It appears the issue of whether Colonie Commissioner of Public Works Jack Cunningham can legally keep his job or not has been settled, at least for the time being.
A ruling has been handed down by Acting State Supreme Court Justice Thomas McNamara that said Cunningham does not have to be a licensed engineer to be DPW commissioner and that the town’s decision to extend residency requirements for his position to all of Albany County was legal.
The state Supreme Court originally ruled that Cunningham must be a resident in the Town of Colonie. The town then passed a resolution on April 7 to adopt a local law that would amend Chapter 34, Section 3 of the town code. The law expanded the residency requirements for both Cunningham’s position and for Richard Naylor’s, who is the director of the William K. Sanford library.
McNamara dismissed the petitions made by Theodore Ricket, who filed the suit. It said the town gave eight days worth of notice about the public hearing in April, said the town did not need to go through an environmental review to appoint Cunningham to the position and that the local law could legally be enacted retroactively.
There is also a section in the document explaining how the town has engineers that work within the DPW, which means Cunningham was not performing any engineering work in his position.
Bill Keniry, of Tabner, Ryan and Keniry, LLP and the attorney representing Ricket, said his client was “upset and hurt” by the court’s decision. He said Rickert does plan to appeal the decision with confidence, as he said the appellate court did not side with Cunningham last time.
“I believe at the end of the day, when the panel of the appellate division reviews the case, our position is the correct position on the law and it best serves the residents of the town,” Keniry said. “I can tell that with respect to Mr. Ricket, he is terribly upset with the dumbing down of the public service position and the necessary qualification for the highway superintendent [DPW commissioner]. He believes the residents deserve and can have a better service, a more attentive service and a more informed service than that delivered at the hands of a non-resident, politician from Bethlehem.”
Keniry said Ricket believes the town could find a qualified resident of the town to fill the position instead of someone out of town. He said this is because no one would have a better understanding of issues in the town than a resident of the town, which is what he said the New York State Legislature had in mind when it created the municipal law.
“The needs of the residents are different, the traffic pattern is different and the weather is different,” Keniry said. “I think that’s the rationale behind what the legislature did here.”
Colonie Town Attorney Mike Magguilli said the town is elated over the court’s decision and said that the town had maintained from the beginning it was in the right. He is anticipating the appeal of the decision to come but said it will just be another lawsuit the town will have to spend more time on.
“I would expect them to appeal. I think because it was such a well-reasoned decision that chances on appeal is very small,” Magguilli said, adding that the amount of time his attorneys spent on this case was unnecessary. “That’s one of the most unfortunate things. We kept track of how much time we spent on the case. In this office, it was approximately 270 hours of attorney time that was used to defend this action. That’s time my attorneys should have spent doing the work of the people.”
Magguilli said the town had every right to amend the local law, and added that the motivation of the lawsuit was based off something other than law.
“They had to know that in the event of a loss that it was exactly what we would do,” he said. “It’s very clear in the law that we had the authority to do this. Part of the reason that I think the lawsuit is about headlines is that they’re not seeking to resolve legitimate legal issues.”
Keniry has a different perspective on this issue as he said the actions taken by the town to amend the local law was really an act of defiance toward the appellate court’s decision.
“It defies common sense and good judgment to defy the law and defy the decision of the appellate division and circumvent it by appointing and reappointing a non-resident who lacks the qualifications required by the state and job description enacted by the town two years ago.”
Cunningham said he was happy that the situation is over and that he can get back to focusing on his position and helping Supervisor Paula Mahan to get re-elected.
“I’m please the court recognized the claims by Mr. Ricket were pretty baseless,” he said. “I felt all along the town was right in their approach… I think it’s working well with the town and I am pleased to have the opportunity to continue. I enjoy it immensely.”
