A March 31 decision by the New York State Supreme Court Appellate Division decision ruled the Colonie Commissioner of the Department of Public Works must be a resident of the town, but it is unclear what affect that would have on other municipalities the area.
Following the decision, Colonie officials passed a resolution on Thursday, April 7, that would extend the commissioner’s residency out to Albany County, allowing Department of Public Works Commissioner Jack Cunningham, a resident of Bethlehem, to be reappointed that evening. Town Attorney Mike Magguilli said the town is relying on Municipal Home Rule law to amend a local law for municipal requirement. This requires the town to specifically cite in the local law the sections of the state law it intends to supersede.
There are some municipalities that have already made sure their town officials are residents, but others like Colonie, have had to amend some of their local laws to make sure their appointees are still valid.
The city of Albany has a local law in place that requires every commissioner-level and chief-level person to be a resident of the City of Albany, according to Bob VanAmburgh, executive assistant to Mayor Jerry Jennings.
They require confirmation by City Council, he said. `It does not apply to deputies or assistants.`
According to Law 62-1, `all department heads subject to confirmation by the Common Council hired after the effective date of the law shall be residents of the city during such employment or become residents of the city within 180 days.`
In the Town of Bethlehem, James Potter, the town’s attorney, said there are certain residency requirements within the town law for some positions. For example, the town attorney, which is considered to be an officer’s position, must be a resident of the town. This is bound by state law, which he said the town does not have the power to supersede. He said the town is allowed to supersede state law, however, if it is done in a specific way and the intentions are clear.
`The town does have the power to supersede state law on matters that relate to the property and affairs of local government,` he said.
Bethlehem Supervisor Sam Messina said that there are no residency requirements in the town and said after looking over the appellate court decision quickly that there are three or four jobs that would need to comply.
He also said that he does believe that positions such as the commissioner of Public Works, director of the Planning Department and the comptroller should be residents of the town. With such significant roles and a substantial staff, he said the people in those position should reside in Bethlehem.
`I think it is good to have them in the town,` he said. `Not just for recruiting purposes, but they will get to know the issue better on an ongoing basis.`
Messina said he still has to go over the ruling with the Town Board and Potter before any decisions or votes are made.
The Town of Colonie’s local law did not specify whether all commissioners or directors are required to be from the town. After an appellate court decision ruled the appointment of Cunningham was invalid because of his residency, the town tried to remedy the situation.
`This is nothing unusual in the state of New York,` he said, adding that some municipalities limit it just to the county. `But you don’t have to. You can do it statewide or countrywide. At least by doing it within the county, you’re getting somebody that lives in the general community and the like.`
Doug Rose, an attorney for Tulley, Rinckey and Associated, PLLC, said that in most cases, New York State law supersedes town laws. But there are some provisions that allow towns to amend laws if it is stricter.
`If town law has more stringent provisions, then town law might apply if the state law allows the town law to apply.` He said. `If it would make it less restrictive, state law would apply.`
With the Municipal Home Rule Law, he said that would be the provision that would allow the town to make amendments to the local law. “
