Environmentalists cheered recently when the New York State Court of Appeals upheld a lower court ruling that former Suffolk County Executive Steve Levy had illegally raided $30 million from Suffolk’s landmark Drinking Water Protection Program to plug a hole in the county’s budget. They called the decision a victory for the environment and for an important legal principle.
“This is a huge win for taxpayers and for good government,” said Richard Amper, the Long Island Pine Barrens Society’s executive director.
The problem is that Suffolk County Executive Steve Bellone, a Democrat, has to restore the money his Republican predecessor raided just as he’s introducing his 2016 budget, which so far calls for no hike in the general fund property tax, which has been frozen since he took office four years ago, but does raise police district taxes for the fourth time in a row.
According to Bellone’s spokesman, Justin Meyers, the court decision “is not a budget buster in 2016,” because the county can pay the fund back over time, not in one fell swoop, at least that’s what the county executive is hoping to work out with the environmentalists once the details are ironed out in court.
What Bellone can’t do is bend the rules the way Levy did because the highest Court in New York State has affirmed that once the people have voted their preference in a public referendum, its stipulation can’t be arbitrarily nullified on a whim when the coffers run dry—or the budget falls short.
“The politicians can’t rewrite those laws or repeal them without going back to the public,” explained Paul Sabatino, one of the authors of more than two dozen public referenda in Suffolk County when he was the legislature’s counsel. The key legal principle, he explained, is the equivalency clause inserted in the referendum’s wording—a doctrine he introduced in 1983.
“The public’s right to determine the outcome of a public referendum was carefully calibrated,” Sabatino said.
In this case involving the water fund, Suffolk County voters agreed to tax themselves about $2.2 billion over 41 years and ensure that the money was allocated “according to a very specific formula,” he added. Explicitly part of the deal the public made by passing the referendum, Sabatino added, “was that nobody could come back and change that formula—or repeal it or modify it or whatever—without getting public approval.”
Cynicism may have been part of his reasoning for making the equivalency clause binding.
“I realized that you can’t trust the politicians,” Sabatino said. “They say one thing publicly and another thing privately.”
Ironically, by the time Sabatino left Suffolk County government, he was chief deputy to County Executive Steve Levy with whom, it’s fair to say, he did not always see eye to eye. As soon as Levy became county executive in 2004, Sabatino recently told the Press, he “started to argue that the referendum was non-binding,” and he eventually persuaded the legislature that he could “change the drinking water protection program…and simply redirect the ways the money was going to be spent.”
Apparently, Levy is still thinking that way, despite the Court of Appeals ruling on Aug. 27. In a letter he wrote to Newsday last week, the former county executive denied that the Suffolk water program was what Amper said it was: “Not true. It was a depository only for funds to stabilize sewer rates,” Levy wrote. “I discovered that the fund had been overtaxing the public for decades, leading to the point in which we had hundreds of millions of surplus dollars in the fund. So why not return at least part of that to the public as tax relief?”
Not surprisingly, the Pine Barrens’ Amper disagrees with Levy’s interpretation.
“Long Islanders are paying twice the national average in taxes but they always go to the polls to vote to give government more money if it’s for water protection,” said Amper. “The Levy administration raided $30 million from the Suffolk Drinking Water Protection Program, which was funded by a quarter of a penny sales tax that the public approved at referendum.”
Responding to Levy’s action, the Pine Barrens Society and the Environmental Voters Forum sued in New York State Supreme Court, saying that the government could not take money earmarked by the public for water and use it for the general fund. A lower court dismissed the case but the environmentalists appealed, citing the equivalency cause, and the Appellate Court sided with them unanimously. The Bellone administration, which took office in 2012, fought that ruling, first in the Appellate Division, and, when that effort failed, before the Court of Appeals, the state’s highest judicial body, which just recently declined to consider Suffolk’s motion. So now the county has to put $30 million back into water protection as it faces a structural deficit and a decline in sales tax revenue.
“Now it would be unfair to make Bellone responsible for Levy’s crime,” Amper told the Press, “so we need to sit down and agree upon the terms of the return of the money that Levy took with a more responsible Bellone administration.” The Pine Barrens Society will be joined by the Environmental Voters Forum in pressing for the fund’s full restitution before state Supreme Court Justice Joseph Farneti, who had sided against them in the first go-round.
Speaking for the Bellone administration, Meyers told the Press that “we’re on the same page” with the environmentalists because water protection is one of the county executive’s most important priorities, and they hope to come to a restitution agreement soon.
Sabatino, one of the three pro bono attorneys managing the litigation on behalf of the Pine Barrens—Jennifer Juengst and Regina Seltzer were the others—praised Amper for maintaining the integrity of the program created in 1987. It has been revised three times since then—all by public referendum.
“He made a lot of compromises over the years,” said Sabatino, referring to Amper. “I give him a lot of credit.”
The appreciation is mutual: The three attorneys will be honored for their public service work at the Pine Barrens Society’s 38th anniversary environmental awards gala in October.
“This is a really important principle,” Sabatino reiterated. “On Long Island the voters have gradually lost their right to elect judges, to elect county-wide officials, to elect local officials, because there’s either cross endorsements or non-aggression pacts that increasingly take away the public’s right to decide. I think this is a huge victory for voter participation at a time of limited voter opportunities.”
The Drinking Water Protection Program’s complicated details, for example, earmarking 11.75 percent for land, 25 percent for sewers, could boggle the layperson or the legislator perhaps, but Sabatino said the stipulations spelled out in the referendum had their purpose.
“Why go to the trouble to write in all these specific percentages if politicians could then wipe them off the face of the Earth with just about a roll of toilet paper?” he exclaimed.
As for the principle of using public referenda to resolve pressing issues facing New Yorkers, Sabatino acknowledged that Suffolk has “led the way” among the state’s counties.
“Nassau doesn’t know how to do it,” he said, chuckling as he recounted the “totally illegal” referendum Nassau County Executive Ed Mangano put together in the summer of 2011 to see if the residents would approve a $400 million bond to renovate the Coliseum and thereby keep Charles Wang’s New York Islanders playing there. Though the county spent an estimated $2 million to hold the vote on Aug. 1st—not to mention how much time and money the Long Island Federation of Labor deployed to get the word out on behalf of the building trade unions—it was resoundingly rejected, 56-43, as roughly 17 percent of the county’s eligible voters trekked to the polls.
But the effort was pointless, observed Sabatino, because the county executive’s administration had drafted an “advisory referendum” for the election, which, the Suffolk attorney said, “had absolutely no binding effect… Even if they [the voters] had adopted it, it would have been of no consequence.”
So while the ice has melted in Nassau—at least for the Islanders and their hockey fans here—money may soon start flowing back into Suffolk’s water protection fund, at least until the next budget freezes over.