[*1]

This is a petition by Roger Higgins, Chair of the Dutchess County Legislature and Frederick Knapp asking that this court direct respondent, William Steinhaus, Dutchess County Executive, to place petitioner, Frederick Knapp on the county payroll immediately as Assistant to the Chairman of the Dutchess County Legislature on the grounds that his failure to do so to date is illegal, arbitrary and capricious. In opposition thereto, respondent asks that this court dismiss the proceedings as the actions of the County Executive William Steinhaus are permitted under the Charter of the County of Dutchess and the Dutchess County Administrative Code.

On December 20, 2007, Dutchess County Executive William Steinhaus issued Executive Order Number 2 of 2007 imposing a freeze on "...hiring for current and future vacant positions in county government..." In so doing, he cited as justification an announcement by former Governor Spitzer that the state could possibly face a 4.3 billion dollar state budget deficit for the fiscal year 2008 which would impact the amount of funds Dutchess County would receive from the state for operating purposes. He referenced his authority as Chief Budgetary Officer of the County pursuant to 3:02 (f) of the Dutchess County Charter and Article XXIX Section 29.12 (b) of the Administrative Code the relevant portion of which states; "The County Executive shall maintain control at all times over the expenditures of every unit of county government." Thereafter on February 13, 2008 Executive Order Number 2 for the year was signed by the County Executive amending his previous order in which he directed the Budget Director for the County of Dutchess to hold positions vacant pursuant to the "vacancy factor" of 2.6 million dollars which existed and authorizing the Budget Director to review vacant positions on a case by case basis.

On an annual basis in order to meet its budgetary needs, the County of Dutchess has [*2]established what is commonly referred to as a "vacancy factor". The actual figure is an amount agreed upon between the County Executive and the Dutchess County Legislature and represents one means of controlling expenditures on an annual basis. For the year 2008, the figure included in the budget was in the sum of 2.6 million dollars. Additionally, within that vacancy factor each department within the county has a target amount assessed to it. As is routine, the vacancies within any department will be filled by the County Executive at his discretion depending on a perceived need by that department as it may relate to issues developing within the county. By way of example, should some type of police emergency occur, it would be anticipated that the County Executive could fill vacancies in the Dutchess County Sheriff's Office while perhaps leaving other positions vacant in various departments throughout the county. It is undisputed that this vacancy factor and the manner in which it is addressed throughout the county effects all departments regardless of political affiliation of the head of a particular department, and in effect, the pain is shared through all departments in the County of Dutchess.

This court had an opportunity to address an application in 2007 when, pursuant to the "vacancy factor" the County Executive refused to fill the position of Deputy Comptroller for the County of Dutchess in a matter entitled Jablonski v. Steinhaus, Index No: 1531/07, the appeal of which was dismissed as moot when the position was later filled during the appeal, (48 AD3d, 465).

In its decision, the Appellate Division also referenced that the case did not rise to the level of an exception to the "mootness" doctrine.

While the respondent considers the present application to be a replay of Jablonski v. Steinhaus, supra, albeit the challenge is from another department, petitioner views the issue as dramatically different. This is not a department under the authority and control of the County Executive but rather a position as Assistant to the Chairman of the Dutchess County Legislature and under the separation of powers doctrine, the County Executive lacks authority to dictate to the Dutchess County Legislature in any fashion. In short, once the budget is passed, the Dutchess County Legislature as a separate branch of government has the sole right to fill positions in that body without interference from the Executive Branch. It was noted during oral arguments that during the budgetary process the " vacancy factor" does not include the Legislative Branch and no targeted amounts are set forth for that legislative body. In response, the County Executive points to Section 2.12 (b) of the Administrative Code, supra, which grants to the County Executive control over "...every unit of county government." Further, that there are sections of the County Charter and Administrative Code which delineate between "Executive Unit" and "Legislative Unit" and had the charter members wished to limit the County Executive's authority, they could easily have done so when writing that document. Further, that it makes sense for the County Executive to have control over all aspects of county government, as should a situation develop where there is less income to meet ordinary expenses, it is the County Executive under Section 29.10 of the Administrative Code who would be obligated to report to the legislature so that appropriate action could be taken to meet that crisis. Therefore, those two sections must be read together in conjunction with his duties as Chief Budgetary Officer of the county under Section 3.01 (f) of the Dutchess County Charter. [*3]

Counsel for all parties agree that there is no case directly on point which has addressed this issue in New York State making this application one of first impression.

As a general proposition, when interpreting any written document, an effort should be made to read it as a whole with the goal of finding commonality within its four corners in the context of which undue emphasis should not be placed upon particular words and phrases so as to defeat the common sense interpretation of that document. Bailey v. Fish & Neave, 8 NY3d 523. In that regard, the Dutchess County Charter outlines in its definitions that a "unit" is any department, division or functionally identifiable part of county government Dutchess County Charter 1.06 (u). Further, in the definitions as set forth therein, there is described the Executive Branch and the Legislative Branch each of which has its own "units" of government within its own jurisdiction. It is apparent from a simple reading therefore that recognizing a separation of branches of government, each branch has its own departments, divisions of functionally identifiable parts of its particular area of county government.

The terms "vacancy factor" and "hiring freeze" are treated in respondent's papers and brief as interchangeable. Executive Order Number 2 for 2007 speaks of a projected state budget gap as a result of which the County Executive under Section 29.12 of the Administrative Code seeks to avert the type of financial crisis which would compel him to consult with the Dutchess County Legislature under Section 29.10 of that code. The court notes that Section 29.10 speaks to a situation occurring during that particular fiscal year. The fiscal year for 2008 had not commenced at the time of Executive Order Number 2 for 2007. Further, no one has alleged that the county government is unable to meet its 2008 expenditures.

This is different and distinct from the "vacancy factor" which is utilized annually to control county expenses by keeping vacant those positions which otherwise wold ordinarily be filled. The concept of a hiring freeze by a County Executive has been thoroughly discussed by our Court of Appeals on a prior occasion, see Matter of Caputo v. Halpin, 78 NY2d 117. In that instance the County of Suffolk faced an anticipated budget deficit of 20 million dollars and the County Executive imposed a hiring freeze on all departments which was upheld by the Court of Appeals as being within his authority. The court pointed out the difference between that action and a hiring freeze in another instance which was, in reality, an effort to abolish certain positions. The Court of Appeals held, in that instance that the actions were impermissible. Matter of Henry v. Noto, 50 NY2d 816.

The common thread in these decisions is the implication that such actions should be sparingly used and only when absolutely necessary. This is different from the "vacancy factor" which this court has addressed previously in Jablonski v. Steinhaus, supra, and found that its implementation was ordinary and contemplated on an annual basis. Further, so long as it was applied in a reasonable fashion, it could not be considered illegal, arbitrary or capricious.

The Dutchess County Legislature is an equal, separate and distinct part of the governing force of the county. Section 1.02 of the Dutchess County Charter states that amongst its purposes [*4]is "...the separation of legislative and executive functions..." Not only must the Legislative Branch have its independence to promulgate legislation but moreover, it needs to have independent authority to tend to its own internal affairs. Perhaps this is one reason why no "vacancy factor" exists or is set annually for that body. Executive Order Number 2 for 2008 permitting the Budget Director for the County of Dutchess to "...review, and, as necessary, hold positions vacant pursuant to the legislative policy on vacancy factor of $2.6 million..." would appear to be inapplicable to the Dutchess County Legislature. First, no such vacancy factor exists for the Dutchess County Legislature for the Budget Director to address and second, if taken at face value, this would be a delegation to the Budget Director to hold sway over a separate body, the Dutchess County Legislature. Nowhere has it been pointed out to the court that the Budget Director has such superior authority over an independently elected body under either the Dutchess County Charter or the Administrative Code.

In discussing the relationship between Executive and Legislative Branches, the United States Supreme Court sets forth guiding principles relating to the executive's actions. When those actions result from express or implied legislative action, they are accorded the strongest of presumptions. When the actions take place in the absence of legislative actions, the authority is less clear. Last, when the actions are against the legislative will, they can only be sustained by disabling the Legislative Branch from acting on the subject. Dames & Moore v. Regan, 453 U.S. 654. The same theories of separation of powers and limits thereon are replete in New York State case law, see: Rapp v. Carey, 44 NY2d 157, warning of limits to the breadth of executive power.

However laudable the concept of preserving tax dollars may be, the justification for reaching over and interfering with the actions and will of a co-equal branch of government would have to be extreme, if permissible at all. In this instance, no guidelines have been identified to trigger the instant directive. We do not know whether the projection of a smaller amount of deficit would be used to justify such actions and if so, what that figure might be. While there can be debate as to whether Section 29.12 (b) of the Administrative Code includes the Legislative Branch as a "unit" therein, or

should be further codified for clarification, the answer is not dispositive of the matter before this court. That section speaks in generic terms of budget review prior to the beginning of the year and the County Executive's general authority overall in his position of Chief Budgetary Officer. This is not inconsistent with the separation of powers but must be read in conjunction with the intent and meaning of the Charter and Administrative Code overall.

Were this court to permit the withholding of this appointment, it would amount to the de facto establishment of a "vacancy factor" for the Legislative Branch by executive fiat rather than legislative process. Accordingly, it is hereby

ORDERED that the motion to dismiss the application before this court is denied. It is [*5]further

ORDERED AND ADJUDGED that the application to compel the Dutchess County Executive to place petitioner Frederick Knapp on the payroll in his position as Assistant to the Chairman of the Dutchess County Legislature, is granted.

The foregoing constitutes the decision, order and judgment of this court.

Dated:April 29, 2008

Poughkeepsie, New YorkENTER:

_____________________________

James V. Brands, J.S.C.

David A. Sears, Esq.

One Civic Center Plaza, Suite 302

Poughkeepsie NY 12601

Law Office of Bruce A. Petito

222 Church Street

Poughkeepsie NY 12601

Burke, Miele & Golden, LLP

30 Matthews Street, PO Box 216

Goshen NY 10924