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Issue one: was David Everett hired legally?
David R. Everett of Whiteman, Osterman and Hanna may not be the legal attorney for the zoning or planning board and may have no attorney-client relationship with any board or entity of the town of Stuyvesant.
Here is the moment when Tal left and Dave came in.
Why? Whiteman, Osterman and Hanna was hired by the town board in special session, as noted by Valerie Bertram in the June town board meeting. The extraordinary thing is that the firm was hired to handle zoning, planning and criminal charges against me, including services as a special prosecutor in criminal court. I think the issue of the special prosecutor might involve some violations of criminal proceedings, statutes dealing with prosecution, as normally hiring a special prosecutor has to be requested from a judge and is only granted when the regular prosecutor has some kind of close relationship with the accused, which Tal and I don't have. How you hire a special prosecutor seems to be a contentious issue in every case and not something one side can just do arbitrarily. But that's a side note for now since I blogged that issue before. Let's get to the main argument for this post.
Was this executive session legal according to Public Officers Law, article 7? I'm not sure.
§105. Conduct of executive sessions.
1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session
Full stop. I filed the lawsuit on Friday, it was served on Saturday, March 26, 2011 around noon. David Everett took over from Tal Rappleyea at the Monday, March 28, 2011 planning board hearing at 7 PM. The reason for removing Tal and putting David R. Everett of Whiteman, Osterman and Hanna is the lawsuit, nothing else, so there could not have been a session prior to Saturday, March 26, 2011 or authorization for the session at the public meetings in March. You can't have an executive session to discuss a lawsuit until you have been notified that the suit is filed.
So the executive session had to happen between Saturday, March 26, 2011 and Monday, March 28, 2011. There was no public meeting in which an executive session could have been voted on between those the filing and change of attorneys.
But an executive session has to be part of a public meeting. The town board, it seems, conducted an executive session without approving and announcing the session in a public hearing. I see nothing in the law that remotely suggests such an action can be legal.
The legality of Mr. Everett's role in planning and zoning generally hinges entirely on the legality of the special session. I think. Anyone disagree? Why? What did I miss? Links?
Let's continue with the Public Officer's Law.
for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
Stop. Hiring Whiteman, Osterman and Hanna involved the spending of money. This firm is NOT involved in the federal lawsuit. Can the town legally pay Whiteman, Osterman and Hanna? Maybe they can hire the firm in executive session but when it comes time to pay them, they need to make a public presentation. Public moneys were appropriated as a result of the executive session held between Saturday, March 26, 2011 and Monday, March 28, 2011, start of the planning board.
The vote to hire this firm has implication for the town budget, perhaps 5 to 10% of the entire budget for the year for the whole town budget will go to this firm.
So, the special session was not called in a public hearing. Then the special session made decisions which lead to 5% to 10% of the annual budget being allocated in a particular way, funds that would not have been allocated without the executive session, funds with no direct relationship to pending litigation.
Here is the provision that allows for an executive session relevant to this case:
d. discussions regarding proposed, pending or current litigation;
They can have an executive session to discuss a lawsuit. The reason is valid. The way the session was called may not be. The subsequent payments made to WOH may or may not be according to the law.
Given that Whiteman, Osterman and Hanna is NOT the firm handling the federal lawsuit, though, that portion of the executive session, at least the decision to pay that firm, would certainly have had to have a public component to be legal. At least it seems pretty clear that the hiring was illegal given the language in the public officer's law.
Can they make decisions about planning and zoning attorneys without consulting the planning and zoning boards? Perhaps. Can they make budgetary decisions, or decisions involving public money, not directly related to the suit and still claim that the executive session was about current litigation? Not sure.
I'm just a humble dog farmer. Let's see what the grey beards have to say over at New York Department of State. Key quote: "As such, it is clear that an executive session is not separate and distinct from an open meeting, but rather that it is a part of an open meeting."
Sounds illegal to me, this special session in March. If the session was illegal, David Everett has no standing to represent himself as the attorney for the ZBA or planning boards. Or does he? How could he? He can't really be legally paid for this work, can he? Could his correspondence still be confidential? Maybe Mr. Everett has no more standing to issue confidential letters than any member of the general public.
Anyway, please let me know if anyone knows of any laws that outweigh the public service law in terms of the conduct of meetings, open and executive. Or maybe there was a public meeting on Sunday or Monday on the dates in question and I'm not aware of it, or minutes are published somewhere other than the town website....
Speaking of minutes...
Now, what about the minutes for the executive session? Here is the law:
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.
3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session.
Where are the minutes? If no minutes are released and available to the public, if no minutes were kept, then the session is invalid. I could FOIL the minutes but my FOILs are routinely ignored by the town.
Okay, I'll FOIL the minutes. There. FOILed.
The law says one week to make minutes public and this session occurred 3 months ago as I write this. I shouldn't have to FOIL the minutes. They should be on the town website or available to pick up at the office whenever the clerk is on duty.
Anyone out there have them?
Therefore, Whiteman, Osterman and Hanna may have been selected illegally, or the firm may have been selected legally but cannot yet be paid for its work until the town conducts an open, public vote to pay them. The executive session seems to have violated the plain language of the law in the way it was called and because it lead to an expenditure of public money not directly related to a lawsuit, as it was not paid to a firm representing the town in a lawsuit and used for intern functions of the town.
Mr. Everett presented himself to the ZBA as their attorney. Is he?
At the very least, we should see the minutes and have an official statement from the town board about whether or not they feel they hired Whiteman, Osterman and Hanna legally. We would need to see the minutes of the session and the announcement of the public hear that occurred between Saturday, March 26, 2011 after the serving of the papers regarding the federal suit and Monday, March 28, 2011 at 7PM when Mr. Everett took over from Tal Rappleyea. Everett only handle cases when I am involved. Can this arrangement in and of itself be legal? Did Tal formally recuse himself? Was that done according to Hoyle?
Whiteman, Osterman and Hanna might need to re-imburse the town for any money spent on the mistake of assuming Mr. Everett was the official attorney for the ZBA and planning boards, payments to the taxpayer with interest. Then re-do the hiring of this firm in public, at least the payment portion of their arrangement, without discussing the lawsuit in federal court, which this firm has no role in defending.
Issue two: errors
David Everett is not always right.
I think it is a mistake to assume Everett is the attorney legally empowered to represent the ZBA. He may not have advised the town board of the proper way to conduct an executive session. In this, he may have not shown attention to relevant laws and made his first mistake in this process. If, as I suggest may be the case, without knowing for sure, the town board screwed up the executive session, isn't that Dave Everett's fault? I mean, the town board is not made up of attorneys.
At every turn, Mr. Everett has made what appear to my lay, inexperienced eyes to be errors of law. If my simple reading of the law is roughly accurate, it may be a mistake to assume that Everett's opinions, as expressed in the secret letter, are correct.
That's another reason we should have a look at the secret letter. It might be wholly or partially wrong. More apparent mistakes:
In the letter of April 4, 2011 Mr. David R. Everett of Whiteman, Osterman and Hanna, writing on behalf of the planning board as attorney, so claimed, noted Parkview Associates v. City of New York, 71 NY 2nd 274 (1988). This citation referred to my case, Glencadia Dog Camp, but is clearly more relevant to the permit granted in 2004 and reviewed in 2008 for Main Auto repair facility. This court decision noted here deals with an application approved by a planning board that was in violation of the law. The court held that the law supersedes planning approval. The approval of the auto repair facility in 2004 and reviewed subsequently to allow for a larger sign violates town zoning law (see page 14, Town of Stuyvesant Zoning Ordinance, Adopted on May 10, 2001 As Local Law #1-01). The repair shop is in an agricultural district and is clearly forbidden by local law.
Errors three, four and five:
In the letter on May 20, 2011 municipal attorney David R. Everett of Whiteman, Osterman and Hanna wrote,
“As you know, the Town's zoning code provides that: Reasonable costs incurred by the Planning Board for private consultation fees of a planner, engineer, attorney or other extraordinary expense in connection with the review of a proposed site plan shall be charged to the applicant ....In this regard, the board may require such costs to be paid in advance, not to exceed 5% of the total project cost, and may deny application upon the failure of the applicant to make payment within 60 days of the date of the original application submission.
“As you know, the Planning Board has asked Mr. Jurkowski to review and comment on your client's noise study and provide technical advice on this matter. Mr. Jurkowski is a professional engineer licensed in New York and he is the designated Town Engineer. He also has experience with environmental noise impact issues. As required by the zoning code, the Board has requested that Mr. Pflaum post an escrow to cover Mr. Jurkowski fees in assisting the board with this matter. Mr. Jurkowski is preparing an estimate of the initial escrow amount.”
Here are the problems with these statements; 1) town policy and planning board procedures require that payments and escrow be set up in advance and not submitted at the end of the process due to problems and ethical violations in the past; 2) the cost of the project is zero therefor the entity before the board, me, does not have to pay squat; 3) Mr. Jurkowski is the engineer on the town garage project that I am leading the resistance to, a direct affect on his bottom line, and therefore should be excluded as a candidate due to conflict of interest.
Mr. Everett is clearly aware of the conflict of interest, as indicated by his letters referring to this blog, and yet continued to promote his opinion as vital. He failed to look for an unbiased opinion from an engineer not directly affected by my opposition to this town project.
I call that an error. I count five errors to date and we have one letter left.
Mr. Everett's letter of June 3, 2011 repeats the error of the May 20th letter:
"As a result, under the Town's law, Mr. Pflaum will be responsible for paying the Board's engineering fees on this application up to May 23rd,the date when he withdrew his application. Mr. Jurkowski is preparing a final invoice for services rendered to the Board. Upon receipt of that invoice, I will forward it to you for payment by your client. It is my understanding from Mr. Jurkowski that his fees will be approximately $1,000 for this matter."
Sending this invoice could constitute an ethical violation, in contradiction to planning board policy and state law.
In conclusion, given Mr. Everett's track record of legal error (or so I say and I am not a lawyer and could be wrong) and possible lack of standing as attorney (or so I say and I am not a lawyer and could be wrong), the secret letter should be released publicly, the town board should release the minutes of the executive session, the town should publicly hire the firm in order to be able to legally pay WOH, and the firm might need to return all payments made to date to the taxpayer, with interest. (or so I say and I am not a lawyer)
Anyway, I would like to hear any opinions about why I might be wrong about any of this. Seems like the town didn't follow the rules and its Everett's fault. I am not a lawyer and I have no experience. Please consider all of these issues as questions. I am asking questions and I honestly would like responses.
How many times did I say I'm not a lawyer?
Again, I'm asking questions as a humble dog farmer with no experience in these matters. I have concerns and questions but no definitive answers and would welcome outside, unbiased expertise and opinion, from anyone really. Thanks for considering responding, lawyers.
I'm not a lawyer.
Issue three: jobs
In the past, town officials (Tal Rappleyea, Tom Shanahan, Valerie Bertram, Gerry Ennis, Howard Gleason) have promoted the theory that my business violates zoning by having too many employees. Zoning only allows two employees. They think I have had more. Scandalous! Hiring people! Arrest that man! Call in the $450 an hour hired gun to get him to stop this terrible crime! Too many jobs!
I do not think they have a clue what they are talking about, for the record. It's not really their business, is it? And I can have as many contractors as I want, can't I?
It seems to be possible the the secret letter may attempt to resurrect this charge of illegally creating too many jobs and violating town law by paying too much in taxes. This old charges is the standard back up charge in case the dog barking thing doesn't pan out. They had some other back up charges, and who knows what's in the secret letter, but this TOO MANY JOBS meme is a old solid Stuyvesant line of reasoning.
David Everett gets $450 an hour. People working at Glencadia might get $15, $20, $25, $30 an hour, more or less. When I post an ad for a job at $20 per hour, I get 300 responses. I stopped posting ads because it's too difficult to deal with the onslaught. What are the 299 people I didn't hire doing now? Auto detailing on Mr. Everett's BMW for $8 an hour?
Instead of paying more than $60,000 to fight a preposterous charge, I could have invested in the local economy and created at least one more job. Maybe for a guy making $450 an hour another $20 an hour job doesn't seem like a big deal.
Is that what's in the letter? A new plan to kill jobs?
There is one permanent $20 job dead already not out there somewhere because of someone else's quick in and out $450 an hour job.
But I could be wrong. I'm just a dog guy. I'm no economist. I'm not a lawyer. I work in a barn with animals. I just ask questions for free on my free blog. I'm sure David Everett has all the answers. Of course, he'll charge $450 an hour to put them in a letter with letterhead and all, and that is much more serious than a dumb blog.
No one really answers these kinds of questions do they? Not in Stuyvesant. Not in Columbia County.
Okay, I'll sit here in the barn with the dogs and goats and sheep and chickens and horses and wait for my answers.