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| whiteman osterman and hanna and public officers law |
| Sun, 16 Oct 2011 |
Howl alert: before anyone starts howling: 1) if you didn't go into executive session with little explanation, people would not have to speculate about what you are doing; 2) the conclusion that Whiteman Osterman and Hanna is suing the town is based on logical induction, not inside information.
So at the town board meeting (Stuyvesant) last night, the town transferred $14,000 to zoning and planning to pay for the special counsel and special prosecutors of Whiteman Osterman and Hanna. David R. Everett of Whiteman Osterman and Hanna was there. The board and David R. Everett, attorney and lawyer and partner at Albany's biggest law firm, the largest law firm in the capital district, went into executive session for 30 minutes. The reason was "Pending litigation regarding the Glencadia matter."
The only pending litigation right now is a Federal civil rights lawsuit and Everett would have no role in that case other than perhaps as a witness, so it can't be related to that case. There is no other pending litigation, so it's a bit of a mystery. Maybe Whiteman Osterman and Hanna is going to sue the Town of Stuyvesant for non-payment? That's the only case that would seem to be a legal reason for an executive session involving a lawyer unrelated to ongoing litigation.
So either Whiteman Osterman and Hanna is suing the Town of Stuyvesant or the town board of Stuyvesant violated Public Officer's law again. Anyone see any other possibilities?
I mean maybe they talked about who would represent them in State Court - but that is not pending litigation. They might have said "potential pending litigation" in that case. But why talk about something that may or may not happen before it happens? And they didn't say "potential" litigation. The only actual pending litigation is in Federal Court. There is no activity in town bodies: the planning boards and zoning boards are done.
Wait: I got away out for them! I can save them! They can claim that the ... means that ... is pending... but ... so .... with case law showing... which must exist... Phew!
Or maybe they talked about the Federal lawsuit, but how can they talk to a lawyer about a case he is not handling? Can you talk about pending litigation with a lawyer unrelated to the case and call that conversation privileged? I would think not, but it's certainly a fine issue for judicial review.
Perhaps they went into the session to talk about the handwritten note inserted into the public record by someone in the town, a packet of materials relating to protected First Amendment speech which the town ZBA accepted as evidence, including an anonymous slanderous note, the author of which is known to the town clerk but is not the person who delivered the package of materials to the town.
This matter does relate to pending litigation, as it is a clear violation of civil rights. The attorney in question, David R. Everett, is involved in this incident since he accepted the same packet of protected speech, included anonymous libel, as evidence for ZBA action. The only comment he made about the packet was "excellent" in an email to the town clerk.
I think they could legally go into executive session to talk about this. But they would have to state the reason as "personnel" as the person who wrote the note and the clerk herself, who accepted the note, and the secretary of the zoning board, who passed the note to the members of the board, all work for the town. But they didn't say "personnel" and name the parties.
So, no, I don't think that cuts the mustard. They couldn't have talked about that, not legally.
I will now FOIL the minutes of the executive session and by law the minutes have to be released to the public in 7 days from yesterday. But they certainly have not written the minutes yet. So they have some time to think about what they did and adjust the minutes accordingly.
The minutes will probably be one sentence.
I mean, other than Everett suing Stuyvesant, they cannot go into executive session to discuss pending litigation, not legally, unless they claim that ... means ... which is a stretch.
Here is my appeal of the decision not to release the minutes:
Friday, October 14, 2011
FOIL Appeals Officer
TOWN OF STUYVESANT
PO BOX 250
STUYVESANT, NY 12173
Dear Ms. Bertram;
Town response to my FOIL of the minutes of the executive session of October 13, 2011 is as below:
Pursuant to Public Officers Law §106 Minutes. Subsection (2) Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter, your request is hereby denied.
No formal vote or action was taken during the Executive Session, therefore the discussion is not FOILable.
In essence, the town, through the FOIL officer, argues that the session on October 13, 2011 did not include a vote or any matter that needs to be released to the public. Therefore, minutes need not be produced, or if produced, not released to the public.
This appeal makes the argument that 1) the executive session was illegal; 2) minutes should be produced if they do not exist; 3) the minutes should then be given to the public through FOIL.
The town did in fact apparently manufacture minutes in response to my FOIL in July of the executive session in February. No evidence of minutes exist prior to my FOIL, in contravention of the requires under law. Therefore, minutes have been and can be produced after the fact.
Normally you cannot FOIL a document that does not exist. However, the rules for writing minutes and granting information under FOIL fall under the same state law, Public Officers. Further, as the FOIL appeal officer of the town is also the supervisor, it is apparent that a call for production of minutes in accordance with Public Officers Law and a call for the release of the minutes in accordance with Public Officers Law should be submitted first to this same person responsible for both issues.
To review, the executive session of October 13, 2011 occurred during an open meeting. The open meeting remained active. Therefore, if the executive session was illegal, then the matters discussed should be made public, as would any matter discussed at a public meeting. If I were to FOIL a discussion of a matter at an open meeting, I would certainly be entitled to the minutes of the meeting. I believe the minutes of the executive session should be considered as part of an open meeting rather than as occurring during an executive session because the executive session was illegal.
Before going into executive session, the board noted that the meeting would be discussing "Glencadia" as the matter of the meeting and that "pending litigation" is the reason. David Everett of Whiteman, Osterman and Hanna attended the meeting with the town clerk and board.
The presence of David Everett in the meeting is critical to the determination of whether or not the hearing was legal. The town claims that he is a town attorney. The town claims that he was present the meeting in his capacity as attorney. The town claims, as per reason given for the executive session, that the session was intended to discuss litigation in which David Everett is entitled to privilege as attorney.
I counter that, no, David Everett was never legally hired by the town. He has no standing as town attorney in any capacity. The contract between WOH and the town violates various provisions of Public Officers Law, General Municipal Law, Criminal Procedure and is unconstitutional. I have enclosed previous correspondence about this issue as an appendix to this appeal. (Appendix A)
If we accept the argument that there is no legal contract between WOH and the town, then Mr. Everett would have no standing in the meeting beyond that of any private citizen. If a private citizen attended the executive session, it was a public meeting.
Please note that in the February 2011 executive session, the board simply authorized a search for special counsel, failing to name a particular firm, and specified only planning. Glencadia (my company) has had no planning matters before town boards since May and has no current matters before any boards. I have not filed suit in State court, an article 78, as of the date of this letter, nor have I made an application to the planning board bases on the decision of the ZBA on September 28, 2011. The only current litigation between the town and myself is in Federal Court. David Everett has no role in this proceeding as attorney.
Leaving the issue of the legality of the initial hiring of the firm to the side for the moment, let us consider the reason for the session in question specifically: pending litigation. The answer to the question about whether this was a legal executive session would seem to hinge on what litigation the board meant when they referred to "pending litigation" prior to entering into executive session. If they meant the federal suit, then the meeting was illegal regardless of whether or not Mr. Everett was hired legally. Mr. Everett would have no relevance in that suit, other than as a witness.
To review, if WOH was hired illegally, then David Everett atended the meeting as a private citizen. If the "pending litigation" was the federal lawsuit, then he attended the meeting as a potential witness.
Certainly, the board could go into executive session, even potentially with Mr. Everett present, if we leave the issues with the March 10, 2011 contract to the side for the moment. The board might discuss the issue of the anonymous handwritten note submitted to the ZB by at least one town employee and perhaps written by a town employee. But that would not be "pending litigation" so much as a personnel matter. Mr. Everett could certainly attend such a meeting to discuss his email approving of the insertion of the handwritten note and packet of materials relating to controversial art, an email which merely says, “Excellent.” The issue of the first amendment violation in that note might be relevant to a civil rights lawsuit, and Mr. Everett’s role in exposing the town to liability, but discussion of substantial issues unrelated to disciplinary personnel matters would presumably by handled by the lawyer of record for that suit.
In conclusion, there was no legal executive session. There was no pending litigation for which Mr. Everett might be in anyway the attorney of record. If there is some other matter unrelated to the suit in federal court, I can't think what it might be. Mr. Everett has no standing as attorney for the town, as the contract between his firm and the town is illegal on many levels.
Please consider this appeal of the denial of my FOIL submission for the minutes to the claimed executive session. Thank you.
Will Pflaum
PO Box 40
Stuyvesant Falls, NY 12174
518-470-3981
glencadia@gmail.com
Appendix A:
On February 10, 2011, Town Board went into executive session, with Supervisor citing “personnel matter,” full stop. In an advisory opinions (2183, 2262, 2424, 2444, 2519, 2785, 3078, 3271, 3376, 4246), The New York Department of State Committee for Open Government has consistently advised that, “Citing a personnel matter is not a sufficient grounds for going into an executive session… The motion to go into executive session should be more specific.”
The minutes for this February session were not released to the public until July, violating the one week rule in Public Officers Law, Article 7 § 106 (3). The minutes are not dated and Town rejected Pflaum’s FOIL for the original digital file for the print out of the minutes with creation and modification date to determine when the document was produced.
The minutes themselves refer only to the search for counsel to replace Town Attorney for all matters relating only to Pflaum and his business exclusively before the Planning Board and no other body. As such, the matter is in fact unrelated to a personnel issue as defined by Public Officers Law, Article 7 § 105 (f).
Further, the act itself, retaining special counsel for a single individual in multiple venues (defying the limits imposed during the executive session) when there is no valid reason, when the budget and time for investigation for the Special Counsel and Special Prosecutor is unlimited, when the charges for which the Counsel is hired are all entirely malicious, based on perjury, bad faith conspiracy to manufacture false evidence, is an unconstitutional violation of equal protection and due process.
Next, the executive session lead to a contract signed by Special Counsel with WOH and Supervisor on March 10, 2011. This contract specifies how public money is to be spent. Work began immediately after signing contract. Public money was in fact spent, in excess of $50,000 in March, April and May of 2011. However, it is illegal to spend money based on an executive session in New York, as per Public Officers Law, Article 7 § 105 (1). No public meeting was or could have been held between February 10 and March 11.
Public Officers Law § 107 (1) distinguishes between an intentional and unintentional violation of the law. On July 14, 2011, following Pflaum’s FOIL of executive session minutes, Town Board voted to hire WOH at a public hearing. Note: the actual hiring of the firm came four months after the firm began working, collecting well in excess of $50,000 by the time the Town Board passed the resolution of July 14, 2011. The resolution falsely claims WOH was hired in executive session on February 10, 2011. No mention of WOH exists in the minutes. The July resolution “reaffirms” the executive session. The February executive session was illegal. It should not be reaffirmed.
Further, New York General Municipal Law Article 5-A specifies a host of conditions, including public notice, 30-day waiting period, competitive bidding, deposits, accounting rules, on the legal procedures for letting contracts, none of which were followed in this case. By re-affirming that action, the July resolution makes clear that the defiance of Public Officer’s Law and General Municipal Law is not unintentional. The Town Board, working with at two municipal attorneys and others at a large law firm, with a legal budget consuming more than 15% of the non-highway discretionary budget for 2011, cannot claim to not have had the means to ascertain the correct procedures.
Based only on executive session, the Town hired WOH to work as Special Prosecutor in the case of The People of New York v. Will Pflaum, based on January 15, 2011 ticket. Appointing Special District Attorney must be approved by a judge (New York Code, Criminal Court Procedure, Article 18, § 701, 1, 2) and no notice of the appointment was served on the BOS, as per New York Code, Criminal Court Procedure, Article 18, § 701, 5. Also, the Special Prosecutor, the town and WOH violated New York Lawyer's Code of Professional Responsibility DR 7-103 [1200.34]. Special Prosecutor pursued The People of New York v. Will Pflaum vigorously when he knew the charge to be false.
The July reaffirming resolution hiring WOH four months after they received their first payment names Pflaum exclusively. The only reasons cited in this resolution for hiring Special Counsel and Special District Attorney to deal only with Pflaum are 1) too many FOIL submissions by Pflaum and 2) too many cases before ZBA, Planning Board, and criminal court. Given the reasons cited in the resolution itself, the resolution passed by the Town Board in July 2011 violates Pflaum’s First Amendment Rights, by punishing him for sending FOIL requests and publishing the results of those FOILs and petitioning the government for redress of grievances in based on those FOILs, Fifth Amendment due process rights by allowing open ended limitless investigation, and in that most of the FOIL request pertain to information necessary for Pflaum to defend himself in criminal court, information not provided by the prosecutor, and defend himself before the ZBA and Planning Boards, and right to equal protection under the Fourteenth Amendment, as the resolution names Pflaum and only the Pflaum.
The resolution is in fact malicious, blaming Pflaum for the abuse of authority that lead to simultaneous Planning, Zoning and Criminal Court proceedings without any hint of evidence of any wrongdoing in any area.
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