"When the eagles are silent the parrots begin to jabber" - Winston Churchill
In a previous article The Vote was 'No' - Will the Result be 'Yes' the Town of Clarkstown's attempts to have the position of the Highway Superintendent changed in a referendum from that of an elected office, controlled by the voters, to an appointed position, controlled by the Town Board, was detailed. The article also pointed out that according to a in New City Patch, Clarkstown Town officials provided as one of the reasons for changing how the position of Superintendent of Highways would be filled that:
"It would enable consolidation of services. There are three garages at the Seeger Drive complex: the highway department, the town police garage and the Clarkstown Mini Trans. With an appointed superintendent, the three garages could be restructured under one department head."
The referendum failed and New City on November 10, 2011 that the number of voters opposed was over 72 percent. The voters may have supported department consolidation but they rejected changing the highway superintendent to an appointed position.
In The Vote was 'No' - Will the Result be 'Yes' mention was made of the rumors that Mr Ballard's opponent for Superintendent of Highways at the last election, Dennis Malone, was the 'whispered' candidate that the Town Board would like to appoint to the proposed position of Fleet Manager but that there was a question as to whether under any consolidation of the garages the 'whispered' candidate would report to the elected position of the Superintendent of Highways.
Fast forward to the Town Board meeting of July 24, 2012 which ostensibly was billed as a continuation of the previous public meeting on the garage consolidation issue. At this meeting the proposal to consolidate the Town garages under Dennis Malone became 'Yes' though not by a unanimous vote. Mr. Ballard, strangely silent throughout the public comment period, seemed to presage what every one knew that the Board was going through a formality of listening to the public but that the vote had been preordained.
On opening the public portion of the meeting and following a few comments from the general public, Supervisor Gromack launched into a monologue justifying what was obviously the coming 'Yes' vote. This peroration consumed approximately one half of the public meeting with the Supervisor's rationale for the consolidation being presented as follows:
Mr. Gromack said he wanted to clarify that the referendum that was held last year had "very little, perhaps nothing at all, to do with consolidation". He pointed out that the present Highway Superintendent had supported having the office appointed rather than elected but had since changed his mind. "What we are discussing tonight has nothing to do with the powers or duties of the Superintendent of Highways", Gromack continued.
However, this statement is in direct contradiction to the rationale put forward by 'Town Officials' prior to the November 2011 election which was: "It would enable consolidation of services .... with an appointed superintendent, the three garages could be restructured under one department head". Further, on being questioned by New City resident Tom Nimick about the description and salary associated with the proposed Fleet Manager position, Mr Gromack confirmed that the losing candidate in last year's Highways Superintendent election, Dennis Malone, the former 'whispered candidate', would indeed be appointed to the position of Fleet Manager with a $4,000 promotion increase.
"We always like to hire from within so it is no secret", Gromack said. "We anticipate that the qualifications we have outlined for this position can be done by Mr. Dennis Malone. Certainly it works best with a promotion and as I said in the Town of Clarkstown, where we have competent people, that can do a job and we can promote from within at a savings that is what the intent is."
During the meeting was passed out expressing a legal 'opinion' from 'outside' counsel, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, on the proposed law which read in part:
“You have asked us to review whether the Town Board may lawfully re-assign mechanics who work in the highway department to a central vehicle maintenance facility that is not under the supervision of the Highway Superintendent. Our opinion is that the Town Board may do so.”
And so with the public believing:
1) that a full and open discussion of the garage consolidation issue had taken place before their eyes in a meeting properly conducted in conformance with the Open Meetings Law,
2) that all of the Board members had been forthcoming to the public with all known relevant information on this issue, and
3) that a firm legal foundation for the Board's action had been established by outside counsel,
the public watched as Councilman Borelli moved and Councilwoman Hausner seconded a motion to adopt a local law consolidating all town mechanics under a new Town garage department to be supervised by a Fleet Manager reporting to the Town Board.
Then the hammer dropped as did the public's jaw. When the Supervisor called for all those in favor to say 'Aye' Councilwoman Lasker interrupted to say that she was voting 'No' and she made the following statement:
"The reason for my voting 'no' is I have had extensive discussions with the Association of Towns Attorneys. I believe this is illegal and I think it is going to be overturned in court. There were compromise negotiations that were going on. Unfortunately they failed. That's the basis of my voting 'No' on this."
Given that at the beginning of the meeting Mr Gromack had specifically invited members of the Town Board to enter into the discussion with their own comments, it is quite incredible that Councilwoman Lasker remained silent especially when the supervisor had handed out copies of the legal opinion from outside counsel, Wilson, Elser, Moskowitz, Edelman & Dicker LLP supporting the proposed law. In fact her action in remaining silent was not only incredible but it was not in conformance with the intent of the Open Meetings Law for the following reason.
Councilwoman Lasker had foreknowledge of numerous other legal opinions that were in direct contradiction to, and which may have trumped, the single legal opinion handed out by Supervisor Gromack and represented as the Board's complete legal support for the motion.
In Lasker's interview with New City Patch after the Board meeting she complained that the action of the Board takes away the authority of Town Highway Superintendent Wayne Ballard over the mechanics responsible for maintaining highway department equipment. She then revealed that she had consulted with the attorneys for the State Association of Towns and that she had read State comptroller opinions and given all of this she could declare that the Board's action was "illegal and I think it’s going to be overturned in court".
None of these facts and findings were mentioned in the public meeting of July 24th nor did the Councilwoman initiate any discussion of her findings in that public meeting with the other Board members. These actions are in violation of the spirit of the Open Meetings Law.
If Councilwoman Lasker had discussed these findings with her colleagues prior to the public meeting the Board would have deliberated outside of the public meeting in violation of the law. If she did not reveal her findings to the other Board members then she had a duty as the representative of those who elected her to make the information known to her colleagues on the Board and to the public in attendance before a motion was made and the vote called.
Councilwoman Lasker's silence has now placed the Town of Clarkstown in a position that it may face expensive legal action from the Rockland County Highway Superintendents and/or the NYS Town Highway Superintendents since the precedent set by the Clarkstown Town Board's vote has ramifications all over the State. The tragedy in this whole drama is that garage consolidation is a good idea and could have been accomplished without fanfare and needlessly expensive litigation had the 'whispered candidate', Dennis Malone, agreed to become Fleet Manager and report to the position of the Superintendent of Highways.
But he would not do so!
Councilwoman Lasker knew this while the public meeting was ongoing and yet she withheld her knowledge of this fact from the public. She listened mutely while Mr. Gromack extolled the virtues that Mr. Malone would bring as "no secret" to the position of the Fleet Manager yet Councilwoman Lasker had a 'big secret' that she was not going to tell in an open public meeting. Here is what Councilwoman but kept secret from the public prior to the vote:
"Unfortunately a compromise that was in negotiations failed. That option would have had Dennis Malone, who currently runs the Mini Trans and is the expected candidate for fleet manager, work under Wayne Ballard (the Superintendent of Highways). Malone declined that possible resolution".
So it appears that the taxpayers could get the savings everybody wants and avoid an expensive lawsuit by simply having Malone report to the position of Superintendent of Highways. But Malone, who has always reported to Gromack, now wants to report to not only one person but to the whole of the Town Board.
Really, Mr. Malone, do you expect the taxpayers of Clarkstown, who pay your salary, to now pay for an expensive legal challenge concerning the powers and responsibilities of an elected official (the Superintendent of Highways)? In my book an employee, who is given a promotion and then refuses to report to a legitimate chain of command demanding to report to five people instead of one, should be demoted, not promoted. The Town Board turns rationality upside down when a Town employee decides to whom he will report and the Board accedes to an apparently selfish need.
Meanwhile one wonders if Councilwoman Lasker is following Johnny Depp's advice during Town Board meetings:
“You gotta be careful: don't say a word to nobody about nothing anytime ever.”
(Picture courtesy of http://www.salesproductivityinsider.com/the-no-way/)