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Thursday, October 3, 2013

Town Attorney obfuscates in response to Town Resident’s FOIL Request and Appeal…

When questioned by Councilman Backman at the September 11, 2013 town board meeting, Supervisor Tyksinski said he had billed the owners of the Hampton Inn for 2013 town property taxes and in return payment was received from the owners.

One day later, on September 12, 2013, we filed a Freedom of Information request for what, by all accounts, should have been readily available documents.

It was a simple FOIL request…
I would like to FOIL copies ALL tax bills or letters asking for PILOT tax payments that were sent to the owners of the Hampton Inn.

I also would like to FOIL verification that the tax bills have been paid either by a copy of the cancelled check or a deposit slip or any and ALL documents that exist that would verify that the taxes have been paid and deposited.

Please send these documents to me electronically.

If no such documents exist, please provide me with a certification to that effect.
The town clerk’s office said the FOILed documents should be available by September 27, 2013. Twelve days is somewhat unreasonable given that these documents should be readily available; however, we waited patiently.

September 27th and still no answer to our FOIL request. Rather than wait until the next board meeting which isn't until October 23rd, we decided to submit a FOIL Appeal to the town board for their decision at last night's town board meeting as to whether or not to release the documents.

A few hours before the town board meeting, we received an email from the town clerk with a memo from Supervisor Tyksinski and attachments in response to our original FOIL request.

The attached documents did include a letter requesting the payment of town taxes for 2013; however, we noticed that it was written on a plain sheet of paper…not on the town supervisor's letterhead…and the letter was not dated.

Accompanying the letter was a receipt signed by Carol E. Ryan, Supervisor Tyksinski’s secretary; however, she apparently uses the title of account clerk according to the signed receipt. Also, the place on the receipt where one would detail the town account that the money would be deposited in was left blank.

Ms. Lawrence promptly replied to Melody in the town clerk's office with an email, copied to all town board members, asking the town supervisor to certify that the documents were true records of the town. According to opinions of Robert Freeman from the Committee on Open Government:
Pursuant to §1401.2(b)(5) and to implement §89(3) concerning an agency's duty to provide certification, the records access officer has the duty of ensuring that Town personnel certify that copies of records are true copies.
Ms. Lawrence also stated in her email that not all the documents requested in her FOIL were provided. Ms. Lawrence asked for proof that the money had been paid and deposited in a town account. As a CPA, Supervisor Tyksinski should know that a receipt is meaningless and certainly is not proof that money has been deposited in the proper town account or even received for that matter.

Apparently, Ms. Lawrence’s email hit a nerve on the 2nd floor of Butler Hall that resonated all the way downtown, because the town attorney came to last night's town board meeting prepared to expound on Ms. Lawrence's FOIL appeal using more bull excrement.

When it came time to discuss the FOIL Appeal, the town attorney took over the meeting. Actually, it is odd that the town attorney felt the need to control the discussion since it was such a simple FOIL request that should have been dealt with by the town board since they actually have the final decision regarding FOIL appeals; not the town attorney. The "town resident" wasn't even given a chance to speak as is customarily done with FOIL appeals. Sadly, not one person on the town board felt compelled to ask questions or speak up on behalf of "the resident", as Attorney Cully kept referring to Ms. Lawrence. The town board just sat and listened to the town attorney babble on.

At one point Attorney Cully stated that he did not feel that there was an appeal because the records had not been denied; we beg to differ. The records that were provided, only after the receipt of a FOIL appeal, did not answer the FOIL request; there was no indication that additional records would be forthcoming and the time to respond was unreasonable given the availability of the records.

Attorney Cully ended his diatribe by saying he would write to Robert Freeman and “the resident” regarding the appeal so we should be receiving something from the town attorney by October 11, 2013 if he plans to comply with the FOI Law. Our FOIL appeal was filed with the town clerk's office on September 27, 2013 and a written reply has to be received within ten (10) business days of the appeal being filed.

Fact is...Supervisor Tyksinski was videotaped at the September 11, 2013 town board meeting; he clearly stated the documents exist in answer to Councilman Backman’s questions. The town supervisor, without interference from the town attorney, could have just provided the correct documents along with certification that they were true documents and life would have gone on. But he and the town attorney decided to do otherwise.

If anything, after Attorney Cully’s diatribe, we have to question if the documents that Supervisor Tyksinski supposedly said he had when questioned at the September 11, 2013 town board meeting really exist. Have the 2013 town taxes on the Hampton Inn really been paid? Why would the town attorney get involved with a simple request for documents that, according to Supervisor Tyksinski, are clearly available?

What was really bothering Attorney Cully and Supervisor Tyksinski...the FOIL appeal that Cully claims isn't really an appeal or the fact that we used our rights under the Freedom of Information Law to obtain records that may or may not be available and then further asked for certification as to whether or not the documents provided were true documents of the town?

Here is Town Attorney Herb Cully reacting to the FOIL request/FOIL appeal of the nameless “town resident”:


Strikeslip said...

Very suspicious! If the deposit was indeed made, evidence of same should have been readily at hand. The lack thereof, and the ensuing attempt to marginalize Ms. Lawrence for asking for the document, leads to an inference that the supervisor was lying.

Anonymous said...

The Town Attorney works for the Town Board NOT the Town Supervisor. Given the actions of the town attorney or whatever his title is, lends credence to the suspicion that there appears to exist a conflict-of-interest in his role as town attorney. Perhaps, the Town Board should ask for the resignation of the Town Attorney when reflecting upon the large political donations made to the Town Supervisor's re-election campaign. Would this town attorney give such large political campaign contributions to anyone of the town board members? Remember there are Democratic and Republican Councilman on the Town Board. Someone needs to raise a conflict of interest issue with the State Officials or Members of the BAR?