In response to questions about her handling of the retention of Mr. Jay Savino to do tax certiorari work for the Town of Clarkstown, an exasperated Town Attorney Amy Mele finally chose to claim that the discussions she had with the Town Board were protected by attorney-client privilege and were not subject to the Open Meetings Law.
The Committee on Open Government, who oversees the Open Meetings Law, says that Ms. Mele’s claim was too broad and that the exemption she claimed applies narrowly. When the Town Attorney speaks from her expertise as an attorney the privilege applies but when she speaks on an administrative matter the privilege does not apply. Thus her discussions with the Town Board about the retention of Mr. Savino do not fall under the privilege as she claimed.
Further, Mr. Gromack’s claim that “all the questions have been answered” concerning the retention of Mr. Savino is now rendered false. With the stripping away of Ms. Mele’s claimed privilege, the questions raised about the vetting process used to retain Mr. Savino must now be answered.
In addition, the Town Board has been faulted by the Committee on Open Government for failure to keep minutes of decisions. At some point the Town Board decided to retain an outside attorney for tax certiorari work and the public was told that the matter was discussed at Town “workshops.” However according to the Committee on Open Government there is no special privilege for “workshops;” they are public meetings subject to the same rules.
Any consensus decision that is then acted upon, as it was in this case, is to be recorded in minutes. The same is true for any consensus decision reached in executive session. No such minutes have been prepared as required by the law.
The Committee on Open Government also faulted the Town Board for holding inappropriate discussions in executive session. Mr. Gromack asserted at several points when questioned about the retention of Mr. Savino that the question of retention of an outside lawyer was discussed in executive session.
On this point the Committee on Open Government wrote: “a discussion regarding the cost effectiveness of retaining an outside firm would be required to be held in public.” Therefore by Mr. Gromack’s own assertion, the Town Board violated the Open Meetings Law by conducting such discussions in executive session.
With these violations, the Town Board is vulnerable to having retention of Mr. Savino challenged in court. If the challenge is successful, according to the Open Meetings Law the taxpayers of Clarkstown must pay all the legal fees of the challengers.
The way out of this requires the members of the Town Board to exercise courage. The Town Board must admit the errors it made and revoke the decision to retain Mr. Savino.
Furthermore, they will need the courage to discuss this in an open meeting; any other form of deliberation, even through e-mail exchanges, would be a violation of the Open Meetings Law. It is time for the members of the Town Board to act.