Apparent Violation Of Proper Notice By The Ethics Board Places Cloud Over Deliberations On The Inquiry Regarding The Mayor

I recently learned that the Ethics Board would be issuing an opinion on the complaint made by Commissioners Madigan, Mathiesen, and Scirocco that Mayor Yepsen violated the city’s ethics code by entering into negotiations with Saratoga Hospital while the hospital had business before the Council.  I would note that this “inquiry” was made on February 1, over five months ago.  This is a link to the complaint:  ComplaintRegardingMayor

This prompted me to go to the city’s website to check on the Ethics Board’s recorded activities.  What I found was that the last item posted on the site related to the Ethics Board was a meeting on May 2, 2016.

After further investigation I was told by a source that the Ethics Board had met on June 20th, 2016.  I emailed its chair, Justin Hogan, asking if he could confirm this.  He emailed back that his committee had met on that date.  I then emailed noting that there was no notice of this meeting on the city website. He responded that it was “posted” on June 14th.  He did not share with me how or where or by whom this posting occurred (The emails are below).

I then contacted the New York State Committee on Open Government asking what the regulations were on notices for meetings under the Open Meetings Law.  They referred me to Public Officers Law 7 (104) [I have highlighted the pertinent section].  I provide below the section in full with my emphasis:

§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If video conferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that video conferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.


A Tour Of The City Bulletin Boards

Planning Bulletin Board
Bulletin Board In Planning Office

 

MayorsBulletinBoard
Mayor’s Bulletin Board

 

GlassBulletinBoard
Glassed In Bulletin Board Near Front Door

 

Community Bulletin Board
Community Bulletin Board Near Front Door

So, however the posting might have been done, the fact that it was not done on the city’s website violates the Open Meetings Law.

Being the obsessive person I am, I still went down to city hall seeking to find out where such notices are physically posted and whether a copy of the Ethics Board notice was still up.

The city has numerous bulletin boards on the first floor of city hall.  I have been told that the board near the front doors of the building entitled “Community Bulletin Board” is where notices go but I found no notices there pertaining to formal city boards.  The glassed in bulletin board seemed to deal with OSHA safety issues.  The one by the Mayor’s office promoted a variety of programs and included press releases.  The bulletin board in the Planning Office was entitled “Agendas” and while there were agendas for a number of boards, there was none from the Ethics Board.  Given the fact that the meeting took place some weeks ago this is not surprising.  Still, the question remains as to what record might exist that such an item was ever posted.

Of course, even if it was posted on a bulletin board that does not meet the requirements of the open meetings statute.

Without proper notice, any action taken at a meeting would be subject to challenge under the open meetings law.  In light of the fact that it is possible that the inquiry regarding the Mayor may have been decided at the June meeting, it makes the issue all the more serious.  With this in mind I emailed the Mayor asking whether, as it appears, the proper notice was not given for the June 20th meeting and if so whether any action at the June 20 meeting would now be invalidated.

From: John Kaufmann [john.kaufmann21@gmail.com]
Sent: Sunday, July 10, 2016 12:55 PM
To: ‘Joanne Yepsen’
Cc: ‘Christian Mathiesen’; ‘Michele Madigan’; ‘Skip Sciroco’; ‘John Franck’;’Tony Izzo’; ‘Vincent DeLeonardis’; ‘Justin Hogan’
Subject: Potential Violation Of Open Meetings Law


I am writing you regarding an apparent violation of the Open Meetings Law by
the Ethics Board. 

As confirmed by Justin Hogan, its chair, his Board met on June 20, 2016.  Even as of today, July 9th, there is no record of this meeting on the City web site, let alone a record of notice to the public that such a meeting would be convened.


I contacted Mr. Hogan regarding this apparent failure and he responded by  stating that the notice was allegedly “posted” on June 14.  In part because he  did not share with me where or how this posting took place, I did visit City  Hall today.  There are a number of bulletin boards on the first floor of the  building, and I did find a bulletin board in the City Planning Office with the  title “Meeting Agendas” affixed to it.

While it is possible that timely notice of the meeting was posted on that space, now, some weeks following the Board’s meeting, there is no such notice on the bulletin board regarding the June 20 meeting.  As far as I can tell, there is no record that the June 20 meeting was ever properly posted so as to give meaningful notice to the public of that event.  Accordingly, would you please inform me by email as to by whom the notice was posted, and its location(s)?

The following are the requirements for notices to the public of meetings under Article 7, section 104 of the Public Officers Law. (I have underscored the most pertinent section):
§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be
given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a
reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If video conferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that video conferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.5. When a public body has the ability to do so, notice of the time
and place of a meeting given in accordance with subdivision one
or two of this section, shall also be conspicuously posted on the
public body’s internet website.

Drawing from the above, even if there was documentation to show that a notice was posted on a bulletin board in City Hall, the statutory requirement for notices of meetings would not have been met.  Based on my correspondence with Mr. Hogan, it would appear that the Ethics Board has been violating this provision for some time.  While not venturing a legal opinion here, it is my understanding that any business transacted at a meeting that lacks proper notice is not valid.

Timing appears rather important here because the Ethics Board is currently dealing with a controversial inquiry.  It would be unfortunate were the Board to publish an opinion whose authority is undermined by something as elemental as lack of required public notice, before this matter is resolved.
Thank you.

I am now waiting for her response.  When she responds I will post her answer promptly on this site.


The following is my email exchange with Mr. Hogan:
From: John Kaufmann []
Sent: Friday, July 08, 2016 4:17 PM
To: ‘Justin Hogan’
Cc: ‘Brendan Chudy’; ‘Courtney DeLeonardis’; ‘Marilyn Rivers’; ‘John Ellis’;
‘Tony Izzo’; ‘Vincent DeLeonardis’
Subject: RE: May Meeting

I would have assumed that someone in your profession would be both more familiar with the open meetings law and more interested in following the spirit of the law as well as its letter.

The following is taken from the New York State Open Meetings Law:
§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.

As you are the chair of this committee, the responsibility of insuring that the notice is properly executed rests with you. If I am correct and proper notice was not given, this raises questions about the validity of any discussions or actions the Ethics Board may have taken at the June meeting. [my emphasis]

From: Justin Hogan [mailto:justahogan@yahoo.com]
Sent: Friday, July 08, 2016 2:47 PM
To: John Kaufmann
Cc: Brendan Chudy; Courtney DeLeonardis; Marilyn Rivers; John Ellis; Tony Izzo
Subject: Re: May Meeting

Mr. Kaufmann,

The Board of Ethics did meet on June 20. The agenda/notice was posted on June 14.
The minutes are not on the web site because the Board has not yet reviewed and approved them.

Thanks,

Justin Hogan

From: John Kaufmann <john.kaufmann21@gmail.com>
To: ‘Justin Hogan’ <justahogan@yahoo.com>
Sent: Friday, July 8, 2016 2:17 PM
Subject: RE: May Meeting

Did you hold a meeting on June 20th? If so can you explain why there was no notice, no agenda, and no minutes posted on the city web site?

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