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Injunction Denied,
But Case Continues

By Matt Youngfrau
MONTICELLO — December 31, 2002 – A temporary injunction to prevent the termination of two senior clerks in the Sullivan County Board of Elections Office was denied Friday by Sullivan County Judge and Surrogate Burton Ledina.
However, the case will move forward, and the assigned judge will hear arguments on Friday, January 17.
Board of Elections Democratic Commissioner Tim Hill brought the lawsuit because he felt the county legislature’s actions to cut the positions held by Republican Debra Gabriel and Democrat Mary Jo Oppenheim were improper and exceeded legislators’ authority. Hill was aiming for the jobs to be restored, but until the case could be heard, Hill and his attorney, Perry Meltzer, were seeking the injunction to prevent the layoffs.
Meltzer and Hill pleaded their case in front of Ledina Friday morning. Representing the county were County Attorney Ira Cohen, Deputy County Attorney Cheryl McCausland, and Assistant County Attorney Lynda Levine.
Ledina began the proceedings by asking Cohen why he should not allow the Temporary Restraining Order (TRO). Cohen said he was unclear after reading Meltzer’s papers about what kind of proceeding Meltzer was pursuing. With Ledina’s and Meltzer’s approval, it was treated as an Article 78 proceeding (a lawsuit to reverse an action).
Both attorneys presented their arguments on whether the case should continue and the merits of such action.
“The two positions are still in the budget. However, there is no funding in that line,” Cohen explained. “The legislature should be the final determiner of policy. They have the power to establish and abolish positions. They can do that by local law, resolution, or adoption of budget.
“This action cannot be successful on its merits,” Cohen continued. “All actions of the Board of Elections require a majority agreement. Mr. Hill asked the Republican Commissioner, Fran Thalmann, to join him in this suit. I understand she refused to participate. He has no right to bring this suit by himself. It has to be unanimous.”
Ledina asked if a citizen could bring a similar suit.
“That is right. Mr. Hill could bring it as a private citizen but not as the Election Commissioner,” Cohen responded. “He has no right to do so. Every appointment is twofold. He can’t represent both. He also cannot look for reinstatement with the absence of Mrs. Thalmann.”
Then it was Meltzer’s turn. He pointed out similar cases where the positions were restored. Meltzer also defined and explained the election law.
“They have the right to hire and fire within the election Board,” Meltzer said. “They [the two clerks] have civil service status. The positions still exist. It is the government’s obligation to pay in the framework of the budget.”
Meltzer indicated the two clerks could show up and continue to work after the first of the year. If they did not get paid, Meltzer suggested the two clerks could take further legal action.
“The legislature is obligated to fund the positions,” stated Meltzer. “They will litigate if there is no paycheck after the first one in 2003. The positions already exist and will continue to do so. We are not talking about creating new positions.”
Ledina asked what effects the layoffs will have on the office. Meltzer cited a heavy workload, between redistricting and countywide legislative elections next November.
“Without those two employees, it will be more difficult,” remarked Meltzer. “They do the majority of the work. The office has an obligation to do the job. They cannot do it without these two employees.”
Cohen asked for the opportunity to provide a written answer to the Article 78. Ledina gave him until January 10 to do so. The two sides will be back in court, Friday, January 17 at 9:30 a.m.
Afterwards, both sides offered their thoughts.
“The case will be heard in the future,” Hill commented. “Until then, the political hatchet job will continue.”
“I find that we will likely be successful,” Cohen said cautiously. “There was an inference that there was no irreparable harm.”

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