BERNE — The town of Berne has followed through on its threat to sue Governor Kathy Hochul over her apparent inaction on an appointment to the town board, which has been without a quorum since August following the resignation of three of the board’s five members.

The Article 78 proceeding, filed by attorneys William J. Dreyer and John J. Dowd on Jan. 6 and obtained through the Albany County Clerk’s website, asks the state Supreme Court — the bottom rung of a three-tiered system — to compel Hochul to make an appointment, arguing that the town has made repeated requests for her to do so over the past five months. 

The suit reveals some of the communications between Town Clerk Kristin de Oliveira and officials at the governor’s office that The Enterprise for months has been trying unsuccessfully to obtain from the governor’s office through a Freedom of Information Law request. 

The first letter for de Oliveira submitted as evidence is undated, but appears to be the initial attempt to alert the governor’s office to the town’s circumstances, and asks for information “about the interview process for the appointment” and whether there was a process for residents interested in nominating themselves. 

De Oliveira followed up in an email on Sept. 10 to the governor’s Capital Region representative, Daniel Wrenn, asking for an update while acknowledging a previous conversation about “possibly expediting the appointment process.”

“With budget season quickly approaching I would feel much more [at] ease having a Town Board with voting authority,” de Oliveira wrote.

Wrenn replied the same day that he was “working on it the best I can here,” and added, “We still have it going through the internal review process.” 

Supervisor Dennis Palow previously told The Enterprise that the town unsuccessfully requested that Hochul appoint his former deputy supervisor, Anita Clayton, who left office at the end of last year. Clayton had also been the town clerk for many years.  

The entire town board — including the three councilmen who simultaneously resigned — had been elected on the Republican line. Clayton, who is enrolled as a Democrat, was also elected to the town board on the GOP line.

On Oct. 22, de Oliveira again asked Wrenn for an update, this time expressing much more distress about the situation.

“As you know with no Quorum to hold a Town Board meeting next Wednesday October 30, 2024 we are unable to schedule a public hearing for our 2025 budget,” she wrote. “I am feeling concerned and frustrated. I understand there is a process but it feels very much as if this ‘messy’ situation we have been dealt is making other steer clear.”

De Oliveira called the situation “very unfair to our tax payers,” and said that “with no action being taken and no one taking accountability it leaves people feeling very discouraged in our Government.”

She also said that, as town clerk, she has talked to a “countless number of people who have voiced their concerns and questions,” and said she herself was “very discouraged as a public official.”

Any response Wrenn may have given was not included in the legal papers. 

Palow told The Enterprise previously that he was frustrated and annoyed by the lack of communication from the governor’s office, and said he did not understand why they would not appoint Clayton to the position on his recommendation. He said that the town was prepared to sue the governor if necessary. 

Palow ultimately enacted the town’s 2025 budget without board approval, with much controversy surrounding the process. 

The governor appears to instead be prepared to appoint lawyer Melanie LaCour, one of the three people nominated by the Berne Democratic Committee, whose chairman Jeff Marden told The Enterprise last week was expecting an update from the governor’s office soon. 

A spokesperson for the governor said, “While we cannot comment on pending litigation, an appointment is under consideration."

New year: Government mystery

The town currently faces a dilemma with its reorganizational meeting, where normally it would have, with board approval, done things like make annual appointments, name an official bank and newspaper, adopt a wage schedule, establish paid holidays, authorize the supervisor to pay bills, enter into various contracts, and so on. 

Palow could not be reached by The Enterprise for information on how the town handled this issue, if it has at all. 

The New York State Department of State declined to answer an Enterprise inquiry about what the town is expected to do in this situation, but has, in the past, typically said that all such questions must be addressed to town officials. 

Legal Director of the Government Law Center at Albany Law School Richard Rifkin told The Enterprise this week that he was not aware of any town in New York state that’s faced this circumstance before, and was unsure what the protocol would be. All he could offer was his speculation, he said. 

“Your choice seems to be either the government totally shutting down, or, as a practical matter, continuing to operate in the way it has operated in the past,” he said. 

That would mean maintaining all of the “fundamentals,” Rifkin said, naming payroll as “the kind of thing that just has to be done if the government is going to function rather than shut down completely.”

He suggested that the state’s reluctance to get involved may stem from the fact that “they don’t want to be seen as governing the town and making the decisions that should be made by local officials.” 

But, Rifkin said, “I have no idea what’s going on here and why they’re not reconstituting the board,” referring to Governor Hochul’s ability to make an appointment to the board or to call for a special election that would allow it to conduct normal business again.