A state Supreme Court justice has dismissed a lawsuit by the Westchester Board of Legislators against County Executive Rob Astorino over the inclusion of capital projects in the county budget.
The board filed the lawsuit in July challenging Astorino’s decision to leave out of the final budget or not take any action on capital projects added by the board during the back and forth over the 2011 and 2012 budgets. The Astorino administration argued the board did not follow proper procedure in adding the more than $130 million in capital items because it did not submit them by May 1 as is required of county departments and agencies.
Acting Supreme Court Justice James Hubert said the additions to the 2011 budget are moot because it had been replaced by the 2012 budget which did not include the additions from the previous year. But he was skeptical of the idea that the county executive could leave the board’s additions out of the budget after it overrode Astorino’s veto. He also dismissed the challenge to the 2012 budget on the grounds that there was still time for the administration to take action on the additions and therefore there was no controversy a court could decide.
“Of necessity, Petitioners’ complaint alleges that the County Executive either isn’t acting on the approved 2012 Amendments, or isn’t acting fast enough,” he wrote in the decision dated Feb. 13 and filed Monday, adding later, “In the absence of a justiciable controversy, this Court’s role would be reduced to issuing an advisory opinion.”
Ned McCormack, a spokesman for Astorino, said they were pleased by the decision and agreed with the judge when he said the dispute should be resolved through the political process.
“You work through the process,” he said. “You don’t sue each other.”
In the decision, the judge was critical of the lawyers’ arguments on both sides but lent support to a few key points. He affirmed the board’s right to authorize a lawsuit by resolution rather than by act of the board, which is subject to the county executive’s veto. The judge also dismissed the administration’s argument that the board is akin to a county department, which was the foundation of the administration’s argument that the board had to follow the departmental procedure for adding capital projects.
“As a matter of logic and reason, it cannot be seriously argued that the county Board of Legislators is a ‘department, institution, office [or]agency of the county government … anymore than it can be argued as to the Office of the County Executive,” he wrote.
The board applauded those parts of the decision.
“As we have argued all along, there is a process of governance that has to be respected,” said Majority Leader Peter Harckham, D-Katonah, in a statement. “Today’s court ruling provides clarity in terms of the powers granted to the Board of Legislators by the Charter and New York State law, as well as the statutory duties of the County Attorney.”
In ignoring the capital budget additions, the Astorino administration has relied on a Jan. 18, 2011, opinion from County Attorney Robert Meehan saying projects must go through a set process, including review by the county Planning Board and Capital Projects Committee.
The lawsuit was one of four active cases by the board against the county executive. A fifth over child care was withdrawn in January.