CROOKHAVEN UNHINGED: Vote NO on Toxic Term Extensions on Nov. 6

(Editor's note: This is an opinion piece posted by a Patch reader. If you'd like to post on Patch yourself, find out how here.)

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These days, it's hard to get Democrats, Republicans, Independents, Conservatives, and Greens to agree on anything. Allow me, then, to pose two questions to Brookhaven voters of all affiliations, on which I suspect they will have no trouble finding common ground.

Do you enjoy voting on your town elected officials every two years?

Do you think your town elected officials should be term limited?

I hate to make assumptions on behalf of voters, but I think that most people would answer in the affirmative to both questions. So what if I told you that the Brookhaven Town Board was preparing a ballot referendum this November that would force voters to choose between term limits, and two-year term lengths?

This November, get ready to Vote No again on what is being referred to as the Toxic Term Extensions referendum.

What is the Toxic Term Extensions referendum?

The Toxic Term Extensions referendum will pose a Yay or Nay question to voters this fall in the form of a false choice: do you support extending the current term of office for Brookhaven Town Board members, including the Town Supervisor, Highway Superintendent, and Town Council Members, from the current two year term length, to a four year term length, with a limit of three terms maximum (12 year term limit)?

Why is it being proposed?

According to the Town Board, a referendum held in 2002 that moved Brookhaven from an At-Large System (voters get to vote on all town board members) to a Ward System (voters are divided into council districts, represented by a single council member), invalidated the 12-year term limit that is still on the books to this day.

So the Town Board has decided to they will continue to have its "term limited" members run for re-election past the 12 year mark, unless a compromise is struck in the form of a referendum. Voters get to decide: two-year term lengths with no term limit, or four-year term lengths with a three-term limit (12 years)? Thus, the Toxic Term Extensions referendum was born.

Here's the problem: Brookhaven already has valid term limits and the referendum is illegal

Explaining this next part is going to require a bit of a history lesson, but I'll give you the cliff notes up front:

• Brookhaven already has term limits, and they are perfectly valid.
• State Law requires the town to have two-year term lengths.
• The New York State Attorney General's Office weighed in on this topic in an opinion presented to the town in 2003.
• No town in the State of New York can hold a referendum to violate the State's Town Law statutes, unless the law permits. In this case, it does not permit, and if successful this referendum will lead to lawsuits that the town will spend taxpayer money defending.

How we got here is a long story, but I will summarize it as best I can, for the benefit of voters who are confused by the endless political inertia involved.

Brookhaven: A history of crooks, one-party rule, and the referendums that held them accountable

The term "Crookhaven" is one you might be familiar with. It refers to Brookhaven's history of being the last bastion of machine politics, when one political party controls a town to such a degree that all local government jobs and appointments run through the party. This was the case in Brookhaven, where the Republican Party reigned supreme, and residents had to be registered Republicans just to make it through the application process for a town job. Machine politics lends itself to criminality, and the Crookhaven moniker was earned by decades of corruption that culminated in an avalanche of arrests, convictions, and resignations that rocked the Town Republican Party from the late 1990s to the mid-2000s.

It was during this period that community activists began pushing for ballot referendums that would hold the Crookhaven machine accountable.

The first of these referendums came in 1993, when voters approved a measure to term-limit the Town Board to a maximum of three four-year terms (12 years). At that time, Brookhaven consisted of an At-Large district, which called for four-year terms (but no term limits). In an At-Large system, every single member of the Town Council is voted on by the public. This was convenient for the Crookhaven Machine, because it allowed segments of the town where the Republican Party was strong to dominate the rest of the town. The 1993 referendum imposed term limits.

In 2002, a second referendum was held, this time to switch from an At-Large system to a Ward System (also known as a Councilmatic System). Under a Ward System, the Town Council is divided into Council Districts, where residents can vote on their local representative on the Council, the same way voters do for the State Assembly, State Senate, and Congress. The referendum was passed, and Brookhaven became the only town in Suffolk County to establish a Ward system.

This is where things gets interesting. Immediately after the referendum was passed, Town officials aka the dying embers of the Crookhaven Machine, sought legal recourse to reverse the effect of the 1993 referendum, arguing that the switch from At-Large to a Ward System invalidated the term-limits voters approved just 9 years earlier.

The logic was clear. Crookhaven figured that if the voters would take away their At-Large advantage, the Town Board would take away term limits. Eye for an eye.

Except Crookhaven made one crucial mistake: they did the right thing for once, and wrote to the Attorney General's Office, to the Solicitor General, seeking an opinion.

That feeling when the Solicitor General says, "No, you can't have your cake and eat it too."

The town attorney at the time, Karen Wilutis, wrote to the Solictor General's office seeking clarification on two questions:

1. Whether Council members in the Town of Brookhaven are subject to two-year terms provided for in NYS Town Law Sec. 85 in reference to Ward Systems.

2. What term limits, if any, are applicable to those Council members.

On November 2, 2004, the Solictor General's Office responded with their opinion, which you can read here.

The Solicitor General's conclusion was crystal clear:

"We conclude that upon Brookhaven's adoption of the Ward System, the term of office of Council members became two years..."

"As to the second question, we believe the applicability of term limits depends upon an interpretation of local law, a task best left to local officials familiar with local conditions and the intent of the local legislative body."

In other words, State Law does not invalidate local term limits just because a town switched from an At-Large System to a Ward System. If the town decided to have term limits, then it has term limits. And the town put the question to voters in 1993, who decided upon 12 year term limits.

What State Law does mandate, however, is that Council members must stand for election every two years in a Ward System.

New York State Town Law Sec. 85 is short and clear of intent to lawyers and non-lawyers alike.

"After a ward system shall have been so established, the term of office of every town councilman shall terminate on the thirty-first day of December next succeeding the first biennial town election held not less than one hundred twenty days after the establishment of such ward system, and at such biennial town election, and every biennial town election thereafter, one resident elector of each ward shall be elected as councilman therefrom for a term of two years beginning on the first day of January next succeeding such election."

Town Law differentiates that for a Councilmatic/Ward System, two year terms are mandatory. For an At-Large System, four year terms are mandatory. The law also clearly gives towns the power to choose, through a referendum, between having an At-Large or Ward System. What it does not allow the town to do is hold referendums to change the mandated term lengths for either system. Generally speaking, Towns can't hold referendums that invalidate State Law, just like States can't hold referendums that invalidate Federal Law.

It's this last part that the Town Board's so-called "legal experts" are concealing from voters in order to con them.

Lies, Intimidation, Bullying: The Town Meeting Debacle

At the Brookhaven Town Board meeting on August 2nd of this year, it was announced, with little warning, that the Town Board would be voting on whether to hold the Toxic Term Extensions referendum this fall. (Yes, that's November 2018, not next year during Town elections)

There were no public hearings scheduled, no period of comments or consideration. The Town Attorney did not write to the Solicitor General's Office for an opinion, which would have taken 2-3 months max. It was simply, "We're voting on this in a few weeks, you can show up and comment, and that'll be the end of it."

So when August 2nd rolled around, local civic activists including members of the Affiliated Brookhaven Civic Organizations, and committee members of the Brookhaven Action Network (a network of over 100 local residents seeking reform in their local government), showed up for public comment.

What happened next bordered on absurdity.

Council members, notably Supervisor Ed Romaine, Councilman Daniel J. Panico and Councilman Michael Loguercio, proceeded to lash out, accuse, interrupt, intimidate, and cross-examine these members of the public who came to simply express their opposition to the Toxic Term Extensions referendum.

Keep in mind, these periods of public comment happen at every Town Meeting, and it is not common practice for Town Board Members to retort or interrupt the public, as each person only has a few minutes to speak.

The interruptions and yelling became so frequent that at one point, Councilwoman Valerie Cartwright asked her colleagues to refrain from interrupting and to keep their voices at a respectable volume.

Panico in particular took it upon himself to go after the public commenters, and reserved a special level of verbal abuse for the women who came to speak. In fact, as you can see from the video, he only yelled at the women, leaving one person visibly shaken.

One Republican town official, who spoke to me on the condition of anonymity, said, "Panico is famous for that. It's obvious he holds a disdain for women who question him, and it happens in private all the time."

Councilman Loguercio, upon learning that one of the woman speakers was a public school teacher, proceeded to tear into her about teacher tenure, suggesting that public school teachers should not have tenured jobs. What this had to do with the Toxic Term Extensions referendum, is anyone's guess.

Supervisor Ed Romaine took particular offense to the suggestion that the Town Board was being "sneaky" and tore into the speaker, saying, "Do you know this is being recorded right now?!"

The apoplectic, visceral response should tell you everything you need to know about these officials, most of whom cut their teeth learning under the wings of the very worst Crookhaven had to offer in the 90s and 00s.

Toxic Term Extensions is their way of doing what the town couldn't accomplish years prior, which is force the voters to choose between term limits and four year term extensions.

Prior to the period of public comment, Romaine's chief of staff, ex-Suffolk Supreme Court Justice Emily Pines, addressed the 2004 Solicitor General's opinion, acknowledging the same points brought up in this column, with one notable exception: she maintains that the voters can increase the length of terms from two to four years under a Ward System, which, as I pointed out, is incorrect, illegal, and runs counter to State Law.

But this is par for the course for Pines, who as you might recognize from the Newsday story cover photo, was part of a sweeping investigation concerning the Gary Melius case and improper payouts. By her own admission, Pines made mistakes in that case, but was ultimately cleared of a "complaint that she improperly awarded foreclosure work to a political party leader."

The point is, Pines' history of bad judgement is widely documented, and it is clear in the case of the Toxic Term Extensions referendum that she is simply doing the bidding of a lazy and spiteful Town Board that holds all those who question them in complete contempt.

I placed multiple calls to Pines' office prior to writing this article, as well as to the Town Attorney Annette Eaderesto, Supervisor Ed Romaine, and Council Member Kevin Lavalle. None except Lavalle returned my call.

You know who else returned my call? The Attorney General's office, which concluded that the 2004 Solicitor General's opinion should still be referred to in this matter.

Why the Brookhaven Town Board wants Toxic Term Extensions passed, and why you shouldn't

We already know that the trigger point for Toxic Term Extensions - the notion that previously established term limits were invalidate by the 2002 Ward System referendum - is based on a fallacy. But it is not the only fallacy being peddled by Brookhaven's politicians.

At the town meeting, Romaine, Panico, Loguercio, and even the lone Democrat on the board, Valerie Cartwright, made several arguments as to why four-year terms are necessary for the Town Board to be able to do its job. Each of them are fallacious at best, deceptive at worst.

Let's deconstruct them all:

Fallacy #1: Running For Re-Election Every Two Years Makes It Hard To Get Things Done. This might be my favorite fallacy. It's so deliciously disingenuous, whichever of the Town Board members who thought it up deserves their own Razzie award.

Before I kill this argument off, let's suppose it was true. It begs the question: if a Town Board member is claiming their job is too hard to accomplish in the given time constraints, why did they run in the first place? It's a total admission of failure. Are you saying your job is too hard and you need more time? What if one of us went to their boss and said, "Hey, you know that job I applied to, and you hired me for? Yeah, I can't get it done inside the 2-year project window. Mind if I have four years?" You'd be fired and replaced inside of a month.

But forget that. You know why this argument is a total crock? Because over the last two local elections, in 2015 and 2017, every Brookhaven Town Board member with the exception of one has won their re-election bid with over 60% of the vote, minimum. So if Michael Loguercio thinks that walking a mile in his shoes is a four-year effort, I'm willing to give him a pass because the guy has squeaked into office twice now. For the rest of the Board, let's just say that most of them have re-election rates that would make foreign dictators like Vladimir Putin and Hugo Chavez envious.

I'm not joking. Let's do a little comparison. The last two re-elections of Councilman Daniel J. Panico, compared to that of Russian President Vladimir Putin.

2018 Russian Presidential Election - Vladimir Putin: 76.69%
2017 Brookhaven Town Council District 6 - Daniel J. Panico: 71.74%

2012 Russian Presidential Election - Vladimir Putin: 63.6%
2015 Brookhaven Town Council District 6 - Daniel J. Panico: 77.26%

Boy, Dan, those re-election campaigns look rough. How many pairs of shoes do you go through walking all those doors? With the wonderful personality traits you exhibited at the town meeting, it's easy to see why you're so popular.

Councilmember Jane Bonner won her last two elections by 69% and 63%. Former Venezuelan dictator Hugo Chavez won his by 55% and 62%. I could keep going, but you get the point.

Most Council races and even the Town Supervisor race, in most years, is not competitive. I tend to agree with the four-year terms, three term limit model for Congressional races, because members of Congress really do need to raise millions of dollars PER YEAR, while flying from their home districts to D.C. several times per week. Brookhaven Town races are a different matter.

If a town council member has to raise more than $50k to win re-election, it's a lot. Jane Bonner raised just over $20k in 2017 to win re-election by 63%. Kevin Lavalle raised $53k and won 65%. Panico raised a whopping $97k. This is to say nothing of the money that both the Brookhaven Town Republican Committee and the Suffolk GOP spend on these candidates, that does not require a minute of their time. Conversely, four year term lengths allow these already near-invincible incumbents to build up even more of a war chest against future challengers. It is a total reinforcement of the incumbency advantage.

Fallacy #2: Two-Year Terms Hinder Town Planning Projects. Fair enough. Except that no Town Board member can name a single planning projects that stalled because its member were too consumed running for re-election, which goes back to the first fallacy discussed above. What is outrageous, is that Councilman Panico at the town meeting went back and forth between claiming it was impossible to get planning projects done in two years, and bragging about all the great work the Town Board has accomplished.

So which is it? Do you need longer terms because you're bad at your job, or because you're so good that you earned it?

Fallacy #3: Continuity on the Board is Important Because There Has Never Been This Much Bipartisan Unity. This is another one of those arguments that is so hollow, you're amazed anyone had the nerve to say it. (And if you were wondering, this is another Dan Panico Special).

Bipartisan unity on a Town Board that is all Republican except for a lone Democrat on the Council? Amazing. What were the odds that any of you would see eye to eye?

This isn't a recent phenomenon either. Except for the notable period of 2005-2007, the Town Board has been under majority Republican control for decades. That's 'decades' with an 's'.

Fallacy #4: Every Other Town Has 4-year Terms Except Brookhaven! Technically true. And do you know why that's the case? Because Brookhaven is the only town in Suffolk County that elects its board through a Ward System. The rest are At-Large.

There is a reason for this. Of the 10 towns of Suffolk County, Brookhaven accounts for 33% of the population. Our town is too large to elect Council members at-large, if we're going to have a town government that is representative of all our communities. That's the reason why voters elected to switch to a Ward System in the first place back in 2004. The argument that "every other town does it this way!" holds no weight. Brookhaven is unique, and the will of the voters was to establish a system that requires two-year terms by law.

Crookhaven is trying to pull a fast one, so VOTE NO on Toxic Term Extensions

There is a reason why the Town Board voted unanimously to rush the Toxic Term Extensions referendum onto the ballot for 2018, instead of 2019 during Town elections.

There is a reason why they didn't postpone the referendum until the Town Attorney solicited an opinion from the Attorney General's Office.

There is a reason why the referendum wasn't divided into separate questions, one pertaining to term extensions, the other pertaining to term limits.

There is a reason why no public forums were held in each Council district, to hear from voters and ask if this is something they wanted on the ballot.

The Town Board thinks that by rushing this referendum out with little-to-no public input, during a mid-term election year when everybody is focused on State and Federal elections, with a generic "Term Limits" moniker attached, people will glaze over the details, see "Term Limits", assume it's a good thing, and vote YES.

They think that enough of us aren't paying attention that the overrun of voters who don't normally show up to vote in town elections, will go to the ballot box this year and vote up on a referendum that is deceptive, illegal, and ill conceived.

Activists in the progressive and conservative communities alike are opposing this referendum, and you should too.

Privately, there is talk among several organizations that a lawsuit will be filed against the town if the referendum is passed. And even if it isn't, if the town continues to insist that local term limits are invalid, they might find themselves on the wrong side of a lawsuit anyway. This will cost taxpayer money and really distract from town planning.

What the Town Board needs to do is withdraw the referendum, and go back to the drawing table. Instruct the Town Attorney to seek an opinion from the Solicitor General. Hold public forums in every Council district. Put forth a few different referendum possibilities, that separates out the question of term limits.

Do this referendum the right way, or not at all.

The likelihood that the town pulls the referendum, though, is slim. Toxic Term Extensions will almost certainly appear as a ballot referendum this year, and through phone calls, walking, text messages and ads, it will be up to town residents strike this down.

The Brookhaven Action Network (BAN), of which I am Co-Chair, has chosen to lead the way on this front. BAN is organizing a VOTE NO campaign against the Toxic Term Extensions referendum. In just a few weeks, we have amassed over a hundred volunteers from Setauket, to Coram, to Selden, Patchogue, and Shirley. Defeating this referendum will be our primary focus from now until Election Day.

We don't care if you are Democrat, Republican, Independent, Green, or Conservative. If you want this referendum defeated, we want you on our team. Even if it's the only time we work together.

We like voting on our Town Board every two years, and we want them to abide by the term limits that are already on the books. Instead of focusing on Toxic Term Extensions, the town should be seeking solutions to the plague of potholes that have ravaged our streets for years, and finding a solution to the Brookhaven Landfill closure.

Otherwise, those Town Board seats might not be so secure in 2019.

Are you ready to VOTE NO again on Tuesday, November 6th?

Join with BAN to defeat Toxic Term Extensions. You can volunteer here.