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Wednesday, August 12, 2020

Pennywise and Pound Foolish...

...the rest of the story.

So, on or around June 18, 2018, Miscione called me and wanted my opinion on whether he could just borrow the money for the purchase of Gander Mountain from Adirondack Bank without using and paying for the services of Fiscal Advisors; he had a friend who worked at Adirondack Bank who could arrange the loan. He thought the bonding fees the town had previously been paying for these services were too high and he was looking to save money.

I let him know that I would do some research and get an answer for him.

I sent an email reply to him at 10:23 P.M. on June 18, 2018 letting him know that he could use a bank note, but I advised him to seek further information from the Municipal Securities Rulemaking Board (MSRB) prior to signing any loan papers. About 20 minutes after receiving my email he replied "Thank you" and I left it at that.

A month later, on July 18, 2018, I sent another email to Miscione stating that I couldn’t find the loan disclosure on MSRB; I also attached a bulletin I found on the EMMA website. The bulletin was vague regarding bank notes, but I thought it was worth noting and something that Miscione should take into consideration. I once again advised him to get a legal opinion.

I inquired in a later phone conversation, if he had made any calls regarding the need to disclose the loan. He told me that his friend at Adirondack Bank said it wasn’t necessary to disclose the loan to the MSRB. I left it at that...who am I to question a friend who works at a bank?

Shortly thereafter, it was noted online that MSRB started to have concerns that not disclosing some “borrowings” could impair the rights of existing bondholders, impact the seniority status of existing bondholders, or impact the credit or liquidity profile of an issuer.

Their concerns were based on the significant increase in the number of private placements and bank loans executed by governments after 2008 because of lower interest costs; lower transaction costs; simpler execution process; greater structuring flexibility; no rating requirements or offering document required; longer terms and larger amounts. Bulletins from MRSB, like the one I had sent to Miscione in July 2018, encouraged Issuers to voluntarily post information about bank loans to EMMA; however, it is noted that few voluntary bank loan disclosures were made on EMMA.

Fast forward to August 2018. It is noted on several financial websites:
“the Securities and Exchange Commission (the “SEC”) adopted amendments (the “Amendments”) to the SEC’s Rule 15c2-12, as amended (the “Rule”) that add two new events which require the filing of a notice with the Municipal Securities Rulemaking Board (the “MSRB”) through the EMMA system. The Amendments significantly broaden the types of financial events an issuer (or obligated person) must report to the MSRB.” The amendment changes the Securities Exchange Act of 1934, Title 17 Code of Federal Regulations (CFR) part 240.15(c)(2)(12) commonly known as “Rule 15c2-12.”

"The amendment changes the list of events for which notice is required on the EMMA website. Additional required disclosures now also include:
  • Incurrence of a financial obligation, if material, or agreement to covenants, events of default, remedies, priority rights or similar—any of which affect security holders (debtholders) if material."
"Any of these events require filing on EMMA within 10 days."

"With this new rule, the SEC clarified the term “financial obligation” to mean:
  • Debt obligations (of any sort)
  • Derivative instruments in connection with, or security of an existing or planned debt obligation (a hedge)
  • A guarantee of either (which the GASB terms as a nonexchange financial guarantee)"
"It is important to note that the SEC rule changes do not distinguish between bonds, certificates of participation, notes, loans, direct borrowing, direct placement or other forms of debt."
As of February 27, 2019, as a result of amendments to the S.E.C. rules, it is now mandatory that disclosure for any incurrence of debt be filed on the EMMA system within ten (10) days.

The $3.3 million debt missing from the documentation filed with EMMA from the Town of New Hartford with the assistance of Fiscal Advisors was authorized by a vote of the town board in December 2019; months after the new Securities & Exchange Commission amended their “Rule 15c2-12”.

Apparently, the town did not discuss the $3.3 million bank note with Fiscal Advisors; therefore, Fiscal Advisors did not disclose it in their June 30, 2020 disclosure filed on EMMA as required by the S.E.C. The Town of New Hartford is in non-compliance with the rules of the Securities & Exchange Commission.

From the website of EIDE BAILLY:

What if Governments Do Not Comply?

"Noncompliance could be a serious matter. At the very least, bond offering statements may be required to give notice of the noncompliance for five years. This may also hinder access to potential buyers of the government’s debt and may increase interest rates. The nationally recognized statistical ratings organizations (rating agencies) may adjust the government’s debt ratings or outlook based on the noncompliance. Finally, cases have occurred where the SEC has charged the issuer with securities fraud and levied fines due to inaccurate filing of EMMA notices."
My advice, for what it is worth, is Miscione needs to get on the phone to Fiscal Advisors a.s.a.p. and figure out how to resolve this issue.

I would also advise him and the town board to permanently hire a person knowledgeable in town finance and forget about using either Miscione or the Director of Personnel who apparently have no finance background.

Miscione is putting the town finances in peril as well as the reputation of every other person who sits on the town board acting like a bobble head nodding "yes" to every "money-saving plan" that Miscione concocts. If only a had a dollar for every time Miscione excused his actions by saying "the town board voted for it"!

The town has not filed the 2019 AUD with the NYS Comptroller; doesn't have a completed 2019 financial statement; and now has filed a false and misleading disclosure on EMMA with the assistance of Fiscal Advisors.

One last thing...perhaps the town attorney should learn the difference between someone who has been asked to give well-researched advice and someone who merely complains.  Too bad Miscione did not keep listening to my advice which is no longer available to him except on this blog.

Perhaps, it is time to wake up!

Tuesday, August 11, 2020



...looks like the town attorney; town supervisor; Adirondack Bank; Director of Personnel & Payroll; and Fiscal Advisors need to have a little talk so they all get on the same page!

Another document that was recently filed on the Electronic Municipal Market Access database was by Fiscal Advisors, titled "ANNUAL FINANCIAL INFORMATION AND OPERATING DATA FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019".

In reviewing the document, I noticed that the bottom of page 4 of the 114-page document lists the Town of New Hartford as the issuer and the town's contact person as Barbara Schwenzfeier, Director of Personnel & Payroll.

It also notes that the document was:

Fiscal Advisors & Marketing, Inc.
250 South Clinton Street, Suite 502
Syracuse, New York 13202
Fiscal Advisors has long been the company that has been hired by the town when the town board plans to issue debt in the form of either bond anticipation notes or serial bonds, so it is reasonable that they would "assist" the town with the required filings.

The strange part is that the date of the document is clearly marked "FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019"; DATED AS OF JUNE 30, 2020; it includes information from the 2018 Financial Audit; but some of the financial information is clearly marked "as of June 30, 2020". Guess they wanted to cover all the bases!

I haven't yet taken the time to read the entire 114 pages, but a couple of pages in particular so far are concerning.

For example, on pages 12-15 of this document, it states that the "Total debt outstanding as of June 30, 2020 is $ 13,956,551", to include bond debt maturing in 2037 and $0 bond anticipation notes (BANS) outstanding.

Strange...debt maturing in 2037?

However, "APPENDIX B" of that same document clearly shows that the town's current bonded debt will not be completely retired until the end of 2042 and that is exactly what I remember seeing in other documents. I have even blogged more than once about the absurdity of bonding so many small dollar amounts for that length of time.

I also seem to remember that on December 18, 2019, a bond anticipation note resolution was adopted by the town board totaling almost $3.3 million dollars yet it is not included in Fiscal Advisors financial documentation which is labelled as of June 30, 2020.

How could Fiscal Advisors have failed to include that in their report submitted to the Municipal Securities Rulemaking Board, an organization "charged by Congress with promoting a fair and efficient municipal securities market"?

Did Fiscal Advisors not know about the borrowing in December 2019 or did the town contact person fail to mention it when Fiscal Advisors was "assisting" the town?

Just what is the story? I have to wonder if any member of the town board knows...actually, I highly doubt it!

To be continued...

Sunday, August 9, 2020


The town is required to submit an Annual Update Document (known as the AUD) to the NYS Comptroller by May 1st each year. This report is very much like the annual financial statements except it is an unaudited report produced by the town supervisor or someone he assigns the task (previous to this year, the Director of Finance produced the report); however, in any case, the report is required to be signed by the town supervisor prior to being submitted.

The NYS Comptroller uses the data in this report to determine whether or not a municipality is under fiscal stress. Each year around September, the Comptroller releases his report listing the stress levels of each municipality and also listing those who have not submitted their reports.

I started noticing problems with this report some time ago, but never bothered to spend a lot of time trying to get to the bottom of the situation mainly because the prior supervisor was less than friendly; guess he didn't like my writing style.

When the 2018 DRAFT financials were finished, Miscione asked me to look over the draft version and let him know if I saw anything that might need clarification.

I definitely found oddities and shared my concerns with him. However, in the end I was told that there was an explanation for what I found. It was at that point that I realized that whomever was communicating with the auditors during their work sessions either was covering up something or had absolutely no idea of how town finances are to be handled.

I will get back to that in another blog complete with emails so everyone can see the explanations I received, but for now let me end by posting the following notice from the MSRB:


Electronic Municipal Market Access (“EMMA”)

July 14, 2020

Related to:



(the “Town”)

CUSIP BASE NO. 644890 & 64489P

As required under S.E.C. Rule 15c2-12, the above referenced Town is filing a Material Event Notice due to its Failure to Provide Annual Financial Information, consisting of its unaudited financial statements in the form provided to the State (the “Annual Financial Update Report Document”) for the fiscal year ending December 31, 2019, as required by the Town’s outstanding undertaking agreements.

The Town is currently in the process of completing the unaudited Annual Financial Update Report Document (“AUD”) for the fiscal year ending December 31, 2019. The Town plans to promptly post its AUD to the MSRB’s EMMA website upon its availability. from the Municipal saying on July 14, 2020, the Town of New Hartford "Town is filing a Material Event Notice due to its Failure to Provide Annual Financial Information, consisting of its unaudited financial statements in the form provided to the State (the “Annual Financial Update Report Document”) for the fiscal year ending December 31, 2019, as required by the Town’s outstanding undertaking agreements.

So, it would appear that as of July 14, 2020, the town cannot provide a copy of the 2019 unaudited Annual Update Document (AUD) and cannot provide a copy of the town's 2019 audited Financial Statements.

In less than a month, Miscione will need to start putting together the 2021 budget; should be interesting...

Here's a copy of the notice from the Municipal Securities Rulemaking Board.

Just one question...can you hear me now, Miscione?

Saturday, August 1, 2020

Sir, excuse me...

If you look at the town website that you created and touted as interactive, you will find that the last Comprehensive Plan adopted by the Town of New Hartford was in 2014; not 2016 like you have been telling everyone.

Actually, it was the beginning of 2016, a year and a half after the adoption of the Plan, when you started buying properties in the Seneca Turnpike area, don't you remember?

I know, it's easy to get confused.  It's so difficult to find any information on that damn interactive website you created. I had to use the search option on the town's website to find the Plan; I must say, information is very well hidden.

After going through two (2) pages of document possibilities that were returned by the search engine, even though I used "comprehensive plan" as my search words, I finally found the link to the 2014 Comprehensive Plan.

I have to tell you that the search engine showed a link to the 2007 Comprehensive Plan on page 1 of the search engine, a page before the link to the 2014 Plan.  Guess I should have been more specific and included 2014, but if someone is looking, and like you, doesn't know the actual year of adoption of the latest Plan?

For your convenience, sir, here is a link to the 2014 Town of New Hartford Comprehensive Plan from your interactive town website; the document is clearly marked as "2014".

Oh, wow, now I see where a link to the Plan can be found on the town's website...

After looking at the actual link which is " Hartford FINAL Comprehenisve Plan June 2014.pdf", it's clear to see that the document is filed under Media and Comprehensive is misspelled. Makes sense now why the document is so elusive!

By the way, where would I find copies of town board meeting minutes after October 16, 2019? I don't even find them in a search of the town's website.

One might think that you are against Open Government, sir; the phrase you ran your 2017 town supervisor campaign on...

Perhaps the town's website could use some work? You think?

Thursday, July 30, 2020

Sir, I think...

...your crown is starting to slip.

Yesterday's interview on Talk of the Town truly revealed a lot about the person at the helm in the Town of New Hartford. I have learned over time who Paul Miscione is; he is now starting to reveal himself to town taxpayers.

It is sad that our town supervisor has once again decided to become a part of "fake news" instead of standing like a man and admitting he was wrong.

My email to the town board and town attorney on Tuesday, July 27, 2020 makes it abundantly clear that there are ethics violations.

Miscione should take note that his "no" vote and lies did not remedy his situation.

Just listen to Miscione's blathering on the Talk of the Town...


FOILed documents and videos of town board meetings clearly show that Miscione was in it up to his eyeballs and he lead the crusade to bring this development to Woods Highway.

Town Board minutes, if they were available to the public and uncensored, would reveal that Miscione was not only the cheerleader, but he clearly stated at the July 22, 2020 town board meeting that he was going to vote "yes".

If he was truly a "no" vote and recusal wasn't necessary in the first place, why did it take a year of meetings (both in view of the public, and behind closed doors) only to get to a denial after a second vote of the town board?

Miscione claims that the footprint for the project was now reduced and no longer abutted his property; therefore, unlike the February 5, 2020 vote, he could vote at the July public hearing.


The Public Hearing Notice from December 18, 2019 says:
"pertains to property located on a parcel of land 26.6 acres in size off of Woods Highway"
The July 29, 2020 Public Hearing notice says:
"the applicant is only purchasing 27.7 +/-acres of land"
Looks to me like the project grew from December 2019 to July 2020. And don't you just love that "+/-acres" part added for the July 2020 vote?

By the way, the parcel never was officially split and there was no indication that it ever would be...the size of the project always seemed like a moving target and the latest public hearing notice appears to be wordsmithed to create an illusion.

If Miscione was a "no" vote, why was Conifer made to jump through so many hoops? And let's not forget that Conifer had already appeared before the Planning Board who had already preliminarily blessed the project or it would not have been before the town board in the first place.
Chapter 118. Zoning

Article XV. Amendments

§ 118-133. Report of Planning Board.

A. All proposed amendments, supplements or changes originating by petition or by motion of the Town Board shall be referred to the Planning Board for a report and recommendation thereon.
Is Miscione saying his Planning Board thought it was a good idea on the surface, but he never did like the project...I highly doubt it!

Besides, Miscione, it is perception that counts. Anyone with a modicum of brains could figure out what was going on! You insult my intelligence, sir!

Saturday, July 25, 2020


After the public hearing on February 5, 2020, it was reported that New Hartford Town Supervisor Paul Miscione recused himself from the vote stating that “he owns property in the area” so he couldn’t vote to break the tie.

Actually, there is no such thing as a tie vote at the board either have a majority of affirmative votes; or you don't. It is called a failure to adopt by a majority vote.

Hopefully, Miscione is smart enough to now understand that he clearly does have a conflict of interest/ethics problem which requires that he not take part in any further discussions held either at the board table or elsewhere behind closed doors and he cannot take part in or cast a vote for or against the proposal during the scheduled Wednesday, July 29, 2020 Public Hearing without risking an Ethics complaint being filed.

Messa and Woodland voted ”nay” for the first vote held in February...

Messa was quoted in a February 6, 2020 WKTV article:
“Board member Messa says it might not be a bad idea to press pause on certain forms of development”

"It's another situation where we're building more apartments. I just think that we might be overdeveloping, if you will, and we're gonna reduce the number of greenspace that we have in our town," said Messa.
Messa, who is the Ward 1 councilman covering, in particular the Chadwicks area, knows all too well the problems residents in his part of town have had with ongoing stormwater issues.

Will he change his vote to give Miscione the majority vote he is looking for or will he continue to think about the stress and heartbreak his own constituents have experienced with their stormwater problems from over-development and broken promises of developers?

What will Richard do?

After listening to many residents in his Ward who are opposed to the Conifer development because of ongoing water concerns on and near their property, Richard Woodland, the councilman for the Seneca Turnpike/Woods Highway area, said he voted “no” at the February town board meeting because he wanted to support the stormwater concerns of his constituents who live in the trajectory of the stormwater particularly during heavy rainstorms.

Will Councilman Woodland, a long-time friend of Paul Miscione now put the concerns of his constituents aside and vote “yes” to help his buddy get what he wants…further development along the Seneca Turnpike/Woods Highway corridor plus the "want" for Utica water for those landowners who have been unable to sell their vacant lots even after the last time they successfully teamed up with Larry Adler to change the zoning in that part of town?

Hopefully, Councilman Woodland will give this question a lot of thought lest he also find himself in the middle of an ethics, or possibly worse, issue.

Woodland’s problem is not so much a definite ethics problem right now; it is more the appearance of a conflict of interest and a possible shirking of his duties to the people who elected him as their voice at the board table.

As I said in a previous blog, Miscione Realty LLC purchased 8275 Seneca Turnpike in October 2016. That is true. However, what I didn’t tell you is in October 2019, shortly after Conifer made their second presentation to the town board in September 2019, Miscione Realty LLC sold 8275 Seneca Turnpike to Councilman Richard Woodland and Jeannette M. Marleau.

No big deal?

Maybe, except….the mortgage was obtained from Tampa 1 Realty, LLC., an LLC registered in Naples, Florida on January 25, 2016 under the name of Paul Miscione with his New Hartford address using a Florida name and address as the registering agent.

Oneida County records show that the return name and address for both the sale of the property at 8275 Seneca Turnpike and the mortgage for that location is: Calli, Calli & Cully Law Offices 510 Bleecker Street Utica NY.

As Councilman Woodland casts his vote after the board closes the public portion of the Pubic Hearing scheduled for July 29, 2020, he should keep in mind a concluding quote from the Tuxedo court case mentioned in my previous blog:
“[a]n amalgam of those cases indicates that the test to be applied is not whether there is a conflict, but whether there might be…. It is the policy of the law to keep the official so far from temptation as to ensure his unselfish devotion to the public interest.”
A changed vote by Councilman Woodland from his previous “no” vote cast to support his constituents to a “yes” vote would most certainly give rise for New Hartford residents and taxpayers to question the motives behind Councilman Woodland’s changed vote.

Are votes on development projects in the Town of New Hartford, NY negotiable? We'll see..the integrity of the entire town board and town attorney might very well be in question.

Perception is everything, my friends!

To be continued...