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Lawmaker's decision to appoint father based on unusual law draws criticism

Amherst Council Member Mark Manna said he wants the State Attorney General's Office to weigh in on fellow Council Member Richard "Jay" Anderson's decision to name his father as his temporary replacement while away on active military duty.

Under a little-known town law adopted in 1963 regarding emergency interim successors in case of foreign attacks on the nation -- including nuclear and biological warfare -- Anderson has sole power to name a temporary replacement for the duration of his tour of duty.

He has named his father, former Republican Assemblyman Richard R. Anderson, to fill in for him during the 11 months he'll be in the Persian Gulf, starting next month. Anderson has been a member of the U.S. Navy Reserve for nine years and will leave behind his wife and five children and stepchildren.

Manna wants the Veterans Committee and the Town Attorney's Office to review the matter.

"I'm also going to ask the town attorney to ask the Attorney General's Office for an opinion on how the town attorney is interpreting [the provision] and if he's interpreting it with the spirit and intent for which it was written," he said.

The town's emergency interim successor law appears to be modeled on the state's Defense Emergency Act of 1951.

That law, adopted near the start of the Korean War, states as part of its purpose: "The legislature hereby finds and declares that the aggressive forces of communism are employing threats of nuclear attack to achieve their plan and purpose of world domination and to confound the aspirations of free people everywhere."

Therefore, the Defense Emergency Act was adopted to allow for the survival of state government and the emergency succession to the governor's seat.

The town adopted its own version of the emergency interim succession law in 1963.

Anderson's four council member colleagues all expressed varying degrees of surprise and skepticism this week about whether the town's emergency succession law was meant to apply in the case of a veteran called to active duty.

"Initially, when I first heard it, I was like, 'You've got to be kidding me. There's no way it applies in this case, and if it does, we've got to change something,' " said Council Member Steven Sanders.

He added, however, that he's not a lawyer. "I'm not looking to break the law," Sanders said.

Typically, elected officials called to active duty maintain their post and title even though they are unable to fulfill their duties. Their seat simply remains open during that time. But other towns don't have the emergency succession law that Amherst has.

Town Attorney E. Thomas Jones has said that because Anderson's absence directly corresponds to troop activation orders following the Sept. 11 attacks, the application of the emergency succession law is mandatory.

He and Anderson both refer to wording in Anderson's orders stating that his call to active duty is ordered "in support of operations as prescribed in Executive Order 132223 of Sept. 14, 2001."

"This is not a set of circumstances that I've created," Anderson said. "My call to absence is due to an executive order dated three days after 9/1 1."

Supervisor Barry Weinstein said he's putting in a resolution for the next regular town board meeting Aug. 15 to get a formal, written opinion from the town attorney regarding the Chapter 11 law.

He also stated that Richard R. Anderson is an "excellent choice" to temporarily fill in for his son, though he also talked with Jay Anderson about considering other names as well.

"We've discussed a number of people," he said, though he declined to say who.

email: stan@buffnews.com