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Supreme Court, Erie County, New York.

TOWN BOARD OF TOWN OF CLARENCE, Ian R. McPherson, Councilman, Barbara A. Guida, Councilwoman, and Thomas Sweeney, Councilman, Petitioners v. Kathleen E. HALLOCK, Individually and as Supervisor of the Town of Clarence, Respondent.

Decided: January 28, 2003

James L. Magavern,Magavern, Magavern & Grimm, LLP, Buffalo, Attorney for the Petitioner. Lawlor F. Quinlan, Connors & Vilardo, LLP, Buffalo, Attorney for the Respondent.

This Article 78 proceeding is more by the way of a certified question on the governance of Town governments.   In this particular case the parties are all member of the town board for the Town of Clarence.   The respondent, in addition, is the Town Supervisor of the Town of Clarence.   The town is governed by the provisions of New York Town Law and, in particular, the provisions of Town Law Section 63.   It is clear that the town board has not adopted Roberts Rules of Order for the conduct of their meetings but instead follow an informal procedure based on the past practices of its predecessor boards.

At the annual reorganization meeting certain appointments were made including the appointments of “Liaisons” to a variety of organizations and town departments.   It is that designation which is the basis for the proceedings here.   On July 24, 2002 at a duly called meeting of the town board, one of the petitioners made a motion seeking the ouster of and replacement of another town board member as a liaison to the town planning board.   The Supervisor ruled the motion out of order, and refused to allow a vote on the motion, contending that the town supervisor alone had the power to make assignments to board members as “liaisons” and that any motion to replace a liaison would be illegal.

Case law is at a minimum on the issues raise here.   The only case of any significance was decided in 1906.   The other significant citations are to opinions of the New York State Comptroller and the Association of Towns, neither of which is binding on this court.

The petitioners claim is founded on their interpretation of Town Law Section 63.   It says in pertinent part:

“Every act, motion or resolution shall require for its adoption the affirmative vote of a majority of all the members of the town board.   The board may determine the rules of its procedure, and the supervisor may, from time to time, appoint one or more committees, consisting of members of the board, to aid and assist the board in the performance of its duties.”

The petitioners contend that it means that “Liaisons” are not committees and that the reference in that section to “members” implies that a committee must have more than one member to constitute a committee.   The respondents rely on the past history of the appointments as made by previous town supervisors for a least the last 28 years.   Clearly these appointments arose years ago as “committees” of one.   The history of these appointments in the Town of Clarence as presented by the respondent is clear in that regard.   It is also clear that the appointments were made by the supervisor without a vote by the town board.   And it is further undisputed that the designation of “Committee” continued until more recent times.   The designation for several years was “Liaison/Committee” assignments.   Regardless of the designation, they have consistently been handled as appointments to committees and were done by the Town Supervisor.   Surely, as the petitioners point out, the assignments were done in a cooperative manner and in a consensus model, not a legislative model.   That people cooperated to make the assignments does not in any way lessen the authority of the supervisor to make the appointments.

I therefore find that Town Law Section 63 gives the Town Supervisor the power to make assignments to one person committees, also referred to as liaisons, without any review by the town board.   Having said that, we still have open the issue of what the supervisor should have done when faced with a motion.   Because the board has no formal procedures in place, outside of seeking the opinion of the town attorney at the time of the motion, to appeal a procedural issue or a ruling by the chair, as would be available under Robert's Rules, I believe that the supervisor acted within the established informal rules and procedure that the Town of Clarence Board has followed for years by ruling that the motion was out of order and refusing to allow a vote.

The application by the petitioners is denied and the petition is dismissed in its entirety.

Submit Order accordingly.


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