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Attorneys debate interpretation - War of words over who can sign what

Thursday, February 06, 2014 - Updated: 10:17 AM

By ALISSA SCOTT

alissa.scott@recordernews.com

Signing a contract for a professional at the Amsterdam Municipal Golf Course has come down to a difference of interpretation of the City Charter.

Mayor Ann Thane refused to sign a contract with former pro Joseph Merendo, so the Common Council passed a resolution Tuesday granting the deputy mayor or city clerk authorization to sign.

Corporation Counsel Gerard DeCusatis said it is not valid to allow anyone other than the mayor to sign a contract on behalf of the city, but former corporation counsel Robert Going disagrees.

The section of the charter in question is under the powers and duties of the council. It says the aldermen have the power "to award all public contracts."

According to DeCusatis' issued opinion, the word "works" was dropped during the charter revision process, and should have referred exclusively to public works contracts.

Going, the chairman of the 1982 Charter Revision Commission, said he and the commission hashed out the meaning of that line for two days.

"We decided that, no, it should read 'all public contracts,'" Going said. He served as corporation counsel under Joseph Emanuele's administration. "Not just limiting it to public works contracts. That was a properly adopted change in the charter that [DeCusatis] didn't know about."

DeCusatis disagrees. He said there was never a referendum to change the powers of the city's duly-elected officials, and that the power to sign a contract isn't "ministerial," or a power given to any government official, as Going believes.

"There was never an intent to remove that power from the mayor," DeCusatis said. "It's not supported by reality. The council was granted the power to award public works contracts."

Going said the mayor doesn't have the right to refuse to sign the contracts. The council originally approved the contract unanimously, then the mayor vetoed it, and then the council overrode the veto.

"Now, when the mayor refuses to sign it, that doesn't mean that there's no contract," Going said. "The contract was duly-approved. That witness can really be done by anyone so by resolution they could have appointed the deputy mayor to execute the contract, or the city clerk, or any other appropriate figure."

Thane said to maneuver the approved resolution granting Deputy Mayor Diane Hatzenbuhler authorization to sign Merendo's contract, she'll just make sure no funding is distributed to him.

Going said she doesn't have control over that, either.

"The funding goes through the controller's office," Going said. "As long as it's approved, the controller has to honor it. What is she going to do? Padlock the golf course because she's not getting her way? It's ridiculous."

Both parties acknowledged the potential for the council to initiate legal action if a compromise isn't found. Going said "it's crazy."

"She has to do her job," Going said. "The Common Council, the legislative body in a republic, makes the policies and the mayor executes them. If she doesn't care to execute them, then she should quit."

     

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