Month: December 2016

As anticipated in my earlier blog, Mayor Yepsen appointed sitting Judge Jeff Wait to a ten year term as city judge and Francine Vero of the law firm Harris Beach to serve out Judge Wait’s current term.  This may be a little confusing to readers.  The New York State Office of Court Administration upgraded what had been a part time city judge position held by James Doern to a full time position in 2014.  Mr. Doern who had served the city for fifteen years as a part time judge was transitioned into the full time position.  Apparently, Mayor Yepsen has the authority to replace Judge Doern.  I believe that the position Judge Doern held was for ten years.  By appointing Judge Wait to the new judgeship the mayor spares Judge Wait having to run next November.  Ms. Vero, having been appointed to complete Judge Wait’s current appointment, will run next November.  The loser in all of this will be James Doern.

 Wendy Liberatore reported both appointments in today’s Times Union along with what I would characterize as the usual politician blah-blah about how great a choice Ms. Vero is.  Ms. Vero may very well be an excellent attorney for the job but it is unfortunate that Ms. Liberatore left out significant and less flattering aspects of this story.  There is of course the maneuvers as noted above.  There is also the role that Harris Beach played in representing the Mayor before the Ethics Board and the City Council.  As readers may recall Mayor Yepsen was found by the Ethics Board to have violated the city’s ethics code.  Harris Beach first argued before the Ethics Board that the Mayor had not violated the code.  They then crafted a memo to the Council that they did not have the authority to censure the mayor.

 

 

 

 

The suit by the Mouzon House against the city was originally supposed to be heard by Supreme Court Justice Thomas Nolan.  Judge Nolan recused himself attributing his decision to the fact that his clerk had been appointed to the city’s Civil Service Commission.

As one who is concerned about the problems of conflict of interest in government I respect Judge Nolan’s decision.  It seemed like a rather remote conflict but I will take the highest standard I can get.

There is, however, an extraordinary irony that his decision resulted in Judge Robert Chauvin taking on the case.  In 2013 Brendan Lyons, investigative reporter for the Times Union, published an article which documented the sordid history of the incestuous world of developers and town officials focusing particularly on Robert Chauvin.   It is important to note that in 2015, subsequent to this article,  Halfmoon Supervisor Melinda Wormuth was convicted for bribery.  She was caught in a sting set up by the FBI.  She subsequently cooperated with the government which resulted in the conviction of a major developer in Halfmoon.

This is an excerpt from a story by Brendan Lyons in the December 11, 2015, Times Union.

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The FBI’s probe also examined a $50,000 payment that Wormuth and her husband received from aHalfmoon builder and longtime financial supporter of the town Republican Committee. The builder said the $50,000 payment was a loan that the couple later repaid. Wormuth did not disclose the payment to other town officials or the public, and her husband, Larry, received the money at a time when The builder had projects pending before the Town Board.

The builder was not charged in connection with the loan, but was convicted of using his employees and business associates to illegally funnel campaign donations to Wormuth. The office of Attorney General Eric Schneiderman prosecuted the state case. The builder is Halfmoon’s most active builder and a longtime financial supporter of the town Republican Committee and state Sen. Kathy Marchione, R-Halfmoon.

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This is from a Times Union article written by Brendan Lyons and published on August 12, 2013. 

State Supreme Court Justice Robert J. Chauvin, who was a town attorney in Halfmoon for 25 years until 2011, took steps to conceal his financial interests in numerous large housing developments by recruiting a close friend as the “public face” of the projects in exchange for a share of the profits.

The arrangement, which was never made public or examined by the town’s ethics committee, lasted years and involved several large subdivisions built between the 1990s and mid-2000s and at least one private sewer corporation.

Gregory S. Mills, a Halfmoon attorney who was listed as the owner or applicant of the projects in public records, acknowledged that he did little or no work but received 25 percent or more of the profits to pose as the primary owner.  Mills claims Chauvin, who also was a Saratoga County assistant district attorney, misled the public about his stake in the projects because of “political concerns” by town leaders and opposition from residents.  “Bob did not want his name being used as part of that because we would have 50, 60 or maybe 100 people show up at these meetings and it was a decision, maybe in conjunction with others in town government, that it was best that his name not be used,” Mills said.

More Information

The secret arrangement, Mills said, may have been fueled by Chauvin’s interest in keeping his government jobs and preserving political connections.

“He built a power base in the Republican Party in the town of Halfmoon, and that’s where all his contacts were,” Mills said. “He made a significant effort to keep those positions so that he could ultimately maintain that level of influence or control, and then he later used that very effectively to get the nomination for Supreme Court.”

Mills and Chauvin met while attending Albany Law School and remained close friends for more than 30 years until their business partnership soured in 2008. The breakup led to a lawsuit that lasted five years until February, when a state appellate court issued a ruling vindicating Mills in a series of business disputes. The decision cost Chauvin about $860,000, Mills said.

The Times Union learned of the lawsuit after the appellate ruling and in March began examining Chauvin’s business dealings dating to the 1990s.

Chauvin declined to be interviewed for this story. He was an assistant district attorney for 30 years until 2011, when he was elected to the bench following a campaign buoyed by his strong political connections in Saratoga County.

In a 2009 deposition, under questioning from Mills’ attorney, G. Kimball Williams, Chauvin initially indicated his decision to give Mills a share of the projects was simply about friendship and loyalty.

“I am the person who negotiated the deals. He didn’t have any part of it,” Chauvin said. “I didn’t need him as a partner. I was doing it as a favor. I was doing it because he was my friend. He didn’t do any of the work. He didn’t do any of the producing. He didn’t go out and look for properties as I was. He was not a benefit to me. I didn’t need the money. It was a favor.”

But when pressed by Mills’ attorney, Chauvin said that having Mills serve as the face of the projects was for what he called “ease of operation” in the public planning process.

Chauvin said that by removing his name from deeds and planning applications, it made it “easier to go through the process rather than going through disclosure every time you are there.”

Chauvin’s investments in at least six major subdivisions were also tied to his long-standing partnership with builder Peter Belmonte Jr., who purchased lots and built most of the homes in Chauvin’s subdivisions, records show.

Belmonte declined a request to be interviewed.

In the lawsuit with Mills, Chauvin acknowledged that he borrowed money from Belmonte and that they were involved in “real estate ventures and other ventures” that he refused to disclose.

Records on file in the town of Halfmoon, and court records, show that Mills was listed as the owner or applicant in at least six housing projects spearheaded by Chauvin, including developments later named Prospect Meadows, Summit Hills, Christopher Glen, Halve Maen Manor and Dater Woods.

Chauvin claimed that he filed conflict-of-interest letters for the projects, although the letters were never made public or placed on the record at town meetings, according to minutes of the meetings.

“Did you explain to the public what that conflict was?” an attorney asked Chauvin during a 2009 deposition. “Not unless I was asked, no,” Chauvin said.

The town clerk’s office, citing poor recordkeeping, said it believes Chauvin filed letters for each of his projects. But a deputy clerk could locate only two letters in which Chauvin cited conflicts related to subdivisions he owned — one from 2002 involving a large subdivision off Farm To Market Road and another in 2010 related to a project called Harvest Bend.

Chauvin recused himself at town meetings where his projects were discussed. But Mills, who often attended the hearings as the applicant, said it was unclear whether all town officials voting on the projects understood Chauvin’s financial interest in the projects. He said Chauvin implied that his recusals were due to his friendship with Mills and legal work.

“He would say he represented me and we were friends,” Mills said. “I never heard him say:’I’m recusing myself because I’m an owner.'”

During his 2009 deposition, Chauvin explained it like this: “When you got to a planning board you have a number of members, then you have the public present because you have public hearings and public proceedings, and if it’s in my name then there would be questions ‘why is Bob Chauvin here?'” he said. “We never put my name on it because it would just raise more issues with the public and they would say what is going on even though we disclosed all of that. So it was for ease of operation.”

Documents filed in the lawsuit between Mills and Chauvin indicate Chauvin regularly used his town letterhead for private business dealings and to contact other town officials on personal matters.

In early 2008, Chauvin enlisted help from Councilman Walter Polak, who has been the Town Board‘s liaison to the Planning Board for years, on a plan by Chauvin and Mills to get the town to abandon and give them property next to a commercial building they owned east of the Northway on Crescent Road.

Chauvin, in a deposition, acknowledged that acquiring the property “would have made our piece substantially more valuable.” He characterized Polak’s assistance as critical: “He was the town councilman who was the liaison to the highway committee, so he was the person through whom any abandonment petition had to be cleared before it could get to the town board.”

The land acquisition, Chauvin said, would have made it easier for he and Mills to expand their commercial property, where Mills’ law office and other tenants are located.

Polak, in a Feb. 29, 2008, email, told Chauvin that other town officials assisting on the request included Supervisor Melinda Wormuth, then-assessor Ed Pearson and Highway Superintendent John Pingelski. The town informally approved the abandonment, Chauvin said, but it fell apart due to an “uproar” from neighbors at a public hearing.

Chauvin also described feeling pressured to grant Polak’s request for the town to install a “Welcome to Halfmoon” sign on their Crescent Road property. Chauvin said he did it because they needed Polak’s cooperation to expand their commercial property.

The town ethics law, which until this year had not been updated in more than 40 years, did not previously require town employees to file financial disclosure forms.

In 1995, a town ethics committee cleared Chauvin and a former town official of allegations that they violated the ethics law by working for the town and a private sewer corporation partly owned by Chauvin. It’s unclear from public records that town ethics leaders were aware that Chauvin had a financial interest in the subdivisions or the sewer corporation that served them. Mills was listed as the sewer corporation’s president.

Robert Hayes Jr., who chaired the ethics panel, said the town’s outdated ethics law at that time left town employees and the public “in a vacuum as to what is the right thing to do,” according to published reports.

In a recent interview, Hayes recalled the panel’s call to strengthen the ethics law was ignored. Chauvin was town attorney at the time.

In 2005, the city of Mechanicville unsuccessfully sued the town of Halfmoon trying to block the town from taking a 22-acre plot of city-owned land for a water distribution system. The city accused Chauvin of pushing the water project because of his interest in a housing subdivision near Route 146 that was later developed by Belmonte.

Kenneth DeCerce, who resigned as town supervisor in February 2007, said he confronted Chauvin about his land deals prior to taking office in 2000. DeCerce said he was unaware Chauvin was involved in any property transactions during his administration.

“He and I had an agreement that he wasn’t going to be involved with purchasing any further properties and I believe he stuck to that agreement,” said DeCerce, whose family owned lands that were later sold to Chauvin for at least two subdivisions. “I don’t know that he never did anything illegal or wrong. … Bob Chauvin was an extremely important person in my administration; I made sure to ask him about everything that I wasn’t sure of but he kept me straight and that was very important to me.”

Mills said the arrangement to conceal Chauvin’s interests predated DeCerce and began in the 1990s when now-state Sen. Kathleen Marchione was town supervisor. Chauvin began buying large tracts of land in central Halfmoon that were later subdivided and sold to Belmonte. When DeCerce became supervisor, Mills said, Chauvin grew more concerned about keeping a low profile. One of his projects off Farm To Market Road included land that had once been owned by DeCerce’s father.

“He was very, very concerned that there was an appearance of impropriety with the supervisor having a potential interest and the town attorney having a potential interest in a major subdivision,” Mills testified during a 2009 deposition. “It was a significant problem for the town, and although Bob had not asked me if I wanted to be a part of the project up to that point, he now needed me to be there for that purpose.”

Like other deals, Mills said, Chauvin asked him to contribute 50 percent of the development costs “but I would only get 25 percent of any profit.”

Chauvin, whose son Matthew is a deputy town attorney in Halfmoon, left his jobs with the town and district attorney’s office in 2011 to become a judge. His top salary as a town attorney was in 2005 when state records show he was paid $79,890. His top salary as a part-time prosecutor was in 2010, when he was paid $58,102, the records show.

[JK: received the following article from a source that has proven to be extremely reliable and thorough.]

The latest intrigue visited on City Hall centers on the office that, at least in theory, should be relatively immune from political machination: the City Court. 

It now appears on this Christmas Eve that one of the City’s two full-time City court judges – the well regarded James Doern – will be replaced effective January 1 by a yet named appointee of Mayor Yepsen.  Doern’s current term ends on December 31.

After serving 15 years as a part-time city court judge, Doern stepped into the role full-time, starting April 1, 2014, following action by the State Legislature the previous December.  The legislation establishing the second full-time judgeship, for whatever reason, made it an appointive. The City’s other full-time position, currently held by Jeffrey D. Wait, is elective.

And therein is found the intrigue. You see, the mayor will appoint the other sitting judge, Jeff Wait, to the seat being vacated by Doern.  This  maneuver, presumably, allows Judge Wait to avoid standing for re-election when his original term would have expired at the end of 2017.

Wait will resign his current seat then be appointed by Yepsen to a full ten year term.  It will be Wait’s unexpired term that the mayor will fill with a new candidate.  It is reliably rumored that that that appointee may be Francine Vero from the politically connected law firm of Harris Beach. [JK: Harris Beach represented the mayor when the city’s Ethics Board found she had violated the city’s code in soliciting business from Saratoga Hospital.] 

Let the community hope that whoever is appointed will be experienced, capable and independent enough to administer justice free from political influence and cognizant of the language of the original enabling statute that this court is a  “gatekeeper for fragile lives held in the balance. … The court’s ability to do this wisely and creatively can often be the difference between a productive, law-abiding life and one marked by greater and more serious crimes.” The City Court is  part of the State Unified Court System and under their jurisdiction.  City Courts handle criminal and civil matters. They have criminal jurisdiction over misdemeanors and lesser offenses (that carry a term of imprisonment of no more than one year) and handle civil matters where the amount of money in dispute is up to $15,000. For administrative purposes, the sixty-two counties that make up the State of New York are divided into thirteen Judicial Districts and four Judicial Departments. The Saratoga Springs City Court is in the 4th JD, 3rd Department. So there you have it.  A political manipulation worthy of Machiavelli or even Donald Trump. Too bad, Jim Doern is good and decent person.

Mayor Yepsen has appointed Todd Fabozzi to a seven year term to the city’s Planning Board replacing Tom Lewis.

Here is a link to his website.

 

In its suit against the city of Saratoga Springs, Mouzon House argued that the city’s decision to approve a lease with the City Center for land to build a parking structure was flawed in that they maintain that the vote required a super majority along with the approval of the mayor which it did not get.  The city sought to have the suit dismissed on the basis that the city’s charter superseded state municipal law and that the lease was therefore properly adopted.  As best I understand it, the decision by Judge Chauvin simply allows the case to continue although by rejecting the city’s claim it would appear that Judge Chauvin might be inclined to support this part of the Mouzon House’s suit.  It is also my unconfirmed understanding that the city will now appeal this ruling.  I believe that the appeal goes to the New York State Court of Appeals which is the highest court in New York.

 

 

The proper spelling of the member of the charter commission is B. K. Keramati and not B. K. Kermati.

In a front page story in the December 16 edition of the Saratogian, it was reported our ex-Congressman John Sweeney has been appointed as one of nine new members of the Trump “transition executive team.”

Conspicuously absent from the article were several events that contributed to his defeat (Kirstin Gillibrand was the winner) and which, in fact, should help him fit in with the Trump team.

Here are some excerpts from the entry for Mr. Sweeney in the Wikipedia page devoted to him.

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In September 2006, the Citizens for Responsibility and Ethics in Washington (CREW) released its second annual report on members of Congress with ethics issues, titled “Beyond DeLay: The 20 Most Corrupt Members of Congress (and five to watch)”. Sweeney was one of the 20. The organization said “His ethics issues stem from a ski trip to New York, the exchange of legislative assistance for campaign contributions and the hiring of his wife as a campaign fundraiser.”^[21]

Wife as fundraiser

On April 11, 2003, Sweeney began paying a company called Creative Consulting for fund-raising. The company had been founded a day earlier by Gaia “Gayle” Ford. Between April 2003 and December 2003, Sweeney’s campaign paid $42,570 to the firm. Sweeney proposed to Ford in September 2003^[27] and married her in 2004.

Sweeney spokeswoman Melissa Carlson said the congressman considers his wife “his best representative in the district when he’s fund-raising.” She said Ford, who had no previous fund-raising experience, receives a 10 percent commission on whatever she raises. Between January 2005 and April 2006, Ford was paid $30,879. Sweeney also has had a fundraising consultant on monthly retainer since June 2004, who is paid $8,583 a month.

Ford also works for Powers & Company, the lobbying firm of former [New York] state GOP Chairman William Powers, Sweeney’s longtime political ally and onetime boss.^[28]

 

Ski Trips

The Winter Challenge was started in 1998 by Sweeney’s House predecessor, Gerald Solomon, with the declared purpose of showcasing the Olympic facilities at Lake Placid, New York to congressmen and their staffers in hopes of getting federal funds; Sweeney has hosted the annual event since 1999.

In January 2006, Sweeney, his wife, and about 60 other people spent a four-day weekend at the facilities, competing against each other in skating, downhill skiing and bobsledding events. The group included Representative Pete Sessions (R-TX), a close friend of Sweeney^[29] and his wife; and aides to U.S. Senator Hillary Clinton (D-NY), Senator Harry Reid (D-NV), Representative Randy Kuhl (R-NY), and Representative Bart Stupak (D-MI).^[30][31] The weekend cost the Olympic Regional Development Authority (ORDA) $27,500, plus in-kind services it provided and the costs of operating the Olympic venues for the competition (exact figures for the latter two were unavailable).^[32] ORDA is a part of the New York State government.^[33]

In the fall of 2005, the House ethics panel told Sweeney in a letter that he should be careful to let the Olympics groups invite guests to avoid the appearance of an endorsement by the House.^[30] “Once the ORDA and the U.S. Olympic Committee — without your involvement — have issued an initial invitation to House members and staff to take part in the trip, you may send a follow-up to that invitation”, the ethics panel, known formally as the Committee on Standards of Official Conduct, wrote to Sweeney.^[33]

Invitations to the event officially come from ORDA and the U.S. Olympic Committee, a nonprofit group chartered by Congress. ORDA says the impetus for the event comes from the U.S. Olympic Committee. The U.S. Olympic Committee said it’s really Sweeney’s event.^[30] Three committees of the NY State Assembly have launched investigations of the Challenge, focusing on whether public money was put to good use. ORDA President Ted Blazer, speaking at one such hearing, said Sweeney’s office helped assemble lists of possible invitees to the event.^[33]

Documents show that at least eight members of Congress, all Republicans, were also invited to attend the 2006 event but declined.^[33]

The official invitation for the event read: “While this trip has proven itself to be an enjoyable one for delegation members in the past, it is, nevertheless, an official trip authorized by the House and Senate Ethics Committees . . . intended to provide an opportunity for Members of Congress and Congressional staff to inspect and evaluate the manner in which federal funds have been used to strengthen the area’s tourism industry.”^[30]

Despite the House ethics rule requiring all travel paid by others to relate to members’ official duties, and the ethic panel’s letter that said that recreational activities must be “merely incidental to the trip”, Sweeney has said that the panel said “it’s perfectly appropriate for me to promote the event.”^[33]

The group attending the event included at least 15 registered lobbyists, including Pete Card, a former staffer of Sweeney’s and the brother of former White House Chief of Staff Andrew Card, and Lisi Kaufman, a lobbyist for United Technologies Corporation, the sister of Andrew and Pete.^[30][31][34] In his request to the House ethics committee, Sweeney did not ask about lobbyists.^[35] A spokesman for ORDA said he does not know why the lobbyists were invited.^[31]

Seven of the lobbyists had contributed a total of $12,400 to Sweeney’s campaign in 2005.^[36]

Disputed domestic violence report

On October 31, 2006, the Albany Times Union reported that it had obtained a document stating that “[t]he wife of U.S. Rep. John Sweeney called police last December to complain her husband was allegedly ‘knocking her around’ during a late-night argument at the couple’s home.” The responding officers filed a domestic incident report. The report states that Sweeney allegedly grabbed his wife “by the neck” and pushed her around the house.^[37]

On November 2, 2006, the Albany Times Union reported that on October 31, John and Gaia Sweeney said they would give the New York State Police permission to release a report about the incident. They said that the report was inaccurate but have not disputed its contents.^[38] On November 17, 2006, the Times Union reported that there were two versions of the domestic violence report that had been prepared by the State Police, one that was sent to them, doctored and lacking details, and the original report.^[39]

On July 22, 2007, the Albany Times Union reported that Gaia Sweeney, who was contesting a divorce action by her husband, said that he was often verbally abusive and at times physically abused her during their marriage. She also said that a statement she made on the eve of last fall’s election, denying marital abuse, was “coerced“. Sweeney denied that he had been abusive; he had recently obtained a judicial order of protection against his wife.^[40]

According to the Times-Union (July 22, 2007):

“Sweeney’s first wife, Betty Sweeney, of Schaghticoke, stood up for her former husband in a telephone interview …

“‘I’ve known (John) all these years and I never observed any kind of behavior like that towards me or anybody else,’ said Betty Sweeney, who had three children with him.” ^[41]

The State Police captain who wrongfully leaked the disputed Sweeney domestic violence report was demoted weeks after the November 2006 election. ^[42]

November 2007 DWI

Sweeney was charged with aggravated DWI (driving while under the influence of alcohol or other drugs) when he was arrested by New York State Police at 1:19 a.m. on November 11, 2007. The arrest occurred on the Adirondack Northway, a stretch of Interstate 87 that runs between Albany and Lacolle, Quebec, Canada. A law enforcement source said Sweeney’s car had been swerving and that a 24-year-old woman was seated partially on his lap when spotted by a state trooper.^[43] The police reported “he had a woman on his lap when he was pulled over.”^[2][44] Sweeney’s blood alcohol content registered at .18 percent, more than double the legal limit.^[44] Sweeney issued a statement later that day stating: “I regret the occurrence. I deeply apologize to my family and friends. I take full responsibility and I am hoping to work for a fair resolution.”^[43]

On November 14, 2007, Sweeney pleaded guilty to drunk driving after his attorney vocally and publicly denied he had even been drinking that evening. Sweeny paid a US$1,000 fine, but did not have to spend any time in jail. His license was suspended for six months and had to attend a victim impact panel for drunken drivers.^[45]

April 2009 DWI

Early on the morning of April 5, 2009, Sweeney was pulled over by state police for speeding.^[2] He refused a breathalyzer test ordered by the officer, and according to a newspaper report, “Sweeney allegedly told the officers he would not pass the sobriety test, adding he was in ‘big trouble.'”^[2] He was charged with felony DWI, since Sweeney has had a prior DWI conviction within the past 10 years.^[2] On August 14, 2009 a grand jury indicted Sweeney on felony charges and he was sentenced on April 23 to 30 days of jail time.

As part of his punishment, Sweeney had to wear a device 24 hours a day, 7 days a week that detects alcohol. He performed 300 hours of community service in the form of pro bono legal work and pay a $1,000 fine, said Franklin County District Attorney Derek Champagne, who handled the case as a special prosecutor

Ties to Allen Stanford

Sweeney was part of a group of lawmakers known as the Caribbean Caucus, sponsored by disgraced financier Allen Stanford. The group, formed to promote relations with Caribbean nations, took 11 trips to places like St. Croix, Montego Bay and Key Biscayne. The meetings, which included receptions with lobster, caviar and wine, were paid for by the Inter-American Economic Council, a non-profit funded by Stanford and totaled $311,307 in costs. Other members of the Caucus included convicted influence peddler Rep. Bob Ney and close Sweeney friend Rep. Pete Sessions. In 2004, Stanford hosted a wedding reception for Sweeney and wife at the Pavilion Restaurant, owned by Stanford. At the time, Sweeney told the Antigua Sun “If it wasn’t for Allen, I certainly would not be here today.”^[47]

 

An Ambitious Schedule

The Charter Commission unanimously approved a resolution introduced by member Gordon Boyd at their December 13 meeting.  The motion set an ambitious schedule for completing their work.

Currently, a subcommittee chaired by attorney Matt Jones is working on cleaning up the existing charter.  It aims at eliminating duplications and other technical problems.  More ambitiously, Mr. Jones’ committee will consider removing items from the charter that are seen as too rigid and restrictive and which should be decided on an on-going basis by elected officials rather than codified in a charter.   

For example the following item is in the charter.  It probably can be addressed by action by the Council:

§ 225-56 Vacation of vehicles during public emergency; removal.

No vehicle shall be parked, left unattended or abandoned on any street within the City of Saratoga Springs during a snowstorm, snow-removal operations, flood, fire or other public emergency in such a manner that it creates a hazard or obstruction to traffic. If any vehicle is so found, it may be removed by the City Police Department.

Mr. Boyd’s resolution calls for the subcommittee to submit its final report to the full commission by February 1.

According to Assistant City Attorney Tony Izzo, there are many areas in the charter that do not require  approval by the city’s voters in a referendum.  In general, items that do not limit the authority of elected offices can be amended by a vote of the City Council. 

The resolution also committed the group to adopt and publish their “Findings.”   I assume this report will set out what they learned from the many meetings they have had with current and past elected officials from our city, city employees, and officials from other communities whose experiences helped them understand the different types of government organization. 

The resolution commits the Commission to holding a public  referendum in the spring of 2017 should they decide to rewrite the charter to end the existing commission form of government and replace it with a new form like a strong mayor or a city manager.

At the meeting, Mr. Boyd explained that if a new form of government were adopted, it would not take effect until January of 2020.  It would, however, mean that candidates in the next election cycle would know that were they to win they could only be in office for one term. They would also be involved while in office with orchestrating the city’s  transition to the new form of government.

Mr. Boyd noted that if there were a referendum to adopt a new charter and it were defeated, the work of Mr. Jones’ committee to refine the existing charter would still be available for adoption.

An End To The Commission Form  of Government?

Following the approval of Mr. Boyd’s resolution, Matt Jones suggested that it would be helpful to know what the commitment might be for changing the form of government.  Bob Turner, chair, then polled the members.  Of the fifteen members, eleven voiced their support for adopting a new form, one opposed the change, and three indicated they were undecided.  Interestingly, the eleven in support were all appointed by Mayor Yepsen.  None of the eleven who were opposed to keeping the commission form indicated what form they would support instead.

The dissenter was Elio DelSette who was appointed by Michele Madigan.   B. K. Keramati who was appointed by Chris Mathiesen abstained.  Commissioner Mathiesen has been quite public in his call for changing our form of government.  Rob Kuczynski  who was appointed by John Franck abstained.  Mr. Kuczynski is the son of Hank Kuczynski who was the Deputy Mayor under Ken Klotz.  Matt Jones  who also abstained was appointed by Skip Scirocco.

Some Thoughts

I am impressed by the quality of the people who are serving on this commission and by the civility of their meetings.

 I continue to be skeptical about the ability of a committee of this size, and without an attorney serving solely them, to craft a new charter.  The lengthy discussion just to adopt Mr. Boyd’s resolution at the last meeting is instructive of how difficult this job will be.  Most of the discussion was thoughtful with many appropriate issues raised.  Nevertheless, it took a great deal of time to resolve the issues and vote.  The mountain of a new charter will be quite a climb.  Bear in mind that they have not even decided what form of government they think the city should adopt and this is after many months of meetings (they began back in June).  All of this is greatly exacerbated by their target of completing this work this spring.  As I recall, the last successful charter that was adopted in 2001 simply refined the existing charter, and it took that commission almost two years to complete the work.

The challenge is made greater by commission member Jeff Altamari’s requirement that whatever they come up with must be revenue neutral.  I remember the tortured efforts made by past commissions to project the costs of their proposed new government forms.  The vagueness of their numbers I believe contributed to  defeating those attempts.  I think that projecting the costs of both making the transition and of the ongoing costs of the new government will be needed as the public will want to know what all this is going to cost.  Requiring that it be revenue neutral only adds to the difficulty.

 It is worth noting that the cost of having a special election for the city to vote on a change in government is estimated to be around $25,000.00.

 

By Joseph Levy

[This blogger was unable to attend this Ethics Board meeting.  Joseph Levy was kind enough to attend and this is his report regarding the proceedings.]

On Thursday, December 8^th the Ethics Board met.  Present were:

Justin Hogan, Chairman – Mr. Hogan is in charge of “Government Relations” with the law firm and lobbying organization Featherstonehaugh, Wiley, and Clyne.  Mr. Featherstonehaugh is one of the principle owners of Saratoga Gaming and Hotel (previously the Racino).

Brendan Chudy – Director of the Legal Department at Global Foundries

Marilyn Rivers –  Director of Risk and Safety in the city’s Accounts Department

John Ellis – He currently works for the Civil Service Employees Association (CSEA).  He has served on the Saratoga Springs Board of Education and worked for the Ballston Spa School System for twenty-one years.

Also present were Tony Izzo, the assistant City Attorney, and Micelle Groce who serves as executive assistant to Vince DeLeonardis, the City Attorney.

Three members of the public attended the meeting including Jerry Luhn, one of the authors of the proposed revisions to the Ethics Code.  Mr. Luhn recently retired from the State of New York.  [JK: I first met Jerry when he was the director of Legal Aid for Saratoga County.] In addition, Joseph Levy, most recently a candidate for the New York State Senate on the Green Party Line attended as well as  Commissioner Mathiesen (whose arrival at 5:30 coincided with the erroneous posting of the meeting start time on the city website.)

While the public was entitled to sit in under the New York State Open Meetings Law (and did, as just noted), this Board took no note of the public’s attendance, nor did they introduce themselves prior to commencing discussion.

Mr. Hogan complained that the Ethics Board’s website links weren’t working properly, that the 2015 Annual Report had yet to be posted, and that there were tardy replies to email communications.  In particular, Mr. Hogan complained about a several-weeks’ delay in his receipt of the ethics reform proposal before the Board that evening, noting that such failures make them look bad.  Mr. Izzo assumed responsibility for the lapse and promised to remedy the web-related problems.

Conspicuously missing from Mr. Hogan’s complaints was the fact that the time of the meeting was inaccurately posted on the city website.  He had been advised of the error but apparently took no action to correct it.

The Board immediately turned to the sole public issue before it: a proposal to strengthen the City’s Ethics Code, sponsored by Commissioner Mathiesen in consultation with former City Planner Geoff Bornemann, attorney Jerry Luhn, and John Kaufmann.

Mr. Izzo distributed copies of the proposal, as well as notes that he had written about it, to Board members. He informed the Board that the draft proposal applied specifically to the three land use boards:  zoning, planning, and design review.  (Note: there are a number of City boards in addition to those focusing on land use issues.)  Referencing the draft proposal [see previous post] Mr. Izzo summarized what he viewed as the principal points to be considered, including a novel (and unverified) concern:  contrasting the ethical responsibilities and/or potential liabilities of paid City employees with those — if any — of unpaid citizen volunteers serving City agencies.

Mr. Izzo capped his briefing on this point with two related assessments:  (a) in its present form, the municipal Code of Ethics applies generally to all City boards; and (b) the Ethics Board has discretion to narrowly recommend measures to the Commissioners, such as limiting certain ethics rules exclusively to land use boards.

Questions seemed to abound regarding the what-ifs of an enhanced Code of Ethics — a more muscular one, if you will — which the Board was plainly not prepared to address at its December 8 meeting:

*  Mr. Hogan asked: Are other municipalities pursuing ethics code reforms?  (The answer is unknown, so Mr. Izzo committed himself to find out.)

*  Where is the line separating affirmative obligations of board members to simply disclose a potential conflict of interest, without recusal, versus circumstances which compel recusal?  [JK: An excellent question which Mr. Hogan might have asked when he assumed the chair of this committee some years ago.]

*  What is the remedy for material violations of the Code revealed after a given project begins — e.g., after the concrete footings are poured or the building is razed? [JK: Another excellent queston]

*  How should the City address ethical questions presented when an officer of a financial institution having a potential stake in a project proposal also sits on a relevant municipal board? Per Ms. Rivers, “it’s not academic” — it is a real and recurrent issue.

Other questions persisted, some plainly hostile to the very idea of reform.  For example, Mr. Chudy appeared to suggest that drafting rules to cure past ills or abuses “is a bottomless pit” —  a logic that would preclude nearly all forms of remedial legislation and rulemaking; that the proposed ex parte communication rules might include “see ya tomorrow!” and thus ensnare the unwary; and that creating a “checklist” approach to proscribed activity would just create “more problems that we did not anticipate”, such as by exempting from enforcement all actions not itemized.  Unfortunately, the initial responses of some Board members appeared to ignore  a verity of reform rule making:  you have to start somewhere, and build on experience.  If the City were that cautious with issuance of its permits, we’d still have the great hotels.  [JK:There is a certain irony that someone who is the director of the legal department at Global Foundries would find these issues vexing].

Addressing the proposed ex parte communication rule, Ms. Rivers simply noted the need to define what is being proposed, given that, in her estimation, “all kinds of people all over town talk about projects.”  Mr Izzo took that into account and appeared to endorse clarification of the proposal.  [JK: The Department of State that trains land use boards has extensive materials on ex parte and both Mr. Hogan and Mr. Izzo received emails with links to these months ago].

Working toward a wrap of the meeting, Mr. Izzo posed the broad question:  “is there anything in this proposal worth considering?” The responses were mixed, with Mr. Hogan appearing to commence answering in the negative and Ms. Rivers answering in the affirmative.  Mr. Chudy complained that he does not favor “an academic exercise” if “we can’t affirmatively make people behave in certain ways”, a task that, he declared, would be difficult and “disruptive”.  He was joined by the Chair who mocked a particular [100-foot] provision pertaining to recusals, asking rhetorically, “why not 103 feet?”  (In fairness, many regulatory guidelines have elements of arbitrariness — as do posted speed limits, DWI laws, and ages for marriage and voting.)

In the end, it was decided that Mr. Izzo would research the ethics policies and initiatives of other cities, and that the Ethics Board members would read and consider the reform proposal over the next few weeks.  It was agreed to invite public comments — and likely debate among Board members and others present — at the next meeting, which is scheduled for Thursday, January 12^th, at 5:30PM.

Commissioner Mathiesen, Jerry Luhn and I were then asked to adjourn to the hall while the board met in executive session. After five minutes, we were invited back in and the meeting was formally adjourned without further discussion at 6:20PM.