Tom Nimick continued to press the town board for clarification of the process it followed to hire the White Plains law firm of Jay Savino to handle Clarkstown’s tax certiorari matters. Nimick, who spoke before the board Tuesday night, said he believed the might have been violated. Town Attorney Amy Mele disputed that claim.
In his statement Nimick, a New City resident, related several conversations he had about Savino’s hiring with town officials.
“Then when I asked about when this decision was made, Mr. Gromack and Ms. Mele in a telephone conversation with me replied that the decision was made in executive session.
When I asked where the minutes reflecting the decision were, as required by the Open Meetings Law, I was informed that there were no minutes. Mr. Borelli and Ms. Hausner, you have both explained this lack of minutes by saying that no decisions have been made in executive session.
So the resolution was based upon a decision having been made, the decision was made in executive session, but there are no minutes because no decisions have been made in executive session – the contradictions in those statements is the nub of the issue and I am asking for you to resolve these contradictions.”
Supervisor Alex Gromack responded on Tuesday night that the board had a discussion in executive session about hiring an outside firm to take care of tax certs, but did not make a decision. In late December, the town board eliminated the position of deputy town attorney held by Marsha Coopersmith. It was described it as a cost-saving measure, a move that would save the town $75,000 to $80,000 yearly. In January, the board later hired Savino’s firm, Faga Savino, to do the work.
Town Attorney Amy Mele said the decision to eliminate Coopersmith’s position and the decision to hire Savino’s firm were both made at a public meetings. She said she was comfortable with how the removal of the position and the hiring was handled and disagreed with Nimick’s complaint.
“These meetings are open,” said Mele. “The agenda items are clear.”
When Nimick ran out of time to finish reading his statement to the board, Michael Hull of Bardonia took over. He reiterated that Nimick was hoping the board would address the matter before Nimick felt it was necessary to file a complaint with the New York State Committee on Open Government.
“He would greatly prefer that you consult among yourselves, our governing board, and work it out there,” read Hull.
Following amendments to the state’s Open Meetings Law, all town board resolutions are now posted on the town’s web site on the Friday prior to meetings. The resolutions can be found on the town clerk’s page under the Legal Notices tab on the left hand side.
This is the text of Tom Nimick’s statement to the Clarkstown Town Board on March 20, 2012
I regret that I need to be persistent with you regarding Resolution #38-2012 concerning the retention of Mr. Savino and related violations of the Open Meetings Law. Your responses and public statements have not resolved the questions that I raised – rather they have resulted in contradictions that will puzzle any resident in Clarkstown. These contradictions need to be resolved if you wish to put this matter to rest.
You see, the resolution as drafted by Ms. Mele contained the following statement: “Whereas, the Town Board, in its continuing effort to reduce costs, has explored whether it would be more cost effective to retain the services of an outside firm to handle tax certiori matters.” Since the resolution was to retain such a firm, the Board was relying on having made a decision to take such an action. Note the words “relying on” and “decision,” please.
Then when I asked about when this decision was made, Mr. Gromack and Ms. Mele in a telephone conversation with me replied that the decision was made in executive session.
When I asked where the minutes reflecting the decision were, as required by the Open Meetings Law, I was informed that there were no minutes. Mr. Borelli and Ms. Hausner, you have both explained this lack of minutes by saying that no decisions have been made in executive session.
So the resolution was based upon a decision having been made, the decision was made in executive session, but there are no minutes because no decisions have been made in executive session – the contradictions in those statements is the nub of the issue and I am asking for you to resolve these contradictions.
I tried to puzzle out these contradictory statements. It occurred to me that perhaps Mr. Borelli and Ms. Hausner in their statements meant by “no decisions” that no formal votes had been taken in the executive session even if there was a consensus decision to which Ms. Mele could refer. So I searched on the web site for the Committee on Open Government to see how such a definition of “decision” would be understood. I found an advisory opinion concerning this issue, OML-AO-4028. I will quote the passage that applies to our situation. These are the words of Mr. Freeman: “On occasion, public bodies have taken action by what has been characterized as ‘consensus.’ If a public body reaches a consensus upon which it relies, I believe that minutes reflective of decisions reached must be prepared and made available.” He then quotes from a 1988 case on this issue, “The fact that respondents characterize the vote as taken by ‘consensus’ does not exclude the recording of same as a ‘formal vote’. To hold otherwise would invite circumvention of the statute.” Then Mr. Freeman continues, “If the Board reached a ‘consensus’ that is reflective of its final determination of an issue, I believe that minutes must be prepared that indicate its action, as well as the manner in which each member voted.” [emphasis added]
Since the resolution refers to the decision, the Board is relying on it – thus it meets the definition of a decision in the understanding of the Committee on Open Government and according to the requirements of the Open Meetings Law must be reflected in minutes. So perhaps, Mr. Borelli and Ms. Hausner, you would like to reconsider your statements about the making of decisions in executive session? Or perhaps Mr. Gromack you would be willing to take back your statement that the decisions were made in executive session?
Next, Ms. Mele you will recall that in the Board Meeting in February I asked questions about the decision “to retain the services of an outside firm to handle tax certiori matters” mentioned in Resolution #38-2012, and that in a subsequent telephone conversation you and Mr. Gromack informed me that the deliberations were conducted, and the decisions made, in executive session. The Open Meetings Law states that executive session is to be conducted only for the purposes enumerated in the law. So would you please indicate, as part of your responsibility as attorney, not for the Board, but for the Town of Clarkstown, under which enumerated purpose falls the deliberation and decision so as to have been in accord with the Open Meetings Law? I want to be sure that you understand that I am not talking about the retention of Mr. Savino, but the decision to make the structural change from in-house counsel to the retention of an outside firm.
Basically here is how I see it based upon your statements so far: If the deliberation and decision were done in executive session, then it involved two violations of the Open Meetings Law. If it was not done in executive session, and not in open meetings, then the resolution was based upon decisions made in violation of the Open Meetings Law. There is one other possibility: that no actual decision was made and Ms. Mele presented the matter falsely in her drafting of the resolution. In any of these cases, Resolution #38-2012 is vulnerable to being voided in court as I indicated to you before.
Finally, I have been making every effort to bring this matter to you as our Town Board directly, so that you can address it yourself, because I think it fair to give you a chance to do that. This is the third time that I am speaking to you on this. I was quoted correctly in the newspaper that if you are unable to clarify these issues or you are unwilling to address them, I will take the matter further, certainly to the Committee on Open Government. I would greatly prefer that you consult among yourselves as our governing Board and work it out here. Now, in open meeting, would be a good time to do that. I would suggest that you as members of the Board should ask Ms. Mele whether my analysis is correct. If she disagrees with it you should require of her to explain where it is incorrect. You should require a full explanation rather than simply her assertion because there are two things on the line for you: first the validity of your claim to abide by the Open Meetings Law and second whether your resolution is vulnerable to being voided in court for being in violation of the Open Meetings Law. Please note that should you instead discuss this outside of an open meeting, you will be violating the Open Meetings Law.
