Johnstown Water Board sues mayor

JOHNSTOWN — The Johnstown Water Board has sued the top two city government administrators, alleging various violations of provisions of the City Charter.

Albany attorney Bryan Goldberger — on behalf of the board and President Michael Capparello — on Dec. 30 filed the 53-page Article 78 proceeding against Johnstown Mayor Vern Jackson and City Treasurer Michael Gifford. The summons and civil complaint were filed in state Supreme Court in Johnstown. Goldberger also requested to be heard by the court Feb. 12 with a formal application.

Capparello didn’t return a phone call Friday seeking comment.

Jackson said Friday that both he and Gifford were “just served.” He would having nothing more to say about with what he said wasn’t an actual “lawsuit, per se.”

But the Article 78 complaint seeks various pieces of legal relief for the Water Board through four main causes of action. It seeks to have the court do eight main things: declare city government has failed to comply with the City Charter over Water Department matters; compel the city to return control of all Water Board assets, including NBT Bank accounts, to the board; stop interfering with Water Board operations; stop amending the Water Board’s operating budget; stop interfering with the Water Board’s employment “relationships;” award costs to the petitioner; award attorney’s fees to the petitioner; and grant any further relief the court deems proper.

In the first cause of action, the civil suit indicates that the city has frozen the Water Board’s bank accounts.

“Pursuant to the Charter, the Water Board has management and control of its own finances and, therefore, the Common Council does not have the management or control of the finances of the Water Department,” the complaint says.

The complaint notes that through an Aug. 29, 2020 letter, Gifford contacted NBT Bank — where the Water Department’s funds exist in two separate accounts — and requested he be the sole signatory. About five days later, he took control and removed Water Board members’ names from the accounts.

The second cause of action pertains to the longstanding issue of a water superintendent position, which the Water Department hasn’t had filled for two decades. The Water Board created the position on Feb. 1, 2020, hiring Dale Trumbull 10 days later. The complaint says the city immediately told the Water Board it didn’t have the authority to fill the position or amend its budget.

“The newly hired water superintendent was terminated by respondent city and escorted off city property by respondent Jackson and two police officers on or about Feb. 18, 2020,” the suit says. “Such action by respondent city was done at the direction of respondent Jackson and without the consent or approval of the Water Board.”

As a third action, the Water Board alleges city government has illegally modified the Water Board’s 2021 budget that it was developing.

“On or about Dec. 21, 2020, respondent city, through its Common Council, modified and-or amended the Water Board’s operating budget for the 2021 calendar year,” the complaint says.

Modifications, according to the lawsuit, included removing the salary of one heavy equipment operator, removing one machine equipment operator, and decreasing the salary of the water superintendent by $12,000 — all without Water Board permission. The council further modified the situation by moving funds into a reserve account, court papers said.

A fourth cause of action related to employment.

“Without the knowledge, consent or approval of the Water Board, respondents, at the direction of respondent Jackson, removed the Water Board from the [CSEA] collective bargaining agreement, and undertook the responsibilities of the water board as the employer of the Water Board’s employees,” the suit says.

The Water Board voted to hire Goldberger’s firm — Goldberger & Kremer — just before Article 78 proceeding was filed.

This is the latest chapter in ongoing issues between the Water Board and city government. City voters decided Nov. 3 by a narrow margin to keep the Water Board in place. The city had put up a referendum to have it abolished and its oversight duties taken over by the Common Council.

A Johnstown Charter Reorganization Review Commission in 2015 proposed in a similar voter proposition that the city Water Board be abolished, and city government oversee Water Department operations.

That recommendation was part of a larger attempt to change the charter in several ways, but that referendum was defeated that year by voters.

In more recent years, Fulton County District Attorney Chad Brown convened a county grand jury to hear complaints between city government and the Water Board that were fielded by the Johnstown Police Department. Following a three-month investigation by the grand jury, on Dec. 31, 2019, Fulton County Court Judge Polly A. Hoye signed an order accepting the report and allowing it to be made public. The report mainly centered on two issues – how city Water Department employees report their work duties and are paid, and an issue involving a Linden Avenue property owner who was trying to tap into city water. The grand jury report on an investigation into the Johnstown Water Board made public Jan. 7 didn’t call for indictments.

But the report made four main recommendations for the board and city government for the future, including hiring a new superintendent.

By Paul Wager