Mar 13, 2008
Town attorney and Town Board battle
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Bacal defends job but may lose benefits
The latest actions by Jessica Bacal and the Town Board appear to have both positive and negative results for Ms. Bacal in her battle with the board to retain her position as town attorney — and the lifetime health insurance benefits it can reap.
Ms. Bacal sent a letter to the Town Board on Feb. 18, stating that a resolution the board made to re-appoint her was binding for two years according to state law, despite the board’s requests for proposals (RFPs) to find a possible replacement for her as town attorney. But on March 3, just two weeks after they received her letter, Town Board members voted to repeal a resolution they had made just two months earlier that had called for retroactively filling a roughly five-week gap in her town service, including pay, which would have made her eligible for lifetime health insurance coverage.
“I think their actions speak for themselves,” Ms. Bacal told The Ledger when asked if she believed the board rescinded its earlier resolution as “payback” for her letter.
But Town Supervisor Edward Brancati and Town Board member Peter DeLucia said they voted to rescind the resolution after learning of new information that contradicted what Ms. Bacal had told them about her work for the town during the disputed five-week period.
“We had a problem with it and found it wasn’t right, so we rescinded it,” said Mr. Brancati.
Board rescinds resolution
The Town Board voted 3 to 2 on March 3 to rescind its unanimously approved Jan. 3 resolution to grant Ms. Bacal retroactive pay for the period between Jan. 1, 2006, and Feb. 7, 2006, when she was named town attorney by the Town Board. Mr. Brancati, Mr. DeLucia and Dan Welsh voted in favor of rescinding the resolution, while Al Perruzza and Bruce Pavalow voted against it.
The period between Jan. 1, 2006, and Feb. 7, 2006, is important because it determines whether or not Ms. Bacal is eligible for health and dental insurance in retirement. Full-time employees and elected officials are eligible “to receive New York state retirement benefits” and “the town will pay 100% of health insurance premiums” for the rest of their lives if the individuals have worked for the town and/or been an elected official for 10 continuous years prior to retirement, according to sections 6.3 and 6.5 of the town’s personnel policy handbook. Ms. Bacal served as a Town Board member for two terms — eight years — before stepping down from office on Dec. 31, 2005. She has been working as a town attorney for more than two years since then. The five weeks in January and February 2006 is the only gap in that 10 years of otherwise continuous town service. In effect, the Town Board’s retroactive resolution at the Jan. 3, 2008, meeting qualified her for the retirement benefits. Its decision to rescind that resolution then took them away.
According to the Jan. 3 resolution, the board extended her service and pay to the beginning of 2006 because it intended to correct a “procedural error” the board had made in 2006. This error occurred when it “inadvertently did not appoint Ms. Bacal to the position of town attorney until Feb. 7, 2006,” despite former Town Supervisor Edward Mahoney’s request in December 2005 that Ms. Bacal “clear her calendar in order to provide legal services to the town as town attorney as of Jan. 1, 2006.” The resolution also stated that Ms. Bacal had been providing a variety of legal services to the town since Jan. 1, 2006.
“After Ms. Bacal presented us with information that the previous supervisor had made an oversight by not making her appointment retroactive to Jan. 1, 2006, we all agreed,” said Mr. DeLucia. “She explained she had been doing work on behalf of the town since that date and needed to be appointed as of Jan. 1, 2006. The Town Board voted unanimously to do this because we all thought it was an oversight.”
But Mr. DeLucia and Mr. Brancati said they were led astray by Ms. Bacal, after Mr. Welsh brought information to Mr. Brancati that disputed her claim that she was effectively and actively serving as town attorney since Jan. 1, 2006.
“I felt my initial vote to make her status and pay retroactive was incorrect because we determined [former attorney for the town] Les Maron was compensated for the month of January,” Mr. DeLucia said. “There was no firm ground for her to collect any payment from the town. Jessica did not do any work. Legally, I could not vote to pay her when there was no record of her performing any legal service. Dan Welsh did some investigation and there were no claims from her that were paid for January 2006.”
Mr. Brancati agreed.
“We couldn’t have two people being paid to fill the same role,” he said.
But Ms. Bacal said during the month of January 2006 she provided many services to the town as requested by Mr. Mahoney.
“I assisted him when asked, wrote resolutions and provided other legal services but did not bill for them,” Ms. Bacal said. “I got caught up in performing the work and just never submitted a bill for that period of time.”
Calls to Mr. Perruzza’s home and office were not returned before The Ledger’s deadline, but Mr. Pavalow, who along with Mr. Perruzza voted against rescinding the resolution, said he did so because he wanted professional advice first.
“I wanted to speak to an attorney to find out what their view was from a legal perspective,” Mr. Pavalow said, noting that Ms. Bacal had been “very professional” during his relatively short time on the board.
Town attorney position
The Town Board re-established the position of town attorney for Lewisboro on Feb. 7, 2006 — the same day it named Ms. Bacal town attorney and set her salary at $55,000, plus full benefits. The position had been abolished in 1996. In the decade without a town attorney position, the town had used an attorney for the town, a lawyer who worked for the town based on a retainer agreement. Most recently, Mr. Maron held that position before he was ultimately replaced by Ms. Bacal.
The major difference between the two positions is that the town attorney must be a town resident and is a public officer, like the town clerk or receiver of taxes, who is eligible for medical insurance. The attorney for the town does not have to be a Lewisboro resident — Mr. Maron lives in Pound Ridge, for example — and, as a consultant, is not eligible for the same health benefits.
Mr. Brancati said Ms. Bacal received payment from the town this year for the five-week period that had been retroactively in effect following the Jan. 3, 2008, resolution. But with that resolution since rescinded, Mr. Brancati said, the town will send a letter to Ms. Bacal requesting a refund of that payment.
Bacal’s letter
Last week, The Ledger reported that Ms. Bacal had sent a letter to the Town Board but that its contents had not been revealed. The Ledger then made a Freedom of Information Law (FOIL) request for a copy of the letter but was denied by Kathy Cory, records access officer, who cited attorney/client confidentiality privilege. The Ledger appealed that decision to the Town Board, which rules on FOIL appeals in Lewisboro, last week. The board overturned the denial at Monday night’s Town Board work session by a 4 to 0 vote, with board member Mr. Perruzza abstaining.
In the letter (which is reprinted in its entirety next to this article), Ms. Bacal called for the board to stop issuing requests for proposals for the town attorney position because the board had already “made a legally binding choice for town attorney” when it re-appointed her to the position at its Jan. 3, 2008, meeting. That resolution did not include any language about the length of her appointment. Ms. Bacal, citing New York state’s Town Law sections 20 and 24, said that “the position of town attorney is set by state law ... which fixes the duration of the term for a two-year period” and that “my term of office extends until the first day of January next succeeding the first biennial town election held after the time of my appointment,” which means her term would end on Dec. 31, 2009. She cited case law that upheld that a town board may not change the length of the term, and a state law that stated that a town attorney may be removed from the position only if there is a proven cause determined during a special proceeding.
Because of this, Ms. Bacal stated that the Town Board “must withdraw immediately the recently disseminated RFPs for the town attorney position.” She said the board could still send RFPs for the outside counsel positions “without violating state law.”
Mr. DeLucia said the town has since removed the words “town attorney” from the RFP and has substituted the more generic “legal counsel to the town.” There is no separate RFP for the town attorney, he said, and all of the legal position RFPs use the same language and will be handled on a case-by-case basis when they come back.
Mr. DeLucia characterized the wording of the Jan. 3, 2008 resolution appointing Ms. Bacal as “an unfortunate oversight.”
“The resolution was not written out in advance,” he said. “Ed [Brancati] was under the impression that if he did not specify a time frame for her term of office that it was automatically month-to-month instead of the usual two years. Unfortunately, the opposite turned out to be true.”
It is unclear at this point whether the Town Board will ultimately challenge Ms.
Bacal’s determination of the length of her term as town attorney.
“The Town Board is listening to our supervisor and keeping all options open,” said Mr. DeLucia. “But we will follow the law.”
Additional reporting by Jane K. Dove
© Copyright 2008 by Hersam Acorn Newspapers
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