Oath Issue, ZBA Vacancies Topic For Chester Board
Posted on Saturday, 21 of November , 2009 at 6:32 pm
CHESTERTOWN—The Town of Chester may have avoided court action on their latest oath of office issue—-at least for now.
Mary Jane Dower, vice chairman of the Chester Zoning Board of Appeals who vacated her office by operation of law back in January 2004 for failing to file her oath within 30 days after the commencement of her term, has been reappointed by the Chester Town Board to complete her term which expires the end of December.
By law, she hasn’t legally been a member of the ZBA since Feb. 1, 2004 but yet she has continued to vote on matters, that is when she attends a meeting.
However, Elizabeth Morris, another ZBA member who vacated her office in January 2005 and still has a year left in her five year term was not reappointed.
The action to reappoint Dower for the month and a half remaining in her term followed an executive session on “continued employment or not of ZBA members” at the Nov. 10 meeting of the Chester Town Board.
By the wording of Resolution 148, to “re-appoint Mary Jane Dower to fill vacancy on the Zoning Board of Appeals and file oath of office”, it is clear that finally the town recognized that the vacancy existed as a matter of law due to Dower’s failure to file her oath as required by Public Officers Law and Town Law.
By law, if an elected or appointed public officer fails to take and file their oath of office within 30 days after the commencement of their term, they have in essence declined to serve. No judicial proceeding is necessary to remove the officer. They have automatically vacated their office. No nunc pro tunc or belated filings are allowed.
In the case of an appointed officer such as a zoning board member, the town board can reappoint them to the position to fill their own vacancy but if they do not file their oath within the requisite 30 days, they again vacate the office.
The law is very specific about no oath, no office and therefore, the person cannot be compensated.
The town has been illegally compensating Dower and Morris for essentially their entire terms.
Zoning board members are paid $22 per meeting.
But Dower has another problem as well. She hasn’t attended a ZBA meeting since May, apparently intentionally trying to avoid the issue of the ongoing controversy involving the Charles W. Redmond property and Red Mountain Storage LLC. In fact, she’s attended only four of the eight ZBA meetings held during 2009.
http://www.northcountrygazette.org/2009/08/02/magic_sign/
http://www.northcountrygazette.org/2009/11/07/mystical_sign/
Generally speaking, when any member of a board, commission or committee fails to attend three consecutive regular meetings, their office is deemed vacant.
An officer shouldn’t be compensated if they are not performing the duties of the office including attending meetings.
These two ZBA “members”, Dower and Morris, have been serving collecting compensation and voting on land use issues for at least four years after having legally vacated the office.
Additionally, Morris’ son, Michael Packer, a councilman and deputy supervisor, serves in the conflicting position of the town’s zoning committee.
It’s an obvious conflict of interest for Packer to serve on the zoning committee but the town board has taken no action to address that issue except perhaps to not reappoint Morris. By doing nothing at the November meeting, Morris’ position remains vacant and she cannot legally act as a ZBA member.
Morris, who is in her 80s, was reappointed to a five year term on Dec. 31, 2005. Her term would have expired on Dec. 31, 2010.
In order to gather a quorum for the last four months, the ZBA has been functioning with alternates.
Chester Supervisor Frederick H. Monroe and the Town Board had been advised of the existing vacancies on the ZBA by June Maxam, publisher of The North Country Gazette, in early September and on Sept. 18, as required by Town Law, they were informed in writing by the town clerk.
However, the board failed to address the issue at their October meeting and Morris continued to act without authority at the Oct. 27 meeting of the Chester Zoning Board of Appeals as well as be illegally compensated.
Current ZBA members are Kenneth Marcheselli, chairman; Dower, John Grady and John MacMillen. Alternates are Willard Oliver and Arnold Jensen. Only Marcheselli and Dower have been board members for more than a year.
Zoning administrator Walter Tennyson, who is smack in the middle of the Redmond controversy for having improperly issued a zoning certificate and permit for a non-existent sign, certifying that he had inspected it and claiming that it conformed to the town zoning law, has also been absent at three of the four meetings involving the Redmond issue.
Tennyson, who filed a false document in the zoning office business records falsely stating that he had inspected Redmond’s non-existent sign is currently paid $19,429 annually for the part-time job. Tennyson signed documents in December 2008 needed by Redmond in order to obtain a sign permit. But by admission of Redmond himself in writing as well as dated photographs of the Redmond property taken by the zoning administrator, the sign never existed until May, 2009, giving clear evidence that Tennyson’s filing in December, 2008 was false.
So far, like Tennyson, the town’s attorney hasn’t shown up at any of the four ZBA meetings in 2009 dealing with the highly controversial Redmond zoning issue.
Maxam, the former coordinator of the NYS Oaths Project, says that because town officials were made fully aware of the law pertaining to this issue back in 2004, it is reprehensible to learn that some public officers, especially those on the Chester ZBA, are still acting without legal authority, particularly in the Redmond case. http://www.northcountrygazette.org/2009/01/22/judicial_oaths/
Maxam has asked the town board to formally request that a criminal investigation be conducted regarding the submission of a zoning application for a sign permit submitted last December by Redmond, a former state trooper and chronic zoning violator, and the subsequent action by Walter Tennyson in issuing a permit to which Redmond wasn’t entitled.
Monroe and the board refuse to discuss that issue publicly and has not responded to Maxam’s request nor will the Warren County District Attorney’s office which has had the complaint since May. In a letter written by Redmond to the Department of State in late July, he again admitted that the sign in question had existed as required at the time that the town and Tennyson issued the permit to him, give further proof of the false application he submitted to the town last December as well as the false filings of the zoning administrator.
It was in reviewing the controversy surrounding the Redmond property that numerous legal and ethical issues came to light involving the ZBA including the fact that neither Morris or Mary Jane Dower filed the requisite oath of office.
Although former ZBA member Elwood Findholt resigned from the board last year, it has also been learned that he didn’t take and file his oath of office either. This raises serious questions about the legality of a resolution seconded by Findholt last year that substantially impacted the Redmond zoning controversy. Having vacated the office some three years previously, Findholt had no legal authority to make or second motions or vote.
Case law on the oath of office issue has held that “this statute is emphatic and unequivocal. It does not seem possible that it could be misunderstood. In case a person is appointed to office neglects to file his official oath within 30 days after the commencement of the term of office, the office becomes vacant ipso facto, that is all there is to it, no judicial proceeding is necessary, no notice is necessary, nothing is necessary. The office is vacant as much as though the appointee were dead. There is no incumbent and the vacancy maybe filed by the proper appointive power”.
In the case of the three ZBA members at issue—Findholt, Dower and Morris—- not only did they not file the oath as required, they did not TAKE the oath.
By law, upheld by numerous court decisions, official acts performed by judges and justices or other public officers who have failed to file their official oath and/or undertaking are invalid as without proper title to the office, they could not claim to be de facto officers. One must first be a de jure officer before he can claim to be a de facto officer and none of them were.
http://www.northcountrygazette.org/2009/09/06/zba_oath/
http://www.northcountrygazette.org/2009/10/28/chester_oaths/ 11-21-09
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Category: Adirondacks, Business, Courts, Crime, Government, New York State, Warren County
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