ML20134H340

Forwards Clear Copy of Appellate Div Decision Previously Submitted w/850816 Ltr

ML20134H340
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/23/1985
From:	Kelley E SUFFOLK COUNTY, NY
To:	Palladino N NRC COMMISSION (OCM)
References
CON-#385-357 OL, OL-3, OL-4, NUDOCS 8508280375
Download: ML20134H340 (3)

Text

/;,

DCCKET NUMBER PROD.G UTIL FAC.,M- --

. . COUNTY OF SUFFOLK g._jg d4 8 oouago 672- B A N (t ws m.a:

%g#

,, .o

'85 AUG 26 P1 :10 PETER F. COHALAN SUFFOLK COUNTY EXECUTIVE GFFlh J- L ,.,,

• "*"" $ . AkhMENT OF LAW CEu$^5NORhEy ADDRESS ALL COMMUNICATIONS IN THIS M ATTER TO:

August 23, 1985 Chairman Nunzio J. Palladino United States Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

Dear Sir:

It has been called to our attention that the copy of the Appellate Division decision attached to our letter of August 16, 1985, is not very clear. Accordingly, we are forwarding another copy to all parties on the Service List.

Thank you for your consideration.

Very truly yours, MARTIN BRADLEY ASHARE Suffolk County Attorney ,

By: ' h bkr ~v'

)l Eugene R! Kelley Chief Deauty County Atto n

ERK:rq Enclosure Copies: Service List 8508280375 850823 2 PDR ADOCK 0500 G

VETERANS MEMORI AL MiGNWAY e HAUPPAUGE. NEW YORK 1178e e (5163 360-4049 35o3

Q[] g Purpose. Thb budgIt appropriiti:n was subsequintly incrxased 15 cv;r $6.000.000.

Thi petiti:nirs contind thit tni trrme nition of Kirkpitrick a Iockhirt's ser-On May 30.1985 without prior legista. vices by respondent Cohalan, without pri-tive approval, respondent Cohalan issued or legislative approval, was in excess of

@M[k)))6{l(

Executive Order 1 1985 which provided, in his authority and constitutes an attempt

. A Pertinent part, that the county's Commis. by respondent Cohalan to " enforce. Imple-stoner of Police and its planning depart ment and carry out" the policies and di-ment were to "use whatever resources . rections of his illegal executive order in

• f ares necessary in order to complete a violation of Justice Doyle's judgment. We review and evaluation" of a local emer, do not agree and. accordingly, affirm Spe.

'#"#7 "8Ponse plan for the Shoreham fa- cial Term's judgment dismissing the AI*I'ELLATE DIVISION cility and to " carry out and cause to be application.

By Mollen. PJ.: Brown, completed a test and exercise" of said Under the statutory framework estab-Weinstein, Rubin and , Lawrence. JJ. .

plan. Following respondent Cohalan's 1s- lished by the Suffolk County Charter, the MATTER OF PROSPECT, et al, ap; suance of that order, the petitioners here- County Attorney, who is appointed, by the Kirkpatrick & lockhart, pet (Cohalan, in t severall individual Suffolk County leg. County Executive subject to legislative rest-in consolidated proceedings pursu. Islators and four Suffolk County townst approval,is designated as the head of the ant to CPLR article 78. Inter alla, seeking challenged its validity on the basis that county's department of law (Suffolk Coun-ty Charter g 1501) and is vested with the /

(1) to prohibit respondent Peter F. Coha. respondent Cohalan exceeded his author.

lan, the County Executive of the County of ity under Executive Law article 2-B and authonty to " prosecute and defend all civ-Suffo6c, and his agents from terminating County Law y 153. as well as the Suffolk 11 actions and proceedings brought by or the services of the law firm of Kirkpatrick County Charter. By judgment dated June against the county" (Suffolk County g

& Lockhart on behalf of the County of 10.1985, Special Term (Doyle. J.) annulled Charter $ 1502; see also. County Law j g l)

Suffolk, and (2) to enjoin respondent Co. Executive Order 11985 and enjoined re- 501l10. Section 1501 of the charter further s Provides that "tw)lthin the appropria-halan and his agents from interfering with the continued representation of the spondent Cohalan. his agents and employ.

ces from taking "andy action whatsoever tions thmfu and Wn nMonM h &  %'

county by said firm, petitiners appeal as to enforce. Implement of carry out the di- C unty Executire, the county attorney limited by their briefs, from so much of a rections, policies or terms" of said order may employ such special counsel as may s 3\

judgment of the Supreme Court. Suffolk Special Term's judgment was subsequent: be nece8sary" temPhasis suppliedL More- \

over County Law g 501(1), governing the County (Brown. J.). dated July 31.4985.as dismissed an application to enforce a prl-ly affirmed by this court and by the Court of Appeals (Matter of Prospect v. Coha- gennal grana of p wu to a canty anon /j s or judgment of the same court (Doyle,J.), lan. AD2d -- [ June 24,1985k affd -- ney. Provides, inter alla, that "(wlithin s dated June 10. 1985. NY2d - (July 9.1985p, the limits of the appropriation, the county x Judgment affirmed insofar as appealed Immediately prior to the commence- attorney may employ counsel to assist in V_

from, without costs or disbursements. ment of the proceedings challenging the any civil action or proceeding brought by j \

Oral applications by appellants for validity of Executive Order 11985 respon- w against tM cen4 leave to appeal to the Court of Appeals dent Cohalan, by letter dated June 3,1985 The Suffolk County Charter provisions granted. Questions of law have arisen informed Kirkpatrick & IAckhart that unequ ocaHy estam mat tM &cm which in our opinion ought to be reviewed. tknary adoW to h eth cenM .-

p Pursuant to the terms of the retainer " * " " " \

The instant proceedings involve a chal- agreement, he was terminating the firm's '

tenge to the validity of the actions of re- services on behalf of the county. Follow- the County Attorney and the County Exec- d spondent Peter F. Cohalan, the County ing Special Term's annulment of the exec- utive. Furthermore, implicit in the power hire or appoint is the powert to termi- } )

Executive of Suffolk County (Cohalan) in utive order on June 10. 1985 respondent terminating, without prior legislative ap- Cohalan and the Suffolk County Attorney "" "#" ##' *# "#

proval the services of the Washington. * #

Martin Ashare, again contacted Kirkpat- App Div 637,b.,176an. N'Y 573; Bosco v.

D.C. law firm of Kirkpatrick & lockhart rack & I4ckhart by separate letters dated which had been assisting the County At.

torney in the legal representation of the June 19.1985 to reiterate that the firm's services were no longer required to assist

" I " #' '

N ]N County of Suffolk in administrative pro. in the county's representation In the Shor- onte 120 11 c d 0 . 1054 af 10 <

ceedings before the Nuclear Regulatory cham related peoceedings. In his June Commission, as well as in v arious judicial er. espondent Cohalan empha' County or th Suffolk Co n arte s prior termination letter of requires that the dismissal of the county's proceedings. in connection with the Shore. special counsel be approved by the County ham nuclear power facility. Kirkpatrick . was not in any way related to Legislative.

& Lockhartagreement had been retained pursuant.k. Petitioners' suggestion that the Legista-a written dated February -

his executive order but rather was based ture's Resolution No. 43-1982 constitutes a 1982 which was executed by respondent on a determination by the County Attor- limitation on the executive branch's dis-Cohalan on behalf of the county, and ney that the firm's assistance was no cretionary authority to discharge Kirk-which, according to its terms, could be ' longer necessary, patrick & Lockhart is without merit. The terminated by either party upon 30-days --.'

resolution was merely a budgetary appro-notice. lmmediately prior to the execution priation permitting respondent Cohalan of that ageement, the Suffolk County Leg- to hire appropriate legal counsel on behalf islature adopted Resolution No. 43 1983 of the county to assist the County Attor-which ** authorized" respondent Cohalan ney in Shoreham related proceedings.

to hire appropriate technical engineers The resolution did not mandate that the and legal counsel to assist the county at- Legislature approve the hiring or firing of torney in the various proceedings involv- such legal counsel. Parenthetically, it is ing the Shoreham facility and appropriat- noted that the county's retainer agree-cd the sum of $500.000 for that specifle ment with Kirkpatrick does not provide that the firm's discharge be contingent upon a legislative act.

4 4

. . - _ _.c.-,.....

! *Accordingly,it is clear that respondent Finally, we note that contrary to pett-Cohalan, acting with the County Attorney tieners' argument, the terms of Justice

.' and in accordance with the provtsions of the retainer agreement, did not exceed his Doyle's judgment of June 10,1988 did not prohibit or limit . .' t Cohalan's authority in discharging Kirkpatrick & discretionary authority to terminate the teckhart without legislative approval. In services of Kirkpatrick & IAckhart as the

• the absence of any evidence to establish county's odh legal counsel. la fLet, on j fraud or corruption,it is beyond the realm

of judicial review to conduct an inquiry the prior legal frem Justice Doyle 2 judg-into respondent Cohalan's motives for ex- ment, this court, in a decision dated June ercising that autgority tsee 2 McQuillin, 19,1986 denying a motion by certain.of the 1

Municipal Corporations gg 10.35, 10.38 petitioners for vacatur of a statutory stay, ,

10.37 [2d edp.This point was recently dis- noted that the issue of Kirkpatrick &

cussed in the case of Matter of New York Ieckhart's status as the county's legal representative could not t

• resolved la State Inspection. Security & Law Enforce

• ment Employees. Dist. Council 82, that appeat In that dv.aca, this court AFSCME, AF1,CIO v. Cuomo (64 NY 2d expressly stated:

233, 239), in which the Court of Appeals "the istses of who should properly repre-stated: sent the Conniy of Suffolk a related met-

"The lawful acts of executive branch of- ters isvolving the Shoreham Nuciser Pow-fleials, performed in satisfactica of re- er Pfant and the statas, if any, in these .-

, sponsibilities conferred by law, involve related matters of the law firm of Kirk-questions of judgment, allocation of re- patrick 4 Lockhart, were not erpued be-sources and ordering of priorities, which fore Special Term and were not deter-j are generally not subject to judicial re- mined in the subject badgment, and we view * *

• This judicial deference to a deem it Inappropriate, under the circum-coordinate, coequal branch of government stances, particusarly la the absence of a  !

Includes one issue of justiciability gener- complete record with respect tisereto, to

• ally denominated as the

• litical ques- decide the,s, e issues on the appeal from the

" *

• gg  ;

i f2d e1 A ngly al erma judgment '

Thus, we rejec't petitioners

• argument dismissing the application must be af-that the court must annul and set aside firmed. Since the issue is not before us, we

' respondent Cohalan's termination of Kirk. do not address the question as to whether I

patrick & Iockhart's services on the basis the County lagtslature has the right to that his actions were purportedly the re. retain special counsel in appropriate sult of that firm's refusal to advocate the circumstances.

policy enunciated under s , ' tCoha-i i

lan's Executive Order 11985 rather than a reasoned decision by respondent Cohalan +

l and the County Attorney that the firm's

• 1

' services were no longer necessary. Such a result would necessarily contravene the i

i

" fundamental principle of the organic law '

that each department of government i should be free from interference, in the i lawful discharge of duties expressly con-ferred, by either of the other branches" l tsee, Matter of New York State lasp tion Security & Law Enforcement sm-ployees, Dist. Council 82, AFSCME, AFI, j CIO, v. Cuomo, supra, at p 230).

3 1

f 1

s 1

e i

.__