The Mayor says CACC is not a government agency, but a private not-for-profit corporation. But how can such an "independent" corporation's board of directors be under the control of a local government? The following is the complete text of Councilmember Kathryn Freed's letter to the NY State Attorney General, Dennis Vacco, requesting a legal opinion on the legality of such arrangement, and the AG's response.
[seal]
The Council
of The City of New York
City Hall
New York, N.Y. 10007
Kathryn E. Freed
Council Member, 1st District
51 Chambers Street, Room 439
New York, New York 10007
Phone: (212) 788-7722
Fax: (212) 788-7783
Chair: Contracts
Committee member: Consumer Affairs, Environmental Protection, Transportation
June 19, 1997
Dennis C. Vacco, Attorney General
Capitol
Albany, NY 12224
Dear Attorney General Vacco:
As you may be aware, the Center for Animal Care and Control (CACC) contracts with the Department of Health (DOH) in provide [sic] animal care and control services in New York City. The CACC was incorporated on August 23, 1994, under Section 402 of the New York State Not-For-Profit Corporation Law for "the public and charitable purposes of providing animal care and control services in the City of New York . . . Thereby lessening the burdens of government on behalf of the City." [FN] 1
Although it is a not-for-profit corporation, pursuant to its by-laws, the CACC's seven member Board of Directors includes as ex-officio members three commissioners of City agencies -- the Commissioner of DOH, the Commissioner of the Department of Sanitation and the Deputy Commissioner for Community Affairs at the New York City Police Department. The four remaining directors are appointed by the Mayor or the Deputy Mayor for Operations. Pursuant in the by-laws, any apointed director may be removed with or without cause at any time by the Mayor or the Deputy Mayor for Operations.
The by-laws also provide that for purposes of transacting business, a quorum consists of a majority of the entire Board of Directors, provided that at least a majority of the ex-officio directors are present All questions before the board must be determined by a majority of the directors at any meeting at which a quorum is present, provided that the majority vote must include the vote of all three ex-officio directors for certain actions, including the appointment or removal of officers of the corporation and the amendment of the by-laws or certificate of incorporation.
Yesterday, Deputy Mayor Randy Mastro removed two of the CACC's appointed directors. [FN] 2 (See attached letters.) Although the CACC's by laws specifically grant this power to the Deputy Mayor, the by-laws may conflict with the New York Not-for-Profit Corporation Law. Section 706 of the Not-for-Profit Corporation Law appears to reserve to a particular not-for-profit corporation's board members or directors the power to remove a director. I write to request that your review the CACC's certificate of incorporation and its by-laws, attached. Specifically, I ask you render an opinion regarding (1) whether such certificate of incorporation and/or by-laws conflict with New York's Not-for-Profit Law or any other law, (2) whether, by extension, the actions of the Deputy Mayor conflict with New York's Not-for-Profit Law or any other law, and (3) any other issues which may arise out of your review of such certificate of incorporation or by-laws.
Thank you for your cooperation in this matter.
Sincerely,
/s/ Kathryn E. Freed
Chair, Committee on Contracts
attachments
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1 The New York City Law Department acted as the incorporator.
2 The Deputy Mayor stated that he removed the two directors due in part to their "personal resistance to accepting experienced City government managers on a temporary basis -- free to the corporation -- to help manage the CACC while a national search for a permanent Executive Director continues." The City's unwillingness to provide a salaried manager in theCACC is notewworthy in light of the fact that the City has maintained that the CACC is a private not-for-profit corporation, and not a City agency.
[seal]
State of New York
Office of the Attorney General
Dennis C. Vacco, Attorney General
Pamela Jones Harbour, Deputy Attorney General
(212) 416-8392
August 13, 1997
Hon. Kathryn E. Freed
Chair, Committee on contrcats
The Council of the City of New York
City Hall
New York, NY 10007
RE: Center for Animal Care and Control
Dear Councilwoman Freed:
I am writing in response to your request to Attorney General Dennis C. Vacco for an opinion concerning the legality of the organizational structure of the above organization. I understand from James Cole of the Attorney General's Appeals and Opinions Bureau that he has already advised you that the Attorney General does not render such opinions to entities other than state agencies.
After his communication with you, Mr. Cole forwarded your letter to the Charities Bureau for our review. This bureau has reviewed the information that you forwarded to us and has determined not to pursue this matter.
Very truly yours,
/s/ Karin K. Goldman
Assistant Attorney General
Registration Section Chief
KKG:lu/Freed
[seal]
The Council
of The City of New York
City Hall
New York, N.Y. 10007
Kathryn E. Freed
Council Member, 1st District
51 Chambers Street, Room 439
New York, New York 10007
Phone: (212) 788-7722
Fax: (212) 788-7783
Chair: Contracts
Committee member: Consumer Affairs, Environmental Protection, Transportation
June 19, 1997
Dennis C. Vacco, Attorney General
Capitol
Albany, NY 12224
Dear Attorney General Vacco:
As you may be aware, the Center for Animal Care and Control (CACC) contracts with the Department of Health (DOH) in provide [sic] animal care and control services in New York City. The CACC was incorporated on August 23, 1994, under Section 402 of the New York State Not-For-Profit Corporation Law for "the public and charitable purposes of providing animal care and control services in the City of New York . . . Thereby lessening the burdens of government on behalf of the City." [FN] 1
Although it is a not-for-profit corporation, pursuant to its by-laws, the CACC's seven member Board of Directors includes as ex-officio members three commissioners of City agencies -- the Commissioner of DOH, the Commissioner of the Department of Sanitation and the Deputy Commissioner for Community Affairs at the New York City Police Department. The four remaining directors are appointed by the Mayor or the Deputy Mayor for Operations. Pursuant in the by-laws, any apointed director may be removed with or without cause at any time by the Mayor or the Deputy Mayor for Operations.
The by-laws also provide that for purposes of transacting business, a quorum consists of a majority of the entire Board of Directors, provided that at least a majority of the ex-officio directors are present All questions before the board must be determined by a majority of the directors at any meeting at which a quorum is present, provided that the majority vote must include the vote of all three ex-officio directors for certain actions, including the appointment or removal of officers of the corporation and the amendment of the by-laws or certificate of incorporation.
Yesterday, Deputy Mayor Randy Mastro removed two of the CACC's appointed directors. [FN] 2 (See attached letters.) Although the CACC's by laws specifically grant this power to the Deputy Mayor, the by-laws may conflict with the New York Not-for-Profit Corporation Law. Section 706 of the Not-for-Profit Corporation Law appears to reserve to a particular not-for-profit corporation's board members or directors the power to remove a director. I write to request that your review the CACC's certificate of incorporation and its by-laws, attached. Specifically, I ask you render an opinion regarding (1) whether such certificate of incorporation and/or by-laws conflict with New York's Not-for-Profit Law or any other law, (2) whether, by extension, the actions of the Deputy Mayor conflict with New York's Not-for-Profit Law or any other law, and (3) any other issues which may arise out of your review of such certificate of incorporation or by-laws.
Thank you for your cooperation in this matter.
Sincerely,
/s/ Kathryn E. Freed
Chair, Committee on Contracts
attachments
-------------------------
1 The New York City Law Department acted as the incorporator.
2 The Deputy Mayor stated that he removed the two directors due in part to their "personal resistance to accepting experienced City government managers on a temporary basis -- free to the corporation -- to help manage the CACC while a national search for a permanent Executive Director continues." The City's unwillingness to provide a salaried manager in theCACC is notewworthy in light of the fact that the City has maintained that the CACC is a private not-for-profit corporation, and not a City agency.
[seal]
State of New York
Office of the Attorney General
Dennis C. Vacco, Attorney General
Pamela Jones Harbour, Deputy Attorney General
(212) 416-8392
August 13, 1997
Hon. Kathryn E. Freed
Chair, Committee on contrcats
The Council of the City of New York
City Hall
New York, NY 10007
RE: Center for Animal Care and Control
Dear Councilwoman Freed:
I am writing in response to your request to Attorney General Dennis C. Vacco for an opinion concerning the legality of the organizational structure of the above organization. I understand from James Cole of the Attorney General's Appeals and Opinions Bureau that he has already advised you that the Attorney General does not render such opinions to entities other than state agencies.
After his communication with you, Mr. Cole forwarded your letter to the Charities Bureau for our review. This bureau has reviewed the information that you forwarded to us and has determined not to pursue this matter.
Very truly yours,
/s/ Karin K. Goldman
Assistant Attorney General
Registration Section Chief
KKG:lu/Freed
