Column: State law not applied in Rye’s top cop search

careyIn the search for a new top cop to replace the incumbent in January, a majority of the City Council chose on Nov. 18 not to apply a key provision in the N.Y. State General Municipal Law.

The city’s lawyer, known as the corporation counsel, was absent for some reason. So the council members had to decide for themselves, without the advice of their legal counsel, whether a state requirement for competitive bidding applied.

A five-member majority decided they could do without competitive bidding in hiring a recruiting firm to screen candidates for top cop. Three of the five are lame ducks who will not be in the council when the final selection is made. If they had abstained, as would have been courteous and sensible, the vote would have been 2-2, and the action taken would not have passed.

The action taken was to hire, for $40,000 plus extras, a headhunter firm without competitive bidding or any recommendation from a satisfied customer. The city manager said he had been in contact with one other such firm but, if so, he did not mention that in any supporting document that was made public.

What the manager is reported to have said at the meeting is something to the effect of, we do that all the time, in reference to hiring outside law firms without issuing requests for proposals or obtaining competitive offers. But two wrongs do not make a right, let alone doing it wrong all the time. But let’s see specifically what it is that makes contracting without competitive bidding often wrong.

The New York State General Municipal Law applies throughout the state. Section 103 is entitled “Advertising for bids and offers; letting of contracts; criminal conspiracies.” It says that, “all contracts for public work involving an expenditure of more than thirty-five thousand dollars…shall be awarded…to the lowest responsible bidder furnishing the required security after advertisement for sealed bids.”

There were no sealed bids for the job of headhunter for Rye’s new top cop.

Section 103 goes on to allow “contracts for service work” to “be awarded on the basis of best value, as defined in section one hundred sixty-three of the state finance law, to a responsive and responsible bidder or offerer…except that [outside New York City] the use of best value…must be authorized by local law.”

I have found no such local law here.

Section 163 of the state finance law provides that, “‘Best value’ means the basis for awarding contracts for services to the offerer, which optimizes quality, cost and efficiency, among responsive and responsible offerers. Such basis shall reflect, wherever possible, objective and quantifiable analysis.”

The reference to “responsive and responsible offerers” shows that the “best value” test does not apply where there is only one bidder as is the present case with Rye’s top cop search.

Fortunately, Rye’s sole bidder for the top cop search job is not likely to produce any recommendation until after the new year. That will allow the proper council members to make the appointment; those who are in office then, not those who are out the door. It would be gracious and sensible for the firm approved by the council to stand aside until January.