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Cunningham said the town was initially confident it would prevail in the appellate court decision. He said the reason for that confidence was based on the fact that a new issue was raised by complainant Theodore Rickets in the case that was not heard in the Supreme Court. He and his attorneys said the residency requirement fell under the Public Officers Law, which states the public officer must live in town they are serving.

"That was what we went into the Appellate Division and argued they can't appeal on this because they never reserved the right to argue it in the first place," he said, adding that the town said they had never been given the right to argue on the law. "That's why we felt very comfortable we would be successful because that is an ongoing standard that the appellate division has applied across the board."

While Colonie Republicans did win in court on the decision of residency, there was still an issue over the fact that Cunningham was running a department where they felt a lot of engineering decisions would have to be made. Cunningham said he does not make a single engineering decision nor does any engineering work. And with a combination of the town-designated engineers and the engineering firms the town contract out to, there is no need for him to make any engineering decisions.

In Bethlehem, Cunningham said when he looked for a commissioner of Public Works, he wanted someone who was a good administrator and could look at situations from a broader perspective, as opposed to just engineering. When he worked at Key Bank, Cunningham said, he managed programmers, even though he is not one.

Similarly, Cunningham said, Town Supervisor Paula Mahan wanted to appoint a Public Works commissioner who is an administrator as opposed to an engineer.

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