Open Government Attacked by Town Board

Well, it seems that the Town Board has decided yet again that its own public commitments to Open Government are to be thrown on the rubbish heap. Not one, but TWO articles in the Kingston Daily Freeman today shed light on the fact that the Town Board has nothing but disdain for the people of the Town of Rochester when it comes to letting us know what is going on in our Town.

In one case, the Board decided that it was going to go into Executive Session to discuss the terms of a contract to be negotiated with Homeland Towers, the company who has been anointed by royal decree to construct two cell towers in our Town. Now, Executive Sessions are not, in and of themselves, a problem. They have their legitimate place in Government. The problem with this Executive Session is that it did not live up to the legal requirements imposed on governmental bodies under Article VII of the Public Meetings Law (commonly referred to as the Open Government Law).

This interpretation is not mine alone. It comes from none other than the Chairman of the New York State Committee on Open Government, Robert Freeman. Mr. Freeman is held by most people who deal with Open Government related legal issues to be the foremost authority on the subject in New York and one of the great experts nationwide.

The fact is, however, that it doesn't take an expert to realize that something is rotten in Denmark (or just off Granite Road) when it comes to this last Executive Session. All you have to do is read the Open Meetings Law. It's not written in legalese (well, not too much) and is plain to see, in black and white, for anyone who is interested.

Section 105 of the Law sets forth the ONLY conditions under which an Executive Session may be convened:

a. matters which will imperil the public safety if disclosed;

b. any matter which may disclose the identity of a law enforcement agent or informer;

c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

d. discussions regarding proposed, pending or current litigation;

e. collective negotiations pursuant to article fourteen of the civil service law;

f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

g. the preparation, grading or administration of examinations; and

h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

So, let's take a look at the cell tower issue:

Would disclosing negotiations "imperil the public safety"? NO
Would the Board be disclosing the identity of a law enforcement officer? NO
Would they be impeding the investigation or prosecution of a crime? NO
Is anyone planning on suing the Town or is the Town planning on suing someone else? We can't know for certain, but that was not the reason they gave for going into Executive Session, so we can assume for the time being that the answer here, too, is NO.
Are they negotiating with a union to build these towers? NO
Are they dealing with any of the specific personnel issues listed in the law? NO
Are they preparing, grading or administering examinations? NO
Are they proposing to sell, purchase or lease public land, and (if so) would public discussion substantially effect its value? NO
Are they proposing to buy, sell or exchange securities, and (if so) would public discussion substantially effect its value? NO

If none of the above are true, the facts are crystal clear: they had no legally acceptable reason for going into Executive Session.

Of course, the Town Attorney told the press that the State Opinion was not correct. With due respect to the Town Attorney, there's probably a very good reason why Robert Freeman is the head of the Committee on Open Government, that reason being the fact that he is the quintessential expert on the subject. Mr. Freeman breathes, sleeps and eats Open Government. We shouldn't be surprised at the Town Attorney's reaction. I, for one, am unable to recall a single instance when the Town Attorney told the Board that what they were doing is wrong or illegal. I'm not saying it never happened, but if it did, it was an exceedingly rare instance.

The Town Attorney's job should be to represent the Town, as a whole. In reality, all Town Attorneys actually represent the political powers that be in a Town: the Town Board and other municipal departments and agencies. He is simply doing his job when he states that the Town is correct in doing what they did. Keeping in mind, however, what his job actually is, we have very little reason to place any faith in his statements as unbiased interpretations of the Law. Robert Freeman, however, has no dog in this fight. His opinions are far more likely to be accurate and fair.

By the way Councilman Ron Santosky deserves recognition and congratulations for have the courage to refuse to participate in this Executive Session. Kudos, Ron.

The second Freeman article today points to the fact that there are some DEC related problems at the Transfer Station regarding the disposal of petroleum products. OK, fine. Many of us have serious misgivings about DEC interference in local affairs. Problems happen all the time and many of them are not the fault of the governing body.

So, what's the difficulty here? When the reporter asked the Town Supervisor if the list of problems would be made available under a State Freedom of Information Law request, Supervisor Duke responded that the list is something "...I really don't want in the paper because we haven't really discussed this, and I have not even discussed this with the employees or anything." She further went on to say, "I'm not going to send that copy to anybody right now... The reason being is that we have to sit down and discuss what we're doing. This is not in stone... That was the first time the board has seen anything. We have not had a discussion about it. I don't feel comfortable sending it out."

Come again? Now, I'm not going to reproduce the entire Freedom of Information Law here. Even the Executive Session discussion above was probably overkill. Links to both laws may be found at the end of this post, for all who might be interested.

Suffice it to say, that neither the Town Supervisor nor the Town Board have any authority to deny a request for information based on the fact that she (or they) "don't feel comfortable sending it out." In fact, nothing the Supervisor is quoted to have said in the newspaper even comes close to constituting acceptable grounds for refusing to provide the public or the press with a particular piece of requested information.

Of course, it is entirely possible that they will come up with some other explanation for the refusal, after the fact. They've done it before. When Robert Freeman stated that they have no Open Government Law related reason for refusing to discuss the infamous "Porn Interview," the Town Attorney decided that they would keep quiet because it could lead to litigation. This Town Government changes direction more often than a weather vane in the Spring.

The simple fact of the matter is that the Supervisor and the majority of the Town Board were elected on promises of bringing Open Government to the Town of Rochester. To say that they have failed in this commitment would be a severe understatement. The truth is that the Town Board and the Supervisor are the most serious violators of the principles of Open Government in my memory. They have been far more secretive than any previous Town Board. They perceive the people of the Town as their enemies and turn every act into an exercise in counterintelligence. In short, they have not simply failed, they have betrayed the people of this Town and have completely decimated any semblance of Open Government they may have started off with.

They do not deserve our continued trust. They do not deserve to be believed. They do not deserve to be re-elected.

We do not deserve this Town Government.

--------------------------------------------------------------------
Open Government Law
Freedom of Information Law