Saratoga Springs Ethics: The Good Stuff Is Hard To Find

Some weeks ago the city put on an ethics workshop for its land use boards.  Mark Schachner, who routinely consults for the city on land use law, was the instructor.  Mr. Schachner is, by all accounts, one of the top attorneys in this field.  His workshop was both entertaining and informative.  At the end of this post is a long article by Jenny Grey describing the workshop.  For me, it was great fun since it reconfirmed most of my criticisms of the land use boards.

The Planning Board and Zoning Board of Appeals members were well represented.  Oddly, no one from the Design Review Commission attended.

Mr. Schachner began by discussing ex parte.  Basically, the land use boards, particularly the ZBA, are to avoid any discussion regarding their respective boards’ activities outside of the regular meetings.  Any information should be presented and discussed before the full bodies.  Mr. Schachner was quite stern about this.  He noted that it is difficult to avoid situations outside of the meetings at which parties might attempt discussion with the members of the boards.  He advised them to diplomatically cut off the conversations and to urge the person to either attend a meeting or submit their questions/comments in writing.  In the event it was impossible to avoid an interaction, he advised that at the earliest time, they share the information with the rest of their board members either in writing or at the next meeting.

Members of the public (other than elected officials and Ms. Grey, I was the only one who fell under this category) were not allowed to speak during the training but at the end they were allowed to ask questions.  I asked two questions.

#1. I asked whether discussions about issues other than the merits of an application were ex parte.  In particular I gave the example of an applicant calling the members of a board to determine whether they would be attending an upcoming meeting.  Given the varying views of different members of these boards, not to mention the alternates who may be sitting on the Board on any particular night , who attends a particular meeting can very much affect a decision.  Mr. Schachner could not have been clearer: ex parte extends beyond the “merits” of a particular application and it would be inappropriate to poll a member of a board regarding their attendance.

#2. I asked Mr. Schachner to define “conflict of interest” as it applied to land use board members. Mr. Schachner included in his definition of “conflict of interest” a contractual relationship between an applicant and a member of a land use board.  A board member involved in a contract with an applicant must recuse themselves.  He also explained that  this conflict was considered to exist for twenty four months beyond the life of the contract.

The Ethics Board’s Decision on Ex Parte

As the readers of this blog know, I made a complaint to the Ethics Board over what appeared to have been an ex parte conversation between John Witt and ZBA Board member Keith Kaplan.

Subsequent to this complaint, Mr. Kaplan assured me that he had had no conversation with Mr. Witt outside of the meeting and I have accepted him at his word.

The handling of this complaint, however, by the Ethics Board was very troubling.

First of all, in an email to its chair, Justin Hogan, I asked to address the Ethics Board regarding my complaint.  I was denied this opportunity by Mr. Hogan in an email that would have impressed the Soviet Politburo.  I have included his email at the bottom of this post.  In his email reply, rather than offering me a yes or no,  he simply responded that the Ethics Board would follow its procedures.  Since he did not advise me at which meeting they would take up my complaint (they call it an inquiry) I took his response as a no.

I eventually received the Ethics Board’s decision.


One of the most interesting things about this decision is that the standard used for ex parte comes from one used by the Federal Reserve.  I showed this to a friend who was an attorney for a New York State Agency for many years and to another friend who was a planner for many years and who served on land use boards in our city.  They both wondered the same thing.  Why would the Ethics Board go so far afield for this definition?   In fact, the New York State Department of State has a division on local government that is tasked with doing training for land use boards and has copious materials on their website on the issue of ex parte.  In fact they have user friendly materials specifically on ethics for land use boards that include cartoons!

According to the decision by the Ethics Board “First, an ex parte conversation must be relevant to the merits [this is the Ethics Board’s emphasis] of the proceeding.  Second, communications regarding the status of a proceeding are not ex parte.”   Mr. Schachner, however, could not have been clearer  at the training session for board members  that this definition of ex parte is  not consistent with New York State standards.

I regret that my friend, Tony Izzo, appeared to be the source for this definition from the Federal Reserve.  When, subsequent to this decision I pointed out to him that he had ignored New York State’s standards he expressed surprise and asked me to send him information on this.  I emailed him a link to the pertinent documents on the NYS Department of State website and subsequently sent the following email to Mr. Hogan.

From:    John Kaufmann []

Sent:      Tuesday, April 05, 2016 10:48 PM

To:          ‘Justin Hogan’

Cc:          ‘Joanne Yepsen’; Christian Mathiesen; ‘Skip Sciroco’; ‘Michele Madigan’;

Vincent DeLeonardis; tony izzo

Subject:                Ex Parte

I have reviewed the decision of the Ethics Board regarding Keith Kaplan and ex parte.

I am struck by the fact that the decision is based on an interpretation of ex parte drawn from the Federal Reserve.  This seems particularly odd since this is a very remote source.  There is easily accessible information on this issue as it relates directly to New York State Law.  The New York State Department of State which is charged with training zoning boards has extensive resources on its website.  This includes training videos as well as on line pamphlets and links to the actual legal basis of ex parte.

You state in your decision that “First, an ex parte conversation must be relevant to the merits of the proceeding.  Second, communications regarding the status of a proceeding are not ex parte communications.”

Last week the city did training for the land use boards on the issue of ethics.  Mark Schachner, who provides specialized legal advice on land use issues for the city, did the training.  Mr. Schachner focused much of his presentation on the meaning of ex parte.  He made it very clear that ex parte was not limited to the merits of applications.

I have had an email exchange with Keith Kaplan in which Mr. Kaplan assured me that he had no conversations with John Witt regarding his application outside the meetings of the ZBA.  I will take him at his word. 

The issue then is not about a particular conversation Mr. Kaplan had with an applicant.  The issue that remains and that is very troubling is that, based on the materials from the Department of State and Mr. Schachner’s training, the standard put forward in the Ethics Board’s decision leaves our city vulnerable to damaging lawsuits.

In this context I am suggesting the following:

  1. The board consider viewing the video made by Tony Izzo of Mr. Schachner’s training session.
  2. The board solicits Mr. Schachner’s counsel regarding the meaning of ex parte.
  3. The board redrafts the city’s Code of Ethics to lay out clearly the issue of ex parte and provide

the new language to the City Council for adoption.

It would be in the best interest of the city to have a standard of ex parte that more accurately reflects New York State standards.

Please share copies of this email with the rest of your board.

 I never heard anything from Mr. Hogan, Mr. Izzo, or the board.  As made very clear by the NYSDOS, ex parte is not some obscure, anachronistic issue.  It is central to maintaining the integrity of the decisions of the land use boards.  Regrettably, the city’s Ethics Board does not seem to share a sense of urgency about this issue.

I also received a decision regarding my complaint (inquiry) regarding Sonny Bonacio going before Tom Lewis (Planning Board) and William Moore (ZBA) having built or being in the process of building their homes.

In their opinion the Ethic Board notes that neither Mr. Moore nor Mr. Lewis had violated the city’s ethics code.  The code, they note, only covers a board member hearing an application in which they have a direct financial interest.   They do note that under New York State Municipal Law there are certain circumstances “in which the officer/board member is deemed to have an interest in the application sufficient to require disclosure,” but then go on to say “The list does not include situations where the officer/board member is the applicant’s customer.”  So having excluded Mr. Moore and Mr. Lewis from falling under any definition of conflict of interest they then add that “The responsibility to disclose in all the situations listed falls on the applicant, not the officer/board member”  and ”Disclosure, not recusal is required.”  So for some reason they felt the need to document that by precedent, there is no issue in the case of Lewis and Moore.

Finally, they admit that “it is appropriate to avoid the appearance of impropriety whenever possible.”  They conclude that in cases where board members “know they have made a substantial purchase of goods and/or services from the applicant before them, they should disclose that fact on the record.”  So having documented that there is no requirement under municipal law nor provision in the city’s ethics code, they decide that the board member should disclose their financial connection to the applicant.  Why simply disclosing the relationship is sufficient rather than recusal is never really addressed.

They also restate the city’s ethics code honor system.  If a board member feels they cannot be impartial, they should recuse themselves.  This is the standard used most famously by Mayor Yepsen in the case Saratoga Hospital’s expansion.  I find this standard especially amusing.  It, in effect, does not require recusal in cases where, by common sense, someone should be required to recuse themselves but provides for anyone to recuse themselves when it is expedient for them to do so.  So if I were in partnership with John Smith to build a ten million dollar office building and he came before me on a land uses board regarding a different project of which I was not a partner I could recuse myself if I wanted to or I could vote on his/her project if I wanted to.

In effect, our city operates largely on an honor code for land use board members.  At worst, they must disclose a financial connection and still vote.   If they know in their heart that they are untainted by whatever favors an applicant may have or is planning on bestowing on them, they may hear the case and vote on it.  The fact that Sonny Bonacio was building Tom Lewis’s home or had recently built William Moore’s home would not preclude a member from hearing the case according to the Ethics Board.  I guess it is helpful to know that a board member is in a compromising position when they vote for an applicant.

But What About Schachner’s Training?

Mr. Schachner, in his training, made clear he did not view conflict of interest as restrictively as the Ethics Board.

As noted above, at Mr. Schachner’s training I had specifically cited a hypothetical case in which a board member was having a house built for them by an applicant coming before them.  Mr. Schachner was clear that they should recuse themselves.  In addition he had included a twenty-four month waiting period subsequent to the end of the contract associated with such a project.

Elated by Mr. Schachner’s advice, I sought its legal basis.  I could find nothing in the City’s Code of Ethics that seemed to say this and using my own meager knowledge of the law, I attempted to find the basis for this standard with no luck.

I reviewed the video and confirmed that this is what Mr. Schachner had said.  In fact, Jenny Grey’s story included this.

Since I do not work for the city, I could not ask Mr. Schachner for the legal source of his opinion so I emailed Tony Izzo asking if he would contact Mr. Schachner on this. Tony had attended the training and he is the attorney that supports both the ZBA and the Planning Board.  An innocent would expect that Tony would be as interested in finding this out as I was since, if true, Mr. Lewis and Mr. Moore would compromise any deliberations regarding Mr. Bonacio’s applications.  Several emails to Tony produced no response.  I subsequently ran into him at City Hall.  He was apologetic about not getting back to me and said he was not clear on what it was that I was seeking.  He offered to call me, which he subsequently did.  We talked about it.  He said that Mr. Schachner was having some sort of oral surgery so there might be some delay.  I subsequently emailed Tony two additional times but to date (three weeks) I have heard nothing.

All of this is to say that the state of the city’s Ethics Board is deeply troubling.  It is symptomatic of the problem that Mr. Hogan, its chair, works for a firm that specializes in lobbying and public relations.  I leave it to the readers as to the significance and meaning of the fact that he was originally appointed chair by Republican City Mayor Scott Johnson and reappointed by Democratic Mayor Joanne Yepsen.

Email Exchange With Justin Hogan, Ethics Board Chair

On Mar 15, 2016, at 6:11 PM, John Kaufmann <> wrote:

I would like to address the board.

From: Justin Hogan []

Sent: Tuesday, March 15, 2016 7:09 PM

To: John Kaufmann

Cc: Brendan Chudy;; John Ellis; Marilyn Rivers; Tony Izzo; Trish Bush

Subject: Re: Formal Complaint

Mr. Kaufmann,

Thank you for reaching out. As previously stated the board will review your submitted inquiry and notify you of any action taken, pursuant to the Procedures of the Board of Ethics.

If you have any further questions regarding provisions of the Code and or Procedures myself or Tony Izzo would be happy to speak with you.

Thanks again,



From:   John Kaufmann []

Sent:    Wednesday, March 16, 2016 5:23 AM

To:       ‘Justin Hogan’

Subject:           RE: Formal Complaint

I cannot find anything in the by-laws your board that requires you to allow me to address the board.

Do I take your response as a “no” that I may not attend a meeting to address the board?


Mr. Hogan did not respond to this last email

Jenny Grey Article

Land-use boards meet for ethics training

By Jennie Grey, The Saratogian

Posted: 04/05/16, 5:34 PM EDT |

SARATOGA SPRINGS >> Members of the city’s planning board, zoning board of appeals and design review commission (DRC) met with attorney Mark Schachner March 31 to discuss guidelines for ethical and proper land-use decision-making, a tricky process in a small community where many people know one another. Many people know the boards as well.

“Board members here have been diligent, objective and responsible,” Schachner said.

The Saratoga Springs Planning Board is a seven-member citizen board appointed by the mayor to seven-year staggered terms. The city council gives the planning board independent authority to review the following development activities within city boundaries: subdivision review, soil erosion and sediment control, floodplain variances, site plan review and special use permits.

The Saratoga Springs Zoning Board of Appeals is a quasi-judicial seven-member citizen board also appointed by the mayor to seven-year staggered terms. State regulations require communities to have a zoning board of appeals to review the following types of requests for waivers from any of the regulations in the zoning ordinance: area variances, use variances and interpretations.

The Saratoga Springs Design Review Commission is a seven-member citizen board appointed by the mayor to five-year staggered terms. The city council gives the DRC independent authority to review the following development activities within city boundaries: historic review and architectural review.

Alongside the board members, Mayor Joanne Yepsen, Public Safety Commissioner Christian Mathiesen and most of the planning staff attended the session. So did Saratoga Springs Politics blogger John Kaufmann, who often writes about land-use controversies.

Schachner, the senior principal attorney at Miller, Mannix, Schachner and Hafner of Glens Falls, is Saratoga Springs’ planning/zoning counsel.

“Members of the land-use boards here have the city’s ethics code to follow, as well as the more user-friendly ethics guide,” Schachner said. “Some rules are hard and fast; black or white — and some rules are soft and gray.”

He presented the general principles members should follow: All information must be presented and reviewed at open public meetings. Officials should be objective and unbiased. Decisions should be made on the merits of the application, regardless of who were applicants, proponents or opponents.

“You need to review the same way whether the applicant is Mother Theresa or Jack the Ripper,” he said.

Maintain integrity, he added. Avoid conflicts of interest and appearances of impropriety. Seek more than just minimal compliance. Know what is permissible as well.

“Four board members are allowed to go out to eat together if they don’t do the budget while they’re in the restaurant,” Schachner said.

When in doubt, board members should err toward disclosure and recusal, the act of removing one’s self from review of a compromising application. In Saratoga Springs, the recused member physically leaves the council room as well as the conference table, and waits outside the door to be called in on the next application.

Automatic recusals come when financial incentives or involvements are at stake. If a board member has been in a contractual relationship with an applicant — say the applicant is the board member’s roofer; or the board member is the applicant’s stock broker — in the past 24 months, the member must recuse himself. If an applicant is a board member’s boss, the member should recuse himself.

If an applicant is a board member’s brother-in-law, the board member should likewise recuse himself from the review.

Schachner said, “I once heard a board member in a rural community say, ‘This is my sister’s application. I can’t stand her. I’m going to be completely objective.”

Being too much against an applicant is obviously just as bad as being too much for him.

If the applicant is a coworker, the board member should probably recuse himself from the review. They might work in different departments and never interact; possibly the board member could be objective.

If the applicant went to nursery school with a board member, but the two haven’t seen one another since, the board member can probably participate with the review.

Schachner emphasized that if a board member is in doubt over what best to do, that points to the decision of recusal.

“Disclosing the relationship with the applicant is healthy, open and aboveboard for the member,” he said.

Other shady areas include ex-parte communications, from a Latin phrase meaning “by one party.” A board member should not meet or communicate by telephone, text or email alone with applicants, agents, proponents, opponents or fellow members about matters to be considered by the board. Such matters must be discussed in open meetings with all the board present.

Another issue Saratoga Springs has recently tackled is alternate board members. Yepsen has appointed enough alternates so that the boards can carry on if members are absent or in recusal.

Schachner said, “I’ve seen some boards paralyzed by members being absent. I believe using alternates is a very good idea.”

“We are working out rules for all three boards’ alternate members, to be consistent,” said Bradley Birge, the city’s administrator of planning and economic development.

The mayor said she would like the city council to approve these rules and then write them into city law.


Mayor Yepsen Responds To Recusal Controversy

An open letter to the Citizens of Saratoga Springs: April 19, 2016

When the call came in from Saratoga TODAY reporter Arthur Gonick last Thursday, I was at a dinner in Troy with other regional Mayors accepting an award on behalf of Saratoga Springs as one of the 22 cities across the nation who ended veterans’ homelessness by the end of 2015.  After the dinner, I listened to the message and was stunned to hear that a “story” that I was the subject of was going to run in the paper the following day and they had gone to press without even giving me a chance for a comment, response or clarification of the facts. In my dozen years of public service, I’ve never not had a chance to respond to an article relating to me or, at the very least, asked for a comment prior to publication. 

After reading the April 15th article published by Saratoga TODAY entitled “Recusal Or Refusal”, I feel compelled to not only defend my actions but to provide important details that were missing from the reporter’s story and to correct the record.

As the Mayor of Saratoga Springs, I take offense to any suggestion that I conveniently avoided taking a public stand on the Saratoga Hospital rezoning and expansion project. If I didn’t want to deal with controversial issues and think I could make a positive impact, I would not have run and won twice for Mayor. As it relates to the recent article in Saratoga TODAY, that appears to be the author’s suggestion. However, that is not what happened.

Since Saratoga TODAY did not provide me opportunity to respond to the tone of their article before the story was printed they didn’t know that I have had a long-standing relationship with the hospital both as a fundraiser and community leader. They also didn’t understand the full extent of precautionary steps I took and the advice I sought with the City’s Ethics Review Board in order to avoid any potential conflict of interest I may have had with the hospital’s rezoning proposal. Instead Saratoga TODAY chose to first write the story, complete with editorial connotations, and then offer me a chance to respond.

Therefore, as a follow-up to the “facts” presented by the April 15th article, I’m more than eager to explain my actions and reasons for excusing myself from any discussion involving the hospital’s plans. Additionally, I have a few thoughts of my own as it relates to the unseemly politics of this whole issue.

First, it’s important for all to understand, I’m the proud co-owner of a small independent business that specializes in working with non-profit organizations in developing effective strategies for the management of fundraising activities. The Mayor’s position is considered “part time” and pays $14,500 per year and therefore additional income is essential. Over the years, I have established a successful business relationship with many organizations in New York, including Saratoga Hospital. I have been hired twice over the years by the hospital foundation to conduct board trainings and prior to that served as a hospital foundation volunteer board member for nine years. But, for all my years in public service I have never had one instance where I have had to recuse myself from a public vote because of a potential conflict of interest.

Ethics is a high priority for me. In my first term as Mayor, I re-establish and reconstituted the important role of the City’s Ethics Review Board with several new appointments and updates to the requirements set forth in the City’s Ethics Code. This term, I arranged a thorough ethics-training program presented by Mark Schachner, an expert legal advisor, for our land use board members.  I have high ethical standards for myself and expect that of others.  That is why as soon as I realized the potential conflict of interest between my consulting work with the hospital and the city business; I sought advice from our City Ethics Board to ask for an official opinion.

Once the hospital realized the potential conflict, they also took action simultaneously.  They wrote me an email indicating they would discontinue conversations about our possible working relationship while I am serving as Mayor. Having already met with the Ethics Board that same day, I immediately shared this follow-up information I received with them to consider in their deliberation.

After performing a thorough review of records, and after considering the legal implications involved, the Ethics Board issued a determination and opinion, advising me that in my official City role I should recuse myself from any discussion or consideration related to the hospital’s rezoning and expansion project.

Contrary to the impression that may have been created by the Saratoga TODAY article, I have been more than transparent and cooperative in sharing all information and correspondence related to the preliminary discussions with the hospital, all information regarding my discussions with the city’s Ethics Board and my ultimate decision to recuse from all discussions related the hospital’s rezoning plan. Aside from my private business relationship, past and present, my duty as a public official was to seek advice from the appropriate City Board and act accordingly.  And, I did just that.

To suggest that the hospital’s decision not to engage my services at this time, by itself, somehow erased the potential conflict and instead caused me an opportunity to participate in the City Council’s discussions involving the hospital’s rezoning request is simply wrong and in direct conflict with advice and recommendation I received from the city’s Ethics Board. The Ethics Review Board determination made it clear, that given that the earlier discussions that already occurred with the hospital, regardless of their final email to me discontinuing those conversations, recusal was advised.

Here the facts are clear. In accordance with the timeline of events as described by Saratoga TODAY article, it wasn’t until late in the year 2015 that the public fully understood that the hospital was acting on a project rezoning proposal that had been inserted into the draft Comprehensive Plan update. As government officials, we all need to find more effective means to educate ourselves and the public on the numerous projects being presented that may affect their neighborhoods.

Throughout this whole process, I’ve held myself to a high ethical standard. In this particular instance, given my business affiliation past and present with Saratoga Hospital, I was compelled to step aside on any vote pertaining to their proposed project and rezoning. I take great pride of serving as Mayor of this city and I did not take the recommendation by the Ethics Board or my personal decision to recuse lightly.

Sadly, the failures in this process are that the Saratoga TODAY article appeared and drew harsh conclusions with no chance for me to directly respond or correct the accusations. The deliberate actions taken by fellow City Council members in running to the press with documents they believed to be incriminating, calls into question their true motivations.

There are always lessons learned and room for improvements in every process.  In my role as Mayor, I will continue to conduct City business professionally in a manor that best represents the overall interest of our City, its residents and taxpayers.

– Joanne D. Yepsen

Mayor, Saratoga Springs



Saratoga Hospital: Without Sin?

While I can understand the focus on Joanne Yepsen regarding the issue of conflict of interest and recusal, I think a balanced view needs to scrutinize Saratoga Hospital’s role in this story.

Based on the documents, Joanne Yepsen initiated the contacts regarding doing work for the hospital.  Nevertheless, the hospital management had to be acutely aware of the Saratoga Springs City Council’s role in deciding on their proposed PUD.  It pushes the limits of credibility that when the mayor of your city contacts your organization about doing work, that you are not aware of the effect that relationship can have on an issued before the Council.   The relationship was not brief.  It began in October with the first lunch meeting and ended in mid January.  Is it possible that Ms. Raimo, with the title of Vice President of Community Engagement, was oblivious to the ramifications of this relationship for months?  Is it possible that she saw no need to discuss this with Angelo Carbone, the CEO of the hospital?  It is possible of course, but is it likely?

The other interesting question is: What happened just before January 14th that caused the hospital to suddenly realize the potential damage that a contract with the mayor would have and to end the negotiations?

All of this in no way excuses Mayor Yepsen’s behavior but it is important not to overlook the hospital’s role as well.


Empire State College Reaches Out To Neighbors Regarding New Moore Hall Project

In early April, Mary Caroline Powers, Vice President for Communications and Government Relations at Empire College, telephoned one of the leaders of the neighborhood association that defeated Sonny Bonacio’s original proposal for Moore Hall.

Ms. Powers explained that the College was very concerned about the new variances being sought by Mr. Bonacio for his revised plans for the Moore Hall property.  Specifically, the College was concerned about the side set-back variance (for 10 feet versus the required 20 feet) impact on the back side portico door of the historic building owned by the College at the corner of Regent and Union.

She asked whether the neighbor had attended the ZBA meeting on April 11.  She was informed that he had.  He described what had occurred to date regarding the project in terms of SEQR and other issues.

He then shared with her that it was unlikely that the College could expect much support from the neighbors in light of the College’s unwillingness to support the concerns of the neighborhood regarding the original project.

Ms. Powers explained that they had met with Mr. Bonacio and had agreed not to publicly oppose the original project.  She advised the neighbor that they had privately expressed concerns regarding parking and pedestrian safety.

He told Ms. Powers that he would pass her concerns on to the neighbors but expressed skepticism that in light of the College’s previous lack of support, that there would be much interest in working with the College.

She welcomed any feedback from the neighbors, and said she would be glad to explain the College’s position with regards to the previous  Moore Hall proposal for 53 micro units in the existing building.




Saratoga Hospital Trashes Mayor Yepsen

Saratoga Today published a front page story this week in which documents released by Saratoga Hospital raise serious questions about Mayor Joanne Yepsen’s recusals regarding their PUD applications.

Saratoga Hospital has been frustrated in their attempt to secure a Planned Unit Development approval for an office complex they wish to build near their main buildings.  As a result of a legal challenge by the neighbors who abut their proposed project, a vote of at least four members of the City Council is required to secure the PUD.  Mayor Joanne Yepsen and Commissioner John Franck have recused themselves claiming conflicts of interest.

According to the documents, Mayor Yepsen introduced Saratoga Hospital’s application for a PUD for their proposed offices on her agenda at the August 18 meeting of the City Council.  In October Mayor Yepsen began corresponding and meeting with representatives of the hospital to explore how her consulting firm might provide services for the hospital.   In January the hospital wrote to her that they were no longer interested in pursuing contracting her services citing the potential conflict of interest that such an arrangement might entail.   This was communicated to her in correspondence on January 14 and January 15 of this year.

At the January 19 meeting of the City Council (only four days later) when the Council was to take up action on the PUD, Mayor Yepsen announced that she had been in talks with the hospital about doing work for them and was therefore recusing herself from any participation in any discussions or votes related to the matter.   For some unknown reason, she did not reveal that Saratoga Hospital had formally notified her that they would not be pursuing business with her while she was mayor.

On April 12th, Commissioner Skip Scirocco submitted the documents to the City’s Ethics Board requesting an inquiry.  The Ethics Board went into executive session and no further information is available on their deliberations.

It is very troubling that with Saratoga Hospital’s proposal before the Council that Mayor Yepsen would enter into negotiations with the hospital.  It is puzzling that she would then recuse herself from the PUD when there was no longer any possibility of a contract.

I sent the Mayor a note advising her about this story and offered to print her response verbatim on my blog.  I am publishing her response below.

It is very much worth exploring Saratoga Hospital’s actions in this matter.

According to Saratoga Today:

This correspondence has been verified by an official from Saratoga Hospital, who stated, ‘…we are aware that these documents might someday reach the media.’ The packet was originally sent by Amy V. Raimo, Vice President for Community Engagement and Executive Director of The Saratoga Hospital on March 1, in a response to a January 30 request for information letter from Commissioner of Finance Michele Madigan to President and CEO of Saratoga Hospital, Angelo Calbone.” 

As someone who has been heavily involved in seeking documents from a variety of institutions I found Saratoga Hospital’s role in this story of great interest.

Saratoga Hospital is a private not-for-profit institution that is not subject to the open meetings law and therefore not subject to Freedom of Information requests.  My experience with institutions like Saratoga Hospital is that they jealously control information.  Their release of this information, especially in light of its highly political and damaging character is extremely unusual.

I am also struck by the documents that they released.  I have included the documents in this post.  Readers will note that there are documents that cite Joane Yepsen’s apparent failure to provide a writing sample as part of what the hospital required in order to contract with her in spite of repeated requests. The release of this information which seems to be unrelated to the recusal issues strikes me as unusual.

It is also worth noting that Commissioner Michele Madigan is cited as having made the request for the documents.  Commissioner Skip Scirocco is cited as having submitted them to the Ethics Board.  The story does not explain how Mr. Scirocco was brought into this matter.

It will be interesting to see how all of this plays out.  Attorney Matthew Jones has spoken twice before the Council at hearings about changing the City’s Comprehensive Plan to preclude the hospital PUD.  Mr. Jones has repeatedly expressed frustration over the inability of the hospital to pursue their PUD in light of the lack of the necessary quorum to decide the matter.  He has repeated that the hospital simply wants a vote on the matter and that once there is a vote that the hospital will accept the decision.

Should Mayor Yepsen decide not to recuse herself then there would be the quorum that Mr. Jones and the hospital have been seeking.  The problem is that if Commissioner Mathiesen continues his opposition to the PUD, although there will be a quorum, the hospital will lack the four votes they need for adoption.  If the hospital and Mr. Jones are true to their word, the PUD will finally be dead.

There is also the irony that members of the Council may recues themselves, according to the city’s code of ethics, if they feel they cannot be impartial.  I would say that whatever the merits of Mayor Yepsen’s behavior in all of this, it would be perfectly understandable if she admitted to sufficient anger toward the hospital that it was impossible to be impartial.

From: Joanne Yepsen []
Sent: Sunday, April 17, 2016 12:16 PM
Subject: Re: Heads Up

Dear John,

I am planning a full comprehensive response to the “story” you cite and will send you a copy.  The article lacked an honest review of all the facts. If I had had the chance to respond or even make a statement prior to going to press, — the story had already been printed at the time I was first contacted by the paper late Thursday afternoon — (I will forward you the email first received from Arthur), the public would have had the full story on both the ethics process and the rezoning request.


The Documents




Hospital Correspondence-1

Hospital Correspondence-2



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Jenny Grey On Murphy Lane Developments

[Subsequent to this article Mayor Yepsen told the neighbors the city was standing firm behind Steve Shaw, the building inspector]

Murphy Lane barn wants to proceed without new variances

The barn at 39 Murphy Lane as it looks presently, under total reconstruction. Photo provided


By Jennie Grey, The Saratogian

Posted: 04/15/16, 2:49 PM EDT | Updated: 14 hrs ago


The barn at 39 Murphy Lane as it looked in the beginning.

SARATOGA SPRINGS >> The 100-year-old barn at 39 Murphy Lane took another unexpected turn in its renovation journey when the applicant recently withdrew her request for area variance modifications, positing that a 2015 variance gave her all authority to proceed with the scope of the project.

The afternoon of April 11, the zoning board of appeals (ZBA) received a letter from James Fauci, the Ballston Spa attorney representing barn owner and applicant Jean D’Agostino. The letter was addressed to ZBA chair Bill Moore and to Mayor Joanne Yepsen as well. The barn project had been scheduled to appear under old business at that evening’s ZBA meeting; however, the lawyer’s letter withdrew the application altogether, according to Assistant City Attorney Tony Izzo, who read from it at the start of the meeting.

“The applicant is withdrawing her variance request, saying the ZBA’s previously granted variance from March 23, 2015 provides her with all authority to proceed with the renovation,” Izzo said. “She also requests that the building inspector withdraw the stop-work order placed on the project.”

D’Agostino’s original proposal was to renovate the barn situated on a one-third-size lot on Murphy Lane, an alley that runs parallel between Lincoln Avenue and White Street on the East Side. The project was presented as a renovation of an existing barn/carriage house into a single-family residence. The zoning board originally granted seven area variances for the work, which began under Engineering America Co. engineer Tonya Yasenchak.

“The plan was to return this 100-year-old barn to its original glory,” said Brian Rodems of White St. during public comment at the March 21 zoning board of appeals meeting. “But after being granted the variances, the owner tore down the barn. The building going up bears no resemblance to the old one.”

Rodems is one of a group of neighbors near Murphy Lane protesting that the work done on the project oversteps its bounds. Essentially, none of the old barn remains — it has been methodically deconstructed and replaced with new materials during the past few months, residents say. The entire roof of the barn has been removed, and it now sits in a state of arrested development due to building inspection.

When city Building Inspector Steve Shaw recently checked out the site, he found that more work had been done than had been approved. He requested a new foundation plan, but said he had not yet received one. Even without that plan, however, he could see the deviation from the originally approved design.

“The plans said the builders would keep the core of the barn as much as possible,” he said. “But the preexisting nonconforming status of the building was being increased.”

He issued a stop-work order.

At the previous ZBA meeting in March, Vice Chair Keith Kaplan had proposed a compromise: asking D’Agostino to modify some of the building’s dimensions and to use Design Review Commission (DRC) approved materials on the exterior. Most of the members agreed to ask the DRC for an advisory opinion on dimensions and materials.

However, Fauci pointed out in his letter that the DRC has no authority over this project, as the subject premises do not fall within the DRC jurisdiction. Notwithstanding, he said D’Agostino has shown herself willing to submit to the ZBA and DRC reviews.

“This further points to her good faith and willingness to work with the city,” he wrote.

Meanwhile, Rodems has also written to the mayor and the city attorneys, addressing both the barn project and the larger issue of how the ZBA operates.

“We are faced with the continued threat of overdevelopment or poorly planned development that will have a deleterious impact on our quality of life and the value of our property,” he wrote. “It would appear that the members of the ZBA have a predilection to provide support for developers — at the expense of neighborhoods — by loosely ‘interpreting’ the zoning code to favor developers.”

After reading parts of the lawyer’s letter aloud, Izzo said to the board, “There are factual as well as legal issues here. The building inspector may have a great deal to say.”


Mayor Contacts Neighbors: Backs Stop Work Order

The neighbors of 39 Murphy Lane report that they got a call from Mayor Yepsen today. The Mayor stated that the city is backing the building inspector and will not lift the stop work order at this time. According to the neighbors the Mayor and her staff met with the applicant, Jean D’Agostino, and her lawyer and informed them that they must meet the requirements as stated in the original variance. The neighbors will be meeting with the Mayor and her staff next week.

Much thanks to the people who contacted the mayor on this.

A Request Of The Readers of This Blog

The neighbors of 39 Murphy Lane have asked for a meeting with Mayor Yepsen and the city attorney to discuss the status of what was supposed to be a rehab of an old barn.   As noted in an earlier post, the owner, Jean D’Agostino, has challenged the city, claiming that she does not need the variance that precipitated the original stop work order in early January.  Her attorney has asserted her right to build is high as the zoning allows which would be potentially sixty feet.

There are a number of things that need to be clarified.  First and foremost would be how the attorneys for the city view her attorney’s claim.  I also expect the neighbors to seek clarity about the legal implications of the owner’s application in which she said that they planned to rehab the old barn and in which she explicitly stated that tearing the barn down would be a detriment to the neighborhood.  There is also the question regarding the legal implications of the fact that the rehabbed barn was to be built on a slab and that instead the owner excavated beneath the structure and laid a full, raised basement.

While many of the people who read this blog do not live in close proximity to this project, in a sense we are all neighbors of the people who do.  The legal implications of this project go far beyond this one neighborhood.  It is very possible that the readers of this blog may find themselves facing similar circumstances in the future.

With this in mind, I am asking the readers of this blog to take the time to write, call, or email Mayor Yepsen and to urge her to organize a meeting with her staff and the neighbors so that the people being impacted can better understand their rights.  It would also be helpful if people used their networks to get others to write.  The letter does not have to be complicated.  It can simply say something like: 

Dear Mayor Yepsen:

I urge you to meet with the neighbors of 39 Murphy Lane to explore the legal implications of what had been a proposed rehab of a barn at that address.  The resolution of the conflict surrounding this project will have implications throughout our city.

Thank you

This is the email address for the mayor:


The Letter From The Lawyer Re 39 Murphy Lane

I FOILed for a copy of the letter from the attorney representing Jean D’Agostino, the owner of 39 Murphy Lane.  Ms. D’Agostino is being represented by James A. Fauci of Ballson Spa.  I am including the full text of the letter below.  As I understand it, he basically argues that she is not prohibited from building the structure up to the sixty feet permitted in a UR-3 zone because according to Mr. Fauci the resolution granting the original variances was “unconditional” and therefore set no limits on height.  He also noted that the building inspector prior to issuing the stop work order visited the site and he alleges that the visits “included the inspection and approval of the now existing foundation, second floor, and roof.”

It will be interesting to see how the ZBA responds to this.  Having asserted that D’Agostino was required to get a height variance, the ZBA had asked the Design Review Commission to assist in trying to address recreating in some manner the original barn.   Dismissing the need for the additional variances and claiming she can build as high as the 60 feet that zoning permits certainly is a game changer.