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Politician calls on father to fill his seat; Amherst lawmaker called to military duty

The fact that an Amherst Town Board member has been called up to active military duty would be unusual under any circumstances. But the fact that an odd town law lets the member handpick a temporary successor because the nation is "under attack" is extraordinary.

Richard "Jay" Anderson, a member of the U.S. Navy Reserve, has been called up to active duty in the Persian Gulf and will officially begin his service Sept. 2.

He's named his father, former Assemblyman Richard R. Anderson, to fill in for him during the 11 months he's gone.

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.

"I made a very thoughtful and concerted decision to make sure that the residents are represented by an exceptional person," said Anderson, who is embarking on his second tour of duty.

Anderson, 34, has served for nine years in the U.S. Navy Reserve and will be leaving behind his wife and five children and stepchildren, ages 1 to 16. He last served as part of ground security forces, mostly in Kuwait in 2007-08, and said he didn't expect to be called back to duty so soon.

But he has been, and that's led to a number of legal surprises.

The ability for a single board member to unilaterally name his or her replacement has come as a shock to fellow Amherst board members. Most say they are having difficulty reconciling the fact that Amherst, "the safest town in America," is able to apply a law typically meant for times of imminent, catastrophic attack.

"My gut reaction is that I can't imagine that was what was actually intended by whoever actually wrote this law," said Council Member Steven Sanders. "But the town attorney has made it quite clear that the town code applies in this case."

The town's emergency interim successor law appears to be modeled on the state's Defense Emergency Act of 1951, said William Peat, a spokesman for the state Division of Homeland Security & Emergency Services.

To protect the continuance of state government, in the face of "Communist aggression" and "radioactive fallout," the Defense Emergency Act was adopted to allow for the survival of state government and the emergency succession to the governor's seat.

Town Attorney E. Thomas Jones said the town's version regarding emergency succession -- adopted in 1963 -- is clear.

"To the extent that the absence of an elected or appointed official of the town is related to an attack upon the United States, provisions of Chapter 11 of our code is mandatory. It's not optional."

All board members and appointed town officials without deputies are supposed to name three interim emergency successors, though many don't.

Anderson said his father is on the top of his list, which also names a veteran professor and Anderson's wife as second and third successors if Anderson's father cannot serve.

Despite the town attorney's opinion, Town Board members say they still have questions.

"My first reaction was, 'Wait a minute, the people didn't elect someone that you named.' Part of me just feels we should operate with a smaller board for a while," said Council Member Barbara Nuchereno.

Council Member Mark Manna also expressed misgivings but said he respects his colleague's commitment to the country.

"I support Jay. I pray for Jay," Manna said. "I have a long line of family members who have served, but now we're talking about practicing democracy, and we have to look at how laws are applied."

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 the town's law is not typical in most towns, Jones said. Lawyers with the State Association of Towns, the Bar Association, the State Attorney General's Office and a local firm specializing in municipal law told The News they have never come across such an unusual legal matter.

As for Anderson, he said he's proud to have the ability to name someone so well-qualified to fill in and understands his vision of government.

Richard R. Anderson was a county legislator from 1979 to 1988, then served as a member of the Assembly from 1989 to 1998.

He enjoyed a long and successful tenure but decided not to run for re-election after being arrested in 1991 and 1997 for driving while ability impaired. He was then appointed deputy counsel to the state Workers' Compensation Board but was fired in 2001 for improperly soliciting a board employee for political contributions.

"I haven't had anything to drink in 13 years," the senior Anderson said, "so if anyone's concerned about that, there's really no point in their concern. That was a long time ago."

He said he was initially resistant to filling in for his son and added he won't accept any salary while filling in for his son.

"But with the necessity of having someone who isn't looking at higher political office or having any political agenda in mind, that makes sense for me to serve in his stead," he said. "I've been away from the political end and government for 13 years but certainly have an interest in Amherst, and have continued to follow the issues."

e-mail: stan@buffnews.com

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