On Monday, May 5, 2020, Erie County Comptroller Mychajliw declared a deficit in Erie County's Budget in accordance with Erie County Charter section 2511. Under this provision of the charter this declaration begins a process for amending the budget. The Erie County Executive proposes the changes he deems necessary to address the deficit. Then the Erie County Legislature gets an opportunity to make changes to the County Executive's proposed changes. At the other end of this process changes are made to the budget to address the declared deficit.
Under the above process the County Executive's proposed budget changes would have been due this coming Monday. On Friday, May 8, 2020 the County Executive issued an executive order under Executive Law 24(1)(g) purportedly suspending his time to perform his duties under the County Charter that were triggered by the above deficit declaration. As of this writing I am not sure of the legality of this executive order. Even the Governor's authority under this Article of the Executive Law is subject to the State Constitution, the County Charter is Erie County's equivalent to the State Constitution when it comes to the governance of Erie County.
Assuming, for the purposes of this writing only, that this executive order is lawful it cannot suspend a state statute. In the wake of the Red/Green Budget the State created the Erie County Fiscal Stability Authority ("ECFSA") commonly known as "The Control Board". Erie County has been in what is referred to as an advisory period since June 2009 (commonly referred to as a soft control board) when it declared the end of the control period (commonly referred to as the hard control board). Public Authorities Law section 3959(1)(d) provides that one of the conditions to impose a control period (or hard control board) is the receipt of "the comptroller's certification at any time, at the request of the authority or on the comptroller's initiative, which certification shall be made from time to time as promptly as circumstances warrant and reported to the authority, that on the basis of facts existing at such time the comptroller could not make the certification described in paragraph (b) of subdivision one of section thirty-nine hundred fifty-one of this title." I do not know if the certifiaction of a deficit under Erie County Charter section 2511 is the equivalent of the certification defined in paragraph (b) of subdivision one of section thirty-nine hundred fifty-one of the Public Authorities Law.
Assuming for the moment that the two certifications discussed are not the same, it certainly seems we are on the path to a control period if we do not address the deficit our County faces. While I appreciate the fact that our County Executive is facing intense demands on his time related to the COVID-19 related issues the County is faced with, but the finances of the County is no less deserving of his attention. The County should tap into the resources that the ECFSA can provide in the form of technical assistance to come up with a workable plan to address this deficit. By doing this I believe a workable plan can be implemented without the need for a control period. The longer we do not take steps to address the deficit and implement a plan to deal with it, the greater we run the risk of a control period.
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