Prospect v. Cohalan
| Decision Date | 09 July 1985 |
| Parties | , 482 N.E.2d 1209 In the Matter of Wayne PROSPECT et al., Respondents, v. Peter F. COHALAN, as County Executive of Suffolk County, Appellant. Long Island Lighting Company, Intervenor-Appellant. In the Matter of the TOWN OF SOUTHAMPTON et al., Respondents, v. Peter F. COHALAN, as County Executive of Suffolk County, Appellant. Long Island Lighting Company, Intervenor-Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 109 A.D.2d 210, 490 N.Y.S.2d 795, should be affirmed, without costs.
Article 2-B of the Executive Law, notwithstanding its articulated policy of involving local chief executives in the development and implementation of disaster preparedness programs (Executive Law § 20[1][b] ), does not vest in them the ultimate responsibility for the preparation of county disaster plans.
Section 23(1) specifically provides that "[e]ach county * * * is authorized to prepare disaster preparedness plans." It is clear that the delegation of power to each county is to its legislative, not its executive branch. In other sections of article 2-B, the context clearly indicates that references to the "county", without more, signify the legislative branch. Section 27(1), for example, provides in pertinent part that "[e]very county * * * shall have [the] power to provide by local law * * * for its continuity". Similarly, section 28-a(1) provides that, in the event of a declaration of a State disaster emergency, "any county * * * shall prepare a local recovery and redevelopment plan, unless the legislative body of the municipality shall determine such plan to be unnecessary or impractical." In stark contrast, when the Legislature intended to vest authority of any kind in a county executive, it has specified the role of the chief executive, defined as "a county executive or manager of a county" (Executive Law § 20[2][f][1] ) (see, e.g., Executive Law § 24[1]; § 25[1], [2], [3], [4], [6]; § 26[1], [3] ).
Moreover, the use of the term "is authorized" in section 23(1) unequivocally signals a legislative intent that the preparation of county plans is optional, not mandatory. The provisions authorizing the chief executive of a county to act upon the declaration of a radiological accident do not necessarily presuppose the existence of a plan (Executive Law §§ 24, 25, 26, 28[1]; § 29-b[2] ). We read Executive Law § 20(1)(b) as merely manifesting a policy preferring consideration of the county executive's views in the development of disaster preparedness program which policy implicitly recognizes that primary responsibility for such development is lodged elsewhere and agree with the conclusion of the Appellate Division that the term "county" in Executive Law § 23(1) does not include "county executive".
If the challenged executive order is merely a vehicle for the gathering of information to enable the county executive to perform his statutorily mandated functions of taking "an active and personal role in the development and implementation of disaster preparedness programs" (Executive Law § 20[1][b] ) and giving "advice and assistance" to the local legislative body or other duly appointed planning authority (Executive Law § 23[5] ), it is clearly authorized under the statute. However, we read Executive Order 1-1985 as representing a first step toward the implementation of a plan and therefore we find it to be a clear usurpation of the legislative function (cf. Under 21 v. City of New York, 65 N.Y.2d 344, 492 N.Y.S.2d 522, 482 N.E.2d 1). Titone, J. (dissenting). The issue before us is not whether Executive Law § 23(1) confers ultimate responsibility for the promulgation of a disaster preparedness plan upon the executive branch or the legislative branch of county government, for the challenged executive order does not purport to promulgate such a plan. It simply directs the Commissioner of Police and the Commissioner of Planning to study a proposed plan that is not in effect and may never go into effect. The real question, then, concerns the proper role of the judiciary in this emotionally charged dispute. Because the County Executive clearly possesses express and implied authority to issue the executive order in question and the alleged illegal acts sought to be enjoined have not taken place and are contingent upon future events that may or may not come to pass, the purported challenge is "nonjusticiable as wholly speculative and abstract" (Matter of New York State Inspection, Security & Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90). * Accordingly, the order of the Appellate Division should be reversed and the petitions dismissed.
This litigation revolves around a nuclear power plant located at Shoreham on Long Island. It appears that the plant cannot become operational in the absence of an emergency evacuation plan. The Suffolk County Legislature has consistently taken the position that no plan would be feasible and eventually passed a resolution, signed by the present County Executive, appellant Peter Cohalan, which "terminated" Suffolk County's "radiological emergency planning process" and directed that "no local radiological emergency plan * * * be adopted or implemented".
Blocked by local governmental obstinance, the utility submitted its own plan to the Nuclear Regulatory Commission. After the Commission rejected the plan as beyond the utility's legal powers, appellant Cohalan issued Executive Order 1-1985, which reads as follows:
Charging that Cohalan betrayed them, petitioners, several individual Suffolk County legislators and four Suffolk County towns, brought separate suits to annul the executive order on the ground that it usurps the power of the Suffolk County Legislature to develop and implement a disaster preparedness plan. They have been successful at Special Term and at the Appellate Division, obtaining a judgment, which the Appellate Division affirmed, declaring the executive order void and enjoining Cohalan, his agents and employees from taking any action "to enforce, implement or carry out the directives, policies, or terms" of the order "or any directive or instruction relating thereto." We conclude that the determinations below rest upon a speculative premise concerning future events and, therefore, would reverse.
There can be no doubt that the Suffolk County Executive has the power--indeed the responsibility--to review the utility's proposal. Executive Law § 20(1)(b) expressly declares State policy to be that "local chief executives take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such programs". In "preparing such plans," the State Legislature has specified that "cooperation, advice and assistance" be sought from "local government officials, regional and local planning agencies, [and] police agencies" (Executive Law § 23[5] ). That is all Executive Order 1-1985 does.
Under the Suffolk County Charter, the county executive is chief administrative officer and administrative head (Suffolk County Charter § 302), and, as such, is obligated "to manage the operations of the divisions of the executive branch" (Matter of New York State Inspection, Security & Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233, 239, 485 N.Y.S.2d 719, 475 N.E.2d 90, supra ). In addition to other responsibilities, the charter directs the county executive to "present to the county legislature from time to time such information and recommendations concerning the affairs of the county as he may deem necessary or as the county legislature may by resolution request" (Suffolk County Charter § 303[g] ).
Although County Executive Cohalan has acted within the parameters of these statutory and charter provisions, the argument is made that since the Suffolk County Legislature has consistently expressed its intention not to approve any plan, the courts should now hold that, as a matter of statutory construction, the power to promulgate and implement a disaster preparedness plan is solely a legislative function, and,...
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