Falls Corporation Counsel declares City Council budget meeting null and void

Dec. 5—A Falls City Council meeting that saw multiple amendments to Mayor Robert Restaino's proposed 2024 city budget approved has been declared a "nullity" by the city's deputy Corporation Counsel.

A "nullity" is a legal term that means that any actions taken by the Council at their Thursday, Nov. 30 meeting have "no legal force."

At that meeting, city lawmakers approved 10 out of 30 proposed amendments to the mayor's budget recommendations. Many of the amendments failed on tied votes because Council Member Traci Bax (R) was absent.

Council Chair David Zajac (R) said Bax was excused from the meeting because she was traveling in connection with her private sector job.

The council's amendments raised expenditures in the proposed budget by just over $18,000, while also slightly lowering a property tax cut for homeowners and adding to an increase in the business property tax level set in the mayor's proposed $101 million spending plan.

The proposed budget changes marked the first time in Restaino's tenure as mayor that any of his spending plans have been subjected to amendments. The mayor would have had until Friday to issue any vetos.

Even with the nullity declaration, Restaino is still expected to veto some or all of the amendments.

In a three-page letter, sent Monday, marked privileged and confidential, but obtained by the Gazette, Deputy Corporation Counsel Thomas DeBoy told Zajac and the other council members that, "Without implying any criminal misconduct, the meeting (on Nov. 30) was illegal insofar as the (New York) Open Meetings Law is concerned."

DeBoy told the council that there were at least six violations of the Open Meetings Law. He said there was no audio recording of the meeting, noting that "there is a long history of the City Council requiring its meetings to be recorded to secure an objective record of what transpires at those meetings."

A Gazette reporter at the meeting noted that the audio system and the microphones linked to it appeared to be malfunctioning at the start of the council's budget session. DeBoy said the deputy city clerk who was assigned to the meeting and acting as the session's recording secretary, believed that the recording system was working and took inadequate notes of the council member's debate and actions.

"Guides on this subject — from Robert's Rules of Order to the New York State Department of State, Division of Local Government Services, caution recording secretaries to continue taking robust notes during meetings to guard against the risk that an audio recording system may become unavailable," DeBoy wrote.

The deputy corporation counsel said the meeting was also not televised on the Falls School District website, as is the council's common practice. That failure, DeBoy said, deprived the public of the ability to watch and listen to the council's deliberations.

DeBoy said the recording failures and a lack of adequate notes made it impossible to comply with Open Meeting Law requirements for the publishing of meeting minutes.

In his letter, DeBoy also noted "other serious violations of the Open Meetings Law that we must reckon with." One of those was a failure to list any of the 29 budget amendments on the meeting agenda or to publish the proposed amendments on the city's website at least 24 hours before the meeting.

DeBoy said the Council also failed to publish a notice of the Nov. 30 meeting on the city's website, in violation of the Open Meetings Law.

The corporation counsel's actions brought praise from the New York Coalition For Open Government

"I would say I applaud the corporation counsel's letter," said Paul Wolf, the coalition president. "It's important for people to hear what's happening at a meeting and the notice requirements are very important. It's critically important for the public to see the Council's (proposed budget) changes before their meeting."

Collectively, Wolf said the Open Meetings violations should lead to the meeting being declared a nullity.

"They are certainly a basis for deciding that a meeting is null and void," Wolf said.

Zajac did not immediately return phone calls seeking comment on the DeBoy letter.

Twenty-eight of the 30 proposed amendments considered by the council were sponsored by some or all of the council's current three-member Republican majority.

Restaino's proposed budget contained across-the-board projected increases in sales tax revenues while providing a property tax cut for residents, but an increase in property taxes for businesses. The property tax increase fell below New York's 2% cap on yearly property tax hikes.

The mayor's proposed budget also included an allocation from the city's general fund to help hold the line on the city's refuse fee by subsidizing an expected increase in the Falls' contract with Modern Disposal.

The expenses of $101 million were balanced against revenue projections of around $93 million and a transfer of roughly $8 million in tribal revenue funds.

Many of the council's proposed amendments were identified as efforts to "reduce department spending to lower the tax levy." Those reductions totaled less than $8,000.

The council increased, by $5,000, its budget line for consultants and voted to create a new part-time position of City Council Clerk at a salary of $18,720.

Under the mayor's proposed budget, residential (Homestead) property taxpayers would see a drop in their taxes of 63 cents per $1,000 in assessed valuation. A decrease of 3.1%. The tax rate per $1,000 would fall from $20.00 this year to $19.37 in 2024.

The proposed tax decrease for 2024 breaks a trend of tax increases for residential properties in recent budgets — a 42 cents per $1,000 increase in this year's budget, an increase of 44 cents per $1,000 in the 2022 spending plan and an increase of 63 cents per $1,000 for 2021.

With the council amendments, residential property taxpayers would see a drop in their taxes of 61 cents per $1,000 in assessed valuation.

The mayor's proposed 2024 budget would increase business (Non-Homestead) property taxes by 72 cents per $1,000 in assessed valuation. An increase of 1.8%. The tax rate would rise from $39.50 per $1,000 this year to $40.22 in 2024.

With the council-approved amendments, the business property taxes would increase by an expected 78 cents per $1,000 in assessed valuation.