Disclosure: A Director of The Yonkers Ledger is a petitioner on this complaint.
On Tuesday Jan 17, Michael Sussman filed his response to the City of Yonkers’ motion to dismiss the lawsuit contesting the extension of term limits.
Immediately after the November 2022 election, the City Council of Yonkers voted to extend term limits for officers like themselves and the Mayor. Term limits had originally been enacted and upheld by two public voter referendums. In 2018, the council changed the term limit from two to three maximum terms without a referendum. And then in 2022, from did the same thing again from three to four.
12 Yonkers voters sued the City of Yonkers in the Westchester County Supreme court contesting the legality of this change. Michael Sussman is representing the plaintiffs. The City of Yonkers filed a motion to dismiss this lawsuit on January 10th, 2023.
The motion to dismiss relies heavily the decisions made in the Molinaro v Bloomberg case of 2009. The City’s position is that voters have no right to a referendum on term limits and the sole authority to change term limits lie with the City Council. Furthermore, that same council does not have the right to authorize a referendum on the matter either. The City also dismissed the petitioners standing to bring an alleged violation of the City Charter’s ethics provision to a court. They assert that the City’s own ethics board is the arbiter of potential infractions. Even still, it is the position of the City of Yonkers that no ethics violations have even occurred.
In a 25 page response, Michael Sussman addresses each point of the City’s motion to dismiss. He roundly criticizes the reliance on Molinaro as a template for dismissal.
The provisions in the New York City charter have no weight on a completely different municipality’s, i.e. Yonkers’, charter. The lawsuit asserts that the mayor and council members violated an ethics provision in the Yonkers City Charter related to self-enrichment. The City claims that the extension of term limits does not guarantee success in an election and therefore the salary and benefits bestowed on an officer. But, Sussman states that the charter uses the clear language, “may result” and that even the potential for this benefit is enough to trigger the violation.
Sussman further inspects the Bloomberg term extension’s conditions when he cites the council’s reliance on the financial crisis as an extenuating circumstance. And the council’s immediate rolling back to two terms. Circling back to ethic violations, Sussman notes that the NYC council members consulted with, and received an opinion from, the City of New York’s Conflict of Interest Board. In the events in Yonkers, no such action was taken. For example, there is a Charter Revision Commission meant to advise on these exact matters. But that commission was wholly absent from this 2022 process.
Lastly, debate is being had over the definition of a “change of a term.” While certainly someone serving a two year term and then changing it to a four year term midstream would constitute this. However, the City does not agree with the petitioners that changing the maximum number of potential terms fits the concept of a change in the terms. Sussman does cite case law supporting his position that it does, however ceding that it is untested in regards to it being a pretext for a mandatory referendum.
As we await comments and potentially a decision from the court, the 2023 Mayoral race is officially underway. The first challenger to Mike Spano, Reverend Margaret Coleman, announced on January 15th. Other challengers are expected to announce soon. But, will these challengers – despite their talent, experience, or resources – be enough to overcome the three-term mayor intent on never retiring?
The difficulty in unseating incumbents is at the heart of this lawsuit. The plaintiffs and mayoral candidates must be hoping this difficulty can be overcome by a court’s order to adhere to the Yonkers’ charter and thus remove the incumbent from qualification entirely.
