s) 3001 and For a Judgment Pursuant to Article 78, and/or Se “Article 63 of the CPLR Practice Law and Rules. x ‘The Plaintiff ELLIOTT AUERBACH, the ULSTER COUNTY COMPTROLLER, JENNIFER FUENTES and STEVEN GREENFIELD, Citizen Voters of Ulster County, bing this request for injunctive relief and declaratory judgment because, in the exercise of their purely politcal functions, the executive and legislative branches of the Ulster County Government, Respondent(s)/Defendant(s) MICHAEL P. HEIN, ULSTER COUNTY EXECUTIVE, and the ULSTER COUNTY LEGISLATURE, have arbitrarily stomped on the rules of law ssurounding the Ulster County Charter and New York State Municipal Home Rule Law in ‘enacting the 2017 ULSTER COUNTY BUDGET; have assaulted the independence and powers of an clective county office, the county watchdog Comptroller; have eaused a chilling effect on the cove principles of the separstion of powers doctrine; targeted the Ulster County Comptroller ‘with improperly justified and starkly inequitable cuts; defied the will of the citizen votes of the ‘County; affected the enacted 2017 County Budget in a way that is inconsistent with the Rules of ‘Law, State Law, and County Law; and undermined, changed, and transfered the powers and statutory authority of an Elected County Office without seeking a mandatory referendum. ‘The court is hereby called upon to rule on a statulorly-based dispute under the facts below, which - even when taken in alight most favorable to the Respondent(s)/Defendants) — require an equitable enforcement, Each year, the ULSTER COUNTY LEGISLATURE and the ULSTER COUNTY EXECUTIVE are responsible for producing and enacting a budget for Ulster County's Government, Departments, and Programs including the Offices ofthe County's elective officers, to wit: the County Exeoutive, the County Comptroller, the County Clerk, the District Attomey, the Sheriff and the Legislature. (On ot about December 14, 2017, the Ulster County Executive signed and enacted the 2017 County Budget that included inequitably targeted cuts solely to Ulster County Comptroller’s elective office. Each ofthe other elective Offices in the County had their budgets cluding the Executive, Clerk, Sheriff, Distiot inereated and were lef filly stad as before, Atomey, and Legislature. However, the County Comptroller's Budget was raclly decrsse, imately suffering & 10% budget cut ~ nest seven times the overall County budget at of 1.67% anda oxtthat ele in «15% dearese in tat ‘he decrease to the Ulster County Comptlls's Office was so stark, so uniquely targeted, end to facts and irumstanes that srround and Ie to this out o out of ine with he statutory purposes set down by referendum in the County Charter and in State Lav, tht they {form the bass fr this complaint over a violation ofthe governing statutes. ‘There are Hight (8) elective County Comptrllers Offices in New York Stet. All of ‘these positions are elected in their respective counties including: Erie County, Onondaga County, Nassau County, Oneida County, Dutchess County, Albany County, and Ulster County. On average, across the State those offices reesive thirty one-hundredths of a peresnt (30) oftheir respective budgets. Besides Ulster County, the respective County Compiroller budgets ange ‘fom one million one hundred fiften thousand two hundred eighty-eight dollars ($1,115,288) in Oneida County to nine million four hundred forty-nine thousand three hundred sixty-one dollars (69,449,361) in Suffolk County In 2016, the Ulster County Comptroller was allocated eight hundred seventy thousand ‘twenty-six dollars ($870,026), which represented the smallest budget of any County Comptroller in New York State and included seven (7) staff members. Inthe enacted 2017 Budget, the Ulster County Comptroller’s staff was reduced by 15%, One (1) of the seven staffers (Confidential Secretary) was eliminated, and three CSEA staffers (Auditors) had their hours reduced by five (©) per pay petiod from eighty (80) hours every two weeks to seventy-five (75) hours every two works. ‘These cus abolished, transfered, or curtailed powers of te elective Comptroller without fa referendum, as is required in the County Charter and Article 4 of the New York Municipal Home Rule Law. “The Ulster County Comptroller is eleoted to be the Chief Auditing Officer of the County. In 2016, with a total staff of seven, the Ulster County Comptroller conducted 31 audits on County Departments and Programs, reconciled neerly $0 bank accounts, and conducted hundreds of reviews of county spending, with every staff member of the Office filing « vital role and sing the maximum time they had alloted for their work days to watch over the County's C G spending end programs, The 2017 Budget cut, which reduces those hours by 15% will severely ‘curtail the audit power of this office in 2017, ‘The case for judicial intervention is bereby nid forth below: ‘The plaintiffs, by their attorney MICHAEL R. SIEGEL, as and for their Verified Complaint, respectfully set forth and allege: 1. At all time herein PetitonerPlaintiff, ELLIOTT AUERBACH (henceforth COMPTROLLER), is the Ulster County Comptroller (henceforth also COMPTROLLER), uly elected under ARTICLE IX § C-S6 the Ulster County Charter (henceforth CHARTER), by the citizen voters of Ulster County (henceforth COUNTY), and granted powers under ARTICLE IX §§ C57-58 of the CHARTER to pecform the duties of his postion as Chief auditing officer of the County. 2, At all times. herein Potitoner(s)Plainiff), JENNIFER FUENTES and STEVEN GREENFIELD (henceforth CITIZENS) are citizen/residents of Ulster County who are registered to vote and who voted inthe las election for COUNTY COMPTROLLER. 3, At all times herein, the Defendant, MICHAEL P. HEIN (henceforth EXECUTIVE), is the Ulster County Executive (henceforth also EXECUTIVE), duly elected by the residents of Ulster County to equitably perform the duties of his position as Chief Executive of the County. 4 At all times herein, the Defendant, ULSTER COUNTY LEGISLATURE (henceforth LEGISLATURE), consists of tho duly elected Legislators each by their district citizen/resident voters in the COUNTY as defined by the regulations that govern such distets in ‘Ulster County Charter. ie ec 5. The Petitioners)/Plaintf(s) COMPTROLLER and CITIZENS ting this request for injunctive relief and declaratory judgment because, inthe purely political exerise of ‘their functions, the Petitiones/Plainiff COMPTROLLER and Respondent(¢)/Defendant(s) EXECUTIVE and LEGISLATURE now find themselves in an unresolvable and stsatorly defined dispute, over an inequitable appropriation, the effect of which would be inconsistent ‘with, undermine, change, abolish and transfer the statutory powers of the Petitioned Pint (COMPTROLLER without a referendum. 6. Bach year the Respondent(s)/Defendant(s) LEGISLATURE. and EXECUTIVE ae responsible for producing and enacting « budget for Ulster County Government as wells all of the elective offices in the County, including the Respondent/Defendant EXECUTIVE, the Petitioner/Paintiff COMPTROLLER, the County Distict Attomey, the County Cle, the County Sheriff, and the Respondent(s)/Defendant(s) LEGISLATURE. 7. TheRule of Law allows thatthe Annual Budgetary Allocations to elective affces, both throughout the County and throughout the State are generally applied ia an equitable manner, and particularly when there are statutorily mandated functions required of their respective offices. ‘This only stands to reason as these Officials are selected and empowered to protect and enforce certain ights of the citizens. Some of them, as inthe case of the County Comptroller, act asa legal and fiscal watchdog, whose job was defined by, and who was hired and can be fired by vote of the CITIZENS, to care for fiduciary maters under ther jurisdiction, & In Ulster County, each ofthe elective offices of the County generally recive an ‘equitable share of County funding, as it is with each and every other such office around the State of New York. 9. During the process ofthis year's Budget negotiations for the coming 2017 Fiscal ‘Year, the Respondent/Defendant EXECUTIVE proposed an overall County budget redustion of| 1.67%, Within that budgetary plan, for each of the County's Elected Official, he proposed to: rise the Respondent/Defendant EXECUTIVE'S budget by two (2) peroent (is own ofc); raise the budget ofthe County Clerk by one end a quater (1.25%) percent; ase the budget of the County Sheriff by five hundredths of a (05%) peroent; raise the budget of the County District Attomey by a quarter of a (25%) percent; raise the budget of the espondent(s)Defendan(s) LEGISLATURE by sinty-sc one-handed ofa (66%) pacent and singularly and inequtbly proposed loweing/outing the budget of the PeitoneyPainitt COMPTROLLER by more than twenty (20%) pest (se Bbit page 3, erin CComproiler's Budge compared oll Bected Ofte). 10, tn conection wth hs proposed ct, budget levels mounted to $174,805 sto the PetionesPlainitt COMPTROLLER’S $870,026 2016 budget on some ofits calculations, nd $200,000 les in the detuled treason of ets (ee Bui B, the Proposed 2017 Ulster County Conpooler’s Budget as Published by the EXECUTIVE, atacked to and mae part reo. 11, On and about the time of the release of the proposed 2017 Bulge, the Respondent/Defendant EXECUTIVE also reached out to diseuss lateral moves to his office or other departments with several of the auditors working for the Petitionen/Plintift COMPTROLLER. 12, The CHARTER charges that the Petitioner/Plainiff COMPTROLLER, be a daly elected County Official, independent of the Respondent/Defendant EXECUTIVE'S office, who: 1B. 4. 15, ce iG “shall be the chief anditing officer of the County” end “examine, uit, and_vetify all books, records, end accounts kept by the various ‘ximinisative units, offices end officils eid ffom County funds, insttuions and other agencies of the County, inciuding bond and note registers and trast accounts, andthe accrual end collection of all County revenues and reeips, endfor this purpose ave acces to all such books, recors, and accounts at any time” (see Exhibit A, page 27, ARTICLE IX §§C-57-58, attached to and made part here); and the COMPTROLLER is to: “procure fiom the depositories with which the Commissioner of Finance shall have deposited the funds and monies coming into the Comptroller possession statements, at least monthly, of all monies deposited by the Commissioner of Finance or paid out pursuant to the Comptrolle’s oder, and reconeile such statements with the County accounts” (see Bxhibit A, ibid); and the COMPTROLLER isto: “maintain records of appropriations, encumbrances and expenditures, end prescribe approved methods of accounting for all units of County ovorament, unless otherwise required by the State Comptroller” (see Exhibit d, bid); and the COMPTROLLER must also: “certify the availabilty of fonds for all requisitions, contracts, purchase orders and other documents by which the County incurs financial obligations or for the expenditure of funds for which the County i responsible; Prescribe the form of receipts, vouchers, bills and claims, ‘unless otherwise required by the State Comptroller, Audit and certify for ‘payment all lawful claims or charges against the County, whether for payroll, ‘or otherwise, or against funds for which the County is responsible in whole for in part; as he or she determines necessary or appropriate, audit any department, program or function of County government to assess the degree ‘to which ils operation is economical, efficient and/or effective; for the ‘purpose of canying out his or her powers and duties, have the power to require the attendance of and take the testimony under osth of such persons ‘as the Comptroller may deem necessary; Submit to the County Legislature and post on the County website as frequently as he or she deems necessary, ‘but at least quarter-amnually, reports onthe financial condition of the County and the economy, efficiency and/or effectiveness with which the County government or any of its departments, agencies or programs is managed” (ee Bxhibit A, ibid); (es (e 16. andthe COMPTROLLER: “shall have all the powers and perform al he duties confered or imposed by law upon # county comptroller, and perform such other related duties Teed by th Coty rere or Com Lege” ee Bi 4 17. There aro curently cight (8) elected County Comptrollers in the State of New ‘York. Each of those Comprolle’s Offices operates independently of their respective County [Bxecutive; and each of those offices has an average budget from their respective Counts of ‘hree-tenths of one percent (30%) of their County Budgets (see Exhibit C, page 3 for an tustration of Elected Comptroller Budgets across New York State). 18, The Pettioner/Pleintff Ulster County COMPTROLLER’S budget in 2016 was $870,026, or twenty-sixth one-hundredth of one percent (26%) ofthe COUNTY budget. This {is and was the smallest Comptroller's budget inthe entre State of New York. The other County Comptroller's Budgets ranged from Oneida County with a Comptrolle’s budge of one million one hundred fifleen thousand two hundred eighty-cight ($1,115,288) dollars, or twenty

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