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Poloncarz loses bid to limit pay of attorney; County comptroller may appeal ruling

A judge has ruled that Erie County Comptroller Mark C. Poloncarz had no power to block paychecks to the new county attorney when he tried to limit the lawyer's salary to about $100,000 a year -- the amount set by the Legislature.

State Supreme Court Justice John L. Michalski has told lawyers in the case that he will sign an order telling Poloncarz that he cannot again interfere with direct-deposit transfers to County Attorney Jeremy A. Colby and that Colby may collect the $150,000 a year that County Executive Chris Collins promised and the county personnel commissioner certified.

Poloncarz already was at bay because Michalski in April granted the temporary restraining order that Colby and Personnel Commissioner John W. Greenan requested. The restraining order, letting Colby receive the $150,000 salary, was in effect during the months preceding Michalski's final order.

The order, declaring that Poloncarz "acted outside the scope of his duties and legal authority," will be signed next week. The Buffalo News obtained a copy Friday.

While the Collins team saw it as a clear rebuke to the comptroller, Poloncarz hinted that he might take the case to the next level.

"Of course, I am going to honor his decision, but we are looking at appealing," Poloncarz said. He then repeated a question asked to Michalski during court arguments: "What if the county executive set the salary at $1 million? Is that to say the comptroller is required to pay it?

"If you read his order, that would appear to be the case," he said.

The Collins team again accused Poloncarz of political motivations. Poloncarz, a Democrat, will run against Collins, a Republican, for county executive this year.

"While an official order has yet to be signed, it is clear the court strongly disapproved of Mr. Poloncarz's actions in this matter," Collins spokesman Grant Loomis said. "It is not within his authority to set the salary for an employee based on his political positioning."

The dispute actually sprang from the clash between Collins and the County Legislature over this year's budget. Collins last year offered a $150,000 salary to draw qualified candidates for the county attorney's job, and he budgeted that amount for this year.

The Legislature's Democratic majority, in its review of the budget, dropped the pay to $99,226 -- the county attorney's starting salary under the county's pay grades.

Collins refused to honor the change. He raised a technical argument about the Legislature's budget maneuver and declared it "null and void," a label he gave to a number of other Legislature decisions he will not implement. Those matters also are in State Supreme Court, before Justice Joseph R. Glownia.

In an early round, Glownia sided with the Legislature. Still, Collins and his aides arranged to pay Colby $150,000 a year.

Since the Legislature never allowed the higher salary, Poloncarz refused to pay it. Erie County's checks carry the comptroller's name, and Poloncarz instructed his chief auditor to block any payment based on the higher salary. He was willing to honor checks calculated at the $99,226 level established by the Legislature.

In court, an attorney for Colby and Greenan argued that Poloncarz would have had to receive a judge's clearance to block Colby's pay. Colby and Greenan also asked that Poloncarz pay their attorney fees, but Michalski denied that request.

Taxpayers might be on the hook for paying lawyers on both sides of "Colby and Greenan v. Poloncarz."

In other legal challenges against Collins, Poloncarz had asked lawyer Jerome D. Schad to donate his services. This time, Poloncarz was being sued, and he has submitted Schad's fees to the County Attorney's Office for payment. The government also will pay the law firm Goldberg Segalla, which represented Colby and Greenan.

e-mail: mspina@buffnews.com