COVENTRY – Grievance Day went on as usual Tuesday in Coventry, despite the efforts of Town Supervisor John Phelan to remove the two most senior members of the town’s Board of Assessment Review just moments before proceedings were scheduled to begin.
At 1:55 p.m. – five minutes before the five-member board was scheduled to begin hearing grievances from Coventry taxpayers about their property tax assessments – Oscar Lerwick and Wilbur Day were handed letters by Phelan notifying the men they were being placed on administrative leave, effective immediately.
“You have been removed from the board,” Phelan told the two. He offered no explanation why the action was being taken, saying he could not comment because it was a personnel issue.
Lerwick and Day, however, did not comply with Phelan’s directive.
“We have terms to serve and we’re going to do it,” said Lerwick, who said the supervisor had no power to remove him or his colleague, asking to see “the law” which allowed Phelan to take such action.
Phelan responded by demanding to see Lerwick’s proof that he did not have the authority. The verbal sparring continued until the supervisor threatened to have both men removed by the Chenango County Sheriff’s Office and left the room.
In his absence, the board organized itself, elected a chair and prepared to hear grievances. Phelan returned a few minutes later with Sheriff’s Deputy Ron Swislosky. Swislosky asked to speak to Lerwick and Day outside, but made it clear the two would be allowed to re-enter the building after the discussion. According to the deputy, he had no grounds to remove the men unless there was a “physical altercation” of some kind.
While they were outside, Phelan tried to persuade the three remaining members of the board – Donna Commesso, Scott Pornbeck and Jim Vance – to proceed without Lerwick and Day.
Commesso, who had been elected chair, declined.
Pornbeck questioned Phelan’s reasons for waiting until the last minute to serve the suspension and accused the supervisor of wasting the time of both the review board and Coventry taxpayers who were there to grieve their assessments.
Phelan apologized for the disruption, but said if Lerwick and Day insisted on sitting on the board, the proceedings would be called off, statements taken and charges filed.
When the two men did return, however, nothing happened. They assumed their seats on the board and began to conduct business.
Phelan said that “out of respect for the taxpayers” he would “allow” it to continue and “let the lawyers sort it out later.”
This was not the first time the supervisor has butted heads with Lerwick and Day. Phelan first called for the town board to remove them from their appointed positions and replace them with two other individuals seven months ago. According to the official minutes of the Oct. 13, 2010 meeting, Councilman Harvey Fletcher questioned the legality of the move. Phelan insisted it was legal. The board approved the motion at the time, with Fletcher dissenting. Since that time, both sides have sought legal counsel on the matter.
Yesterday, Phelan called a special meeting at 1 p.m., an hour prior to the start of the grievance proceedings. Minutes after the meeting was called to order, the board went into executive session. When they returned, Phelan called for a motion to place the two most senior members of the Board of Assessment Review (BAR) on administrative leave effective immediately.
Councilmen George Broeg made the motion, which was seconded by Bob Boudreau. Fletcher, who had open heart surgery last week, was absent from the meeting, but Councilwoman Marion Ireland raised her own objections, both about the legality of removing the men and the allegations against them.
“I have not seen anything in writing,” protested Ireland. “Just hearsay.”
Phelan insisted he had not seen any law which said he could not remove members of the BAR before their 5-year term is up. But according to the New York State Office of Real Property Tax Services, a division of the New York State Department of Taxation and Finance, a town board cannot simply remove an appointed officer.
Opinions of Counsel which accompany section 1524 of New York State’s Real Property Tax Law cites a Suffolk County Supreme Court case, Galli v. Barnett, regarding removal of BAR members from their appointed positions.
“[M]embers of a board of assessment review cannot be removed from office prior to the expiration of their term of office except for incompetency or misconduct shown after a hearing upon stated charges pursuant to section 75 of the Civil Service Law,” states the opinion, which was provided to The Evening Sun by ORPTS.