September 17, 2012: Town Board Minutes - Regular Meeting

Huron Town Board Minutes - subject to approval.

Regular Meeting, September 17, 2012

Call to Order

Regular Meeting of the Huron Town Board was called to order by Supervisor Laurie Crane at the Huron Town Hall on September 17, 2012, at 7:00 p.m.

Flag Salute

Supervisor Crane led the flag salute

Roll Call

Upon roll call the following members were present: Supervisor Laurie Crane, Councilmember's Alan Traister, Russell Teeple, Lois Buckalew and David Buisch.

Welcome

Supervisor Crane welcomed everyone.

Public Participation

There was no public participation.

Announcements

Public Hearing for Master Plan at 7:30 p.m.

Public Hearing for Local Law #4 of 2012 (Dog Licensing) 8:00 p.m.

Public Hearing for Local Law #5 of 2012 (Tax Levy) 8:15 p.m.

Correspondence

1. Received an email from Attorney Knauf in regards to Aquatic Weeds.
2. Received an email from NYSERDA on a free energy seminar to be held Tuesday September 25, 2012.
3. Received an email from Supervisor Crane in regards to EBS-RMSCO (Flex Benefits).

Discussion of Correspondence

There was no discussion on the correspondence.

RESOLUTION #109-2012

Accept Recommended Revisions to Master Plan

On motion of Councilmember Buisch, seconded by Councilmember Teeple the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to accept the revisions to proposal of the Master Plan.

Permission for Supervisor to Sign Auditor Contract

Councilmember Buckalew moved, seconded by Councilmember Teeple to authorize Account Clerk Hamilton to check with the auditor for the addition of Judge Tompkins books to be audited.

Newsletter

Donna Traister addressed the Board concerning a newsletter. She recommended a newsletter twice a year as a means of improving communication with the public.  The cost could be offset by sponsors from area businesses. Attorney Knauf said that other towns use e-mail to communicate with residents.  Those in attendance were encouraged to give thought to the matter and bring ideas to the October Board meeting.

Water District #8

Supervisor Crane has not heard back from David Doyle of MRB.

RESOLUTION #110-2012

Water District #5 Budget Modification

On motion of Councilmember Buisch, seconded by Councilmember Teeple the following resolution was ADOPTED - AYES 5 NAYS 0.

Whereas, the Town of Huron developed the budget for the Water District No. 5 project based on estimates for the costs for various administrative services, and

Whereas, the actual costs for these items were less than the budgeted amounts, as follows:

And whereas, the cost for the North Geneva Road Pump Station exceeds the balance currently available in the contingency.

Be it resolved that the Town Board hereby authorizes the balances in the administrative budget to be adjusted as shown above and the transfer of the balance of these funds ($5,455.27) to the Contingency to be used for the pump station and other eligible project costs.

RESOLUTION #111-2012

Water District #5 Budget Modification Retainage

On motion of Councilmember Buisch, seconded by Councilmember Traister the following resolution was ADOPTED - AYES 5 NAYS 0.

Whereas, the Town of Huron withheld $5,000 from payment to B. Beardsley Management & Enterprises, Inc. (Beardsley), pending completion of certain punch list items, and

Whereas, Beardsley has not completed the contractual obligations and has ceased operations, and

Whereas, Beardsley is not entitled to receive the retainage.

Be it resolved that the Town Board hereby authorizes the re-allocation of the balance of the Beardsley contract to the construction of the North Geneva Road pump station and/or to the Contingency to be used for other eligible project costs.

RESOLUTION #112-2012

North Geneva Road Pump Station

RESOLUTION FOR AWARD OF CONTRACT TO

LAFLEUR CONSTRUCTORS, INC.

FOR CONSTRUCTION OF

TOWN OF HURON WATER DISTRICT NO. 5 - NORTH GENEVA ROAD PUMPING STATION

            At a meeting of the Town Board of the Town of Huron, Wayne County, New York, held at the Huron Town Hall in said Town, on the 17th day of September, 2012 at 7:00 P.M., Prevailing Time.

            The meeting was called to order by Supervisor Crane, and upon roll being called, the following were

PRESENT:        Laurie Crane, Supervisor

                                    Russell Teeple, Councilman

                                    Lois Buckalew, Councilwoman

                                    David Buisch, Councilman

                                    Alan Traister, Councilman

            ABSENT:          None

            The following Resolution was offered by Councilman Teeple, who moved its adoption, seconded by Councilman Traister, to wit:

            WHEREAS, USDA-Rural Development-Rural Utility Service (RUS) has authorized the Town Board of the Town of Huron to award the construction contract for Town of Huron Water District No. 5 - North Geneva Road Pumping Station (the "Project") to LaFleur Constructors, Inc. (LaFleur) in accordance with the design plans submitted by the Project Engineer (MRB Group, P.C.); and

            WHEREAS, said Project Engineer has summarized the bids received and reviewed the Bid Proposal submitted by LaFleur to complete the construction of the Project at a total cost of $258,000.00; and

            WHEREAS, said Project Engineer has prepared and submitted a Notice of Award to be executed by the Town and LaFleur.

            NOW, THEREFORE, BE IT RESOLVED by the Town Board of the Town of Huron, Wayne County, New York as follows:

            Section 1.  The Town Board hereby awards the Contract for construction of the Project to LaFleur for the Total Bid at a cost of $258,000.00.

            Section 2.  The Supervisor of the Town of Huron is hereby authorized to execute the Notice of Award and the formal Construction Agreement for the construction of the Project.

            Section 3.  This Resolution shall take effect immediately.

            The question of adoption of the foregoing Resolution was duly put to a vote on roll call, which resulted as follows:

Laurie Crane, Supervisor                         VOTING           AYE     

                        Russell Teeple, Councilman                     VOTING           AYE

Lois Buckalew, Councilwoman                  VOTING           AYE

David Buisch, Councilman                        VOTING           AYE

Alan Traister, Councilman                        VOTING           NAY

The Resolution was thereupon declared duly adopted.

Proposals on New Copier

Town Clerk Vezzose presented the board with three proposals for a new copier:

Usherwood: $6,957.00 (No Faxing)

Toshiba:      $7,370.60 (Color) (Faxing)

Toshiba:      $4,647.00 (Faxing)

Discussion of the proposals - the Toshiba Color Copier would combine in one machine all the capability of the current three machines maintained by the Town, eliminating the need for the separate color printer and fax machine.

RESOLUTION #113-2012

New Copier

On motion of Councilmember Teeple, seconded by Councilmember Buckalew the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to purchase the color copier from Toshiba with faxing at the cost of $7,370.60.

Open Public Hearing of Master Plan

Supervisor Crane opened the public hearing for the Master Plan at 7:30 p.m..  Supervisor Crane read the notice of the hearing.  George Frantz offered general remarks concerning the Master Plan, requesting comments from the public. 

Discussion from the Public:

Alan Isselhard: He has reviewed the plans noting that some maps were missing in the web page posting.  He expressed his view and concern that the draft Master Plan is not going in the right direction. He and his wife moved here for the rural atmosphere and sees much of what is proposed in the draft Master Plan as encouraging increased residential development.  Alan questioned the following:

Pg. 42 area designated for manufactured homes:

Q: Is this new district in a special area?

A: Manufactured housing would be located in a floating district subject to Town review and approval, preferably in an area having proximity to the Village of Wolcott. The Town would determine the type and quality of structure permitted.  Alan would like the town to discourage manufactured homes/mobile homes.

Pg. 43: Create a new Zoning District. 

Pg. 46: Noted the proposed public trails still appeared on private property and the comments made by Chris Kenyon, that trails were not being maintained.

George clarified that the draft Master Plan has language calling for voluntary cooperation and easements from land owners in such cases.  David Buisch clarified that the comments of Chris Kenyon related to the new trail at the end of Dutch Street - which matter Chris was going to pursue.

Pg. 50: 350 acres for future industrial development.

Pg. 63: Specialized housing for the elderly, which in his view is not a good idea since once the specialized need no longer exists the accommodation could become an unauthorized rental.

Alan also commented on the proposed development of a public park, viewed as an unnecessary expense for the Town.

Nancy Kasper:  Regarding the maintenance of trails, commented that the trails along 104 from 414 to Norris Road have been damaged by ATV's.

Attorney Knauf: Attorney Knauf expressed his opinion that the Board should not adopt the Master Plan tonight.

David Buisch:  Recommended the comments presented be referred to the Planning Board for consideration.

Councilmember Traister moved, seconded by Councilmember Teeple to close the public hearing at 8:17 p.m. Motion carried.

Open Public Hearing of Local Law #4 of 2012

Supervisor Crane opened the public hearing at 8:20 p.m. for Local Law #4 of 2012, a law to amend the Animal Control Law regarding Dog Licensing and will make each dog license valid for a period of one year and shall expire on June 30^th of each year.  Supervisor Crane read the notice of the hearing. There were no comments.  Councilmember Teeple moved, seconded by Councilmember Buisch to close the public hearing at 8:33 p.m.

Open Public Hearing of Local Law #5 of 2012

Supervisor Crane opened the public hearing for local law #5 of 2012 at 8:34 p.m., to override the tax levy limit.  Supervisor Crane read the notice of the hearing.  There were no comments.   Councilmember Teeple moved, seconded by Councilmember Buckalew to close the public hearing at 8:35 p.m.

RESOLUTION #114-2012

Adopt Local Law #4 of 2012

On motion of Councilmember Teeple, seconded by Councilmember Buisch the following resolution was ADOPTED- AYES 5 NAYS 0.

WHEREAS, proposed Local Law No. 4 of 2012 would amend the Town of Huron Animal Control Law, Local Law No. 1 of 1991, as amended, to make changes regarding licensing; and

WHEREAS, Notice of a Public Hearing on proposed Local Law No. 4 of 2012 was published in the Times of Wayne County on September 2, 2012, and the Town Clerk also caused a copy of that Notice to be posted on the sign board of the Town maintained pursuant to Town Law §30(6) on September 2, 2012, and on the Town of Huron website (along with the proposed text of the law) on August 30, 2012; and

WHEREAS, the Local Law has been on the desks of all Town Board members since July 16, 2012; and

WHEREAS, adoption of proposed Local Law No. 4 of 2012 would not be a physical activity or project, and therefore is not defined by 6 N.Y.C.R.R. §617.2(b) as an "action" subject to the State Environmental Quality Review Act; and

WHEREAS, a public hearing was duly held on that proposed Local Law on September 17, 2012 at 8:15 PM before the Town Board at the Huron Town Hall, and all persons desiring to speak were heard;

NOW, on Motion duly made and seconded, it is

RESOLVED that, pursuant to the Municipal Home Rule Law, and as authorized by Agriculture and Markets Law §122, proposed Local Law No. 4 of 2012, as modified on the attached, is hereby enacted, and shall be filed with the Secretary of State.

RESOLUTION #115-2012

Adopt Local Law #5 of 2012

On motion of Councilmember Buisch, seconded by Councilmember Buckalew the following resolution was ADOPTED - AYES 5 NAYS 0.

            WHEREAS, Proposed Local Law No. 5 of 2012 of the Town of Huron would override the tax levy limit established in General Municipal Law §3-c; and

WHEREAS, the Town Clerk caused a copy of a Notice of a Public Hearing on proposed Local Law No. 5 of 2012 to be published in the Times of Wayne County on September 2, 2012, on the sign board of the Town maintained pursuant to Town Law §30(6) on September 2, 2012, and on the Town of Huron website (along with the proposed text of the law) on August 30, 2012; and

WHEREAS, the Local Law has been on the desks of all Town Board members since August 28, 2012; and

WHEREAS, adoption of Proposed Local Law No. 5 of 2012 would be routine or continuing agency administration and management, and related local legislative decision-making, and therefore is a Type II action under the State Environmental Quality Review Act, pursuant to 6 N.Y.C.R.R. §617.5(c)(20, 27); and

WHEREAS, a public hearing was duly held on that Proposed Local Law on September 17, 2012 at 8:30 PM before the Town Board at the Huron Town Hall, and all persons desiring to speak were heard;

NOW, on Motion duly made and seconded, it is

RESOLVED that, pursuant to the Municipal Home Rule Law and General Municipal Law §3-c (5), Proposed Local Law No. 5 of 2012 is hereby enacted, and shall be filed with the Secretary of State.

Memory of Kenneth Lasher

Supervisor Crane read a resolution in memory of Kenneth Lasher recognizing his service to the Town from 1984-1989, this resolution will be included in the September 17, 2012 regular meeting minutes and a copy will be presented to the family of Kenneth Lasher.

Set Date for Master Plan Public Hearing

Councilmember Buisch moved, seconded by Councilmember Teeple to hold a new public hearing for the Master Plan on November 19, 2012.

Committee Reports     

Councilmember Teeple:

Highway: Highway Superintendent Reyn reported that they are winding down on finishing up the road work on Lummisville Road. He presented the board with paperwork on reducing the speed limits on specific roads. Highway Superintendent Reyn also gave two estimates on the roof of the highway barn and the Town Clerk will scan and email to the board members for a decision at the Special meeting on September 21, 2012. 

Speed Limit

Councilmember Teeple, seconded by Councilmember Buckalew to start the process of reducing the speed limit to 30 miles per hour on Sloop Landing Road between Lummisville Road and Lake Bluff Road, Lummisville Road/Sunset View between Lake Bluff and Dead End and to start the proceedings of Lake Bluff Road between Connelly's Cove and continue to dead end of Lake Bluff Road. Motion carried.

   

Councilmember Traister:

Historian: Councilmember Traister and Councilmember Buckalew visited the historical buildings and they are in need of painting and other issues. The board decided that they would like Historian Powell to get estimates back to the board.

Justice: Councilmember Traister moved, seconded by Councilmember Teeple to receive and file the August 2012 justice court report.

Animal Control Monthly Report: Councilmember Traister moved, seconded by Councilmember Teeple to receive and file the Animal Control Monthly Report.

     

Councilmember Buckalew:

Assessor: The Assessor's office is busy working on permits on private roads.

Insurance: We are in a transition from MVP to Excellus.

     

Councilmember Buisch:

Receive & File Building Inspector's Monthly Fee Report: Councilmember Buisch moved, seconded by Councilmember Teeple to receive and file the Building Inspector's August monthly report. Motion carried.

Planning Board Minutes: Councilmember Buisch moved, seconded by Councilmember Teeple to receive and file the August 6, 2012 Planning Board minutes. Motion carried.

Zoning Board Minutes: Councilmember Buisch moved, seconded by Councilmember Traister to receive and file the August 14, 2012 Zoning Board minutes. Motion carried.

Building Inspector Report:

• Building Inspector Gallant handed out updates on the reports given last month.
• Building Inspector Gallant reported on the new business in the Old Stell's Building.
• There are 112 septic inspections to be completed this year; the extremely dry summer effect on wells, impeded progress.
• Building Inspector Gallant received two quotes on the roof. He will send them to the board for review at the Special Meeting on September 21, 2012.
• In reference to Crescent Beach Roger will be meeting with MRB.
• The entire septic system of the Town Hall needs to be replaced, the leach lines are plugged.

     

The building addition and the Building Inspector's office were addressed with alternative approaches being offered.  Following discussion the Building Inspector was asked for his recommendation.  He expressed his opinion that the cost of the extension could not be justified, that a new roof on the entire building, and siding at the end of the building will take care of the heat loss.

RESOLUTION #116-2012

Septic Design

On motion of Councilmember Buckalew, seconded by Councilmember Buisch the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to have Building Inspector Gallant get estimates on a Septic Design for the Town Hall.

RESOLUTION #117-2012

Appoint Planning and Zoning Clerk

On motion of Councilmember Buckalew, seconded by Councilmember Teeple the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to employ Tiffany Smith as the Clerk to Planning/Zoning Boards with immediate effect.    

Supervisor Crane:

Town Clerk's Monthly Report: Councilmember Buisch moved, seconded by Councilmember Teeple to approve the August monthly report of the Town Clerk. Motion carried.

Town Board Meeting Minutes: Councilmember Buisch moved, seconded by Councilmember Teeple to approve the Regular Meeting Minutes of August 20, 2012. Motion carried.

Supervisor's Monthly Report: Councilmember Buisch moved, seconded by Councilmember Traister to receive and file the Supervisor's Monthly Report for August 2012. Motion Carried.

County Issues:

• Supervisor Crane received a letter on parking.
• Supervisor Crane inquired about the liens for the CDBG and how they could be paid.

RESOLUTION #118-2012

Lien Fees on CDBG

On motion of Councilmember Buckalew, seconded by Councilmember Teeple the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to establish an account and authorize Supervisor Crane to pay the fees from the account.

Attorney Knauf:  

RESOLUTION #119-2012

Moratorium Draft

On motion of Councilmember Teeple, seconded by Councilmember Traister the following resolution was ADOPTED - AYES 5 NAYS 0.

RESOLVED, to hold a public hearing for Local Law #6 of 2012 on October 15, 2012 at 7:30 p.m.

Court Questions:

Q: Guidelines state that the court can force a guilty plea 30 days after the scheduled appearance, when defendants fail to appear for their scheduled dates and Vehicle & Traffic ("V&T") Law. The court can set a penalty amount, notifying the defendant by certified mail, and send a Default Judgment to the County. Would Attorney Knauf have to complete an Attorney's Affirmation or would the Default Judgment suffice?

V&T Law §1806-a provides as follows:

In the event a person charged with a traffic infraction does not answer within the time specified, the court having jurisdiction... may... enter a plea of guilty on behalf of the defendant and render a default judgment of a fine determined by the court within the amount authorized by law. Any judgment entered pursuant to default shall be civil in nature, but shall be treated as a conviction for the purposes of this section. However, at least thirty days after the expiration of the original date prescribed for entering a plea and before a plea of guilty and a default judgment may be rendered, the traffic violations bureau or, if there be none, the clerk of the court, shall notify the defendant by certified mail: (a) of the violation charged; (b) of the impending plea of guilty and default judgment; (c) that such judgment will be filed with the county clerk of the county in which the operator or registrant is located, and (d) that a default or plea of guilty may be avoided by entering a plea or making an appearance within thirty days of the sending of such notice.

Thus, under the statute, the Court first has to send a notice, and then a default can be entered after 30 days. There does not appear to be any requirement of an attorney's affirmation in the statute. However, if the Office of Court Administration is requiring an affirmation, the District Attorney is the attorney prosecuting V&T Law violations on behalf of the People, so they should sign any necessary paperwork. We are not authorized to prosecute these violations. 2

Q: Can Default Judgments also be used for cases involving dog licenses and subsequent fines?

Yes, but the procedure under the Criminal Procedure Law must be complied with. The above procedure is only authorized for V&T Law violations. Furthermore, the Town cannot enact a local law to provide a special procedure for default judgments for dog violations or other local law violations. Op. Atty. Gen. (Inf.) 99-22 (copy attached). As set forth in Op. Atty. Gen. (Inf.) 99-22, there is a procedure under the Criminal Procedure Law for a defendant to be tried and convicted without being present, and for the District Attorney to enter a default judgment as follows:

A fine, restitution or reparation imposed or directed by the court shall be imposed or directed by a written order of the court containing the amount thereof required to be paid by the defendant. The court's order also shall direct the district attorney to file a certified copy of such order with the county clerk of the county in which the court is situate... Such order shall be entered by the county clerk in the same manner as a judgment in a civil action.... Even if the defendant was imprisoned for failure to pay such fine, restitution or reparation, or has served the period of imprisonment imposed, such order after entry thereof pursuant to this subdivision may be collected in the same manner as a judgment in a civil action....

Criminal Procedure Law §420.10(6).

Since I am authorized by the District Attorney to prosecute violations of Town of Huron local laws (as opposed to V&T Law violations), I probably could act in his place to carry out this procedure.

Q: Can a Town Justice simultaneously hold a position on the Zoning Board of Appeals ("ZBA")?

The Rules of Judicial Conduct §100.6(b)(4) state that a part-time justice "may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties." Nor may a judge serve on a board of a civic organization if "will be engaged in proceedings that ordinarily would come before the judge." Rules of Judicial Conduct §100.4(C)(3)(a)(i).

Furthermore, while a "full-time judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice," that rule does not apply to a part-time judge. Rules of Judicial Conduct §§100.4(c)(2)(a), 100.6(B)(1). Under this rule, a full-time court attorney-referee may not serve as a ZBA member. Jud. Ethics Opn. 11-41. 3

Since section 100.4(c)(2)(a) does not apply to a part-time judge, it is not readily apparent that service on the ZBA would not be allowed. The issues would be whether the "employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties," and whether the judge would "be engaged in proceedings that ordinarily would come before the judge." Rules of Judicial Conduct §§100.4(C)(3)(a)(i), 100.6(b)(4).

If a party were to challenge a ZBA decision, they would file an Article 78 proceeding in the State Supreme Court and not in Town Justice Court, so the justice would not directly review the decision. However, zoning enforcement proceedings do come before the Town Justice Court, and the judge might be called upon to rule on a matter the ZBA has already considered, and perhaps even disagree.

Op. State Compt. 80-169 provides that a town justice may also serve as a member of the town planning board. However, in Jud. Ethics Opn. 89-82, the Committee on Judicial Ethics decided that service on a ZBA or planning board was not compatible with serving as a town justice, since "[i]ncompatibility includes giving rise to an appearance of impropriety," and further:

...even if the judge recuses himself from zoning violation cases, an appearance of impropriety exists if the judge serves on these boards within the jurisdiction where he or she also sits as judge. This appearance of impropriety exists even where no actual conflict arises and even though no illegality attaches to the holding of both offices.

The Judicial Ethics Committee adhered to similar holdings in Opinions 96-35 and 03-22.

While the authorities are not in total agreement and the rules are not entirely clear, in our opinion the position of town justice is not compatible with membership on the ZBA.

Q: Can one judge resign February 1, 2013, effective April 1, 2013, and the Town Board appoint the court clerk as the new judge on February 1, 2013, effective April 1, 2013 so she can be trained in March (when the state conducts training).

One judge can deliver/file for resignation on February 1, 2013, taking effect April 1, 2013, so long as the written resignation specifies the effective date. However, the Town Board cannot appoint a successor until the vacancy exits, which would not be until April 1, 2013.

Although, as proposed, the effective date is approximately 60 days after the filing, it should be noted that the effective date cannot be more than 90 days from date of delivery/filing of resignation. 4

"Any town officer may resign to the town clerk in the manner provided by section thirty-one of the public officers law." Town Law §26. Under Public Officers Law §31(1), public officers may resign their offices as follows: "(d) Judges and justices of the unified court system, to the chief administrator of the courts... (g) Every town officer, to the town clerk...."

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified...; except that the effective date of the resignation of a judge or justice of the unified court system may be up to ninety days subsequent to the date on which such resignation is delivered or filed.

Public Officers Law §31(2).

Town Law §64(5) provides as follows with regard to filling vacancies:

Whenever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy.... If the appointment be made to fill a vacancy in an elective office, the person so appointed shall hold office until the commencement of the calendar year next succeeding the first annual election at which the vacancy may be filled...

In this case there no vacancy would occur until April 1, 2013. A vacancy cannot be filled until it comes to exist. Therefore, the new judge could not be appointed until April 1, 2013, when the vacancy commenced. Roberts v. Allen, 54 Misc. 2d 746, 283 N.Y.S.2d 510 (Sup. Ct. Albany Co. 1962); 1973 Op. Atty. Gen. (Inf.) 49; 1975 Op. Atty. Gen. (Inf.) 339. In contrast, Public Officers Law §41 allows the filling of a "prospective vacancy" in certain state offices.

Town Law §31 provides as follows with respect to mandatory training for judges who are not admitted to the bar:

No town justice... shall assume the functions of his office unless he has filed in the office of the town clerk a certificate of completion of a course of training prescribed by the administrative board of the judicial conference. The administrative board may issue a temporary certificate enabling a justice to assume the functions of his office pending completion of the earliest such course available thereafter.

See also Uniform Justice Court Act §105. So if the Office of Court Administration will not let the clerk/prospective judge take the course, when appointed the judge must obtain a temporary certificate. 5

Note that it might be possible to supercede Town Law and provide that a prospective vacancy may be filled by the Town Board prior to the effective date of the vacancy, effective upon the vacancy. While we did not find a case on point, in Op. Atty. Gen. (Inf.) 2005-19, the Attorney General approved of a local law that superseded Town Law §64(5) by providing that vacancies would be filled by election rather than by vote of the Town Board. This might be an option if the Town Board decided to appoint the clerk as judge and if the Office of Court Administration will not let her take the course prior to appointment.

Q: What is the term for the replacement judge, and when does she run for office?

Town Law §64(5) provides that "[i]f the appointment be made to fill a vacancy in an elective office, the person so appointed shall hold office until the commencement of the calendar year next succeeding the first annual election at which the vacancy may be filled." "Annual election at which the vacancy may be filled" "relate[s] to the November election held in the year in which the vacancy occurred...." Town Law Manual §7-17(A). So, the appointment would be until December 31, 2013, and the new judge would have to stand for election in November 2013.

Q: Can a justice court clerk also serve as a judge?

No, since there is an inherent conflict between the two positions. However, she can be appointed judge and continue to perform the duties of court clerk for herself. According to Jud. Ethics Opn. 03-22 (attached):

A town justice should not serve as clerk of the same town justice court. If there is only one town justice in the court, the positions are incompatible and inherently in conflict, because the town justice must supervise the court clerk and is required to file certain documents with the court clerk, and the court clerk has separate duties with regard to recording of proceedings and activities of the town justice. If there is more than one town justice in the court, the Committee has held, a town justice may not be employed as deputy court clerk for a co-justice in the same court, as that would create a conflict and an appearance of impropriety, in violation of section 100.2(A). Opinion 98-113 (Vol. XVII).

Similarly, in Jud. Ethics Opn. 01-127, a judge could not serve as deputy town clerk since certain paperwork had to be filed by the judge with the town clerk.

Likewise, the Attorney General has ruled that a judge cannot act as court clerk for another judge. Opns. Atty. Gen. (Inf.) 94-29, 98-18.

However, a judge can perform their own administrative in clerical functions in lieu of having a clerk. Opn. Atty. Gen. (Inf.) 94-29, 98-18; Jud. Ethics Opn. 11-92. Therefore, if 6

the court clerk is appointed as judge, she can perform the duties of clerk for herself, but not the other judge.

Q: Can the two judges be paid different since one will also be doing clerk's work?

"In all towns the salaries of all town justices shall be equal except that the town board may determine by a majority vote to pay salaries in different amounts. Town Law §27(1). Thus, "[t]he town board may fix the salary of one justice at a larger amount than that of the other." Town Law Manual §5-17(C). "Salaries shall be in lieu of all fees, charges or compensation for all services rendered to the town or any district or subdivision thereof, pursuant to law...." Id. "Proposed salaries of town justices...are not required to be specified in the notice of public hearing" for the preliminary budget. Town Law Manual §5-17(C); Town Law §27(1).

Where a town justice acts as their own court clerk, while they could not hold the title of court clerk, they may receive extra compensation for their extra duties. 1974 Opn. Atty. Gen. (Inf.) 307; Jud. Ethics Opn. 01-12

RESOLUTION #120-2012

Excellus Voucher

On motion of Councilmember Buckalew, seconded by Councilmember Teeple the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to pay Excellus on a separate Abstract.

RESOLUTION #121-2012

Transfers

On motion of Councilmember Buckalew, seconded by Councilmember Traister the following resolution was ADOPTED - AYES 5 NAYS 0.

            RESOLVED, to approve the following transfers:

From A1355.41 (Assessor Board of Review) to A1355.2 (Assessor Equipment) $1,230.16

From A1355.47 (Assessor Contractual) to A1355.2 (Assessor Equipment) $2,128.70

RESOLUTION #122-2012

Audit and Pay Bills

On motion of Councilmember Buckalew, seconded by Councilmember Traister the following resolution was ADOPTED- AYES 5 NAYS 0.

            RESOLVED, to give permission to pay the following vouchers:

September 17, 2012

Vouchers 169721-169770                                                $106,145.00

General                                     25,387.50

Highway                                    80,088.60

Trust and Agency                            668.90

Budget Workshop

The Town Board will hold two budget workshops:

September 10, 2012 7:00 p.m.

September 21, 2012 3:00 p.m.

Executive Session

Supervisor Crane moved, seconded by Councilmember Buckalew to go into executive session for personnel at 10:13 p.m.

Out of Executive Session

Supervisor Crane moved, seconded by Councilmember Buckalew to move out of executive session at 10:50 p.m. Motion carried.

Adjournment

Councilmember Buckalew moved, seconded by Councilmember Traister to adjourn at 10:50 p.m.

Next Board Meetings

Huron Planning Board will meet on September 10, 2012 at 7:30 p.m.

Huron Zoning Board will meet on September 11, 2012 at 7:30 p.m.

Huron Town Board will meet on September 17, 2012 at 7:00 p.m.

Tammy A Vezzose

Huron Town Clerk