NUMC leadership may hinge on arcane oath of office law

                                                                                   

Matthew Bruderman and Bruce Blakeman (from Globe News Wire)

Nassau Republican County Executive Bruce Blakeman appears to be paying no attention to a court ruling that voided his appointment of a new chairman for the Nassau University Medical Center and restored an eleventh-hour appointment to the hospital board by outgoing Democratic County Executive Laura Curran.

Blakeman sent out an alert today that he will be holding a news conference Monday with firefighters, police and community members to oppose a Democratic proposal to put the East Meadow hospital under state control. 

Present at the news conference, he said, will be "NuHealth Chairman Matthew Bruderman."

NuHealth is the shorthand name of the Nassau Health Care Corporation, the public benefit corporation that has run the medical center and related facilities since 1999.

Former Nassau Democratic legislator David Mejias successfully argued in court last week that lawyer Ann Kayman was lawfully appointed by Curran on Dec. 17  to the 15-member board, filling a seat that had been held by Republican Warren Zysman. 

But Blakeman contended Curran did not have the authority to fill the seat because Zysman's term was not up. He appointed Brudeman to the board and named him chairman in early March.

Supreme Court Justice Randy Sue Marber, a Democrat cross-endorsed for re-election in 2020, agreed with Mejias. She issued a temporarly restraining order that found Kayman had been properly appointed and directing that Bruderman was "enjoined, restrained and prohibited" from serving on the board until full arguments can be heard on April 18.

An appellate court judge subsequently upheld Marber's order.

She did not prohibit Blakeman, or the legislature, from replacing a sitting board Republican with Bruderman.

So, the Republican-controlled county legislature will appoint Bruderman, a Centre Island financial adviser and GOP contributor, to the NuHealth board on Friday. Bruderman would replace holdover Linda Reed, a former member of the Republican-controlled Hempstead Town Board. Then, arguably, Blakeman can name Bruderman chairman, demoting Curran's chairman Edward Farbenblum to board member.

The legal fight over these appointments may turn on an arcane state law regarding oath-of-office cards.

How and when these cards were filed may decide if Kayman or Bruderman is entitled to be seated and could even determine whether the other 14 voting member board seats are legally occupied or deemed vacant by law.

Never heard of oath-of-office cards?

Then you weren't around in the early days of the Nassau legislature when a Democratic legislative staffer filed the oath-of-office cards for his elected lawmakers late with the county clerk.

According to state law, officials have to sign an oath card and file the cards with the appropriate authority within 30 days of taking office.

Otherwise, the office is automatically vacated.

Here is an explanation of the law from the secretary of state website:

"An oath of office for an elective office must be taken and filed before or within thirty days after the commencement of the term of office.  An oath of office for an appointive office must be taken and filed within thirty days after notice of his or her appointment or within thirty days after the commencement of his or her term of office."

Notice that it applies to both appointed and elected officials.

"Public Officers Law Section 30 provides that the office of a public officer becomes vacant when the public officer refuses or neglects to take and file his or her oath of office within the time required by law.  Therefore, it is of particular importance that public officers take and file their oath of office within the time permitted by law," the secretary of state website continues.

Okay. this means within 30 days after a term commences, the appointed or elected officer must sign an oath card and file it with the appropriate agency.

The Nassau legislative staffer correctly filed the oaths with the county clerk. But he didn't file them within the 30-day time period.

The staffer was fired.

At the time it didn't seem conceivable that legislators elected in a valid election could be thrown out of office because of a mistake by a staff member. 

But the question was never tested in court. Republicans did not challenge the right of Democratic lawmakers to hold office. And the lawmakers simply signed new oath cards, filed them with the clerk and nothing more happened.

Precedent in lower level cases, including school board members and judges, have found the elected offices to be vacated because of the failure to file in a timely manner with the appropriate agency.

Meanwhile, the staffer went on to become a legislator himself and an elected official in the Town of North Hempstead. Presumably, he learned to file his own oath of office card in a timely appropriate manner.

But there is another catch to the law besides timeliness. The oath cards must be filed with the appropriate agency.

NUMC is a public benefit corporation. It is a considered a state agency. So, some argue, that oath of office cards must be filed with the secretary of state.

County elected and appointed officials must be filed with the county clerk.

Here comes the nitpicking oath-of-office questions.

Kayman was appointed by Curran on Dec. 17. But she did not sign her oath of office card until Feb. 3, and mailed it to the county clerk on Feb. 4 -- way past the 30-day time limit. 

By law Kayman signed it too late. A weaker argument is that she wrongly submitted it to the county clerk rather than the secretary of state -- even though she was appointed by the county executive.

When this blog asked the county clerk's office in January about two other appointments to NUMC --  made by the governor in late December on Curran's recommendation -- the county clerk directed inquiries to the state.

Now let's look at Warren Zysman.

Yes, as Mejias argues in his court papers, former Republican County Executive Ed Mangano appointed Zysman to the NuHealth Board in 2014.

NuHealth board members have five years terms, so his term was up at the end of 2019.

But here's the problem. His oath card was submitted to the county clerk, not the secretary of state.

John Ciampoli, who was counsel to the NUMC Board in 2017, told Mangano he had to reappoint Zysman so that he could submit his oath of office card to the secretary of state.

Mangano reappointed Zysman in 2017. 

Mejias argues that Mangano did not have the authority to reappoint Zysman in the middle of his term, but Ciampoli argues that the seat was legally vacant because the oath of office card was not properly filed.

A 2017 appointment could mean that that Zysman's term would expire in five years-- at the end of 2021 -- some two weeks after Curran appointed Kayman. 

But the argument also can be made that Mangano in 2017 only could appoint Zysman to fill out the term that began in 2014; ie, Zysman could only serve through 2019 anyway.

However, this could all be moot because it is not clear that  Zysman filed his oath card with the secretary of state within 30 days of appointment in 2017.

Talk about messy.

And what's the story with the board's other 14 voting members. Where and when did they file their oath of office cards?

Finally, if a lowly legislative staffer can be fired for submitting oath cards late, who at NuHealth was responsible for making sure appointee oath cards are signed and submitted to the appropriate authority within 30 days?