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Saturday, June 13, 2020

Let's be very clear....Cuomo's Executive Orders....

...regarding holding meetings which differ from holding Public Hearings are an easy read for anyone who takes the time to read them.  I did just that.

First of all, Public Hearings are required by sections of Town Law; other town meetings are held to conduct the normal business of the town and not specifically controlled by any law other than the Open Meetings Law.

Governor Cuomo's Executive Order 202.1 dated March 12, 2020, was the first directive regarding meetings of local governments. It stated:
Suspension of law allowing the attendance of meetings telephonically or other similar service:
Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed;

Contrary to how Miscione or the town attorney is reading this order (if they even read it), it did not throw the Open Meetings Law out the door; it merely allowed a local government to hold a meeting without requiring that the public be allowed to attend in person. All other sections of Article 7 of the Public Officers Law has been and is still in effect.

On April 9, 2020, the Governor got a little more specific as to what meetings he is addressing in Executive Order 202.15 which states:
Any local official, state official or local government or school, which, by virtue of any law has a public hearing scheduled or otherwise required to take place in April or May of 2020 shall be postponed, until June 1, 2020, without prejudice, however such hearing may continue if the convening public body or official is able to hold the public hearing remotely, through use of telephone conference, video conference, and or other similar service.
So it is fairly clear that he is speaking directly to a Public Hearing which is required by law, i.e. zoning, local law, etc. and has proclaimed they cannot take place until June 1, 2020 unless the local government uses a format which allows for the public to speak remotely in real-time.

On June 7, 2020, the Governor released Executive Order 202.39 which states:
NOW THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202.15, through 202.21, and including 202.29, as contained in Executive Order 202.29 until July 7, 2020.
So, Executive Order 202.15 (above) regarding Public Hearings has now been extended until July 7, 2020.

The Governor's Executive Orders are currently through 202.40 which did not supersede any order in the 202.39.

Therefore, the town board has 3 choices to make prior to the two (2) Public Hearings that have been scheduled for this Wednesday, June 17, 2020:
  • Defy the Governor's Executive Orders ...open their doors to everyone who wishes to speak on June 17, 2020 and not worry about social distancing if there is inadequate room for all who choose to attend ...(not just the first 10 who show up
  • Cancel the Public Hearings; actually, the one for solar is invalid anyway just by the fact that the law has not been followed regarding adopting a local law;
  • OR

  • provide a means to hold the hearing interactively with interested persons from the public able to remotely be heard during the meeting.
That last choice will require some fast work because they need to make sure that the public is fully aware of where and how the public can connect to the meeting; the Open Meetings Law requires that:
§104. Public notice.
  • Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given or electronically transmitted to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
  • Public notice of the time and place of every other meeting shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
  • The public notice provided for by this section shall not be construed to require publication as a legal notice.
  • If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
  • If a meeting will be streamed live over the internet, the public notice for the meeting shall inform the public of the internet address of the website streaming such meeting.
  • When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website.
Bond, Schoeneck & King has a good article regarding compliance, they state:
When utilizing videoconferencing or teleconferencing to conduct your meeting, the public notice for the meeting must inform the public about that electronic method(s) that will be used. The notice should also provide information about how the public can view or listen to the meeting (e.g., provide the website URL and log-in information for an online videoconference meeting or the dial-in instructions for a telephone connection to a meeting).
I have provided links to all the Executive Orders mentioned above in case anyone is interested. The NYS Comptroller has weighed in on the subject; so has the Association of Towns and the Conference of Mayors.

With all the resources available online, our town attorney was apparently unable to competently advise Miscione and the town board regarding the ins and outs of holding a Public Hearing under the Governor's Executive Orders.

As taxpayers, we pay the town attorney's salary...I believe he needs to start doing his job!



Friday, June 12, 2020

Tap; Tap; Tap...


Excuse me, Supervisor Miscione and Town Attorney Cully...I think you have overlooked a few things such as NYS Town Law!

Calling a Public Hearing to adopt a local law prior to perfecting said local law and letting it "rest" in the hands of the town councilmen for a prescribed number of days depending on the method used to get the proposed law to the councilmen is contrary to the dictates of Municipal Home Rule...and several court decisions plus the Dept. of State has a different opinion on the law than the town attorney.

We already wrote yesterday that after a phone call to the town clerk's office and a search of the town's website, we were unable to get a copy of the proposed solar local law which is the topic of the Public Hearing for Wednesday, June 17, 2020.

Someone from the town clerk's office was supposed to call us back and/or provide us with a copy of said law yesterday.

No one did, however. So this morning we once again called the town clerk's office and this time we were told that the town clerk has a copy of the initial law that was proposed, but the town attorney was still working on an amendment that would be added before Wednesday's meeting; however, it wasn't ready yet.

As we requested, the town clerk's office did send us a copy of the initial text which is here.

We will be generous and give everyone the benefit of the doubt that the initial proposed law has been in the hands of the councilmen the required number of days; although we have our doubts.

At any rate, as the Department of State has clearly outlined in their brochure, Adopting Local Laws in New York State, the step-by-step process that must be followed to adopt a local law.

Page 12 of that brochure clearly states:
"Waiting Time.

Possibly, one or more amendments may be considered and accepted. Assuming that the proposed local law is to be amended, it should be rewritten and reproduced in its amended form and given the same introductory number but a new print number. It would then be subject to the requirements of the Municipal Home Rule Law, Section 20(4), concerning being on the desks or table of the members for at least seven calendar days (exclusive of Sundays) or having been mailed to the members at least ten calendar days (exclusive of Sundays) before the local legislative body may act on it."
Meaning the proposed local law, once final and no further amendments are added, needs to be in the hands of the town councilman for seven calendar days or mailed to the members at least ten calendar days, not including Sundays...not 2 or 3 hours prior to holding a Public Hearing and adoption by the town board.

That being said, the June 17, 2020 Public Hearing is not really the "official" Public Hearing; it will merely serve as a time for the public to comment on the proposed law; no action can be taken by the town board to adopt said local law at this time.

Any more concerns raised by the councilmen or the public that require further amendments to the proposed law after Wednesday's town board meeting, needs to be incorporated into the initial proposal along with Cully's amendment that is not yet finished.

At that point, Town Law requires that the town board goes back to Step II, "The municipal attorney is requested to draft a law which deals with the problem at hand".

Then when all their ducks are in a row; the town attorney has drafted a law taking into consideration any and all amendments; that is when the town can go on to Step III:
"The law is presented to the municipal governing body and introduced by one of its members."
Then comes Step IV:
"A notice of hearing is published which informs the public governed by this proposed law, that such a matter is before the municipal body (or the chief executive officer who must finally approve the law, as the case may be) and their comments will be heard on the issue."
If the Public Hearing necessitates any further amendments to the law, that is where Step VII comes into play:
"The municipal attorney may be required to amend or redraft the proposed law based on the input from the local residents at the public hearing. If so, the procedure will start over at Step II and follow the same time frame as the original draft."
The brochure continues:
"Time Frame. It is the responsibility of the municipal attorney to see that the format of procedures has been adhered to."
The brochure continues by listing all seven (7) steps that are required to be followed in adopting a local law.

That's the law, my friends, which means that the town board has some work to do before their "official" Public Hearing can legally take place and the best that can be done at Wednesday's meeting is for the town board to discuss the proposed law and allow comments from the public.

Yeah, I know, you were doing this the way the town has always done it, but how would that excuse work for you in a court of law, Cully?

Oh, and next time this or any other local law is being brought to the public for comment, perhaps the town should see that a copy of the local law is available on the town's exquisite website prior to the Public Hearing so the public knows what they are dealing with!



Thursday, June 11, 2020

Rules are for thee, but not for me?


Last week, the town posted two (2) legal notices in the Observer Dispatch for Public Hearings to be held at the town offices, 8635 Clinton Street, New Hartford, NY commencing at 6:00 p.m. on June 17, 2020; one for a change in the town’s solar law and one for the proposed zoning change to accommodate a proposed project by Conifer Realty.

The notice for the Conifer development states:
PLEASE TAKE NOTICE that the New Hartford Town Board will hold a Public Hearing on Wednesday, June 17, 2020 to commence at 6:00 P.M., or as soon thereafter at the Municipal Building, 8635 Clinton Street, New Hartford, New York...

Due to the current pendamic (the town’s spelling), strict requirements must be met. Participants must wear face masks and practice social distancing, no more than ten (10) persons.
The notice for the solar law amendment states:
PLEASE TAKE FURTHER NOTICE that a Public Hearing upon said Local Law Introductory will be held at the aforesaid address on the 17th day of June 2020, at 6:00 P.M., or as soon thereafter as reached in the regular course of business, and that an opportunity to be heard in regard thereto will then and there be given.
Also, please notice that the legal notice for the change to the solar law states that the proposed law is available either the town clerk’s office or on the town website.

After a diligent search over several days, We are unable to find a copy on the town’s website so we called the town clerk’s office and were told they know nothing about it, but would return our call.

So, are we to assume that anyone can attend and speak to the proposed solar law zoning amendment held on the same night; same place; same time as the Conifer Public Hearing, but only 10 people will be allowed into the building for the Conifer project?

Again, we called the town clerk's office to confirm the rules and were told that's the rule ...someone will be at the door and after 10 people are let in, the door will be locked!

Contrast that with two more legal notices from other municipal governments published in this week’s Observer Dispatch.

One from the Town of Marcy that says:
PLEASE TAKE FURTHER NOTICE, as a result of the COVID-19 pandemic and state mandated restrictions, all attendees will be required to wear face masks covering their nose and mouth and six (6) foot social distancing will be enforced. Attendees must strictly adhere to the above and any other applicable CDC guidelines.
One from Oneida County Board of Legislators:
Due to public health and safety concerns related to COVID-19, the Oneida County Board of Legislators will not be meeting in-person. In accordance with the Governor s Executive Order 202.1, the hearing will be held via videoconferencing, and a transcript will be provided at a later date. The public will have an opportunity to see and hear the meeting live and provide comments in real time. The public can virtually attend the meeting by calling Mikale, Clerk of the Oneida County Board of Legislators, at 315-798-5404, to be provided a meeting identification number and password. Public comments will be accepted during the hearing through videoconference. Written comments can also be provided via email before and during the meeting to Regina Venettozzi, Chief Planner, at rvenettozzi@ocgov.net.
Both legal notices can be viewed here!

So if the Town of Marcy is following no Executive Order and the County of Oneida is following Executive Order 202.1, just what Executive Order is Miscione following...OR...might it be just Miscione is taking advantage of a situation to lock-out town residents because he doesn’t want to deal with the feedback, but would rather just bully the town board into submission like was done at last night’s town board meeting.

Miscione needs to get his head out of his ass and start acting like he is one of 5 board members who are elected by the people to serve all the people; not just his own "desires" and those of his friends!

Disgraceful! Any town board member who sits back and allows this to happen needs to be retired!



Wednesday, June 10, 2020

The king was in his counting house counting out his OUR money...

Nice article in the OD regarding renovations at the Rec Center....

Few problems though:
1. In the article, Miscione says, "the renovations are funded through roughly $180,000 in savings the town has accrued yearly by having him function as head of the parks department along with his role as town supervisor."

Town Law prohibits an elected official from simultaneously holding a civil service job. I have several attorney general opinions to that fact referencing Town Law 64 (5). The last time I looked at the town's Employee Handbook, the Parks Director is a department head that comes under civil service. (For the record, Miscione is not the only New Hartford elected official also holding a civil service job...just saying!)

2. He is using town personnel to do the work but we don’t know who...that is another issue I won't get into right now. I have tried schooling Miscione on this several times...hasn't worked yet.

3. If we are using town employees, is the $180,000 all for supplies? How did the town obtain these materials...bidding; piggy-backing off another municipality; or merely using the town's credit cards? I guess I could check the town board minutes...oh, snap, there haven't been any town board minutes available since last October. Darn!

4. So supposedly Miscione has "roughly $180,000 in savings the town has accrued yearly..." which is being used to fund this project. So how do you accumulate fund balance for a position (Parks Director/Rec Director) that you no longer fund with tax dollars in the annual budgets? Did something change in Budgeting 101 since I retired? Um, I think that is actually called using fund balance.

4. Previous year’s savings are this year’s fund balance more commonly known as the “rainy day” fund. If Miscione is using savings from previous years, there are only 2 ways to do that legally. Appropriations in the current year’s budget or a town board budget transfer listing the fund(s) to be used prior to expending the money.

Miscione cannot just move money around whenever he feels like it; he gets his authority from a majority vote of the town board.

The 2020 General Wholetown Budget shows $374,400 of fund balance as anticipated revenue to be applied to offset the 2020 budgeted appropriations. It is unclear what part of the General Wholetown budget that money was initially earmarked to cover, but a good guess is that it is supposed to offset some of the $889,375 bond principal and interest that is due this year. There does not appear to be a $180,000 expenditure in the Parks or Recreation Center budget that needs to be offset with fund balance.

Assuming the project stays within budget, is the $180,000 really included in the 2020 budgeted fund balance transfer or is that extra fund balance that will need to be used unless savings can be found elsewhere in the 2020 budget to make up for the anticipated reduced sales tax revenue?
To sum up...the town apparently has used Willowvale pension funds; sewer district money; fire district 1 & 2 phony deficit money; lighting district money; Higby Road Water District users have been taxed extra money to pay principle on a 0% interest bond (whether or not that money is really still available cash is yet to be disclosed to the public); siphoned earned interest from several funds without reporting the income in the financial statements; plus several financial statements contain incorrect and misleading statements; and Miscione can be heard on videos of town board meetings lamenting over the decrease in sales tax revenue due to the shutdown.

Oh yeah, taking all that into consideration, it makes perfect sense to use unbudgeted “rainy day” funds to pay for “niceties” that are not essential right now and might make more sense for next year.

Overspending rainy day funds without town board authorization seems to ring a bell...where do I recall that to have been a problem in the past?



Wednesday, May 20, 2020

Figures...


I would love to know what information was used to create the 2010, 2011, 2012 & 2013 financial audits by D'Arcangelo regarding the Oneida County Consent Order.

There were several town board meetings with Steve Devan, Commissioner of the Oneida County Sewer District and Attorney Peter Rayhill in attendance to discuss the surcharge required to pay for the needed repairs. Tyksinski was opposed to New Hartford paying the greatest share of the cost and would not agree to allow the surcharge to be placed on the water bills of town residents in the district; negotiations were ongoing.

I put together a timeline with town board minutes on one side of the page and excerpts of town audits prepared by D'Arcangelo covering the years 2010 - 2013 on the other side which you can access here.

At the January 27, 2010 town board meeting Resolution 50 of 2010 was adopted; the town agreed to pay Oneida County $40,000 a month each quarter for the first year and revisit it again in 2011.

By my calculations, that would be $480,000 for 2010 which, according to board resolution, would be paid from the Mitigation Fund.

However, the 2010 Financials prepared by D'Arcangelo state that the town paid $459,227 from the Sewer Fund in 2010.

If you compare those figures to the 2012 Oneida County Revenue budget for G-Water Poll Control - Administration it tells a different story. Revenue Account G-2124.7 SSO Surcharge - Town of New Hartford shows revenue of $320,000 was received from the Town of New Hartford.

The 2013 Oneida County Budget G-Water Poll Control - Administration says total revenue received from New Hartford in 2011 was $259,227.

However, the 2011 town's financial statements prepared by D'Arcangelo states "In 2011, the Town of New Hartford's total surcharge was paid from a transfer from the Mitigation fund to the Sewer District in the amount of $443,173."

Looking ahead to the 2012 Financials prepared by D'Arcangelo on page 42 says the $443,173 for 2011 was paid from the Sewer Fund, but on page 43 the audit states that an equity transfer was made for $443,173 from the Sewer Fund back to the Mitigation fund because the funds were to be funded through use of Mitigation fees, but the funds were not transferred within the periods as authorized by resolution.

That brings us to the 2013 Financials prepared by D'Arcangelo; the note on page 42 state that the 2011 surcharge was paid by the Sewer fund balance in the amount of $443,173.

So let me ask...Any questions?

Friends, the Sewer District is only one (1) special district that has some very funny things going on and it would appear to be used as a slush fund to fill budget gaps.

We also have reported on the Willowvale Pension fund that appears to be overtaxed and the extra money appears to have been spent to fill town budget holes contrary to the requirements of NYS Town Law.

We have Fire District 1 & 2 that has supposedly been taxed for a "deficit" that the Finance Office was unable to justify.

We have the Higby Road Water District which a fund balance of over $100,000 yet that district has no other costs other than a 0% interest bond so how can a large fund balance (if it is even in cash and not I.O.U.s) be justified ?

We have lighting districts that have been overtaxed by increasing the contract prices in the annual budgets.

On top of that since 2011 earned interest on the money in the bank for each fund has not been distributed to each fund in the audits as required by law. Where is the money that is due each fund?

All of this has absolutely nothing to do with the declining sales tax revenue due to the Coronovirus shut-down. It has to do with insufficient financial oversight of the town board due to crappy monthly reports given to the town board that are insufficient for monitoring the financial condition of the town; lousy budgeting; and poor judgment of our supervisor(s).

Even so, the town board unanimously voted to pay the current auditors to visit the town monthly to oversee the work done by Miscione and the Finance Office person instead of hiring a full-time person who is experienced with town finance.  What could possibly go wrong?



Sunday, May 17, 2020

Trying to square a circle...


In reviewing financial statements of the Town of New Hartford prepared by the firm of D'Arcangelo & Co from 2010 to 2013, I have to ask...where did they ever get this information? Don't need to answer that...it is very apparent.

The 2010 audit says on page 10 and page 40:
"Department of Environmental Conservation Consent Order directs the District to mitigate the future effects of the sewer overflows along the Sauquoit Creek Basin. The total project is estimated to cost $79.2 million. The initial phase of the project is expected to cost approximately $25 million. In 2010, all participating users began paying a surcharge of $1.05 per 1000 gallons of water used except those in the Town of New Hartford. In 2010, the Town of New Hartford's total surcharge was paid from the Sewer's fund balance to the District in the amount of $459,227. In the subsequent years, this amount will be paid annually by a direct charge by the District to the users until the project complete and any borrowings are paid in full."
News to me...I was at the several meetings held in 2010 and 2011 to discuss the DEC Consent Order...I didn't hear anything like that; plus adopted resolutions in town board minutes tell a different story.

Ahhh, but it gets worse.

My friends, it is too nice a day for me to commit to staying indoors reviewing b/s from this town so please excuse me while I go outside and enjoy the day.

The corruption in this town knows no bounds...have a good one!

p.s. Miscone, now would be a good time to get the auditors busy auditing ALL special districts!