NYSBA WINTER 2011 | VOL. 25 | NO. 1 Municipal Lawyer A publication of the Municipal Law Section of the New York State Bar Association A Message from the Chair In the fi rst quarter of of the Municipal Lawyer for more details, and please 2011 the Municipal Law contact Ken or Lisa if you have suggestions for Section has been quite ac- program topics and speakers. tive in a number of reform initiatives and we have The Section was also pleased to have played a remained at the cutting large role in NYSBA President Stephen Younger’s edge of law practice and task force on Government Ethics. The task force, law reform in many impor- which I had the privilege of co-chairing with former tant areas. U.S. Attorney for the Southern District of New York, Michael Garcia, focused on four areas: disclosure, In January, executive honest services fraud, due process and structureand committee members Daniel municipal ethics. Mark Davies, the co-chair of our Spitzer of Hodgson Russ in Section’s ethics committee, served as chair of the Buffalo and Bernis Nelson Patricia Salkin municipal ethics efforts. Other Section members who of the City of Newburgh participated as task force members included: Stephen organized an outstanding CLE program for the Section’s Annual Meeting in New York City. Despite the snow, our Section members proved hearty and we had a packed house at the New York Hilton. Topics Inside discussed included the opportunities and pitfalls From the Editor . .3 with the use of social networking sites by municipali- (Lester D. Steinman) ties and municipal attorneys (this session addressed so many great issues including personnel issues, Honest Services, Public Corruption and Prosecution of ethical concerns and open meetings law and FOIL); Municipal Officials: Public Integrity Prosecutions the challenges presented and the obligations that in the Wake of United States v. Skilling. .5 exist to provide affordable housing in light of the (Honorable Richard A. Dollinger) recent Westchester County settlement with HUD; Public Integrity Criminal Law for the understanding and surviving the fi nancial crisis with Municipal Attorney . .17 tips for municipalities; and a federal and state case (Julia Davis) law update on recent developments of interest to municipal attorneys. Our next CLE program will take 2010 New York State Legislative Update. .22 place in October at the Gideon Putnam Hotel in (Darrin B. Derosia) Saratoga Springs, NY and this will be a joint meeting Land Use Law Case Law Update . .26 with the Environmental Law Section. Ken Bond and (Henry M. Hocherman and Noelle V. Crisalli) Lisa Cobb are busy at work putting this program together on behalf of the Section. Watch the next issue 2010 Municipal Lawyer Index of Articles . .32 Acquario, James Cole, Linda Kingsley, Steven Lev- law enforcement and fi refi ghters (GML 207-c and GML enthal and John Mancini. In addition, other section 207-a), the Wicks Law (GML 101), the funding of public members served as members of the municipal ethics pensions, the prevailing wage law (Labor Law 220) and working group. The full task force report was adopted the Triborough Amendment to the Taylor Law (Civil as submitted by the State Bar House of Delegates at Service Law 209-a.1(e)). the end of January, and hopefully a bill will be intro- duced in the 2011 Legislative session to address the Special thanks to Natasha Phillip who has agreed recommendations pertaining to municipal ethics. to work on membership initiatives for the Section, and we welcome in June a new member to our Executive In response to Governor Cuomo’s calls for a Committee, Sung Mo Kim from the New York City property tax cap and the appointment of a mandate Confl icts of Interest Board. Sung will be leading our relief redesign team to examine local mandates, the technology committee. On behalf of the Section, we Municipal Law Section appointed a special committee extend a sincere thank you to outgoing executive com- on mandate relief to work quickly during the month mittee member Jennifer Siegel McNamara, whose ac- of February to develop recommendations for submis- tive participation and leadership, including the organi- sion to the Governor’s team. The effort, co-chaired by zation of the 2010 Annual Meeting, contributed greatly Michael Kenneally and Sharon Berlin, produced an ex- to the Section and provided value to our membership. cellent report that addresses and eloquently expresses concerns with mandates such as disability benefi ts for Patricia Salkin NEW YORK STATE BAR ASSOCIATION Save the Dates MUNICIPAL LAW SECTION FALL PROGRAM October 21-23, 2011 Gideon Putnam Resort Saratoga Springs, NY 2 NYSBA Municipal Lawyer | Winter 2011 | Vol. 25 | No. 1 From the Editor Cities, beset by high un- dated a City of Worcester ordinance that required any employment, population de- project for public work funded by the City and cost- clines and middle class fl ight ing more than $25,000 to provide jobs to city residents which have eroded property equal to at least 50% of the total workforce of the proj- values, depleted their tax ect.3 While the City’s economic justifi cations for the law bases and threatened their may be substantial, the Court remained unconvinced future competitiveness and that non-residents are the particular source of the evils economic stability, have which the law was enacted to address.4 enacted or considered the adoption of local prefer- Intrastate discrimination, as opposed to interstate ence hiring legislation as a discrimination, may avoid a confl ict with the Privileges solution to these problems. and Immunities Clause. For example, the City of Cleve- Typically, such legislation land adopted a local law requiring that residents of the requires that a specifi c percentage of the workforce on City perform 20% of the total construction work hours public contracts be comprised of city residents. These performed on public contracts by Ohio residents. Thus, local hiring requirements are intended to ensure high a contractor could recruit a workforce comprised of quality employment opportunities to the city’s labor non-residents of the State of Ohio and not be subject to pool, especially low-income residents and other disad- the local law. Accordingly, there was no discrimination vantaged workers. found against non-residents. Conversely, if a contrac- tor wanted to use any Ohio workers, 20% of the total Notwithstanding the noble purposes for these construction work hours of those Ohio residents would laws, there are signifi cant obstacles to their enforce- have to be performed by Cleveland residents.5 ment. Successful challenges to local preference hiring legislation have been mounted under the Privileges Even assuming a local law could survive a Privi- and Immunities clause of the Federal Constitution.1 leges and Immunities challenge, it may be preempted Residential preference hiring would also appear to run by New York State’s competitive bidding laws. General afoul of New York State’s competitive bidding laws. Municipal Law Section 103 provides for the award of contracts for public work to the lowest responsible bid- In United Building and Construction Trades Council der and is intended to preempt local legislation in this of Camden County and Vicinity v. Mayor and Council of area. The predominant purposes of Section 103 are to the City of Camden,2 the Supreme Court held that a protect the public fi sc by requiring competitive bidding Camden local law requiring 40% of employees on City and to prevent favoritism, improvidence, fraud and construction projects to be city residents, discriminated corruption in the awarding of public contracts. against non-residents’ fundamental interest in employ- ment by private contractors on public works projects New York courts have struck down efforts to condi- in other states. This fi nding of discrimination did not, tion the award of public contracts on the achievement in and of itself, invalidate the local law. Discrimina- of social policy goals that are not directed to objectives within the intent of General Municipal Law Section 103. tion under the Privileges and Immunities Clause, in a 6 proper case, may be justifi ed where substantial reasons In Associated Builders and Contractors, Inc. v. Rochester, exist for the difference in treatment and the degree of the Court of Appeals invalidated a City of Rochester the discrimination bears a close relationship to those ordinance providing a preference to contractors whose reasons. Without a suffi cient record before it, the employees participate in a state-approved appren- ticeship program. In Council of the City of New York v. Supreme Court remanded the case to the New Jersey 7 courts to evaluate the city’s justifi cations for the law. Bloomberg, New York City’s equal benefi ts law, prohib- iting city agencies from contracting with contractors To survive a Privileges and Immunities challenge who fail to provide their employees’ domestic partners to a local preference hiring law, the municipality must with employment benefi ts equal to those provided to demonstrate that: (1) non-residents are a particular employee spouses, was also held to be preempted by source of the evil that the legislation is designed to ad- the state’s competitive bidding laws. Indeed, the State dress; and (2) the discrimination bears a close relation- Comptroller has specifi cally opined that local hiring ship to the economic conditions in the municipality preferences are prohibited in the same manner.8 An that necessitated the enactment of the local law. amendment to Section 103 would appear to be neces- sary to overcome this obstacle. Applying the tests articulated by the Supreme Court, a Massachusetts Federal District Court invali- NYSBA Municipal Lawyer | Winter 2011 | Vol. 25 | No. 1 3 In this issue of the Municipal Lawyer, the Honor- Finally, Darrin Derosia of the New York State able Richard A.