Make Public Officials Obey The Law
Please take a few seconds to do this.
The petition, together with relevant documents
Thanks!
Also: June Maxam heads to court:
PRESS RELEASE
July 25, 2003
Contact:
June Maxam
(518) 494-4421
JUDICIAL – COUNTY CLERKS OFFICIALS HEAD TO COURT
The Warren County Clerk herself will be in court to explain why she has allegedly not performed her duties in relation to the alleged vacancy in the office of sheriff for his failure to timely file an undertaking, a bond which guarantees that he will faithfully discharge his duties.
June Maxam, editor/publisher of The North Country Gazette, a newspaper published in Chestertown, has filed a special proceeding in the state Supreme Court of Warren County to compel the town clerks in the towns of Chester, Queensbury and Johnsburg to recognize the existing vacancies in the office of town justice in their respective towns, and to take the statutory steps in Town Law to declare the vacancies and fill them at the next election.
“Ignorance of the law is no excuse”, Maxam said. “These people who have been playing judge have failed to comply with the NYS Constitution and the laws of our state. They have violated the public trust, they have failed to file their solemn promise that they will uphold the Constitutions and state law and by doing so, they themselves have violated the law. We can’t have these people sitting in judgment of others when they aren’t in compliance with our laws themselves. It’s pure hypocrisy”.
The lawsuit also seeks a judicial order for the justices to return the compensation to their town’s taxpayers that they allegedly unlawfully collected while not legally in office and for the county sheriff to reimburse county taxpayers for some $750,000 in compensation over the past 10 years it appears he has not been in compliance with the law. “Even the sheriff has to comply with the law”, Maxam said. According to the New York State Constitution as well as state statutes including the Uniform Justice Court Act, all town, village and city justices must take and file both their oaths of office and a bond in the office of county clerk within 30 days of the commencement of their term. If they do not, the law emphatically states that the justice has vacated his office ipso facto -by the fact itself. No judicial proceeding is necessary, no notice is necessary. The courts have consistently held it is not a mere technicality, there can be no excuses and there is no remedy under the law. There can be no belated filings. The positions are vacant.
Maxam said that according to Town Law, the town clerk is required to notify the governing body of the municipality of the vacancy. The town board can fill the vacancy by appointment only until the next election when the rest of the unexpired term of the justice will be filled by the voters.
The justices whose title to office has been challenged due to their neglect to file their oaths are James McDermott of the Town of Chester, James French and Ralph Dubay of the town of Johnsburg, and Michael Muller and Robert McNally of the town of Queensbury.
According to information obtained under the Freedom of Information Law, Maxam stated that the office of sheriff is also vacant as it appears that Larry J. Cleveland, who was elected sheriff in 1999, has never filed his surety bond in the office of the county clerk as required Such a bond is a three-party contract issued by a surety which guarantees the performance of the principal. If a bonded principal fails to complete an agreed-upon obligation within the specified time, the surety will do so for him and then collect from the principal. Maxam said, “the law states that the officer may not collect money or property until and unless he files an undertaking.”
The law is emphatic that the would be sheriff cannot perform the duties of the office or collect compensation until he files his bond that guarantees the faithful performance of his duties, Maxam further explained, according to the county clerk, Cleveland has never filed an undertaking since being elected sheriff in 1999. The clerk has also stated that although Cleveland claimed to be undersheriff from 1994 until his appointment as sheriff in 1999, he never filed either his oath or undertaking in the county clerk’s office as required. If a public officer fails to file his oath of office within 30 days of the commencement of his term, he has vacated the office, the courts have consistently held.
Maxam is seeking to compel the county clerk to declare the office of sheriff vacant as required by law and to make the proper notification to the Governor for appointment to fill the vacancy until the next election. Cleveland is seeking reelection this fall in a hotly contested race, being challenged by two former sheriff’s department officers who were forced by Cleveland to resign their positions in order to challenge Cleveland.
Case law on the subject has held that “this statute is emphatic and unequivocal. It does not seem possible that it could be misunderstood. In case a person is appointed to office neglects to file his official oath within 30 days after the commencement of the term of office, the office becomes vacant ipso facto, that is all there is to it, no judicial proceeding is necessary, no notice is necessary, nothing is necessary. The office is vacant as much as though the appointee were dead. There is no incumbent and the vacancy maybe filed by the proper appointive power”.
will be hand delivered to NYS AG Spitzer.
FOR IMMEDIATE RELEASE
No Oath, No Bond, No Office!
Three towns in Warren County, NY will be heading to court in the near future about the vacancies that exist in their justice courts as a result of five town justices failing to timely file their oaths of office with the county clerk.