A referendum scheduled for Aug. 1 seeking Nassau County voter approval to authorize floating $400 million in bonds to rebuild Nassau Coliseum is illegal under New York State law, according to the former counsel to the Suffolk County Legislature who handled dozens of referenda during his tenure.
Paul Sabatino, who drafted and defended a laundry list of Suffolk County laws, said that for the Nassau referendum to be legal it would have to include specific terms and conditions that obligated lawmakers to do certain things within a specified time frame. But the pending referendum lacks such language and, according to Sabatino, it is a non-binding, advisory referendum—although Nassau officials backing the plan defended its legality.
“It looks to me like all the details of how to spend the money will come after the referendum, which nullifies the argument as to how powers are being curtailed,” Sabatino, a lawyer and Democratic political strategist, said after reading a copy of the referendum. “I see no binding obligation to issue bonds in precise amounts nor any deadlines or details. All the proposed law says is that the county is authorized to issue the $400 million—it does not say the county is obligated, i.e., bound without the ability to exercise any discretion.”
Brian Nevin, senior policy advisor for Nassau County Executive Ed Mangano, told the Press that the referendum, which got the go-ahead in the Nassau County Legislature May 31 by a vote of 11-7, is in fact a non-binding, advisory referendum. But Lisa LoCurto, Nassau’s first chief deputy county attorney, disagreed.
“This is a binding referendum,” LoCurto said. “It is not an advisory referendum. This referendum takes certain affirmative and binding actions.
“If the people approve the referendum, the county is authorized to establish a program to finance public projects to re-development of the current Nassau Coliseum and its surrounding area,” LoCurto said. “It is up to the voters to decide how they wish their government to proceed regarding redevelopment of a significant county asset as important as the coliseum.”
Sabatino trashed that argument.
“It’s a press release, not a legal argument,” said Sabatino, countering the county’s assertion. “It doesn’t even come close to meeting the state standard for what is necessary to have a binding, legal referendum. It’s only by putting restrictions and explicit, non-discretionary deadlines and an equivalency clause that says that you can’t modify anything in this referendum except by a subsequent referendum that you get to a mandatory referendum. But just saying that you’re going to take a poll of the public and ask them if the county can be authorized to do what the county already has the power to do does not qualify under state law as a binding referendum.”
Democratic critics in the county legislature agreed.
“The county charter does not allow us to do a non-binding, advisory referendum,” Minority Leader Diane Yatauro (D-Yatauro) told the Press. “It seems to me that this is a very expensive public opinion poll on the taxpayers’ dime.”
And the cost of the referendum—estimated at more than $2 million—makes the referendum even more vulnerable.
Nassau County Interim Finance Authority, a state watchdog that took over the county’s troubled finances, not only has the final say on floating bonds, but could theoretically block the expenditure to even hold the referendum. But NIFA Chairman Ronald Stack told the Press his board has not consulted their legal counsel, Skadden Arps, because it’s “not our issue.”
Sabatino balked. “How can saving $2.6 million not be their issue? This principle of law goes back at least as far as 1918,” he said. “There cannot be advisory or non-binding referenda in the State of New York unless explicitly authorized by state law.”
He cited the New York Appellate Court division ruling striking down a referendum opposing the Shoreham nuclear power plant in 1982 because it was advisory, a decision affirmed by the New York State Court of Appeals.
Islanders owner Charles Wang is negotiating a revenue-sharing agreement to repay the county for the loan to rebuild the arena the team calls home. Meanwhile, the clock is ticking. He also said if the Islander’s don’t have a new home by the time their lease is up in 2015, he’ll move the team.