SamPratt.com

Can Assessors be removed?

(Or, The myth of the helpless mayor)

 

Umpire ejects Atlanta manager Bobby Cox

 

When complaints about a local assessor reach critical mass, the inevitable question arises for elected officials: Why don’t you fire him (or her)?

The officals’ answer is typically mumbled, and murky. “It’s complicated,” comes the sheepish reply. “Our hands are tied,” they dissemble. “Gee, we’d love to help, but the assessor has [X] years left on his/her term.”

But what is the truth of the matter? Can an assessor be removed, if their (mis-) conduct warrants it?

Hudson’s experience is instructive. Ever since the moderate and well-liked Al Kritzman (R.I.P.) retired, Hudson has had a string of controversial assessors, irate taxpayers coming before the Board of Assessment review (B.A.R.) and a long list of assessment lawsuits. These typically either get settled out of court, or tossed by a judge on some spurious “standing” ground which never addresses the substance of the issue.

Some mayors, most memorably Rick Scalera, have seemed to enjoy having things both ways: a tax assessor who sticks “those people” (i.e. the so-called newcomers and merchants) with inflated and unfair property taxes, plus plausible deniability. The message is: “Gosh, I sympathize, but my predecessor appointed the assessor... So there’s nothing I can do until his/her term expires. Sure wish I could help!”

Many Aldermen meekly accept this dodge, without looking into the details. In Hudson, the City Code provides a means for the Mayor to remove an Assessor, and State guidance appears to support that power—though with an added procedural layer to avoid its abuse.

Morever, in addition to legal means, there are also political methods within City Hall to achieving the same end, though again these may be abused. Lastly, there is the power of the purse, which in Hudson ostensibly resides with the Common Council.

On the legal side of the question, Article C4-4 of the Hudson City Charter deals with “Appointive officers and terms.” The Assessor is one of the officers listed (at Part A[1]) as someone who shall be appointed by the Mayor “for six years.” Mayors such as Scalera have cited this (often with backup from pay-to-say City attorneys) that this ends the debate: You just have to wait until the term expires.

However, the same section of the Charter then addresses, just two items down at C4-6, the Mayor’s “Power of Removal.” Section C4-6 states in full:

The Mayor may remove any person appointed to any City officer or position at his discretion. [emphases added]

Like the sweeping protection of free speech embedded our Constitution’s 1st Amendment, this portion of the City Charter is admirably concise, clear and emphatic. It does not distinguish between type of appointees. It doesn’t care whether they have terms of office or not. It includes “any person appointed” to “any” City office or position.

The Assessor’s position is clearly appointive, as it appears in the Charter’s own list of appointees. This terse, declarative, and unambiguous section on Power of Removal thus gives the Mayor the power to remove the Assessor “at his discretion,” regardless of term of service.

As it happens, our State has addressed this very question already. Counsel for New York’s Department of Taxation and Finance issued an advisory opinion (see this link) on “whether an assessor who has been appointed to a six-year term may be removed from office by the town board during the six-year term for reasons other than “dereliction of duties.”

Tellingly, the State did not conclude that you can’t remove an assessor appointed to a six-year term, or any length of term for that matter. Rather, relying on Subdivision 7 of Section 1522 of the Real Property Tax Law, which begins:

An assessor may be removed from office for just cause by the appointing authority after a hearing upon notice.

Again, State Law says that that assessors may be removed, only with the caveat that there has to be some oversight to ensure that removals don’t happen capriciously, say for partisan reasons. Without that caveat, every time you had a Mayor of a different political stripe, they’d summarily remove their predecessor’s appointee just because they could. The State continues to explain that

... if an appointing authority makes a determination to remove an appointed assessor from office, its determination is subject to an administrative review by the State Board of Equalization and Assessment. The statute provides the State Board with the authority to affirm, reverse or modify the determination of the appointing authority.

The “appointing authority” in Hudson’s case would be the Mayor, per the City Charter. If the State upholds the removal, the removed assessor could appeal in court (seek “judicial review” via an Article 78 proceeding). The State further explains that

Assessors are thereby protected from capricious removal or capricious disciplinary action by the appointing authority. However, exactly what would constitute “just cause” would have to be developed in each individual situation. 

Nevertheless, generations of local mayors (and the legislators who ennable them) have punted when asked what they plan to do about punitive, out-of-control assessors, even though they have the legal power to act.

Meanwhile, there is another, more political method that mayors sometimes deploy to squeeze out, rather than fire, unwanted appointees.

Any executive officer has ways of making an appointee sweat, whether in the press, or in meetings, or during the day-to-day course of their City Hall duties. A mayor more than most has the bully pulpit, and can make a lot of noise in the local press which dutifully and usually acritically reports whatever the Mayor says. He (or Council members) can demand that the Assessor appear at public meetings to explain his or her decisions, and if they don’t show, make more hay of it.

The Mayor also the ability to make an appointee uncomfortable, by moving someone to a smaller office, or require them to punch a clock, or (as Kritzman often alleged Scalera had tried with him) threaten to curtail their benefits). The goal in such cases is to get the appointee to jump over the cliff, rather than having to push them. Anyone who has seen even a couple noir films should be familiar with this routine, though again it can be used for evil ends as well as good.

In addition, in Hudson the Common Council maintains the power of the purse at its disposal. But in the case of GAR Associates’ $170,000 contract—which now has taxpayers up in arms again—the Council appears to have abdicated its right to make sure their consultant didn’t stray off the reservation.

By allowing the Mayor to “negotiate” a contract without added stipulations specifying a continued role for the Council, they lost the ability to rectify gross errors except by getting on their knees and pleading. Their only specified role after forking over the $170K was to received “monthly reports,” though according to the City Clerk there are no such records on file in her office. Council President Don Moore has yet to reply to this site’s FOIL request which covers those reports. Do those monthly reports not exist, or did they not mention that they were going to turn the local bed-and-breakfast industry upside down, or did no one read them? 

At this point, there is still some $20,000 left on GAR’s contract; will the City Council refuse to pay it, if GAR and/or Assessor Garth Slocum refuse to undo the B&B switcheroo?

And oddly, the contract alludes to an expectation that the serving Assessor would not finish out his term, with GAR demanding additional time and money if they have to get up to speed with someone new.

In the end, the final GAR contract appears to be boilerplate provided by the consultants themselves, with only one obvious change: The exemption of unspecified Waterfront parcels, presumably those held by the mining company Holcim, from further review. (Interesting negotiating skills, Rick: give the consultant everything they ask, with just one special favor for a corporation with whom you’ve been closely allied. This exemption raises the question whether the City’s reval is inherently and fatally-flawed, if a single major taxpayer was given special treatment not available to others.)

In summary, the City appears to have at least three means of avoiding more nonsense with its consultants and the Assessor: (1) removal, (2) pressure, and (3) the power of the purse. Instead, even "progressive" aldermen have kowtowed to the conventional wisdom which was speciously invented by previous Mayors to provide plausible deniability for headaches some seem to enjoy inducing in the citizenry.

Upstate’s Downto_n

PBS and The New York Post don’t often get mentioned in the same breath, but the latter has a feature today on Upstate estates which the paper considers “our very own versions of ‘Downton Abbey’: opulent mansions set on acres of manicured grounds with spectacular river and mountain views. They’re the legacies of old-money families like the Astors and Livingstons, the nouveaux riche Goulds and Vanderbilts, and celebrated painters like Frederic Edwin Church.”

About Olana, the Post writes that “it’s the grounds—all 250 acres—that were paramount to Church; every window of the house (especially the top floor) perfectly frame the artfully designed landscape, which includes an ornamental farm.”

(For those at all baffled by the headline above, Hudson has attempted to brand itself in recent years as “Upstate’s Downtown.”)

Link:

http://www.nypost.com/p/entertainment/travel/better_homes_and_gardens_Lh60C14tnu1apdnn9gpNtL#ixzz1uskBeaP2

Dept. of Unintended Consequences

How to shoot yourself in the foot (Hudson style)

Overreacting to the arrival of a single new food cart on Warren Street, Hudson politicians started making grunting noises about limiting or even banning them altogether.

But their spastic response—something conservatives normally refer to as a “Nanny State” impulse—has already backfired. It’s created more competition, not less, by driving the lone target of their concern into a more stable setting.

Seeking shelter from the political storm, or maybe just a more appealing venue, the street cart Ponto Brasil has forged a partnership with retailer Melinda Slover to move into Lili & Loo’s well-appointed backyard space.

By pushing proprietor Steve Walsh off the street, the powers that be have actually driven his business into slightly more direct competition with conventional restaurants... because now Ponto patrons have a place to sit while they enjoy their feijoada, and will always know where to find it. And by taking such a heavy-handed and reactionary approach, City Hall has engendered nothing but publicity and sympathy for Walsh’s fledgling business. 

“We have to protect the restaurants!” came the politicos’ cry, improbably fretting over the investments and tax contributions of unnamed restaurateurs who allegedly were complaining en masse. Somehow a single cart, serving cheap kebabs and coconut water, was going to put restaurants out of business whose typical bill for two people can rise to the $50-$100 range.

(Tellingly, when queried on a local business email list not a single proprietor copped to having a problem with street vendors. Publicly, nothing but support for Ponto Brasil has come from their quarter. At least some of that support may have been two-faced, as one restaurateur now professing enthusiasm for Walsh’s business had just harangued a friend about it.)

This odd new concern about the investments of main street businesses struck many as peculiar, given that City Hall here has shown little but hostility to Warren Street’s hard-working entrepreneurs. Hudson’s eateries have indeed made major investments, and contribute mightily to the tax base. But a lone street cart posed no threat whatsoever to either, as such carts operate in an entirely different price range and serves a wholly different market.

Dining destinations catering to parties of two or four or eight coming to Hudson for a sit-down dinner (featuring table service, cocktails and wine lists, busboys refilling their water and coffees, in climate-controlled surroundings out of the snow, rain or heat) has nothing to fear from a $5 street meal eaten standing up, and offered only seasonally.

Yet somehow, the same Boulevards-centric politicians who have complained for years about Hudson being too expensive were improbably inclined to shut out more affordable fare. The widespread suspicion is that perhaps a single controversial business owner known for backing Republican politicians was behind this latest Hudson teapot-tempest.

Even by Hudson standards, this was a silly episode—and I use the past tense guardedly. According to some Aldermen, Mayor Bill Hallenbeck has continued to press for action on street vendors, calling on the Common Council members to poll their constituents and brainstorm ways to address a nonexistent problem. Apparently Hudson has solved all its other issues, and now enjoys the luxury of someone who’s survived cancer to worry about their hangnails.

Paradoxically, the whiff of anti-competitive spirit from Free Market politicos has already had the opposite effect than that intended. By mid-afternoon on Saturday, his first at the new location, Walsh had sold out completely of his day’s stock.

You gotta serve nobody

 

Does the firm hired to reëvaluate Hudson property tax assessments, or even the local Assessor himself, answer to anyone?

And, was there a tacit understanding among the Aldermen that Sole Assessor Garth Slocum would be resigning or removed soon after they approved GAR’s $170,000 contract?

The answer to the first question would appear to be “no,” and to the second “well, maybe.”

The abrupt and unheralded switch of all the City’s bed and breakfasts from residential to commercial classification became publicly known earlier this week via citizen complaints to their Aldermen, rather than via discussion or disclosure by GAR or the City itself. A storm of protest immediately (and not at all surprisingly) followed, with City officials and politicos expressing concern or even outrage of their own:

“We are behind all of the B&Bs. This won’t stand,” wrote Hudson City Democratic Chair Victor Mendolia.

“I am equally concerned about this potential change or designation/declassification,” said Mayor Bill Hallenbeck, adding that “I am in constant communication with the Council President on this matter.”

“[A]s an alderman whose ward includes many of the City’s B&Bs, I’m trying to get to the bottom of this,” said one of the 3rd Ward’s two Council representatives, John Friedman.

But it is unclear that the above have many (if any) legal or legislative cudgels with which to compel GAR or the Assessor’s office to change or moderate their stance, besides asking nicely (or meanly). There is no immediately obvious way for the Mayor, Council President, Aldermen, or the Hudson Democrats who hold every seat on the Council to compel a reversal, because they appear to have forfeited that power when they turned the negotiations over to former Mayor Scalera, resulting in a $170,000 GAR contract.

To help answer these questions, this site submitted a Freedom of Information Law (FOIL) request on Wednesday to the City requesting a copy of the contract with that firm, GAR Associates, and any other records pertaining to its contractual obligations. Tracy Delaney, the consistently helpful City Clerk, quickly provided access to the contract to the City’s website by uploading it to their site, at this link.

The contract refers generally to “the City” as its client, but mentions no one but the Sole Assessor with whom they would be actively working. The Council members appear to have retained no ability to steer GAR’s work when approving the funding, only to receive “monthly progress reports.” Thus far, no such reports have been forwarded at this point by the City in response to the FOIL request, but a specific request has been made, if they exist.

There is one interesting passage in the contract which may suggest why the Council may have agreed to take a passive role in this highly-charged, high-stakes process:

The CITY and the CONTRACTOR acknowledge that changes in the City’s assessment staff, specifically the City Assessor during the term of the Project could impact the timing of meeting Project milestones and providing Project deliverables. In the event that the City Assessor as of the date of this Agreement is no longer actively working on the Project during the term hereof, the parties acknowledge that there may be additional costs for the time spent on transition to substitute personnel for the City. In such event, the parties hereby agree to reasonably negotiate [to] adjust the price… [emphases added]

In other words, the GAR contract specifically signalled that the firm had been warned that the City might be changing assessors. GAR clearly was mindful enough of this likelihood to make sure that they would not be held responsible for any delays which resulted, and compensated for any additional costs.

The Aldermen may have viewed this as a sign that they were getting rid of the controversial Assessor* in exchange for funding GAR’s work. In speaking with people who attended or participated in the deliberations, there are some indications that the Council was led to believe this was the deal. However, others might view the contractual language above as insurance against Slocum’s resignation or removal—since it could incur more delay and cost involved with the reassessements. 

The contract also specifies that GAR is an “independent contractor,” firmly stating that “no principal-agent or employee-employer relationship is created by this agreement.” In other words, we deliver the results, you pay for them, and that’s it. It does mention at several points that the firm would “work with” or provide information at the request of the Assessor, though these seem to refer to straightforward information exchanges, rather than policy decisions like changing all the B&Bs’ tax classification. A letter was issued by Slocum in April 2011 largely mirroring information also issued by GAR.

Moreover, if the contract’s payment schedule has been adhered to, by this point GAR has been paid all but $23,000 of the $170,000 they were promised. That’s not chickenfeed, but it further reduces the City’s leverage if they wanted to try to bring GAR to heel.

Attached in the contract is a letter from GAR Vice President F. Cindy Bare to Council President Moore dated October 11, 2010, which indicates that they had met face-to-face, and further lays out GAR’s case for being hired for $170,000. There is no further indication that Moore retained a role for himself in overseeing their work once it was funded. The letter offers to provide the City Attorney a “contract template” to work from.

In short, even if City officials were genuinely surprised and concerned about this sudden threat to a vital component of its economic engine, it is not at all certain that they can do anything except plead with GAR to change its position. As this site reported earlier in the week, the practice the firm has adopted in Hudson is not common to the rest of the County: five out of six B&Bs outside Hudson that were spot-checked are classified as residences, not commercial property. The simplest solution, and maybe the only one still available to City officials, is to persuade GAR or Garth to change the classifications back to avoid having an unhappy client. Problem is they don’t have to, and it’s debatable how unhappy some officials really are about it.

One other interesting tidbit gleaned from the contract: GAR and the City (represented by Rick Scalera) agreed to leave one part of Hudson out of the revaluation process: “Hudson Deep Water Port.”** Deeming that area “Unique or Highly Complex,” they agreed to leave it alone unless the City agreed later to additional fees—without specifying which parcels would be exempted. One assumes however, that the major property holder there—Holcim—was left out of the reval process.

At least one other question remains: What power does the Mayor’s office have over the Assessor? That has been a longstanding local debate, one which will have to wait for a separate post...

 

---

* Anecdotally, various taxpayers claim that Slocum has made his personal distaste for new property owners in general, and at least one B&B owner in particular, quite plain to them.

** Note: Legally, Hudson has no “Deep Water Port,” as it does not qualify for that classification under Federal law. But Holcim and its backers prefer this terminology, and continue to use it even after citizen protest caused it to bestruck from the Waterfront Plan.

The $170,000 Question

$170,000: That’s the value of the contract awarded by the Hudson Common Council last year to GAR Associates to reassess properties Citywide. (Evidently Sole Assessor Garth Slocum either wasn’t up to, or could not be trusted with, that task.)

Underwritten by local taxpayers, that six-figure pricetag is payment for the privilege of having the City’s own consultant launch a surprise offensive against one of its most dynamic and essential industries—its constantly-booked bed and breakfasts. City leaders profess to have been blindsided by GAR’s decision, which may have far-reaching consequences.

The $170,000 question then is: How could GAR’s move catch the City unawares—if indeed that move was a surprise? Put another way: Who is minding the Hudson store?

When GAR was originally hired, Council President Don Moore painted a Panglossian picture of how well that $170,000 might be spent. The March 15th, 2011 Council minutes report Moore as saying:

President Moore [...] stated after an extensive process they had settled on GAR Associates Inc. which were highly recommended and impressive in terms of the programs they had presented. President Moore said “in so far as property taxation is an issue of both financial revenue but also of fairness and concern throughout the city that we need to do everything we can as a city government to make sure that we have this objective and fair professional job of appraising and assessing property of the city as possible”.

But as first reported by Carole Osterink at Gossips of Rivertown, this unilateral and sweeping change of all local B&Bs from residential to commercial classification may cause each of those home-based businesses a sudden financial and legal hardship. It would likely incur new mortgage costs (or even invalidation of existing mortgages).

And, more alarmingly, it might turn B&Bs in residential districts into non-conforming uses, potentially forcing them to close while they try to obtain a variance from the Zoning Board of Appeals. Lastly, it appears that GAR based its revaluation of these properties based on B&Bs outside the City, claiming no such sales occurred locally to use as comparables (“comps”). That claim ignores the fact that at least one residence within the City Limits was sold in the past year to an existing B&B to expand its operations.

A spot check of five B&Bs around the County at the Real Property Department indicated that all of them are classified as residential properties, not commercial. Bed-and-breakfasts in Chatham, Copake, Hillsdale, Kinderhook and Taghkanic were found to be classified on the tax rolls as residential dwellings, either single or multi-family.

As it happens, GAR did the resassment in Taghkanic. And a spot check of a sixth B&B there reveals an inconsistency in their approach, as this one is classified as commercial. Moreover, GAR’s work in Taghkanic was brought to the attention of Moore and other Aldermen around the time their contract was approved because problems had arisen there.

Several months before the Hudson contract was authorized, The Register-Star reported in December 2010 that GAR “paid the town [Taghkanic] a hefty refund” only after local Democrats noticed that only $4,000 worth of work was performed despite their having received a $20,000 retainer:

Councilman Larry Kadish said any remaining money should be returned to the cash-strapped town’s coffers.

“It’s our money and it should be sitting in our account,” Kadish said. “I don’t accept this as a reasonable way to do business.”

Kadish also said he was troubled by the fact that the town’s taxpayers appeared to have paid considerably more for assessing services than residents of neighboring towns.

But learning from others’ experience and heeding advice is not much in fashion in Hudson politics, so Moore and the Council raced ahead with approving the $170,000 to GAR.

Further inspection of the Council minutes from March 2011 [PDF] does not indicate that the Aldermen retained for themselves any formal oversight of GAR’s activities once the $170K was approved. The terse resolution passed that night without opposition delegated the authority to then-Mayor Rick Scalera “to enter into a contract with GAR Associates Inc. for professional service for a citywide reassessment of the City to be completed for the 2012 assessment roll.”

The answer to the $170,000 Question thus may lie in the contract negotiated by Scalera with GAR. Would GAR report to the Mayor’s office, or to the Council, or to the Sole Assessor? Would any elected officials retain the ability to monitor and correct GAR’s work, or did the City abrogate its own power to undo such abrupt, unilateral moves like the assault on the B&Bs?

A copy of the GAR contract and any related correspondence or amendments has been requested from the City, and its contents will be reported here assuming it is responsive.

Virtual Graffiti: Route 9G

A new installment of the occasional, ongoing series (and copyrighted feature) of this site. (Bio of Croesus at Wikipedia for the uninitiated.)

Visuals of the Hudson Marina...

… Abramović Institute for the Preservation of Performance Art (previously announced as The Center for the Preservation of Performance Art), can be found at Rem Koolhaas’ firm’s site.

The museum, as pretty much everyone has already heard, is slated for the former Community Tennis building on the corner of Columbia and 7th Streets in Hudson and will be designed by Koolhaas and Shohei Shigematsu. (Note: There’s no marina at the Waterfront because City leaders think that the River is only good for moving gravel.) Koolhaas’ Office for Metropolitan Architecture site includes exteriors and interior visualizations, along with proposed floor plans.

Many suspect it will take some time for the money to be raised to bring this to fruition. Certainly, many other big projects announced with great fanfare for Hudson have taken a long time to come to be, or never materialize at all. Still, Abramović is at the very pinnacle of her niche in the art world; and Koolhaas's firms involvement lends that much more credibility.

The museum is being branded as a mecca for “duration-based performance,” which sounds unfortunately a bit like some kind of phony male enhancement product for sale on the counter of the gas station up the street.

(Prediction for popular local Halloween costume this year: People in black slacks and white lab coats. Check out the Koolhaas site and you’ll see... Meanwhile, if OMA really wants to curry favor locally, they might consider adding a big sign announcing the availability in the museum cafeteria of Legendary Serbian BBQ.)