Earlier this year, I did a post on the Ethics Board’s apparent violations of the open meetings law. The law requires that the public be notified at least 72 hours prior to meetings. It also requires that if a public body has a website the notice be placed on the website.
In July I emailed the Mayor concerning this with copies to the members of the Council, the chair of the Ethics Board, and the two city attorneys [see below]. In the email I provided the citation of the law and I documented that from the beginning of the year all the agendas of the Ethics Board (standard practices of all the city boards is to post their agendas as their meeting notices) were posted on the same day or after the meetings. I did this by FOILing the city for the dates the agendas were posted on the city website and comparing these with the dates when the meetings actually occurred as documented in the Ethics Board’s posted agendas.
Having had no response from the Mayor to this email for four months I decided to attend a City Council meeting and request a response on what appears to have been an ongoing violation of the law.
Following my remarks to the Council Commissioner Madigan asked that the city assistant attorney respond. Tony Izzo then addressed the Council.
His response was noteworthy. First, he responded to the Council as though my inquiry were only about a single meeting. In fact, as the email and documents make very clear, I was concerned about six months of violations. He then conceded that the particular meeting he was referring to had not been posted on the city website but still asserted that it had been properly posted (he never explained how) by one of the members of the Ethics Board. He offered that some sort of transition in city staffing was the reason for it not being posted on the city’s website for this particular meeting.
He then told the Council that as far as he was concerned, no violation of law had occurred. He also told the Council that this particular meeting notice was the only one that was not properly posted on the city’s website.
As readers of this blog will know, I like Tony Izzo very much. He is courteous and gentlemanly in all his dealings with everyone. Tony is a survivor. He has been the assistant attorney through multiple administrations over a period of what I believe to have been decades. Given the contrasting personalities and egos of our past mayors, it is rather amazing.
I am sympathetic to Tony’s desire to protect the city administration as he serves as their counsel. Regrettably his statements went beyond a reasonable defense of the Ethics Board. As regards the law, it seems quite clear. I include it below in my email to him. I am not an attorney but I consulted with an attorney who served as counsel to a major state agency who confirmed my reading.
What is beyond dispute is that the Ethics Board failed to properly notice their meetings from January to July of this year. I expect it goes back much farther but I restricted my FOIL to just this year. Given this fact, I am not convinced that notwithstanding Tony’s assurances, they are complying with the law even now.
I do not know whether Tony was uninformed when he addressed the Council.
Over a week ago I wrote to Tony on this issue asking him to respond [see below]. To date (eight days later) I have not had a response to the email below.
Here is the email to Mr. Izzo:
From: John Kaufmann ]
Sent: Thursday, October 20, 2016 10:59 PM
To: ‘Tony Izzo’
Cc: ‘Joanne Yepsen’; ‘Christian Mathiesen’; ‘Skip Sciroco’; John Franck, firstname.lastname@example.org); ‘Michele Madigan’; ‘Vincent DeLeonardis’; ‘Justin Hogan’
Subject: Misrepresentation Regarding Open Meeting Law and Ethics
Attachments: Kaufmann John – FOIL Responses
I was troubled by your statements to the Council on Tuesday night. The Council and the people of this city depend upon the attorneys who serve the Council to be accurate both as to the facts and the law.
In reviewing the video of Tuesday night’s meeting it appears that you made two statements that are incorrect regarding the Ethics Board’s adherence to the open meetings law.
In the video regarding the contention that notices for the Ethics Board meetings were not appropriately posted on the city website you told the council “I do not conclude [sic] I am not ready to conclude that there was a legal deficiency.”
You also said “The law indicates it should always be done as soon as possible. It was posted in some manner [my emphasis].” Article 7, section 104 of the Public Officers Law, however, is not ambiguous. It states:
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.
The statute does not use the work “should,” it uses the word “shall.” The difference between “shall” and “should” is the difference between mandatory and merely precatory. Unless you know of but neglected to mention some other provision that contradicts this statutory directive then your statement to the Council appears to be a misrepresentation of the law.
You also told the members of the Council that the Ethics Board would “put the notice on the website as well as we always have in the past.” You also stated “The meetings prior to that [the one notice you concede was not posted on the web] were all noticed on the web.”
I am assuming that when you said this you were speaking in good faith that notices of Ethics Board meetings were posted at least seventy-two hours prior to the respective meetings as required by law.
I FOILed the city as to the dates that the agendas were posted on the city website for the meetings so far this year. I am attaching the response to the FOIL. I am also attaching the agendas that were posted. You will note that the dates that the agendas were posted were either on or after the day the meeting took place.
I am at a loss as to the basis for your statement to the Council that the previous meetings had been properly noticed. If the FOILed records are true, it does not appear possible to characterize these previous postings as proper “notices” within the intended meaning of governing law.
As noted earlier, the citizens of Saratoga Springs and their elected representatives rely on their attorneys to be fastidious in stating the facts and in presenting the law. If I have missed something, I would be happy to be disabused of my confusion.
Would you please acknowledge receipt of this email and indicate whether or
not you will respond to it.
The Bloggers Presentation To The City Council
Tony Izzo’s Presentation
Documentation From FOILs of Violation Of Open Meetings Notices:
These are the agendas. Note the dates of the meetings
These are the dates when the agendas were posted [the same dates as the meetings or later than the dates the meetings took place
Original Email That Tony Izzo Was Copied On
From: John Kaufmann [email@example.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
§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.
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.