On-the-fly action raises legal question
by Robert Lynch; November 10, 2023
An earlier-outstretched hand was abruptly yanked back Wednesday as the Enfield Town Board rescinded a decision it made six months earlier to provide $20,000 in American Rescue Plan (ARPA) funding to the Enfield Volunteer Fire Company (EVFC). Instead, the Board redirected much if not all of the clawed-back cash to pay an attorney’s legal bills.
Wednesday’s unscheduled action eclipsed what was expected to be the headline of the night; namely the Town Board’s approval of Enfield’s final $2.3 Million 2024 Budget, a spending package carrying a tax levy increase of slightly over seven per cent.
Acting without the legally-mandated 24 hour advance notice that would have informed the public of its pending action, the Town Board adopted, on a 3-1 vote, Councilperson Jude Lemke’s motion that rescinded a late-May award of the $20,000 in ARPA funds to the Fire Company. Lemke argued circumstances have changed since the Town Board made its prior decision. EVFC officials would disagree.
“No surprise, been going on for 48 years that I’m aware of,” Fire Company President Dennis Hubbell cynically reacted to the Town Board’s withdrawal of funding for his organization, after this Councilperson informed him of the decision. Hubbell had walked out of the Town Board’s session one month earlier when members had last discussed the potential funding claw-back. The Board had taken no action at that time.
“How many times do we need to cut the Fire Company off at the knees?” this Councilperson, Robert Lynch, blurted out as Lemke introduced her impromptu motion Wednesday. “You heard Denny Hubbell last month… come back and say he was disgusted; he was through with us.”
Lynch cast the Board’s lone dissent on the $20,000 clawback. He also refused to support the customarily-routine motion that pays Enfield’s monthly bills. He did so because the Pinsky Law Firm’s $15,000 invoice, which Lemke’s motion enabled the Town to pay, lay within that pile of vouchers.
“I will not authorize by my vote paying one red cent to the Pinsky Law Firm,” Lynch declared. “And if you want to know why, I can tell you. If you don’t want to know why, I’ll keep it to myself.” No one asked, and the Councilperson did not elaborate.
Lemke’s argument, first advanced at a Town Board meeting in September (See reporting, posted here, September 17th) is that the Town Board’s transfer of its fire service to an independent Fire District during the summer changed everything. In Lemke’s view, the EVFC no longer has charge of fire service spending in Enfield. The Fire District and its Board of Fire Commissioners does.
And in the Councilperson’s opinion, any equipment that the Fire Company might buy with the ARPA funds the EVFC would then need to turn around and sell or lease to the Fire District. It would be “very onerous,” Lemke stated in her Resolution, for the Fire District to establish its own ARPA account to monitor the equipment purchases, acquisitions which presumably the District would make, not the Fire Company.
Paying Brad Pinsky’s legal bill, on the other hand, “simplifies” the accounting, in Lemke’s mind. It pays a Fire District expense while circumventing the voluminous paperwork.
“The reason that it works,” Lemke told the Board, “is because it’s our bill so we can put it through our ARPA account, and it simplifies everybody’s life.”
“It doesn’t simplify the Enfield Volunteer Fire Company’s life,” Lynch rebutted. “They’re going to be livid about this.”
Not all agree with Lemke’s conclusion, as her Resolution suggests, that every piece of equipment the EVFC buys suddenly needs to become property of the Fire District. The Enfield Volunteer Fire Company remains a separate non-profit corporation even after the Town Board created the Fire District last June. The District’s Board of Fire Commissioners has stated it intends for the EVFC to retain ownership of its fire house. And only the two newest fire trucks in the Company’s apparatus bay would, for now, be sold to the District. Voters approved the District’s purchase of the trucks and the bonding of their cost in an October 31st referendum.
“The VFC does not have to sell anything to the Fire District. The District simply gets all the Tax Revenue going forward,” an EVFC officer informed this writer late Wednesday.
“You’re under the misconception that whatever we buy… we have to give to the Fire District,” President Hubbell told the Town Board during a testy exchange October 11th. “We don’t have to give the Fire District anything.”
But Lemke’s position, best expressed during that earlier October session, is that any ARPA grant to the Fire Company at this point effectively enriches Hubbell’s organization at taxpayer expense.
“We would be giving you taxpayer dollars (that is, federal ARPA money) that you would then turn around and lease to the Fire District,” Lemke told Hubbell. “So the (Enfield) taxpayer would have to pay to get use of the equipment that they just paid for.”
Jude Lemke’s Resolution, adopted Wednesday, was crafted on the fly; read by the Councilperson into the record from her hand-written notes. And the Town Board’s action on it arguably failed to comply with Section 103 of New York’s Public Officers Law. The law was revised several years ago to require at least 24-hours’ advanced posting on a town’s website of pending resolutions. Lemke’s EVFC clawback measure was never posted in advance on the meeting’s agenda. It’s not there today. No one—most particularly not EVFC officers and supporters—would have known that it was up for action. One day after the meeting, Councilperson Lynch cried foul:
“I would maintain that Section 103(e) was enacted specifically to avoid the kind of situation that occurred last night,” Lynch wrote late Thursday in an email to the Town Board. “No one from the EVFC was properly noticed that the matter transacted would be discussed or decided. I, myself, was not advised of the pending action until the meeting convened,” the Councilperson insisted.
“EVFC officials should have been allowed to state their case under privilege-of-the-floor and under any other opportunity to comment that we might have provided them before we took action,” Lynch’s email continued. “What we did constituted an abuse of the Open Meetings Law, of which Section 103 is a part…. I maintain that our action on this matter November 8th was null and void, as being contrary to law.”
“This invoice, this voucher… when it was presented to me, I think yesterday afternoon, it blindsided me,” Lynch told the Town Board Wednesday. “And I’m sure this discussion is going to blindside the people that are over there in the fire house, who didn’t know anything about this meeting tonight, that this was going to be (a) Resolution put on the table and it was going to be discussed and acted on.”
Councilperson Lynch suggested the Town Board could cure its error by revisiting the Lemke Resolution at a Special Meeting Thursday, November 16th, a session already scheduled to address unrelated items.
Last May 27th, the Town Board, acting hurriedly under the mistaken impression that Congress might itself claw back any ARPA money sitting idly by in municipal bank accounts, quickly allocated what were initially intended to be equal amounts—$45,000 each—to the Fire Company, the Enfield Community Council and the Food Pantry. But during deliberations, Lemke persuaded the Board’s majority to subtract $25,000 from the Fire Company’s share, Lemke arguing that the deletion was funding that the EVFC had already been given during budget time the prior fall.
Originally, Hubbell had sought the EVFC’s slice of ARPA funding as “seed money’ toward construction of a fire house bunk room. But federal rules require spending on firm commitments, not lofty dreams. So more recently, the Company president has broadened his equipment request.
“I’m disappointed that the Town has decided to give our share of the ARPA money to whomever they want,” Hubbell chided the Town Board in October. “Were we ever asked about anything else?” he said, upon learning that the bunk room was a non-starter. “You (the Town Board) decided where our money was going to be spent.”
“You’re talking out of both sides of your mouth,” Supervisor Stephanie Redmond chastised Hubbell during the October 11th exchange. She’d readily bought into Lemke’s argument, telling the Company president, “It’s really inappropriate to say that you’re not going to raise taxes and then do this kind of thing that will raise taxes.”
“I’m done. Do what you want to with it,” Hubbell closed his exchange with Redmond and Lemke as he abruptly walked out of the room.
The Town Budget proved easier for the Enfield Town Board to resolve Wednesday. Supervisor Redmond held a Public Hearing open for 15 minutes. No one from the public chose to comment. The four Board members present then approved the Final 2024 Budget unanimously, making only three last-minute changes, just one of which affected the budget’s bottom line.
The Town Board at a trio of meetings in October had resolved their differences and reached the budget’s $2.3 Million total with minimal controversy. As finally amended, the combined Town and Highway Department tax levy will rise next year by 7.12 per cent. Most Town workers will get five per cent raises. Pay for the Supervisor and Town Board members will rise by only three per cent.
Through a series of adjustments, trade-offs and compromises, the Board had reduced the levy increase from the original 11.44 per cent that was projected by Supervisor Redmond in her Tentative Budget, unveiled October 2nd.
Councilperson Lynch said this year’s budgeting challenges will lead him to again propose next spring—for the third straight year—that Enfield reclaim its proportionate share of sales tax revenue, rather than let Tompkins County use it to reduce the county side of the property tax bill.
“We need a growing source of revenue,” Lynch said. “I think what we need is the money from a growing source to help us do common-sense budgeting next year.” He termed as “insignificant” the minor reduction in revenue from solar farm PILOT agreements that reclaiming the sales tax money might cost Enfield.
In other business:
- Tapping $7,000 in unassigned ARPA funds, the Town Board revived the Enfield Town Newsletter, a quarterly mailing that beginning in January will be enclosed with the Enfield Community Council’s own newsletter and continue on a two-year trial basis. The Community Council’s Deborah Teeter will edit the document. Town officials will contribute articles. The newsletter was a regular Enfield fixture until Town officials discontinued it more than a decade ago.
- The Town Board opened bids—but had mixed results—on efforts to remodel the Town Clerk’s Office and to purchase a stand-by Highway Department generator. Cooley’s Construction $45,780 bid for the Clerk’s Office work fell under budget and may be awarded later this month. A lone $63,000 bid for the generator came in more than $13,000 over budget and was rejected. The Board will rebid the generator.
- And at Town Clerk Mary Cornell’s urging the Board approved a Town-wide mailing reminder for dog owners to license their pets. The survey comes on the heels of a dog enumeration launched a year ago. Once again, the Board used ARPA funds, this time $2,000, to cover the estimated postage.