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Nassau litigation policy draws criticism

Newly appointed Nassau County Attorney Carnell Foskey in

Newly appointed Nassau County Attorney Carnell Foskey in Mineola on Jan. 29, 2014. Credit: Newsday / Audrey C. Tiernan

The recent dismissal of a constitutional challenge by Nassau County to the MTA payroll tax represents the latest in a string of high-profile defeats for a county legal operation that experts describe as "unconventional" for its penchant for playing offense, not just defense.

Since County Executive Edward Mangano took office in 2010, Nassau has waged unsuccessful legal battles against electronic voting machines and actions of the county's financial control board.

Many of the suits were filed under former County Attorney John Ciampoli, and his successor, Carnell Foskey, says he also may pursue suits on major issues. Nassau's record of filing such lawsuits departs from the traditional role of county attorneys, who focus primarily on defending municipalities in cases involving accidents on county property and other issues, said Rick Su, a professor at University at Buffalo Law School.

"It's very unconventional for county attorneys to play a proactive role in initiating litigation," said Su, who specializes in municipal law. "County attorneys tend to take a defensive role, mainly focusing on protecting the county from lawsuits. They tend to be defensive, not affirmative."

Nassau has initiated and lost or later withdrawn at least a half-dozen lawsuits in state courts in the past four years.

In 2010, the county filed suit to repeal the payroll tax paid by employers in the 12-county region served by the Metropolitan Transportation Authority. The MTA operates the Long Island Rail Road, Metro-North and other transit agencies.


'Substantial state concern'

Nassau called the tax unconstitutional because it changed the tax policies of individual municipalities for a purpose that didn't benefit the entire state. A trial court ruled for Nassau. But the Appellate Division ruled that the tax served a "substantial state concern. As such it was not unconstitutionally passed."

On Jan. 10, the state's highest court, the Court of Appeals in Albany, declined to hear the case.

Nassau launched two lawsuits against the Nassau Interim Finance Authority, a state monitoring board that controls county finances. In February 2011, the county sued to repeal the board's decision to take over the county's finances, but a month later withdrew the suit at Mangano's request. NIFA's chairman had asked Mangano to drop the lawsuit, saying the monitoring board had spent $418,000 in legal fees to defend itself.

In April, Nassau sued to overturn a NIFA decision barring a county plan to sell $21 million in property tax refunds to private investors. The investors would have paid taxpayers their full refunds, with Nassau repaying them over seven years at 5.95 percent interest. A State Supreme Court justice dismissed the suit, ruling the county failed to show that NIFA exceeded its authority.

In April 2010, Nassau sued to eliminate the use of electronic voting machines, arguing they violated the state constitution because they threatened to disenfranchise voters due to their "unreliability" and security glitches. In March, the Court of Appeals refused to hear the case after a lower court ruled the county lacked standing to sue the state over the machines.

Ciampoli, a Republican elections lawyer whom Mangano hired after taking office in 2010, was ousted by Mangano in November. Mangano, who said the decision was part of overall leadership changes following his re-election, named Foskey to replace him. Foskey, 57, of West Hempstead, is a former county parks commissioner and Nassau Family Court judge.

Ciampoli, now an attorney for Senate Republicans, said his record of suing over policy issues was evidence of his thinking "outside of the box" to resolve county issues.

"I believe that very often you have to take on cases where the odds might be against you," Ciampoli said in an interview. "Where the rest of the world may look at me and say 'You have no chance of winning the MTA case,' I say 'It's better to do something than to acquiesce.' "


'Affirmative litigation'

Lawsuits Foskey has inherited from Ciampoli include a lawsuit in Supreme Court that seeks to repeal the requirement that Nassau pay property tax refunds on behalf of towns and school districts. Nassau is challenging an appellate decision last February that Nassau's repeal of the "county guarantee" violated the state constitution and state municipal Home Rule law, which limits counties' power to enact laws involving taxation.

Foskey said in an interview that the county attorney's job calls both for "defensive positions" and "affirmative litigation."

"If there is something going on in the county that has an adverse impact on the residents or county agencies, it's important to be a visionary and actually bring affirmative litigation to correct something," Foskey said.

He declined to discuss issues he would tackle through the courts, but said he would consult with Mangano before filing any major lawsuits.

Edward McCabe, a retired Supreme Court justice who served as Nassau County attorney in the 1980s under GOP County Executive Francis Purcell, said he didn't commonly sue other state agencies.

"I was the guy holding up the shield," McCabe said. "Most of the cases we dealt with at the time were defending the county against lawsuits."


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