BY JIMMY LAWTON
North Country This Week

OGDENSBURG -- A group of Ogdensburg residents is planning to petition for a referendum to overturn a recent change to the city charter, but the city attorney says their actions do not fall within the bounds of state law.

“We received legal opinion from our City Attorney, Mr. Scott Goldie, that a public referendum for the change of duties to the City Manager position is not required or allowed by New York State Law, therefore the City of Ogdensburg does not plan to conduct a public referendum on this matter,” Acting City Manager Steven Jellie said in email to North Country This Week.

Council came under fire by several city residents prior to recent votes that stripped the city manager of the power to hire and fire department heads and required the police chief to reside within city limits.

The resolutions passed in 4-3 votes with councilors Nichole Kennedy, Dan Skamperle and Michael Powers opposed.

Mayor Jeffrey Skelly, Deputy Mayor John Rishe and councilors Bill Dillabough and Steve Fisher voted in favor. Though Mayor Jeffrey Skelly said he’d like to see a referendum held and let the people decide on the matter if it was something that could be done legally.

Among those who spoke against both charter changes were former City Councilor Doug Loffler and former Police Chief Rick Polniak.

The opinion from the city attorney is in direct contradiction with the city’s charter, which clearly says the residents may petition to hold a referendum.

According to the city charter, the changes passed by the council are subject to petition by referendum. That means the public has the opportunity to bring the matter to a public vote and potentially overturn the changes.

“Notwithstanding any other provision of the law or of this Charter, any action by the City Council to establish, alter or abolish any City department, office or agency specified in this Charter shall be by local law subject to a referendum upon petition,” the charter says.

However, Jellie says state law supersedes the charter and that the charter needs to be amended to reflect that, but no documentation has been provided to support that opinion. Under the charter form of government local laws cannot supersede state laws, but they can supplement them. One example for instance is the city charter’s rules for filling vacancies on the city council, which differ from laws laid out by the state, but are still considered legal.

North Country This Week received a copy of the opinion issued by Goldie.

“I based that opinion on the fact that section C- 99 of the City Charter which specifically addresses “Amendments” to the Charter states that a permissive referendum is only called for when the change would “create or abolish any office, department, board, commission or agency, change any appointive office to an elective office or change the powers of any elective officer”. It is my understanding that the Council is not creating or abolishing any office, department, board, commission or agency. Nor is it changing the appointive office of City Manager to an elective office. Since the City Manager is not an elective officer, the change of your authority does not fall under this requirement. Under City Charter section C-99, the action by the City Council is not subject to a permissive referendum,” Goldie says.

Goldie’s opinion goes on to say that while the charter has conflicting sections, he does not believe the charter change warrants a referendum.

“Regardless of the conflict, it is well established law in New York that a local government may not expend public funds for the conduct of a referendum without specific authorization under State Law. Matter of McCabe v. Voorhis, 243 NY 401 (1926); Mills v. Sweeney, 219 NY 213( 1916); see also Ops. Atty Gen I 91-19; 1980 Ops. Atty Gen. Sept. 18 (informal); 1978 Op St, Compt. File # 913. [Government by representation is the general rule and direct action by the people must be specifically authorized by State law.] NYS Municipal Home Rule Law (MHRL) Sections 23 and 24 address what issues are subject to mandatory or permissive referendum respectively. MHRL section 24 limits local laws subject to referendum on petition to eleven specific topics, none of which would include the City’s decision to change or “alter” the City Manager’s authority. A City cannot add to or expand the list of topics subject to mandatory or permissive referendum. As such, it would appear that the City Charter sections C-17 and C-99 illegally provide for permissive referendum beyond State Law.

But organizer Scott McRoberts has questions about that opinion

According to state Municipal Home Rule Law Article 3 Section 23, “Local laws subject to mandatory referendum” the proposed petition may fall within the criteria of subsection 2f, which states local law shall be subject to mandatory referendum if it “abolishes, transfers or curtails any power of an elective officer.”

Scott McRoberts, who is an organizer of the effort to file a petition, believes that the law approved by council transfers the power to the council, thus meeting the criteria. It should be noted that in this context “mandatory” does not mean that it must go to referendum, but that it is “mandatory” for the city to allow for a petition to be brought forward.

The disagreement between the city and petitioners may be resolved in courts, as it seems both sides have contacted legal help on the matter, though North Country This Week has not been provided any legal opinions from either side at this time.

Regardless of whether the petition fits the criteria for mandatory referendum, petitioners appear to have an alternative course of action available to them to amend the city charter.

According to the state’s Division of Local Government Services “Revising City Charters in New York State,” petitioners can bring an amendment to city council through the referendum process.

“A city charter may be amended under section 37 of the Municipal Home Rule Law. Under this method, if a number of city voters equal to at least 10 percent of the votes cast for Governor in the last gubernatorial election – or 30,000, whichever is less – sign a petition for submission to the voters of a proposed local law providing for a new charter or charter amendments, the initiative process is under way. The petition and proposed charter changes are filed wit the city clerk, who is required to determine the legal sufficiency of the petition, subject to judicial review. Whether or not the clerk determines that the petition is legally sufficient, he is required to submit the proposal to the city legislative body,” the document reads.

McRoberts said he and others are currently seeking legal advice and weighing their options, but plan to bring a petition forward.

With potential for a legal battle ahead, the city says it won’t be commenting further on the matter.

“The City of Ogdensburg will not comment further on this matter. If a petition is filed, we will manage it accordingly,” Jellie said in an email Wednesday.=