On Troy’s LSLRP Bonding Legal Concerns
August 9, 2024
At last night’s City Council meeting, we presented Troy with bond ordinances and resolutions for lead service line replacement under the Bipartisan Infrastructure Law that were passed by three separate cities: Syracuse, Rochester, and Albany. We asked that Troy do the same. After the public spoke, Troy’s Deputy Corporation Counsel rose as a member of the public himself to tacitly acknowledge that several other cities have passed bond ordinances and resolutions, but posited that there is no point in Troy doing the same, since no bond counsel would authorize the issuance of bonds for LSLRP. One way that we can be certain that no bond counsel would authorize the issuance of bonds for LSLRP is if we do not pass a bond resolution, which is what we were asking them to do.
Before and after the meeting, many elected officials stated that it is unconstitutional to bond for work on private land, although Majority Leader Casey wrote that the city is working on finding a legal way to do it anyway. As we have said many times, it is not unconstitutional to bond for work on private land if the work serves a legitimate public purpose – even if it incidentally benefits private entities. This is not a new problem, so there is a dearth of case law and agency opinions affirming and reaffirming this position. We have sent a sample of these documents to city officials many times, and we will have to send it to them again. See:
The Deputy Corporation Counsel also implied that the City may be able to move forward if relevant state agencies publish formal written opinions saying that it is permissible. It is important to understand that, in the absence of a lawsuit, the relevant state agencies rarely do that. They are also not likely to make an exception to make a point this redundant and obvious. They will, however, share their opinion more informally to anyone who cares to ask.
It is also important to understand that Troy’s attorneys serve at the pleasure of the Mayor. At the April 4, 2024 City Council Meeting, Mayor Mantello shared that Troy would be able to move forward with bonding as soon as Part UU of TED passed, which she shared was “being negotiated as we speak.” It was not being negotiated as she spoke. It was negotiated, signed, and passed a year before she said that. Once we clarified that for her, immediately, there were suddenly new legal questions that were even more irresolvable and opaque. It seems that, no matter how much the world bends over backward to help Troy bond, we manage to find a new reason not to do it that is even more opaque and irresolvable than the last.
We wonder if the issue is perhaps not whether President Biden has conspired with more than half a dozen state and federal agencies to stitch up Troy with the poisoned chalice of lead service line replacement funding, but instead that this administration’s financial management has been so poor that they do not want to draw additional scrutiny from regulators and creditors (see page 15). Hopefully, a bond resolution will appear on the agenda in two weeks so we can put that line of inquiry to bed.
