Stormwater Meetings in New Hartford...

Stormwater meeting tonight [Monday, June 27, 2011] starting at 7:00 p.m. in Butler Hall.

According to Brian Sanders, the coordinator for the Stormwater Meetings:

"The meeting will be a working session with a shortened agenda. The intention is to prepare committee comments on a few items for next month's Town Board meeting. The proposed stormwater legislation will be one of the topics."

Meetings are open to the public.

Here is the video of the last Stormwater Meeting held June 20, 2011:

Property Tax Cap...A tax cap breach in the works?

Special Alert! Dated June 24, 2011

From The TORCH:

The New York State Assembly this evening followed the Senate’ lead in passing a teacher pension bonding option that would undermine a property tax cap while generating more risk for taxpayers — but a leading State Capitol reporter has tweeted that Governor Cuomo’s “quick comment” on the bill suggests “strong opposition.” Cuomo certainly should be opposed.

An egregious fiscal abuse on its own terms, the bill (S.4067-A) would allow school districts across the state (except for New York City) to issue 15-year bonds to cover a portion of their rising teacher pension costs over the next several years - at least $1 billion in all, by one estimate...

For the full post, click here.


According to the NY Post in a June 25, 2011 article by E.J. McMahon, a senior fellow at the Manhattan Institute's Empire Center for New York State Policy:

The passage of a 2 percent cap on local property-tax growth in New York should have been the crowning achievement of Gov. Cuomo's first legislative session -- complementing an austere budget to set a more fiscally responsible tone for the Empire State.

But even before the tax cap finally came to a vote in Albany yesterday, the Legislature was making a mockery of the governor's objectives. Lawmakers approved a bill that would allow school districts to borrow money to cover a portion of their growing teacher-retirement costs -- the same costs that will be partially excluded from the tax cap, under a concession Cuomo made last month to secure the support of Assembly Speaker Sheldon Silver.

Read more of Mr. McMahon's article: Stabbed in the Back


And, according to the Americans for Prosperity New York Chapter facebook page:

The Senate and the Assembly have proven they are not serious about mandate reform and property tax relief by passing the Pension Borrowing Bond bill. Now we will have to see how serious the Governor is. Will he veto the bill? Call Gov. Cuomo at (518) 474-8390 and tell him to VETO S.4067A!

New Hartford Public Library and the Open Meetings Law...Part 2

In a March 18, 2011 opinion letter also written by Camille Jobin-Davis, Assistant Director of the Committee on Open Government, in response to an inquiry regarding the Board of Education of the Massena Central School District, several additional questions regarding the Open Meetings Law are addressed.

Even though the opinion letter is based on a question posed by another entity, we thought the information is worth mentioning since they may very well be questions that the New Hartford Public Library Trustees might have at some point in time:

Does the applicability of the Open Meetings Law change if a committee consists of three members of a governing body, and in addition, a fourth or fifth person, not a member of the governing body, is designated to serve on the committee?

What if each committee of the Board consisted solely of its own members, plus the Superintendent as an ex officio member?

Although that is not exactly the case here, what if additions of that nature were made to evade the applicability and intent of the Open Meetings Law?

The answer given in the Opinion Letter:

From our perspective, when the core membership of an entity consists of members of a governing body, the kinds of additions or actions described in those questions would not change the essential character of the entity.

In this case [Board of Education of the Massena Central School District], the core membership of such a committee includes three Board members, plus “at least two or more members of the school administration.” The core members, typically having been designated by means of a resolution approved by the Board, presumably may be removed only by action taken by the Board. Their status on the committee is likely permanent, unless and until the Board as a whole takes action to remove them or until they no longer serve on the Board.

The fact that committees of the New Hartford Public Library are comprised of current board trustees as well as members of the general public makes no difference. The mere fact that two (2) or more members of the governing body serves on the committee makes any meetings held by that committee an open meeting.

According to several written opinions of the Committee on Open Government:

With respect to the general intent of the Open Meetings Law, the first sentence of its legislative declaration, §100, states that:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy."

With that in mind, the question town residents should be asking is...

The New Hartford Public Library is primarily funded by public tax dollars...why is the Board President, who also happens to be an attorney, and other members of the Library Board of Trustees continually trying to circumvent the Open Meetings Law so they can continue to conduct business behind closed doors?

One more thing, on the tape of yesterday's library trustee meeting, Mary DuRoss is heard recounting the events of the June 9th Re-Charter Committee meeting. Linda Romano asked Mary, for the record, to clarify who was at the June 9th meeting.

Mary DuRoss responds...Connie Stephens, Kevin Kelly, Earle Cunningham, Virginia Emmert, Ed Wiatr, Jr. and of course Mary was there.

By Mary's own recollection, we count six (6) members of the Board of Trustees present at that committee meeting. The total Library Board of Trustees is eleven (11), wouldn't six (6) trustees who gather to conduct library business be considered a quorum and therefore wouldn't the meeting be required to comply with the Open Meetings Law?

There are only three (3) board members appointed to the Re-Charter Committee...were the other three (3) trustees who are not appointed members of the committee merely there to sit in the audience?

Trustees, other than those appointed to a committee most certainly can attend committee meetings; however, if a quorum of trustees is in attendance at a committee meeting, in order to avoid a violation of the Open Meetings Law, those who are not committee members must sit as part of the audience, not at the board table and they cannot take part in any discussions or votes.

If the (3) trustees who are not members of the committee were not there in their official capacity as library trustees but merely as a member of the audience just like any other member of the public, then it must have been a meeting open to the public...you can't exclude some people and allow others to be part of the audience.

So, was the violation of the Open Meetings Law on June 9th based on the fact that a quorum of the Library Trustees met to conduct library business or a committee comprising three (3) members of the Board of Trustees met to conduct library business? Either way, the meeting was in violation of the Open Meetings Law because no prior notice of the time and place of the meeting was given to the public.

The Open Meetings Law clearly states such a meeting IS to be open to the public. The meeting was held in a public building; we were openly videotaping; we have every right to be there to videotape. Once we videotape, we own the video and we are free to do what we wish with that video.

Here is a short videotape posted by villageofvictory on Youtube with Robert Freeman, Executive Director of the Committee on Open Government answering questions regarding videotaping.



If we can be so bold as to quote Robert Freeman, a very humorous speaker, regarding videotaping people at a public meeting even if they don't like being videotaped:

"People should grow the Hell up!"

Sounds like sage advice from someone who is well versed in the all the little nuances of the Open Meetings Law!

New Hartford Public Library Trustee recuses himself...

after confirming that today's [June 22, 2011] Library Trustee meeting was held in violation of the Open Meetings Law.

At the start of the June 22, 2011 New Hartford Public Library Trustee meeting, Trustee Edmund J. Wiatr, Jr. asked Board President Linda Romano whether or not the meeting had been properly noticed to the public.

Prior to the meeting, we checked...The notice on the library website clearly stated that the next board meeting is to be held on June 15, 2011...not today, June 22nd.

There was a meeting scheduled for June 15th; however, the meeting was cancelled at the last minute and board members were notified by email that the meeting would be re-scheduled for today. The change was never noted on the library website and it appears that no notice was sent to the Observer Dispatch.

Board President [Attorney] Linda Romano referred Mr. Wiatr's question to other board members who sat in silence. No one seemed to know whose duty it was to see that meetings are properly noticed...the Library Director? the Board President? the Board Secretary? anyone? No one claimed responsibility...

According to the Open Meetings Law, if a meeting is not properly noticed to the public, the meeting is in violation of the law.

At the conclusion of the discussion when it became apparent that the meeting was in violation of the Open Meetings Law, Mr. Wiatr recused himself and sat in the audience for the remainder of the meeting.

Discussion ensued regarding the June 9th library committee meeting that we videotaped and posted on our blog.

More than once, Ms. DuRoss requested that the blog and video be removed, even threatening a lawsuit against the owner of the blog for slander if it was not removed. Slander for making an unedited videotape of a public meeting available? Now that's interesting. Perhaps Ms. DuRoss should read up on the law before making any more ridiculous statements.

Board President [Attorney] Romano then presented the board with a 1989 court case that she says backs up her contention that committee meetings do not come under the purview of the Open Meetings Law. Unfortunately, Attorney Romano fails to recognize the difference between a committee/working group made up of citizens and a committee/working group made up of 2 or more board members with governing powers.

According to the Committee on Open Government website, the court case provided by Library Board President [Attorney] Linda Romano centers around a committee made up of representatives of City, federal, state and local agencies, not a board or other public body with governing powers:

Poughkeepsie Newspaper v. Mayor's Intergovernmental Task Force on New York City Water Supply Needs, 145 AD2d 65 (1989) --

Task force created by the Mayor of New York City was directed to make recommendations concerning the City's long range water supply needs and consisted of representatives of City, federal, state and local agencies. Court held that it is not a public body, for it has no power or authority, but rather gives advice, and performs no governmental function, i.e., does not "exercise the power of the sovereign."

However...

When members of a governing body make up the core of a committee or sub-committee, work group, task force or whatever name is attached to the group, Robert Freeman has opined many times that:

In view of the amendments to the definition of "public body", we believe that any entity consisting of two or more members of a public body, such as a committee, a subcommittee or "similar body" would fall within the requirements of the Open Meetings Law when such an entity discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD 2d 984, 437 NYS 2d 466, (4th Dept. 1981), appeal dismissed 55 NY 2d 995, 449 NYS 2d 201 (1982)].

In a July 31, 2008 opinion letter written by Camille S. Jobin-Davis, Assistant Director of the Committee on Open Government written in response to the Board of Trustees of the Guilderland Public Library:

My research reveals that committees of public bodies made up solely of members of the public body are always advisory in nature. Cases that require committees of this type to comply with the Open Meetings Law include Lewis v. O’Connor, Supreme Court, Lewis County, January 21, 1997 (standing committees of the county hospital, made up entirely of members of the hospital’s board of managers, with no power to take final action nor bind the board of managers, are public bodies subject to the OML): “To keep their deliberations and decisions secret from the public would be violative of the letter and spirit of the legislative declaration as stated in the Public Officers Law.” Lewis, pp 4-5.; Bogulski v. Erie County Medical Center, Supreme Court, Erie County, January 13, 1998 (subcommittee of county hospital’s board of managers required to comply with OML); Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 601 NYS2d 29 (3d Dept 1993) (committee of the county board of supervisors required to comply with OML)

In addition to the court case provided by Board President [Attorney] Linda Romano, Trustee and Board Secretary Mary DuRoss provided a copy of a 2004 Opinion Letter from Robert Freeman, Executive Director of the Committee on Open Government. Supposedly, in a phone call today, Camille S. Jobin-Davis, Assistant Director of the Committee on Open Government referred Mary to this particular opinion on their website; Mary was sure that the Opinion Letter supported Attorney Romano's stance on the subject.

Unfortunately, Ms. DuRoss either didn't read the Opinion Letter or did not understand what it says.

According to the Opinion Letter provided by Ms. DuRoss:

In this regard, by way of background, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

Based on the foregoing, a public body is, in my view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body. The definition refers to committees, subcommittees and similar bodies of a public body, and judicial interpretations indicate that if a committee, for example, consists solely of members of a particular public body, it constitutes a public body [see e.g., Glens Falls Newspapers v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)]. For instance, in the case of a legislative body consisting of seven members, four would constitute a quorum, and a gathering of that number or more for the purpose of conducting public business would be a meeting that falls within the scope of the Law. If that entity designates a committee consisting of three of its members, the committee would itself be a public body; its quorum would be two, and a gathering of two or more, in their capacities as members of that committee, would be a meeting subject to the Open Meetings Law. [emphasis added]

Right on, Mary! We wholeheartedly agree with the opinion you provided in support of our position [albeit accidentally]...we thank you!

The Opinion Letter goes on to say:

Several judicial decisions, however, indicate generally that advisory bodies, other than those consisting of members of a particular governing body [emphasis added], that have no power to take final action fall outside the scope of the Open Meetings Law.

It is fair to say that neither Ms. DuRoss nor Attorney Romano seem to understand that there is a difference in the eyes of the Open Meeting Law. Committee meetings where the members of the committee are not board members/trustees do not come under the Open Meetings Law. That's not to say that those meetings can't be open, just that they are not required to be open if the committee members are not part of a governing body.

On the other hand, ALL committees of the New Hartford Public Library are comprised of at least two board members that are named to the committee by the Board President...that makes them public meetings under the NYS Open Meetings Law.

Without further ado, here is a video of today's Library Trustee meeting:

To be continued. Stay tuned...

Stormwater Meeting...

tonight, Monday, June 20, 2011 starting at 5:30 p.m. in Butler Hall.

Meeting is open to the public.

Hydrofracking...

At Wednesday's [June 15, 2011] New Hartford Town Board meeting, a Public Hearing was held on a proposed local law "imposing a moratorium on the activity known as hydraulic fracturing and/or hydrofracking in the Town of New Hartford".

Residents from New Hartford and neighboring towns spoke against hydrofracking and in favor of the proposed moratorium; no one appeared in opposition to the moratorium.

At the conclusion of the Public Hearing, the New Hartford Town Board unanimously voted to adopt the local law that will impose a 6-month moratorium on hydrofracking in the Town of New Hartford.

Here is the moratorium adopted by the New Hartford Town Board. Below is the videotape of the Public Hearing:

For more information on hydrofracking, please visit Hydro Relief Web.

Town Board Meeting Tonight...

Wednesday, June 15, 2011 starting at 7:00 p.m. in Butler Hall.

Agenda now online!

Grown-ups behaving badly...

The New Hartford Public Library Charter Revision Committee held a meeting tonight. Committee Members are Mary DuRoss, Chair; Connie Stephens, Virginia Emmert, Kevin Kelly, all Board Trustees; James Kirkpatrick and Albert Moretz, former Trustees and Mary Lou Caskey from Mid-York Library System. Other library trustees were also in attendance.

According to the Open Meetings Law, when two or more board members, in this case trustees, appointed to a sub-committee of the governing board gather to discuss business, the meeting is open to the public. As such it should be advertised to the public and videotaping is allowed.

In an Opinion Letter dated December 7, 2006, Robert Freeman, Executive Director of the Committee on Open Government opined:

...a governmental entity, i.e., a municipal or school district library, I believe that committees and subcommittees consisting of two or more members of the Board would be required to comply with Open Meetings Law.

However, some members of the New Hartford Public Library Board objected to our videotaping because they do not want to share information with the public regarding discussion of a possible re-charter of the library as a school library whereby the funds needed to run the library would be a separate line item on the New Hartford Central School tax bill rather than included in the town budget. According to one board member, they would have a better chance of the vote passing if there were less information available to the public beforehand. Another board member said he didn't care about the Freedom of Information Law and the Open Meetings Law...he had no intention of complying with either.

We say hogwash...taxpayers have a right to know what they are being asked to fund...the pros and the cons. The Open Meetings Law is there for a purpose; it is to prevent public business from being done behind taxpayers backs.

After some of the board trustees and committee members walked out, it was decided to adjourn the meeting because it was being videotaped rather than to continue the business that they came together to do.

It is truly sad that some members of the library board feel that 'outsiders' are not welcome and should have no say in these discussions even though the point of these meetings is to start making plans to ask voters/taxpayers in the New Hartford School District to agree to fund a $500,000 library budget as a separate line item on their school tax bill.

It is unfortunate, but it appears that the "movers and shakers" behind the New Hartford Public Library didn't learn their lesson from the 1994 bond vote for the building that was rejected because voters/taxpayers felt 'left out in the cold' with not enough information given to the public beforehand.

What is it that they say...history has a tendency to repeat itself? Unless the library trustees get their act together and start to recognize the need for public involvement, history may very well repeat itself. Then who will be 'left out in the cold'?

Here is tonight's shameful meeting:

Where's the beef?

Recently the Observer Dispatch reported:

The audit, which was released in late January, estimated that the town’s police fund at the end of 2009 owed other town funds – primarily the general fund – about $1 million due to police budget deficits from 2004 through 2009.

Tyksinski said his review in response to the state audit isn’t finalized, but the total is closer to $300,000.

Shortly after the article appeared in the Observer Dispatch, a request was sent to the town clerk for information from the Supervisor as to:

...what records (evidence) the town supervisor has in his possession that support an opposite point-of-view with that of the NYS Comptroller who stated that $1,000,000 is due payable from the Police Fund.

Please have him provide all records supporting his claim of only $300,000.

In reply to the request, the town clerk said:

...any amount which may have been given to the newspaper was an estimate and Patrick said he'd made that clear to the reporter. Upon determination of the final figure, Patrick will be happy to provide the calculations, which substantiates the final number. At this point there is no final number.

Interesting, particularly when you review the Corrective Action Plan which was submitted to the NYS Comptroller as the town's response to the audit of town records.

As part of the audit, the NYS Comptroller's recommended that "the Board should determine what portion of the general town-wide fund balance related to police operations and account for it in the newly-created police fund."

The town stated in the their Corrective Action Plan prepared in response to the Comptroller's audit that was released in January 2011:

"The determination of the Police Fund Balances, as of the date of this report is nearly completed. The correct fund balance will appear on the 2010 Annual Report submitted to the State Comptroller's Office."

The 2010 Annual Report would be the Annual Update Document [AUD] that is supposed to be filed with the State Comptroller's Office no later than May 1 each year as required by General Municipal Law Article 3 - (30 - 39) REPORT OF FINANCIAL CONDITION § 30.

A copy is also supposed to be on file in the Town Clerk's office for review by the public. So we phoned the town clerk to request a copy for our review. Incidentally, this is the document that the Observer Dispatch reviewed and was the basis for their article that reported that the "rainy day" fund was depleted by $2.8 million.

In response to our phone call, the town clerk replied that she knew that she was supposed to have a copy on file, but she did not have one.

She didn't have one because the town had not filed the report as of June 1, 2011...one month after the due date!

According to the NYS Comptroller's website:

Effective immediately all cities and counties, and those towns or villages with populations of 20,000 or more according to the 2000 federal census, now have up to 120 days after the close of their fiscal year to file their AUD. However, this is now a firm deadline [emphasis added]; there is no longer any flexibility given to OSC to extend the filing date beyond this period.

It is now June 8th, there was no Comptroller's AUD filed by May 1; we have been advised that the town is supposedly not in possesion of the 2009 and 2010 town financial audit that was supposed to be completed by D'Arcangelo by March 31, 2011; and Supervisor Tyksinski has no final figures as to the money that is owed to the General Fund in satisfaction of the money that was used to cover previous cost overruns in the New Hartford Police Fund.

In that same Observer Dispatch article previously mentioned, Supervisor Tyksinski is quoted as saying:

“To shift over some sales tax, I don’t think it’s going to hurt us,” he said.

When questioned for the article, Councilman Backman said:

...that would be a “questionable use of sales tax money.” He said the deficit needs to be made up by directly reducing expenses in the police budget – even if it takes a longer period of time.

We agree with Councilman Backman because according to note 8 on the bottom of page 13 of the State Comptroller's audit:

Because the police fund includes one village, it would not be considered a parttown fund.

That makes it questionable as to whether or not sales tax can be applied to the Police Fund.

The time to start working on the 2012 town budget is fast approaching. It's time to let taxpayers in on the financial condition of the town...we don't need any more surprises.

Where IS the beef Supervisor Tyksinski?