Month: October 2019

Steve Williams has written an excellent article on the nasty nature of this year’s campaigns in Saratoga Springs. 

The Gazette article in today’s (October 31) edition, which I link to here, reports that Scott Solomon, the owner of Siro’s, has sent a complaint to the state Board of Elections regarding Commissioner Michele Madigan.  According to the Gazette, in his claim he asserts that Commissioner Madigan “bullied constituents” and was guilty of a “clear abuse of power.”

Mr. Solomon had sought the Commissioner’s support in opening his restaurant.  Apparently he specifically asked her for and received assistance in his application for a liquor license. 

In early October, upon learning that Mr. Solomon was planning a fundraiser for Ms. Madigan’s opponent, Patty Morrison, she wrote two emails to him.  In one of them, the Gazette quotes her as having written:

“You can get in line like everyone else, I’m sorry I considered you a friend. I hear you have a lot of code violations by the way. Enjoy.”

When questioned by the Gazette regarding her emails she told Steve Williams that she had apologized to Mr. Solomon and she believed that he had accepted her apologies.  She told Williams:

“I got angry. I am human and I lashed out.  I called him and apologized.”

Most us would have found Mr. Solomon’s behavior in this affair a source of anger.  Commissioner Madigan had gone out of her way to assist him and it would only be natural to experience his actions as a kind of betrayal. 

Having said that, it is no excuse for Commissioner Madigan’s response.  Being in public office requires elected officials to display self control.  In this case Commissioner Madigan’s email was egregious.  In spite of the fact that her office has no control over the enforcement of building codes, her email could be interpreted as a threat.

There is simply no way to excuse this behavior.  The problem is that in this election we are reduced to choosing between two candidates for an office which is at the center of our city’s operation. 

As reported on in previous posts Ms. Morrison’s attitude toward the administrative duties of the Finance Office is more than disturbing.  She appears utterly cavalier about how that office works.  At one point in her debate with Commissioner Madigan she said she would maintain a 4% fund balance.  Commissioner Madigan pointed out to her that this number was grossly inadequate and would prompt an audit exception from the state Comptroller.

It was apparent that Ms. Morrison is unconcerned about the challenges of administering the Finance Office and assumes mistakenly that others will handle the duties of running that office.

In addition the literature that Ms. Morrison has been distributing  in this campaign continues to make false and misleading statements about her qualifications, actions by Commissioner Madigan, and various issues facing the city. One of her most recent pieces of literature repeats the false narrative that the city has been remiss in collecting taxes on properties.  This accusation has been thoroughly debunked.  This is emblematic of either her lack of interest in the complexity of tax collection or of her willingness to cynically exploit public ignorance regarding the matter.

Let me repeat that I find Commissioner Madigan’s behavior in her dealings with Mr. Solomon inexcusable.  I do not believe that her email to Mr. Solomon was a threat but an example of a pattern of intemperate behavior that she can be rightly criticized for.

Hopefully the voters of this city will be sophisticated enough to weigh the capabilities of the two candidates and not base their decision on who to vote for on this very unfortunate set of events.

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[JK: I received the following statement from Commissioner Madigan]

Over the last nine months, as I’ve campaigned for my fifth term as our city’s commissioner of finance, I’ve encountered both the highs and lows of seeking public office:  the pleasure of interacting with thousands of my fellow citizens, listening to their ideas for what they want their city to be in the months and years ahead; and the on-going frustration of having my opponent’s campaign disseminate misleading information and flat-out  falsehoods on a number of topics throughout this election season. 

Recently, in a personal conversation on my private email account, I let those frustrations get the better of me.  I used language that was regrettable. I’m sincerely sorry I said it, even in private.  I am sincerely sorry for that. I have since apologized to the recipient of that email and I apologize to my supporters and our citizens for my use of poor judgment.

It is unfortunate that, now more than ever, it is politically fashionable to never admit a single mistake and to present yourself as wholly infallible at each and every turn.  But my time as a city official has taught me that true leadership requires more. A true leader is thoughtful and reflective. A true leader holds him or herself accountable even in the face of political discomfort.

All elected officials help constituents navigate bureaucracy; it’s part of the job. Most people feel betrayed when they discover that a friend is actively working against them, it is part of being human. As Finance Commissioner I have no power or authority over any business this man is doing with the city, and I regret that I made it sound like I did. I do not, have not, and will never use my office for any other purpose than to benefit the city.

WAMC has a new story out regarding Kendall Hicks, candidate for Commissioner of Public Safety, regarding a woman who went to prison for child pornography with whom he was associated.

This is a link to the WAMC story. This is a link to the letters from the woman associated with the WAMC story.

More information on the tentative agreement to secure land for a new Fire/EMS station in today’s (10/31) Saratogian. Francine Grinnell’s interview with Mayor Kelly and Commissioner Madigan gives more details on the background and current status of the agreement. Here is a link.

[JK: Link to video fixed]

In our form of government, the Commissioner of Finance is the chief financial officer of the city.  This job involves:

 

• the responsibility for 8 different City budgets every year
• working closely with the other Council members and all the city departments to balance and prioritize their needs within the limits of estimated revenues, the New York State 2% tax cap, and the interests of the taxpayer
• overseeing the implementation of the budget
• maintaining a  balanced budget
• making budget adjustments as the year progresses
• making borrowing and investment decisions

This job requires many skills. For instance:  

• attention to details
• a mind for numbers
• an understanding of the regulations that determine how money is raised and how it is spent in a municipality
• the ability to hire skilled staff to assist in managing all these responsibilities.  

 

When we vote for a candidate for Commissioner of Finance we are, in effect, hiring a person to do this job.

 

There is no question that there are issues to consider outside of the skills required to manage the city’s finances.  In our form of government the person holding this office will also, as a City Council member, be in a position to vote on important issues facing the city such as the hospital expansion, how the city should grow, bike trails, etc.

I am concerned, though, that many voters may underestimate how much damage a person can do if they are put in charge of the Finance Department and lack the necessary knowledge and skills to manage it.

At the League of  Women Voters forum last week, voters were  finally given the opportunity to compare the two candidates running for Commissioner of Finance this year: the current Commissioner, Michele Madigan, and Patty Morrison. The contrast between the performances of the two candidates was striking.  Ms. Morrison seemed completely at sea when she had to address questions  about the Finance Office.  It appeared that she saw no need to prepare herself for this event by learning about the responsibilities and workings of the department she seeks to head. Instead she relied on pushing vague sound bite type issues about

the alleged unresponsiveness of government which she promised to remedy.

In contrast, Ms. Madigan talked in detail about what the Finance Office does and the many things that she has done to both make that office more efficient and to utilize that office in forwarding the progress of the city. 

Voters need to get away from indulging in focusing on personality when assessing candidates. Elections are about choosing the most competent person to do a job, not on choosing who you would like to invite to a dinner party or who you would like to have a beer with.  

I know that the readers of this blog are busy people but I urge them to take the time to watch the approximately twenty-five minutes of the League of Women Voters’ Candidates’ Night during which Ms. Madigan and Ms. Morrison were questioned and decide for themselves who is best suited to take on the responsibility of managing our city’s finances.

The segment where the two debated can be found here At 1:25

[JK: I received this press release from Mayor Kelly’s Office]

EAST SIDE FIRE/EMS STATION 3 IS ON THE MAP!

Mayor Meg Kelly, City of Saratoga Springs, is thrilled to announce that she has secured a tentative agreement for a third FIRE/EMS station. Mayor Kelly is negotiating a land-use agreement for a parcel located on the Oklahoma side of the Saratoga Race Course, after years of unsuccessful efforts spanning numerous administrations. This station will serve “District 3”, including the ‘eastern plateau’, a region that has been advocating since its considerable growth for improved response rates.

“Finding the right location to meet this critical need has been my top priority,” states Mayor Kelly. “My administration has been steadfast in its efforts to make improved FIRE/EMS service a reality for our citizens, and it is happening.

Thanks goes to the Franchise Oversight Board for its thoughtful consideration of an excellent solution to this longstanding issue. I would also like to thank the New York Racing Association (NYRA) for supporting and facilitating this important public safety matter.”

The Mayor believes that the long-awaited FIRE/EMS Station 3 will be huge asset to the people of the City of Saratoga Springs.

“I appreciate all of the many efforts that have gone into and will continue to go into the completion of this essential building and service. We will see this through,” states the Mayor

Our city faces some critical questions about the future of Saratoga Hospital. Resistance by its neighbors to its acquisition of property for a planned medical office building has been ferocious. It is understandable why the neighbors who abut the property fear its impact, but the coverage has confused some key issues which need to be addressed because many are unaware of just how important the Hospital’s plans are.

An Essential Institution For Our City

In 2015 the city adopted a Comprehensive Plan that acknowledged the importance of the Hospital to Saratoga Springs. In the section titled “3.1 Economic Strength and Stability” item 3.1-3 recommends:

Support the viability and growth of the community’s unique institutions (e.g. Skidmore College, Saratoga Hospital, SPAC, Saratoga Spa State Park, and the race tracks)…

In fact the 1960 Master Plan and 1970 Comprehensive Plan also address plans by the Hospital to expand and the need to plan for future expansions.

The Hospital contributes critically to the health (pardon the pun) of the city. Obviously it provides critical healthcare but it is also a major employer in the city. The spinoff of the incomes it generates are an important element to the vitality of our downtown. It also has an impact on property values. Having a top notch hospital within the city is a consideration for people deciding to live in this community.

The Viability Of Our Hospital Should Not Be Taken For Granted

This year news stories reported that Glens Falls Hospital’s financial condition had deteriorated to the point of crisis. A story in the March 3, 2019, edition of the Post Star Newspaper led with “Glens Falls Hospital is in dire financial trouble…” In a rapidly changing environment in the health industry with the costs of equipment and care constantly rising, maintaining the viability of a large and complex institution like a hospital requires skilled management. This community would be reckless to simply assume that our Hospital will always flourish. That explains why the city’s Comprehensive Plan asserts that the city must be proactive in supporting “the viability and growth” of Saratoga Hospital.

To set a context for the proposed Hospital expansion, consider its recent meteoric growth as shown by the following statistics: In 2005 physician visits at the Hospital were 116,899. In 2018, thirteen years later they had risen to 304,930. They basically tripled. Between 2005 and 2019 net revenue rose from $109,884,412.00 to $369,110,417.00. These numbers reflect a stunning rate of growth.

Probably the best way to dramatize the Hospital’s growth is to compare the following pictures. The first was taken some time in the 1950’s. The second is a recent image. It is important to note that these only show the structures that face Church Street. They do not include the many other offices at other locations. In fact, in order to address the critical need for space, some of the offices now located at the main site are going to be moved to the Wilton Mall.

 

I know that the critics of the Hospital expansion will seize on the Wilton Mall location to further their argument that the Hospital has other options for growth but that misses the fundamental point. It makes common sense to focus critical care in a single location. Yes, ancillary activities can be farmed out to other locations but critical care needs to be centralized.

The area proposed for the medical office building not only makes sense today but perhaps more importantly allows the Hospital to have options to address future needs. A responsible management team must be thinking long term. These parcels are the last pieces of undeveloped land contiguous to the Hospital and have too much potential for the Hospital to have passed on the opportunity to secure them.

Saratoga County’s continued growth and the expanding nature of healthcare require that management think not only about current needs but also the needs of our community for decades to come.  Such was the view of planners more than half a century ago when they wrote the 1960 Master Plan and the 1970 Comprehensive Plan. We are the beneficiaries of that foresight. 

A Dose Of Reality

In her Readers View piece in the Saratogian, candidate Patty Morrison describes the area where the Hospital wants to build in bucolic terms. An innocent reader might think that the expansion is a threat to the greenbelt. In fact the land is actually zoned for residential development and currently allows for the building of single family homes on quarter acre plots. This is not a fight over the greenbelt.

Final Thoughts

Anyone who has followed my blog over the last few years knows that I have been a fierce defender of neighborhoods threatened by inappropriate development. Decisions by the land use boards in the past were heavily weighted against the wishes of residents and in favor of developers whose upscale housing projects intruded on neighborhoods and served the interests of profits for the developer rather than the public interest. To my mind, there was extensive abuse, particularly by the Zoning Board of Appeals.

I believe this Hospital proposal is  different, however, from the conflicts over development projects such as Downton Walk on Jumel Place. The Hospital is a not for profit institution that provides service to the community and maintaining its “viability and growth” as our Comp Plan states is in the interest of the community at large. This is not a project designed for the benefit of a wealthy few.

It is essential of course that the city’s Planning Board rigorously insist that the design of the Hospital’s project take into account the quality of life of the residents who will be impacted. Issues of buffering, lighting, runoff, traffic, etc. need to be rigoously addressed. I have enormous respect for Mark Torpey who chairs the Planning Board, and Mayor Kelly has made new appointments to the land use boards who are independent of the development industry. To the extent possible, I believe the impact of the project on the neighborhood will be mitigated.

We live in a culture with an ethos of “take the money and run.” Long term planning is too often the victim of short term needs. Later people wonder as to why no one earlier saw this disaster or that coming. This Hospital is going to continue to grow. The question we, as a community, must ask is “will it grow smart?”

We need to think about the future of our city and the key role we will want our Hospital to play. I encourage people to support the Hospital’s proposed expansion.

 

[JK: This is a revised post from one I put up earlier this evening. When I originally read the Hicks website, I failed to notice the buttons beside their text. These were links to two affidavits from witnesses to the original incident that led to charges. The original post was badly tainted by my ignorance and required me to rewrite the post. While it was only up briefly I felt an urgency to correct the record with all speed. My editor is in Europe on holiday so I am sure this version will suffer but that is the price I must pay for my sloppiness.]

Kendall Hicks’ campaign has posted a document that purports to have “cleared [him] of false allegations” in the Gloversville incident which resulted in his arrest for allegedly assaulting a woman he was associated with.

The reality is that the Hicks Campaign made a series of claims for which they provided inadequate documentation. This new documents they have posted not only fail to establish with any definitiveness what happened, they contribute further to raising questions about the events that led to his arrest.

A Little Background

Mr. Hicks has asserted on a number of occasions that he had documents that absolved him of any wrongdoing in this police incident. At the recent forum on immigration, he told the audience that he had the papers to prove his innocence in his car.

With that in mind I emailed Mr. Hicks and his campaign manager, Ellen Egger- Aimone asking him to provide the documents to me. I suggested that if they were unwilling to provide me with the documents, that they post them on their website and Facebook page. While they did not respond to my email, on the following day they posted a number of documents on their website along with a link to them on their Facebook page.

Along with the document they posted a narrative of what they say happened in the incident and made a series of claims.

They claimed that :

* there are “multiple sworn statements negating the charge, including the victim, herself…”.

* “the allegations were proven to be false…”

* an investigation by the army (he was driving an army vehicle when the incident occurred) cleared him of all charges.

* “Though Hicks’s girlfriend disputed the allegations, the Gloversville officer filed a misdemeanor anyway, which was reported in Gloversville’s Leader-Herald’s daily police blotter.“

* That the victim of the assault provided a sworn statement withdrawing her original allegations.

* That the victim disputed the charges against Mr. Hicks.

* “His girlfriend [the victim] remained with the other two passengers” [JK:They never left the original site of the incident]

What The Documents Reveal

* Mr. Hicks was charged with misdemeanor assault in the third degree

* Mr. Hicks was charged with misdemeanor reckless endangerment in the second degree

* In a plea agreement with the Fulton County District Attorney, Mr. Hicks accepted an Adjournment in Contemplation of Dismissal (ACOD).

* Mister Hicks’ misdemeanors were dismissed six months after his hearing having complied with the terms of the ACOD

* Two persons who witnessed the event signed affidavits defending Mr. Hicks and challenging the narrative in the police report. One of the witnesses was in the military vehicle driving with Mr. Hicks to Syracuse.

* One of the affidavits was signed by a person riding with the victim in Mr. Hicks’ car. Her statement asserts that she never saw Mr. Hicks physically abuse the victim and when the victim returned, the victim told her that all she and Mr. Hicks did was yell at each other.

* In contradiction to the narrative offered by the Hicks Campaign which asserted that the victim remained at the original scene of the incident, the two affidavits state that the victim climbed into the back of Mr. Hicks car when he drove off.

What is an ACOD?

Wikipedia describes an ACOD as follows:

In criminal procedure, an adjournment in contemplation of dismissal (ACD or ACOD) allows a court to defer the disposition of a defendant’s case, with the potential that the defendant’s charge will be dismissed if the defendant does not engage in additional criminal conduct or other acts prohibited by the court as a condition of the ACD [JK: My emphasis added]. 

It should be clear that ACOD does not address whatever criminal conduct may have occurred precipitating the arrest. It is, as the first document shows, a plea agreement. It sets as its condition that if the defendant does not violate its terms that after a certain period of time (in this case six months) the charges will be dismissed.

What The Documents Do Not Tell Us

1. Mr. Hicks did not provide the terms of the ACOD. We do not know what he was required to do to meet the terms of the agreement. It could have been as broad as requiring that he not participate in any unlawful behavior that would bring him before the court again. It could have been more specific and related to what precipitated the original arrest. Without the terms, we do not know.

2. Mr. Hicks does not provide the affidavit of the victim exonerating him as asserted in the campaign’s narrative.

3. Mr. Hicks campaign claim that the victim “disputed the charges” against Mr. Hicks are contradicted by the police report in which the victim declined to pursue charges expressing a fear of retribution from Mr. Hicks.

3. Mr. Hicks alleges that the army cleared him of any culpability in the incident. He provides no documentation for this.

What Do We Now Know As A Result Of The Newly Released Document?

Two witnesses disputed the charges in signed affidavits

The campaign provided no affidavit from the person who brought the criminal complaint that withdrew the charges.

There is no affidavit from the victim exonerating Mr. Hicks as claimed by his campaign.

For some odd reason, the narrative from the campaign claims that Mr. Hicks drove off leaving the victim at the site of the incident while the affidavits state that she jumped into his vehicle as he drove away.

While the affidavits appear credible, they conflict with other witnesses and with the police report. Unfortunately for Mr. Hicks, the conflicting statements make any definitive determination of what occurred problematic.

The fact that the Fulton County district attorney did not dismiss the case but insisted on a plea agreement for an ACOD raises concerns.

We know that the charges were indeed dismissed but only after he had complied with the terms of the ACOD. We know that Mr. Hicks has not provided the documentation for the terms of the ACOD.

Without More Information, The Public Is In No Position To Determine Mr. Hicks Culpability

The release of the terms of the ACOD might help us better understand what happened. It would be helpful if Mr. Hicks would release this very important document. It is unclear why he has not but there is time before the election in November.

It would also have been helpful to learn from the victim the full history of her relationship with Mr. Hicks.

In fairness to Mr. Hicks, his agreement to a plea deal with an ACOD is not an admission of guilt. Assuming that the requirements of the ACOD were not onerous, it makes sense that he would agree to it. A trial would have been very expensive and the result of the ACOD while less determinative than a trial still resulted in the dismissal of his charges.

The Folly Of Running For Office

In the end, I fully admit that I do not know what happened. What I do know is that it was ill advised for Mr. Hicks to run for Commissioner of Public Safety. Was it naïveté or poor judgement that he did not realize that in the age of the internet the story of his arrest would become public? Did he think that the documents he had would really convince the voters that nothing happened? Did people try to dissuade him from running and he ignored their advice?

As the old saying goes, life is not fair. The fact remains that there is a cloud over Mr. Hicks that, at least based on his documents, he is unable to free himself of. If he is innocent of the original charges it is very sad, but his decision to run for Public Safety Commissioner knowing that the charges would become public demonstrates a lack of judgement in itself that I do not believe he can overcome.

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Here are images from their website with their narrative and a court document (Link To actual web page)

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Court Related Documents

Here is a fuller set of court documents (the document on their website displays the page labeled “Certificate of Disposition.”)

The first document is from the Fulton County District Attorney’s office recommending to the judge a reduced plea. The third documents establishes that Mr. Hicks adhered to the terms of the “Adjournment In Contemplation of Dismissal” and on August 14, 2013 the charges were dismissed.

This is a story on Channel 13 News about new quarters for Code Blue.

So if you have read through the previous posts, it should be more than clear that in a three to two vote, the Saratoga Springs City Council censured then Mayor Yepsen for improperly soliciting business from Saratoga Hospital.

Now consider reporter Wendy Liberatore’s retelling of the events.  According to her article:

“The battles led to accusations of ethical violations and even the censure of a mayor over her decision to abstain on a zoning variance [my emphasis] for Saratoga Hospital.”

There are a number of problems with this statement.

First of all the Hospital was not applying for a variance.  Variances are granted by the Zoning Board of Appeals not the City Council.  They were seeking approval of a Planned Unit Development application that requires Council action.

Secondly, as meticulously documented in the previous posts, then Mayor Yepsen was not censured for her “decision to abstain.”   She was censured for soliciting employment from an organization while it had business before the City Council.

Thirdly, the ethical violations were not just “accusations.”  The Saratoga Springs Ethics Board, made up of Mayor Yepsen’s appointees, unanimously found that she had violated the city’s ethics code.

Ms. Liberatore restates her claim again later in the article:

“In 2016, tensions exploded when Madigan, Mathiesen, and Scirocco voted to censure Yepsen over the mayor’s recusal on a vote to give a zoning variance Saratoga Hospital needed for a controversial office building.  Yepsen abstained because she was seeking outside consultant work with the hospital.”

Most of the errors in this restatement are addressed above.  She has, however, added an additional error.  At the time of the vote Saratoga Hospital had advised Yepsen that they would not entertain any business with her as long as she was mayor.  In addition, Mayor Yepsen had written to the Ethics Board that she did not plan to seek work with the hospital any more.  So when she abstained she was actually not “…seeking outside consultant work with the hospital.”

I wrote to Casey Seiler who Ms. Liberatore reports to asking for corrections to her story.  He responded with the following:

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John:

You’re misreading the passage from Wendy’s story, which states:

In 2016, tensions exploded when Madigan, Mathiesen and Scirocco voted to censure Yepsen over the mayor’s recusal on a vote to give a zoning variance Saratoga Hospital needed for a controversial office building. [That vote was in July 2016.] Yepsen abstained because she was seeking outside consultant work with the hospital. [As reported in January 2016.]

Madigan then [as in, after Yepsen’s recusal in January] asked the city’s ethics board to launch a probe into Yepsen’s consulting work and her recusal. Madigan read the findings of the ethics board, which said it was a conflict of interest to seek consulting work with anyone doing business with the city as it was considering the hospital’s $14 million proposal for a 75,000-square-foot office building and parking lot. 

Yepsen’s recusal was the precipitating action in the whole mess, followed by the ethics board’s initial advice that she should recuse and subsequent determination that she need not have done so. I’m sure you would have phrased it differently, but I think the facts are pretty lucidly laid out.

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I would like to acknowledge the promptness with which Mr. Seiler responded to my inquiry.  Not only did he respond within several hours but he did so on a Sunday.

Still, even after his annotation of the text, I am at a loss to understand his apparent misunderstanding  of a key point.  He argues that the precipitating event that blew everything up was Mayor Yepsen’s recusal which is true.  What he appears to overlook or ignore is the troublesome text that the vote was “…to censure Yepsen over the mayor’s recusal…” This is flat out a misstatement of what occurred.  She was not censured because of her recusal.  She was censured because the Ethics Board found that she had violated the city’s ethics code.

I have a certain sympathy for Mr. Seiler.  His inclination to defend his reporter is understandable.  He also probably has a lot on his plate and relies heavily on his reporter for what is happening up in Saratoga.

The reality here is that for obvious reasons, Ms. Yepsen would like the history of this sordid business to focus on her recusal.  People of goodwill may differ on whether she should have recused herself but that act is not particularly damning.  Her preferred narrative is that she was a victim of her enemies on the Council who seized on the recusal to harm her.  This is the way Ms. Yepsen would like people to remember this ugly history.  The fact that Ms. Liberatore should adopt this narrative that is so obviously inaccurate raises fundamental questions as to why she would write this.

I have just one other inaccuracy to note.  Ms. Liberatore, referring to Commissioners Mathiesen and Madigan writes, “The two Democrats formed a solid voting bloc with Republican Scirocco on the five-member council.”  This is untrue.  On the two biggest controversies the city faced during this period, the Hospital expansion and charter change, Mathiesen took sharply different positions.  Other Council votes were 4-1 and many were unanimous. Again, this is part of the Yepsen narrative as these are the three who voted to censure her.

These errors are not simply a reflection of sloppiness on Ms. Liberatore’s part. Her attempt to rehabilitate Joanne Yepsen reflects her exploitation of the privilege she enjoys as a reporter for a major area newspaper.

 

 

I need to clarify the time line for these events.  Arthur Gonick’s story and my summary so far describe Ms. Yepsen’s attempts to gain work with Saratoga Hospital and her request for an advisory opinion from the Ethics Board.  Neither the public nor the other members of the City Council were aware of Mayor Yepsen’s dealings with the Hospital nor were they aware of her request of the Ethics Board for an advisory opinion on recusal. Her decision to recuse herself from the Hospital Planned Unit Development vote and thus kill the project was the flare that was to light up the past.

Commissioners Chris Mathiesen, Michele Madigan, and Skip Scirocco immediately requested from Mayor Yepsen, all documents associated with her relationship to the Hospital.  They also asked Saratoga Hospital for any documentation they might have.

The documents they received were the email exchanges between Ms. Yepsen and the Hospital as documented in part one of this series of posts.  These were submitted with a complaint to the Ethics Board by these three commissioners on February 1, 2016.

Complaints to the Ethics Board are handled pretty much completely outside of the public view.  In the case of the Yepsen complaint, we now know that the Ethics Board issued their decision in a letter to Ms. Yepsen on March 24, 2016.  The Ethics Board determined that her solicitation of business for her consulting firm from the Saratoga Hospital Foundation while the Hospital was seeking approval for their Planned Unit Development from the Council constituted a violation of the City’s Ethics Code.

During the deliberations of the Ethics Board Ms. Yepsen chose not to meet with them in her own defense.  Instead she used her authority as Mayor to hire the law firm Howard Beach who submitted a memorandum on her behalf appealing the Ethics Board’s decision.

It is important to note that under the city charter special expenditures for expenses like the hiring of a law firm require prior approval by the City Council.  Ms. Yepsen ignored this policy and hired Howard Beach to represent her without getting the required prior approval for this expenditure. This is a link to the relevant text in the charter: preapprovalForPayment

The law firm’s memorandum to the Ethics Board was dated June 10, 2016.

So even though the Ethics Board rendered their decision on March 24 we are now into early June before the Mayor’s attorneys submit their memorandum. The process has dragged on for over four months.  The Ethics Board has, in the past, moved expeditiously in resolving complaints.  Why did Mayor Yepsen decline to meet with the Ethics Board to address the complaint prior to the Ethics Board rendering its original decision? What went on for the four months prior to the attorneys submitting their memorandum? What kind of interactions occurred that created this delay?  The only people who know are the members of the Ethics Board, Joanne Yepsen, and her attorneys. It would appear that the Ethics Board showed exceptional deference to Mayor Yepsen in this affair.

The Harris Beach appeal is summed up in their conclusion section.  Drawing on the New York State General Municipal Law and other related standards they are critical of the city’s Ethics Code for its strict standard which allows no exceptions.  They point out that the standards for conflict of interest in other New York State laws are far less rigid than the city’s.  The fact is, however,  that the city has the right to establish stricter codes than the state standards. Bear in mind that the city’s ethics codes were amended in 2015. Ms. Yepsen praised the new codes when she voted for them.

Ms. Yepsen’s attorneys argued that the Saratoga Hospital Foundation was not the applicant for the Planned Unit Development, Saratoga Hospital was.  Thus, according to the attorneys, since Ms. Yepsen was dealing with the Foundation and not the Hospital, she had not solicited work from the institution which was actually doing business with the city–that is, the Hospital.

They go on in a lawyerly way to challenge key definitions in the Ethics Board decision by referencing these terms as used in New York State Municipal Law.

They argue that “…as a matter of law the zoning application by the Hospital is not considered a contract with the City.  Therefore, since the application is not a contract as defined by GML [JK: NYS General Municiple Law] §800, the Hospital cannot have a business relationship with the City as a result of such application.”

They then get into the weeds by challenging what “doing business” means.  They assert that “without a business relationship, it is unreasonable for the Board to determine that the application for zoning is ‘doing business’ with the city especially since the Code does not define ‘doing business’.” 

So the issues here were  whether the Hospital and the Hospital Foundation were separate and distinct entities and whether the Hospital’s application for a Planned Unit Development constituted “doing business” with the city. I understand that the term “doing business” is broad and undefined in the city code. I am reminded, though,  of the famous quote by Supreme Court Justice Potter Stewart regarding the problem of defining obscenity. He famously said, “I know it when I see it.”

Link to full text of Howard Beach Conclusion

Link to complete text of Harris Beach Appeal

On July 14, 2016 the Ethics Board responded to the Harris Beach appeal in a letter to Ms. Yepsen.  The letter informed Ms. Yepsen that they did not find the Howard Beach arguments “persuasive” and reaffirmed their March 24, 2016 decision.  The full text of their response to the specifics of the Howard Beach memorandum can can be found here.

So after five and a half months the Ethics Board’s deliberations over this issue finally came to a close.

Paying The Piper

It was at this point that Ms. Yepsen finally came to the Council with the invoice from Howard Beach.  It was $12,300.00.  Commissioners Madigan and Scirocco objected to paying the bill.  They cited the pre-authorization requirement in the city charter which Ms. Yepsen had ignored.

The reality was, however, that Ms. Yepsen had incurred the liability by enlisting the attorneys on her behalf.  The city was vulnerable to being sued by the law firm which undeniably had performed their services. Any attempt to force Ms. Yepsen to take responsibility for the costs would only prolong this ugly episode. John Franck and Chris Mathiesen joined Mayor Yepsen in voting to pay the invoice. It is interesting that Ms. Yepsen did not recuse herself from voting on whether it was appropriate to pay a controversial bill that she had incurred.

The Vote To Censure

At its July 19th meeting, following the release of the Ethics Board’s decision, Commissioners Madigan, Matheisen, and Scirocco voted to censure Ms. Yepsen.   Commissioner Franck indicated that while he had no problem with the substance of the Ethics Board’s decision, he did not believe that Ms. Yepsen’s actions merited censure.  In the end, Commissioner Franck and Ms. Yepsen as Mayor, voted no. The possibility that Mayor Yepsen might have a conflict of interest in participating in this vote was not raised.

Through the course of the discussion on censure Mayor Yepsen was defiant.  She accused Mathiesen, Madigan, and Scirocco of ignoring the law (as interpreted by her attorneys).  She claimed in fact, that by censuring her they were in violation of the law.  She warned them there would be  potential “consequences”  of voting to censure her. She made emphatically clear that she disagreed with the decision of the Ethics Board.

The resolution to censure included language that the matter be referred to the New York State Attorney General’s Public Integrity Bureau and the New York State Joint Commission on  Public Ethics for possible wrong doing.

Commissioner Mathiesen commented that night that he saw no criminality here but that Mayor Yepsen had been guilty of extremely poor judgement which to me seems an accurate assessment of the situation.

The resolution to censure in its “be it resolved” portion had three elements. The first censures Mayor Yepsen specifically for her violation of the city’s Ethics Code. The second and third call for referring the Ethics Board decision to two state agencies that deal with corruption in government. It is important to note especially in light of what we will examine next in the TU’s description of this action that the resolution was to censure the Mayor for her violation of the city’s ethics code not for her recusal in the Hospital PUD vote.

While the Mayor’s actions perhaps did not rise to the level of criminality that would have indicated the need for an investigation by state agencies, the fact that she refused to give an inch regarding her culpability in spite of the fact that her own Ethics Board, made up of people she had appointed, had unanimously found her in violation drove the move to censure.  Her intransigence and inability to acknowledge her mistake demonstrated a deeply disturbing failure of character.

Mayor Yepsen Doubles Down

The night after the censure vote Ms. Yepsen was on Channel 10 and Channel 6 news attacking the Ethics Board’s decision.  Here are links to the news reports:

Here is the link to channel 6: http://cbs6albany.com/news/local/saratoga-springs-mayor-censured

Here is the link to channel 10: http://news10.com/2016/07/20/saratoga-mayor-fires-back-after-board-determines-she-violated-citys-code-of-ethics/