In its report to Saratoga County, Stewart Hacker Murphy LLC found that the Covid Committee created by the county via resolution No. 84 had violated the New York State Open Meetings Law.
The five-member Covid-19 oversight group created by Board of Supervisors Resolution 84 of 2020 was a public body…
Accordingly, its meetings should have been open to the public and the group was required to keep contemporaneous minutes of its meetings. In fact, the meetings were held in private, and there are no minutes, or any other record, of business conducted during the meetings.Investigative Report
On April 1, 2020, I emailed all the members of the Board of Supervisors advising them that I believed the Covid-19 group was in violation of state law. The only response I received (see below), was from John Lawler, the Supervisor from Waterford. He wrote back that he had requested the County Administrator (Spencer Hellwig) and the County Attorney (Stephen Dorsey) respond to my inquiry. In his email he asked that the response be circulated to all the members of the Board of Supervisors. I never heard anything further.
At its July meeting, prior to the issuance of the findings of the independent investigation, Supervisor Todd Kusnierz directly asked County Attorney Stephen Dorsey whether the Covid-19 committee was subject to the Open Meetings Law.
First Mr. Dorsey responded as though surprised:
“The Covid Committee?”
Supervisor Kusnierz patiently offers:
“The Compensation Committee. Three supervisors. Two county staff.”
Now, dear readers, try to wrap your mind around Attorney Dorsey’s response:
“I’ve been asked this before and my response was that the County has had several committees; change order committees, vacancy review committee; that deal with compensation issues, staffing issues that their meetings aren’t publically (SIC) noticed, not subject to the open meetings law. There was no real reference to these five individuals as being a committee. They aren’t referred to as a necessary. It certainly could have been done. It was not necessary.”
I am not sure what he meant when he asserted, “They aren’t referred to as a necessary.” Most stunning is his surprise that someone would suggest that the people who comprised the Covid-19 group constituted a “committee.”
Supervisor Kusnierz presses further:
“If I am understanding you correctly the committee that was created by this legislative body is not subject to open meetings law. Is that what you are saying?”
Mr. Kusnierz confusion is understandable. Attorney Dorsey attempts to clarify for him:
“It’s not a committee. It’s not referred to as a committee.”
Mr. Kusnierz continues confused:
“It’s not a committee? The compensation committee is not a
Attorney Dorsey attempts to help Supervisor Kusnierz:
“it’s not a committee. It’s not referred to as a committee. The word committee does not appear in the resolution.” [JK: At the end of this post is the relevant text from the resolution]
Supervisor Kuznierz attempts a modest challenge:
“But they provided representation on behalf of this entire board.”
Unfazed, Attorney Dorsey attempts to close the discussion:
“They were given a duty. As I said the resolution alone, the Chairman alone had the authority under his executive authority as supplemented by the resolution itself to make those determinations. And he does that in consultation with four individuals named. And he did that.”
Mr. Dorsey Seems To Have Forgotten What He And Human Resources Director Margaret McNamara told the investigating law firm.
This from the investigative report:
On the morning of Tuesday, March 17, Stephen Dorsey (County Attorney) was in the process of revising proposed Board of Supervisor Resolution No. 84 of 2020… As of that morning, the draft resolution contained no content about time-and-a-half, or the formation of what would eventually be the Covid-19 oversight group.
Dorsey tells us that a little while later, McNamara came to see him and asked Dorsey to add language to the resolution for time-and-a-half pay to physically-present workers. Dorsey says that he discouraged the idea, and instead proposed the formation of a committee, whom the Supervisors could authorize to make compensation adjustments more flexible as the need arose. [JK: My emphasis]
Dorsey revised the Resolution to incorporate language that would create the Covid group, which would include Board of Supervisors Chair Preston Allen, Law and Finance Chair Dan Pemrick, Human Resources and Insurance Chair Tom Wood, Spencer Hellwig, and Margaret McNamara.Investigative Report
So let’s parse this out.
First, in his discussions with the investigator, Dorsey himself apparently referred to the structure being created by the resolution as a “committee.”
Second, he described it as “authorize[d] to make compensation adjustments.” He did not describe it’s role as an advisory one to the Chairman of the Board of Supervisors.
Third, he makes Preston Allen, the chair of the Board of Supervisors, simply a member of the committee. This conflicts with his narrative that the other four members were simply acting as advisers/consultants.
Four, I FOILed the Board of Supervisors for all of the “declarations of emergency” issued by Preston Allen. There were four and none of them authorized the change in pay schedules for the county employees.
Finally, here is the relevant text from the resolution as adopted by the Board of Supervisors:
RESOLVED, that the Chair of the Board, the Chair of the Law and Finance Committee, the Chair of the Human Resources and Insurance Committee, the County Administrator and the Director of Human Resources shall have the authority to jointly determine appropriate County employee staffing levels and rates of compensation [JK: My emphasis] that are consistent and in compliance with the current directives of any Executive Order issued by the Governor of the State of New York relative to local government staffing levels; and be it further ….Resolution 84
I am not a lawyer but it appears to me to be fairly clear. It does not say that Preston Allen shall decide pay rates drawing on the advice of the other named four. It uses the word “jointly” to describe how decisions will be made by the five named positions.
I wish I was in a position to ask Attorney Dorsey how he reconciles the obvious conflict between what he told Kusnierz and what he told the investigator as well as what is in the actual resolution.
The only thing I can do is offer to publish unedited his explanation on this blog.
All of this is just further proof of the breakdown in the management of Saratoga County’s government.
[JK: Lawler Email]
Thank you for your email.
I have requested that the County Administrator consult with the County Attorney and to then respond to your concerns. I have also asked that the response be provided to all members of the Saratoga County Board of Supervisors.
Waterford Town Supervisor
From: firstname.lastname@example.org [mailto:email@example.com]
Sent: Wednesday, April 1, 2020 11:49 AM
To: firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com
Cc: firstname.lastname@example.org; ‘Liberatore, Wendy’ <email@example.com>; firstname.lastname@example.org
Subject: Violation of Open Meetings Law
New York State’s Open Meeting Law requires that public bodies as defined by law must, at a minimum, meet the following requirements:
- They must provide proper notice to the public of the date, time, and location of their meetings.
- They must allow public access to their meetings.
- They must provide the public with the minutes of their meetings.
Due to the COVID-19 emergency Governor Cuomo has issued an executive order waiving the requirement of public access. The order does, however, require that such meetings must be streamed live and that a transcript of the meeting be provided to the public.
On March 17, the Board of Supervisors transferred the authority to establish staff positions and to set salaries to a special committee. This committee subsequently implemented salary increases to selected employees.
I contacted the New York State Office of Open Meetings to seek advice as to whether this committee was required to adhere to the Open Meetings Law. I spoke to Kristin O’Neil, its deputy director. I reviewed the clause that established the special committee with her. Ms. O’Neil advised me that had the committee been advisory it would not have been covered by the law but that since it was empowered to determine salaries it would indeed be covered by the law.
Putting aside the importance in our democracy of providing a transparent government, it is my understanding that decisions by a committee that occur in violation of the Open Meetings Law are legally invalid and subject to challenge.
I sent this information to Stephen Dorsey, county attorney. To date he has not responded.
I am seeking your assistance in rectifying this apparent breach in the law. I would appreciate if you would respond as to whether you plan to address this issue when the Saratoga County Board of Supervisors next meets.