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Committee On Open Government Issues Advisory Opinion On Clarkstown Town Board

NYS Committee On Open Government issues advisory opinion in response to citizen’s complaints about board actions during tax cert attorney hiring process.

 

The New York State Committee On Open Government (COG) issued an advisory opinion on actions taken by the Clarkstown Town Board when it was in the process of hiring a attorney.  The COG issued its opinions in response to complaints included in a six-page letter sent on April 15 by Thomas Nimick against the town board.  Nimick, Town Supervisor Alex Gromack and Town Attorney Amy Mele received the advisory opinion on July 31. 

On Tuesday, Mele said, “I agree with everything the Committee on Open Government said. I simply disagree with Mr. Nimick that anything we did violates the Open Meetings Law.”

Nimick said, “I think that the opinion is fair.”

The advisory opinion dealt with Nimick’s assertion the town board did not follow the Open Meetings Law when it discussed in a closed-door "executive session" the hiring of Joseph Savino to handle tax cert cases. The opinion also noted the board has responsibility to keep minutes of decisions made in its executive sessions.

The COG is authorized to issue opinions regarding the Open Meetings Law but does not have the authority to enforce the law or require an entity to comply with the statutory provisions. Its advisory opinions are based on the facts included in whatever documentation is provided. Nimick's complaint and the COG response are attached to this article. 

In response to the complaint sent by Thomas Nimick that the town board should not have discussed the hiring of Savino in executive session, the COG noted the attorney-client privilege guidelines.

"Insofar as a public body seeks legal advice from its attorney and the attorney renders legal advice, we believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law. When a discussion turns to matters that are not within the scope of the attorney-client privilege, the Board is under an obligation to return to public session, or to reserve further discussion to occur during an open meeting."

The COG’s opinion also dealt with the guidelines for going into executive session to discuss a personnel matter.

“Applying these principles to the matter before us, it is apparent that the Board's stated purpose for entering into executive session, to wit, the discussion of a 'personnel issue', does not satisfy the requirements of Public Officers Law § 105 (1) (f). The statute itself requires, with respect to personnel matters, that the discussion involve the 'employment history of a particular person” (id. [emphasis supplied]).”

Nimick writes in a letter to the Editor, “The Committee on Open Government also faulted the Town Board for holding inappropriate discussions in executive session.”

Mele said the COG in its opinion also noted the attorney-client privilege is an exception from the Open Meetings Law.  

Regarding Nimick’s question about work sessions and recording minutes, the COG stated work sessions held by a public body are part of the decision making process and subject to the Open Meetings Law. According to its opinion, notice should be given and minutes taken for workshops just as they are for formal meetings.  Even if a consensus is reached rather than a formal vote being taken, it states minutes are still required.

Mele asserted that the town board adheres to the Open Meetings Law. 

“I think we do it right,” she said. “I think we are overly cautious.”

For his part, Nimick remains unconvinced and in a Letter to the Editor continues to disagree with Mele.

The issue evolved when the town board voted at its January 2012 reorganization meeting to retain Savino to handle the town’s tax cert matters.  His firm was hired to take over the responsibilities of Deputy Town Attorney Marsha Coopersmith, who had been let go at the end of December 2011. The reasoning behind the change was that it was more economical to hire an outside attorney than to keep someone on staff to do the work and the town would realize savings of $75,000 to $80,000. 

Michael N. Hull August 08, 2012 at 11:58 AM
Ms. Mele continues to try and bluff her way out of the predicament she has placed the Town Board in with statements such as:   “I agree with 'everything' the Committee on Open Government (COOG) said. I simply disagree with Mr. Nimick ....” This bluff can be called with a couple of simple questions:   1) The COOG's ruling states that the law requires the recording of minutes. Where are the minutes of the Executive Session meeting in which Mr. Savino's appointment was discussed?    There are none. 2) The COOG's ruling states that the law defines the phrase 'executive session' to mean a portion of an OPEN meeting during which the public may be excluded.  Ms. Mele's blanket claim of attorney-client privilege does not, according to the COOG, cover items that the Board has publicly admitted were discussed in an executive session meeting.    What was the date of the OPEN meeting from which the TB went into this executive session? There was no such 'open' meeting. 
Michael N. Hull August 08, 2012 at 11:59 AM
Continued  Mr. Nimick is offering a way out: "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." http://newcity.patch.com/articles/nys-committee-on-open-government-faults-clarkstown-town-attorney-and-town-board May I suggest that Councilman Hoehmann, who proposed the motion to retain Mr. Savino, take the leadership role in this matter before the challenge is made. For further information see: http://newcity.patch.com/blog_posts/who-watches-the-watchmen
Mike Hirsch August 08, 2012 at 12:21 PM
The truth is that Savino was chosen without considering anyone else. He is Reda's handpicked guy and Alex owed him for not supporting his own party candidate (Sabatini) in last year's election for Supervisor. Alex then informed Mele, who did not properly vet Savino. When the vetting process was questioned by Nimick, Alex and/or Amy picked up the phone to their bought and paid for attorneys Wilson/Elser and one other familiar firm to get "competing" bids. The issue is not Savino. The issue is the vetting and hiring practices of the town.

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