MAYVILLE - Work which was being done to try to downsize the County Legislature came to a halt Monday.
Minority Leader Rudy Mueller, D-Lakewood, instructed the county attorney to cease legal work being done for the plan which was passed Saturday.
Mueller has the ability to instruct the county attorney on the matter because of his position on the reapportionment commission.
"He has the power to do that through our county charter," said Legislature Chairman Fred Croscut, R-Sherman. "Our charter says that we have to vote, No. 1, as a commission to forward this to the legislature."
In conversation with The Post-Journal on Monday, Mueller said that the plan which was approved Saturday is far less of a bipartisan effort than Croscut made it out to be. Chief among Mueller's problems with the plan is that it does not follow portions of the municipal home rule law.
See DOWNSIZING, Page A-3
Members of the county’s reapportionment commission work with the Republican-hired consultant in this photo from Saturday’s meeting.
P-J photo by Nicholas L. Dean
From Page A-1
"Basically, you don't want a district that's more than 10 percent larger than the smallest," Mueller said. "That's the first rule. And then the second rule is not to break up towns that are less than 110 percent. And they do that. They do that to Westfield, Chautauqua, Carroll and Busti. That's the second priority. That's even a higher priority than being contiguous or compact."
Mueller continued on to say that he has a plan for 19 districts which does not break up any towns which are less than 110 percent.
What follows is the applicable priority of criteria for districts from Section 10 of Municipal Home Rule Law:
A plan of apportionment adopted under this subparagraph shall comply with the following standards, which shall have priority in the order herein set forth, to the extent applicable:
1. The plan shall provide substantially equal weight for the population of that local government in the allocation of representation in the local legislative body.
2. In such plan adopted by a county, no town except a town having more than one hundred and ten per cent of a full ratio for each representative, shall be divided in the formation of representation areas. Adjacent representation areas in the same town or city shall not contain a greater excess in population than five per cent of a full ratio for each representative.
3. The plan shall provide substantially fair and effective representation for the people of the local government as organized in political parties.
4. Representation areas shall be of convenient and contiguous territory in as compact form as practicable.
"It was pretty easy to do," Mueller said. "It works out really well."
Mueller raised the concern Saturday, but was told by Republicans that the county's reapportionment plan does not have to follow the municipal home rule law.
"The League of Women Voters sued Westchester County in 1994 over this same issue when they redistricted Westchester County," said Majority Leader Larry Barmore, R-Gerry. "The state court ruled that 'one vote, one person' overruled any type of home rule legislation."
Barmore continued on at the meeting to say that if a county is chartered, municipal home rule law does not take precedence over "one resident, one vote" - that the court has ruled the municipal home rule law "null and void."
Keeping the "one resident, one vote" rule was more important in the court's opinion, Barmore said, than the rule regarding not breaking up towns which are less than 110 percent.
Mueller then questioned County Attorney Steve Abdella on the issue.
"Traditionally, we have adopted plans pursuant to Section 10 (of the municipal home rule law)," Abdella said. "I'm aware of the decision that Mr. Barmore refers to. In this case, given the short time period in which you wish to adopt this change, including downsizing the legislature, I feel you really do need to use Section 10 in order to take advantage of the shorter 45-day petition period that's available. Otherwise, if we go it outside of municipal home rule 10, we're facing a longer petition period which would make it impossible to adopt this in the timeframe that we're trying to."
Abdella continued on to advise that, though Section 10 lists four criteria in order of priority, they are all supposed to be considered in the adoption of a plan.
"You don't just choose one and ignore others," he said.
Rudy Mueller wants the reapportionment commission to meet for a second time.
Mueller asked Saturday for a second meeting to be scheduled, proposing Tuesday, today, as a possible date.
Mueller said Monday that Republicans objected to holding a second meeting. It's for that reason, he said, that he worked Saturday with the Republicans and their consultant.
"I had four-and-a-half hours to make a decision on something that's going to happen for the next 10 years," Mueller said. "I asked Fred on that day whether we could have another meeting and he said 'no.' I want to downsize, so I said, 'yeah, let's move the process along. The attorney can start working on it.'
"We're asking the attorney to write a law that we know is not following the law," Mueller continued. "That's kind of like asking a physician to commit malpractice. I mean, look at the position he's being put in."
According to Fred Croscut, if Mueller wants the consultant hired by the Republicans to attend a second meeting of the reapportionment commission, someone is going to have to pay for it - and it's not going to be the county's Republican Committee or the legislature itself.
Additionally, Croscut said Monday that he offered to call a second meeting for Mueller if Mueller would only give County Attorney Steve Abdella the green light to continue working on the legal descriptions of the plan which was passed Saturday.
In order to downsize the County Legislature in time for the 2011 elections, the body has to pass a plan on April 20. In order for a plan to go to vote that night, the final, legal descriptions of all the new districts have to be mailed out to legislators on or before April 8. Legally defining the new districts is the work which was being done by the county attorney after Saturday's meeting until he was halted Monday.
So, according to Croscut, a meeting may happen and new districts may be drawn as a result of that meeting - though there are issues which need to be sorted out in order to get the members of the commission together.
Additionally, according to Croscut, if a meeting is held and a new plan is not approved, Croscut said Mueller told him he will again "call the deal off" and instruct Abdella to cease defining the districts which were approved by the commission Saturday.
"We can go outside and hire private counsel from somewhere to draw the boundaries," Croscut said. "That is okay to do that, but I don't know who that person would be. I'm just very, very concerned about having a meeting, so at this time I have not scheduled a meeting."
As of the 8 p.m. Monday night, no notice of a second meeting had been given to The Post-Journal.
"I am going to do my best because I know the people of Chautauqua County want this," Croscut said of downsizing. "I'm going to start to price a private counsel to draw the legal descriptions In other words, I'm not giving up and I'm not giving in, but I'm forced by what Dr. Mueller did this morning to do what I'm doing."
Croscut continued on to reiterate the points made Larry Barmore made Saturday.
"He keeps talking about municipal law, he keeps talking about gerrymandering districts," Croscut said, "but the 14th amendment of the U.S. Constitution says one man, one vote. That's the U.S. Constitution. Now, I know there have been court cases where the municipal law that Dr. Mueller references has been challenged in court. You will find that in every case, the U.S. Constitution was upheld with 'one man, one vote' over the municipal law.
"So at this point," Croscut continued, "as far as I'm concerned, Dr. Mueller is keeping us from proceeding with this and he, at this time, is preventing our County Legislature from being downsized. And that is awful. That is just terrible. It's just unfortunate. And it's unfortunate not only for me, but for the legislators looking forward to having a plan to vote on on the 20th. We're doing what we said we would do. We're giving the people of this county the opportunity to vote on a downsized legislature in this fall's election and to have Dr. Mueller throw a monkeywrench in it is unfortunate."
The details of the municipal home rule law can be found online with this article at www.post-journal.com. Also attached online with the story is a pdf of Mueller's initial 19-district proposal. For further coverage of Chautauqua County Government, including updates on reapportionment and the downsizing of the County Legislature, visit The Post-Journal's "Mayville Bureau Blog" online at www.post-journal.com.