The resolution changing the job requirements for both Jack Cunningham’s position as commissioner of public works and Richard Naylor’s position as library director was passed Thursday, April 7, with Councilman Dan Dustin casting the lone dissenting vote.
The resolution changes the residency requirements for the commissioner of the Department of Public Works, as well as education and experience qualifications. It states the commissioner of the DPW will be appointed based on administrative experience and qualifications, as well as other standards required by the Town Board. The commissioner does not have to have any specific license or prior education of the duties of the position. The person under consideration must be a resident of Albany County.
For the library director’s position, the person must be a resident of Albany County and must have the minimum experience and qualifications established by the Department of Civil Service.
A critic of the resolution, Mark Kriss, attorney for the New York State Society of Professional Engineers, said that Cunningham, who does not have an engineering background, was risking committing a felony, as well as civil penalties for assuming the duties of an engineer. He referred to the description of the commissioner’s position on the town’s Web site, which Kriss said suggested Cunningham would be making engineer-based decisions and be involved in the design process.
If the duties do embrace the actual performance and supervision, by job description, that is engineering in nature, he has to have a license, he said.
Town attorney Mike Magguilli said this is not the case since Cunningham does not make any design decisions or other duties an engineer would and mainly performs administrative duties. He also contested that the education law referred to both by Kriss was being misinterpreted.
`It does not say he has to be a licensed engineer,` he said.
There was also a long question and answer session between Kriss and Dustin. The councilman posed several questions such as whether the town had contacted the education department or the NYSSPE after the organization sent out its second letter to the town on April 1. The letter, similar to the one sent in Jan. 2010, said the town was in violation of the state’s education law by not hiring a licensed engineer to the commissioner position.
Magguilli said the town did not contact the NYSSPE after the original letter because it was used as evidence during the lawsuit to support plaintiff Theodore Ricket’s deposition. He added that the appellate court was silent of the issue of Cunningham not being an engineer. He also said there were calls out to the New York State Education Department that have not been returned.
But the main point made by both Supervisor Paula Mahan and Magguilli is that the town has several engineers that Cunningham will consult. Mahan also said the town contracts out to engineering firms for some project, which is a practice she claimed was done by the previous administration.
Colonie resident Pete Molinaro, a corporate attorney, said he was concerned the town could find itself in legal trouble because of a New York State Supreme Court Appellate court decision ruling Cunningham’s appointment invalid before Thursday’s resolution changing the residency requirements was passed. Molinaro said he believed the change to Cunningham’s position would not fall under a special statute and was instead a general one, based on local law. He said the town would still be in violation of the court’s decision.
`I ask to you guys to put passion aside and think seriously if you want to do this in respect to the position in the town,` he said. `Take the time and hopefully go in a different direction with this.`
He said the position comes with `a tremendous amount of responsibility,` and the town was eliminating some important minimum qualifications for it. He also said a town as large as Colonie, should have a qualified resident to fill the post.
`It’s a town of nearly 90,000 people,` he said. `I can’t understand with an important position you go outside of the town.`
Under the Municipal Home Rule Law, Magguilli said the town is allowed to amend state law. And in this case, Cunningham’s position is a special law.
`We consider it a special law,` he said.
One town resident and former engineer, Amy Sternstein, said she was in full support of having Cunningham hold the position of commissioner of DPW because engineers are typically bad at running a department.
`Engineers are terrible managers,` she said. `And we do need a manager.`
She did say, however, that the commissioner should be a resident of town, adding that maybe the person appointed to the position be allowed time to move. Mahan said that there isn’t such a residency requirement because the position is a two-year term.
Dustin continued his attack, as he said that the town violated the civil service law by not posting the availability of the job since Cunningham had been removed as commissioner since the appellate court decision on March 31. He also asked if Cunningham was in attendance that evening, then later answering his own question by stating he was on vacation in Italy.
In this situation, Magguilli said, the town was not in violation because it was responding to a court order. After the meeting, he said that the position is not even a civil service one.
Both Naylor and Cunningham were reappointed by the board, with Dustin voting against Cunningham’s reappointment.
Also that evening, the town voted unanimously to pass a resolution amending an engineering contract with Malcolm Pirnie, a relationship established by the previous administration, for DPW and the Division of Environmental Services.“
