MONTICELLO, NY — There were hints as early as July. 

At that time, a press release about the county legislature’s vote to sell the Care Center at Sunset Lake notes that, after a vote approving the transfer to an LDC, “the LDC will assume ownership of the care center at a future date.” 

That date, it turned out, was December 4, as revealed by care center supporters during the December meetings. 

Some questioned whether the county kept quiet about the transfer in order to prevent changes to the decision.

Maybe the question should be, would the delay have made a difference?

How does the transfer to the LDC work?

There has been a great deal of focus since August 13 on the transfer process. County attorney Michael McGuire explained his office’s work in an email. 

First comes a resolution from the legislature with a supermajority vote. That happened on August 13, and it passed 8-1. 

Then, “the second step is to draft a deed and various other transfer documents and file them with the county clerk,” he wrote. “The resolution by the board is the most critical step, the filing of deed and transfer documents is largely ministerial.” 

And once started, everything grinds on.

“Once the board acts, as it did on August 13, the only way to stop the ministerial act from occurring is with a supermajority vote of the board to vacate or rescind their prior directive.”

Why did it take so long?

“On August 13, the legislature resolved to transfer the care center property. As the county attorney, I could not ignore that directive, but by the same token it did not require immediate action,” he wrote. “We filed the transfer in the normal course of business, unrelated to the legislature’s or Sunset Lake LDC’s activities at that moment.”

And there are other reasons the transfer took so much time.

An operating certificate was needed before the facility could be transferred, LDC board chair Lowell Feldman said in an interview on October 30. 

Directors’ and officers’ insurance would also be needed, as was noted in past LDC meetings. Nursing home litigation has been on the rise even before the pandemic. In April, New York state enacted qualified immunity from lawsuits for nursing homes, as long as the facility was responding to the pandemic in some way and was acting in good faith, according to a post at www.underbergkessler.com. The state removed the immunity for non-COVID-related care in July. 

Why are observers concerned?

Many people assumed the care center transferred soon after the August 13 vote, and the committee and legislative meetings have sometimes only muddied the waters. This has left many wondering whether the process could have been stopped and the resolution could have been changed at any time before the transfer took place. And since it was unclear whether it had transferred, did that imply that the process was being deliberately obfuscated?

This has come up in the removal of the “sale” language. While the LDC was charged with leasing the care center, the actual resolution from August 13 includes sentences like “for the purpose of ultimately transferring the subject real property, commonly known as the Care Center at Sunset Lake, for contemplated lease or sale.”

When it comes to changing the language, what is most important, McGuire said, is the August 13 resolution, not when the care center transferred. 

“The filing of the deed was immaterial to that language; it was the passing of the resolution on August 13 that was the critical act. The mere filing of the deed has no effect on the ability of the board to take whatever action they wished, as that was provided for in the August 13 Resolution.”

No matter the status of the deed, he said, “it would still take a super majority vote of the board to rescind the action they took on August 13, 2020.”

So no matter when it was initiated, it would take a two-thirds vote of the legislature to change the sale language.

Essentially, the transfer of the care center was less important than has been credited. “The mere filing of the deed was only a ministerial act, similar to hiring an employee after the Legislature has voted to do so,” McGuire wrote,  “unless it so directs at the time that employee can be hired at any time up to the time that they rescind that resolution.”

When is a supermajority vote needed? 

“There are a number of times a supermajority is needed,” McGuire wrote, “and it is provided for in the law.” The two most common, he said, are “the sale or acquisition of real property and to borrow money.”