The former Chairman of the Legislature defends county actions
By Andrew Harris, pictured is Steuben County Legislator Scott Van Etten
Background
In 2023, Steuben County passed two local laws. The first was to repeal the local law on the books which required the county to provide liability insurance coverage to the elected Sheriff Allard. A second law was passed which required the sheriff to provide proof of insurance coverage to the county. The laws effectively allowed the county to stop insuring the sheriff and force him to provide proof of proper liablity insurance coverage.
That was unacceptable to sitting Sheriff James Allard who filed an Article 78 in NYS Supreme Court. The legal action asked the court to deem the actions of the county improper from the legislative process to the motivations of county leadership at the time. Supreme Court Judge Jason Cook agreed that the process was flawed and wrought with “bad faith.” He ruled that the local laws passed by the county in 2023 must be repealed and the county must continue to indemnify the county sheriff.
After that decision, the Steuben County Legislature deliberated their right to appeal the ruling. County Manager Jack Wheeler and then Chair of the Legislature Scott Van Etten also had the right to appeal as named parties. The legislature voted 9-8 to waive the right to appeal, Wheeler chose not to pursue an appeal, and Van Etten chose to challenge Judge Cook’s ruling in the NY Appellate Division in Rochester.
Sheriff Allard on offense
Sheriff Allard and his supporters have made many public statements including television and radio interviews about Judge Cook’s decision and the recent appeal. This publication has published multiple statements by the sheriff and his supporters over the last two years regarding this matter. In most of these media appearances and op-ed pieces from s the alleged source of the the “bad faith” is the former county Chairman and now county Legislator Scott Van Etten.
Until now we haven’t heard from Van Etten, who has been accused of running a coordinated political hit job because he doesn’t like Sheriff Allard. Allard supporters contend that this “attack on law enforcement,” was the former Chairman’s vendetta to punish Allard after years of bad blood.
“The sheriff and his supporters have been very effective at creating a narrative that this is me personally attacking the sheriff, and his office. What isn’t part of that narrative is that the county legislature voted 10-7 to remove the sheriff’s indemnity, and the voted 9-8 against the appeal. Our local lawmakers comfortably passed the local law to remove indemnity protections and then narrowly voted against appeal. This isn’t just Scott Van Etten,” explained the former Chairman.
Now the face of the ongoing litigation, Van Etten presented his case to the Sun, beginning in 2019 when he noticed the sheriff beginning to openly challenge legislative oversight. When asked about a dramatic increase in the sheriff’s office budget, Allard “took those questions personally and was defensive,” according to Van Etten.
From that point until today, the relationship between the sheriff and county administration has been complicated. Scott Van Etten is no longer chairman, Kelly Fitzpatrick is now chair of the board, and has openly said she opposes the appeal. The current board is split on the facing tough questions from constituents.
The Van Etten “side of the story”
Van Etten provided some of the key events that compelled lawmakers to act initially and continues to be a “matter of principle” for Van Etten:
- In 2019 Allard formed the Steuben County Sheriff’s Association and named himself as the Chairman of the Board of Directors. Then county attorney Jennifer Prossick notified Allard that the foundation violated NYS law, and was formed without county approval. After about a year, Allard and other Sheriff’s Department leadership stepped down from official roles in the charity to address the ethics and conflict of interest concerns raised by the County Attorney
- In 2021 the Sheriff entered into a contract and 3-year financing agreement with a vendor without county attorney approval and the agreement was not presented to the sitting public safety committee. Legally the Sheriff has no authority to encumber the County to any financing agreement. The relationship between Allard and the Legislature further eroded.
- Allard filed an age discrimination complaint with the NYS Division of Human Rights, against then Chairman VanEtten in 2022. The complaint was dismissed because Allard is an elected official, not an employee. VanEtten pointed out he and the Sheriff are within one year in age and the complaint cost to the County was approximately $15K in outside counsel fees to respond to complaint.
- Later in 2022, the conflict between the sheriff and the legislature reached a “boiling point.” By VanEtten’s account, and cooberated by two other legislators, Sheriff Allard refused to obey County policy regarding sex discrimination and sexual harassment investigations. In 2018 NY State enacted the “One Policy for All,” which required counties to have independent complaince officers who may use outside counsel to review all sex discrimination and sexual harassment complaints. This policy prohibits internal investigations into complaints of this nature. Steuben County adopted a policy consistent with the state mandate. Sheriff Allard continued to conduct his own internal investigations despite the new state law.
- Van Etten as County Legislative Chairman, Jack Wheeler as County Manager, and County attorney notified the sheriff that continuing to conduct internal investigations into sex discrimination and sexual harassment was placing the county in legal peril. According to VanEtten, allowing the sheriff to conduct his own investigations created major exposure to civil litiation. Van Etten states that third-party investigators found evidence of “discrimination, intimidation, favoritism, and retaliation,” while they conducted a sexual harassment complaint within the Sheriff’s office. According to Van Etten, “This was undoubtably what drove the legislature to pass the local law in September 2023 removing the Sheriff’s indemnification.”
- Sheriff Allard filed a petition before the NY Supreme Court In October 2023 against Steuben County Legislature, Van Etten, and Wheeler.
- Van Etten and two other legislators confirm that during mediation effortsled by The NYS Association of Counties and The NYS Sheriff’s Association, a compromise was offered. “We asked him to please begin following state and county policy and we would repeal the local law removing his indemnity.” Allard refused.
- Allard didn’t just disagree, he then filed a workplace harassment complaint against Van Etten and Wheeler after a contentious March 2024 Finance Committee meeting. That complaint is still under investigation.
- Judge Cook issued his ruling in favor of Allard, a judgment that that nullified the local laws passed in September 2023.
Van Etten’s Appeal
The current state of affairs is that the Steuben County Legislature voted against appeal, and now Chairwoman Kelly Fitzpatrick has openly stated, “it’s time to move forward.” County Manager Jack Wheeler has decided to follow suit with the legislature. As a named party to the original suit, Van Etten exercised his right to appeal last month with the continued support of other legislators.
The former Chairman explains that his decision to appeal is a matter of duty, not personalities:
“Sheriff Allard has done a good job of framing this as an attack on him, the Sheriff’s Office, and law enforcement in general. That sure plays well in the court of public opinion, but in the end, the legislature, County Attorney, County Manager are doing our duty for the residents who elected us to serve. As legislators, we provide oversight of all county operations as a vital part of local government operations. In the case of Sheriff Allard, his refusal to follow state and county policy not only created a major risk to the county but was also a disservice to the employees. Every County employee should have the same personnel protections provided to them which is why NYS required that we adopt the One Policy for All . In Rensselaer County NY, a major policy breach resulted in a seven-figure judgment against that county. After the Sheriff repeatedly refused to comply with state and county policy, the only recourse to shield the county taxpayers from the risk created was to remove the Sheriff’s indemnity protections.”
The appeal filed by Van Etten seeks a reversal of NYS Supreme Court rulings. This appeal, available below, is based on what Van Etten has argued was a “political” judgement by Judge Cook. County lawyers will argue that the basis of Cook’s decision was that the county acted in “bad faith,” which is an invalid reason to force the reversal of county legislation. The main argument from Van Etten in the appeal is based on a U.S Supreme Court precedent: Any law that is “facially constitutional and serves a legitimate governmental purpose,” can not be overturned based on a “bad faith” argument. Essentially, as long as the local law meets the above standard, “bad faith” between parties involved is irrelevant. Even if Van Etten and the nine other legislators voted to repeal the sheriff’s indemnity solely because they disliked him and wanted him to retire, they could still pass a constitutional and legitimate law.
Van Etten also points out that Allard, in his court filings, has openly admitted that under state law the county is under no obligation to provide indemnity to the elected sheriff. Steuben County has the option to provide the coverage to the Sheriff, or not. In Van Etten’s opinion, removing the Sheriff from the county insurance policy was a legitimate step to protect the county taxpayers from legal exposure caused by the Sheriff’s refusal to follow state and county policy.
Scott Van Etten concluded the presentation of his side of this complicated story with:
“To not appeal this decision by Judge Cook would be paramount to turning the other cheek, to burying my head in the sand, and would be willfully ignoring settled NYS Law. What the Sheriff and his supporters call and ‘attack on law enforcement,’ is quite the opposite in my opinion. This appeal is doing my duty as a lawmaker to respect and defend the rule of law while trying to minimize additional civil liability costs for the County taxpayers.”
We have extended an open invitation to Sheriff Allard to respond to this overview of Mr. Van Etten’s perspective on Allard v. Steuben County.
