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This publication is intended as an information source for clients, prospective clients, and colleagues. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Municipal Update: Virtual Meeting Provisions Extended

ExecutiveOrder_EO_generic_heroEarly on in this public health emergency, the Governor suspended and modified certain provisions of the Open Meetings Law to permit meetings to be conducted remotely.  The provisions of the Executive Order making those suspensions and modifications was later extended through May 7, 2020.

The Governor was expected to further extend these provisions, but as of the close of business on May 7, 2020, they were not extended.  But, late last night–on May 7, 2020–the Governor issued Executive Order 202.28.  The order provides among other things that the “suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including Executive Order 202.14,” are continued for thirty days until June 6, 2020.

The Open Meetings Law provisions were initially suspended and modified by Executive Order 202.1, and initially extended by Executive Order 202.14.

There were numerous other provisions of law that were suspended and modified by Executive Order, and some of those provisions have also been extended by Executive Order 202.28.  I should also note that Executive Order 202.28 includes some exceptions and further suspensions and modifications, and one should not assume that it applies without reviewing the language for your particular concern.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

 

 

 

Municipal Update: Public Hearings Postponed by Executive Order 202.15

ExecutiveOrder_EO_generic_hero By now most local governments should be conducting their meetings remotely.  The Governor suspended certain provisions of the Open Meetings Law in Executive Order 202.1, permitting public bodies to meet and take action without permitting in public in-person access, and also permitting such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding, and that such meetings are recorded and later transcribed.  These modifications were originally set to expire on April 11, 2020, but were subsequently further extended by Executive Order 202.14 through May 7, 2020.

On April 9, 2020, the Governor issued Executive Order 202.15, which postponed certain public hearings without prejudice. With respect to public hearings, the Order provides as follows:

Any local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the public hearing remotely, through use of telephone conference, video conference, and/or other similar service.

Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Municipal Update: Non-Public Bid Opening Permitted During COVID-19 Emergency

ExecutiveOrder_EO_generic_hero

On March 7, the Governor issued Executive Order 202, declaring a State disaster emergency for the entire State of New York.  Over the course of the next several weeks, the Governor has issued updates to the original Executive Order.

On Friday, March 27, 2020, the Governor issued Executive Order 202.11.  Fire districts and other municipalities should be aware of one change with respect to public bidding that was included in that order:

Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law to the extent necessary to allow the non-public opening of bids; provided, however, that where practical, public entities shall record or live stream id openings so that the public has the opportunity to view such bid openings….

The statutory provisions referenced in the Executive Order are temporarily suspended or modified through April 26, 2020.   Information about this and other COVID-19 Executive Orders may be found here.

If you would like to schedule a consultation to discuss the the impact of this Executive Order or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Open Meetings Law: Telephonic Participation Permitted During COVID-19 Emergency

 

video-conference-2766604_1280

Image by Mohamed Hassan from Pixabay

On March 12, 2020,  Governor Cuomo issued Executive Order 202.1, suspending and modifying laws relating to the COVID-19 disaster emergency.  One of the laws this Executive Order modified was the Open Meetings Law.  In an effort to reduce public gatherings and foster social distancing, the Open Meetings Law has been modified to permit attendance by telephone conference or by other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed….

While the Open Meetings Law always permitted videoconferencing, the law also required the public body to “provide an opportunity for the public to attend, listen and observe at any site at which a member participates.”  Executive Order 202.1 changes that provision and expands it to include participation by telephone conference.

Members of the public need to be provided access to the telephone conference or video conference information, so they can listen and observe the meeting, and the meeting needs to be recorded and later transcribed.   But, members of the general public have no right to participate in the meeting beyond listening or watching.

Executive Order 202.1 indicates that it will remain in effect for thirty days until April 11, 2020.  However, it is possible that it may be further extended.  Information about the Governor’s Executive Orders may be found here.

If you would like to schedule a consultation to discuss the Open Meetings Law or other municipal legal matters, please contact Peter J. Weishaar, Esq.  at pweishaar@mccmlaw.com or 585.512.3542.  Peter’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of fire districts and other municipalities on an ongoing basis and as special counsel in litigation matters.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Training Materials

AFDSNYLast weekend, I was honored to teach the state-mandated fire commissioner training course on behalf of the Association of Fire Districts of the State of New York in Allegany, New York.  As a follow-up to that training, I wanted to provide some links and additional information about the supplemental materials I discussed during my presentation.

Over the course of the training session, I made reference to both the Freedom of Information Law (FOIL) and the Open Meetings Law (OML).  Both laws apply to fire districts, and there is a lot of very useful information about these laws published by the Committee on Open Government, an agency within the New York Department of State.  For example, there is an advisory opinion index for each of these laws, as well as a model FOIL policy that is a good resource for developing or revising your district’s policy.

The New York State Comptroller’s Office is another indispensable resource.  The Comptroller’s website includes a page dedicated to fire districts.  Here, you will find links to recent fire district audits, a model form RFP for auditing services, and a model code of ethics.  You can also download a PDF copy of the Comptroller’s Accounting and Reporting Manual for Fire Districts if you do not already have a copy.  You may also wish to subscribe to the Comptroller’s weekly email newsletter, which often includes links to new fire district and other local government audits.

Other resources available from the Comptroller’s website include:

The Association of Fire Districts of the State of New Yourk also has numerous guides, model policies and newsletters available on its website to help you carry out your duties as a commissioner of other fire district officer.

During one of the breaks, I was asked briefly about fundraising, and I wanted to provide a citation to the applicable statute.  Fundraising by fire departments and fire companies is governed by Section 204-a of the General Municipal Law.  While a board of fire commissioners can prohibit or restrict certain kinds of fundraising activity, such action should not be undertaken without first consulting with knowledgeable legal counsel.

Finally, there was a discussion about the New York State Emergency Services Revolving Loan Fund.  More information about this program can be found here.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact me at 585.546.2500.

 

Enhanced Cancer Disability Benefit Regulations Finalized

fire service lawsOn October 17, 2018, the Division of Homeland Security and Emergency Services published a notice of adoption with respect to the New York State Volunteer Firefighter Enhanced Cancer Disability Benefits Program regulations.  The regulations were adopted as proposed.  A link to the Division’s website (here) contains links to both the regulations and the New York State Register.

The Register (starting at page 16) includes an assessment of public comment with respect to the proposed rules (including a response to each written comment).  Unfortunately, none of the comments resulted in any changes, and the regulations were adopted as originally proposed.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Anti-Harassment Policy and Training Available Now

I recently wrote about the sweeping workplace rules designed to prevent sexual harassment here.  As of this month, employers are required to adopt a sexual harassment prevention policy and provide annual sexual harassment prevention training.  Both the policy and the training are required to meet or exceed minimum standards set by a model policy and model training program provided by the Department of Labor and Division of Human Rights.  At the time I wrote about these requirements, only drafts of the model policy and training were available.

The final model policy and training module are now available here.

If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact me at pweishaar@mccmlaw.com or 585.512.3542.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Fire District Resources for September MCFDOA Meeting

MCFDOA

I will be making some brief remarks at the next meeting of the Monroe County Fire District Officers Association on September 20, 2018, and I wanted to make a resource page available with links to additional information on the following topics:

Guidance for Public-Sector Employers and Employees in New York.  Earlier this year, the Supreme Court issued a decision in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018).  In Janus, the Court held that unions did not have a right to receive fair share agency fees from public-sector employees who decline union membership.  The New York State Department of Labor recently issued two short publications providing guidance to New York Public-Sector Employers and Employees:  Guidance for Public-Sector Employers and Employees in New York State; and Guidance for Public-Sector Employers and Employees in New York State–Frequently Asked Questions.

Sexual Harassment Prevention.  The 2018-2019 New York State Budget contained several provisions affecting sexual harassment prevention policies, training and settlements.  The Legislation also required the creation of a state-mandated model policy and model training.  You can read more about these requirements in an article I wrote on our firm’s website here.  The model policies were recently published in draft form, along with a model complaint form, and all of these draft documents are available here.

Volunteer Firefighter Enhanced Cancer Disability Benefits Program.  Over the summer, the State published proposed regulations implementing this new program.  The proposed regulations are available here.

UPDATE:  Budget Question.  Last night, there was a question about amendments to the budget after the budget hearing.  Town Law section 181(b) provides in part that “After the public hearing, the board of fire commissioners may adopt changes, alterations and revisions to the proposed budget subject to the requirements of paragraph (a) of subdivision two of this section, except that the board of fire commissioners shall not add or increase an appropriation to a capital reserve fund.” (emphasis added).

Thank you for visiting my blog.  If you want to find out more about me and my practice, I invite you to visit my page on our firm’s website.

Here are some other posts you may enjoy:

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full service law firm based in Rochester, New York, providing high quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.

Fire District Alert: Requirements for Sale or Disposition of Surplus Apparatus Amended

fire service laws

I am often asked about the requirements for disposing of surplus apparatus or other property.  Generally, unless apparatus was being traded in as part payment for new apparatus, fire district commissioners had to pass a resolution subject a mandatory referendum before disposing of surplus property.  However, there are two exceptions to the mandatory referendum requirement:  (1) If the property was valued at less than $50,000, then the board of fire commissioners only needed to pass a resolution subject to a permissive referendum; and (2) If the property was valued at less than $10,000, then the commissioners need only a resolution to dispose of the surplus property.

Effective immediately, those thresholds have been boosted to $100,000 and $20,000, respectively.  For more information about this recent amendment, please see my article on our law firm’s website: New Law Removes Red Tape for Fire Districts Selling Surplus Apparatus.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

Can a Fire District Pre-Pay for a New Fire Truck?

This is a question that has come up quite a bit recently, and I’ve decided to explain the reasoning behind my answer here.  Fire apparatus can be very expensive, ranging from several hundred thousand dollars to as much as a million dollars or more for the most sophisticated aerial ladder trucks.  With the tax cap as low as it is, it is easy to see why it may be tempting to take advantage of the savings offered by a vendor who offers a pre-payment option.  Sometimes the savings can be as much as 10% of the cost of the apparatus.  Should you take advantage of this?

It is well settled that “[f]ire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies . . . and have only those powers expressly granted by statute and necessarily implied therefrom.” 1992 Opn. St. Comp. No. 92-41.  Is there a statute that expressly permits a fire district to make pre-payments?

Section 176(4-a) of the Town Law outlines the procedure for fire district commissioners to audit and authorize payment of claims.  Although originally not permitted, payments in advance are now permitted in limited circumstances:

The board of fire commissioners may, further, by resolution authorize the payment in advance of audit of claims for light, telephone, postage, freight and express charges. All such claims shall be presented at the next regular meeting for audit, and the claimant and the officer incurring or approving the same shall be jointly and severally liable for any amount disallowed by the board of fire commissioners.

[N.Y. Town Law section 176(4-a)].

In 1996, fire district commissioners became authorized to make progress payments in connection with the purchase of motor vehicles used for fire-fighting purposes.  But even this authorization was limited.  Section 176(23-a) of the Town Law provides in pertinent part:

In any case of a purchase from a manufacturer of a motor vehicle used for fighting fires, whether or not including apparatus used in connection with such motor vehicle, having a period of probable usefulness of ten years as determined by section 11.00 of the local finance law, advertisement for sealed bids may be made and the purchase contract may be awarded for such motor vehicle and apparatus with the provision, if the board of fire commissioners shall so specify, that progress payments be made to the manufacturer as the motor vehicle or apparatus or both progresses, provided that evidence satisfactory to the board of fire commissioners as to the progress of such work be produced with each request by the manufacturer for a progress payment, and further provided that such progress payments shall not exceed four in number and that at least twenty-five per cent of the contract price of the motor vehicle or apparatus or both be withheld by the board of fire commissioners until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners, and further provided that every such contract providing for progress payments shall be accompanied by a surety bond of a property/casualty insurance company, as defined in section one hundred seven of the insurance law, for the completion of the work, specified in the contract, within the amount stipulated therein, which bond shall be filed with the board of fire commissioners.

[N.Y. Town Law section 176(23-a)].  In other words, a fire district may use progress payments to purchase apparatus, provided the following requirements are met:

  1. The specifications for the purchase must include an option to make progress payments;
  2. There shall be no more than four payments;
  3. Each request for payment must include evidence satisfactory to the board of fire commissioners as to the progress of the work;
  4. At least 25% must be withheld by the board of fire commissioners (i.e., the last payment) until such motor vehicle or apparatus or both are delivered to and accepted by the board of fire commissioners; and
  5. The contract providing for progress payments shall be accompanied by a surety bond.

These requirements do not permit advance payments or any other type of pre-payment.  However, if the foregoing criteria are met, progress payments are permitted.  While the savings offered by vendors will not be as great as the pre-payment option, many vendors also offer progress payment options, and these options should be considered.  At the very least, the bid specifications should include a request that the vendors include options for progress payments (and the specifications should also explain how the lowest responsible bidder will be determined if such options are requested).

Although it would seem to be in the best interest of the taxpayers to obtain the discount offered by the pre-payment option, taking advantage of this option would run counter to the public policy of the State of New York.  This is similar to the rules that prohibit fire districts and other municipalities from investing their funds in something other than insured certificates of deposit or United States obligations.  In a recent fire district audit involving the failure of a fire district to invest funds properly, the Comptroller explained that “[t]he law emphasizes safety, security and liquidity over yield, because improper investments could result in a risk of market fluctuation and the loss of principal.”  [Orient Fire District Audit at 6 (March 2016)].

Thank you for visiting my blog. I hope you consider subscribing by email, liking my page on Facebook, or following me on Twitter. You may also want to subscribe to our firm’s email newsletter, In Confidence, here. You can subscribe to only the topics you are interested in, and from time to time, I write about developments impacting New York municipalities, including fire districts.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

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