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Mayor Yepsen has forwarded to me a copy of the letter her attorneys from the Harris Beach Law Firm submitted to the Ethics Board in her defense.  Apparently she chose to have her attorneys submit this document rather than meet with the Ethics Board.  Harris Beach Law Firm has represented the city in the past.

 

At Tuesday night’s council meeting, Mayor Yepsen told the Council that she planned to submit the invoice from Harris  Beach for the city to pay.   Commissioner Madigan responded by asserting that bills of this nature must be approved prior to the provision of service.

 

The Ethics Board members are appointed by the Mayor.  In their opinion they noted that prior to  making their decision they had reviewed this document.

 

June 10, 2016

HAND DELIVERY

 

Board of Ethics

City of Saratoga Springs

Board of Ethics

474 Broadway – Room 9

Saratoga Springs, NY 12866-2296

Attention: Chairman Justin Hogan

 

 

Re:         Joanne Yepsen – Reconsideration of Board’s March 24, 2016 Findings Contained in Inquiry Opinion #6-2016

 

 

PERSONAL AND CONFIDENTIAL

 

Dear Chairman Hogan:

 

Thank you for your correspondence dated May 26, 2016 allowing us the opportunity to provide a written submission in-lieu of a hearing by the close of business on June 10, 2016.

 

BACKGROUND

 

As the Board of Ethics (“Board”) is aware, Ms. Yepsen contacted the Board on January 14, 2016 requesting an advisory opinion as to whether she, as part-time Mayor of the City of Saratoga Springs (“City”), would have to recuse herself from voting on an application for a zoning change submitted to the City Council by Saratoga Hospital (“Hospital”) dated August 20, 2015.  Ms. Yepsen sought the advisory opinion due to the fact that she had been communicating with an entity related to the Hospital regarding a potential engagement for grant writing services with her consulting firm, Critical Needs Now.  Specifically, on October 14, 2015 Ms. Yepsen had a conversation over lunch with Amy Raimo, the Executive Director of the Saratoga Hospital Foundation (“Foundation”), followed by email correspondence with Ms. Raimo through January 16, 2016.

 

On January 19, 2016 the Board issued Ms. Yepsen Advisory Opinion 2-2016 determining that (i) the Foundation was an inseparable part of the Hospital, (ii) the Hospital was “doing business with the City” by submitting a zoning amendment to various boards and officials of the City, including the City Council and (iii) voting on the zoning amendment at a City Council meeting would be contrary to Section 13-3 (I) of the City’s Code of Ethics (“Code”).

 

At the January 19, 2016 City Council meeting, Ms. Yepsen, following the advice of the Board, announced she was recusing herself from the items on the agenda relating to the Hospital’s zoning amendment and stated her reasons for doing so.

 

On March 24, 2016 the Board issued Inquiry Opinion #6-2016 to Ms. Yepsen responding to a letter of inquiry dated February 1, 2016 submitted by Michele Madigan, Commissioner of Finance.  Commissioner Madigan’s inquiry requested an opinion as to whether Ms. Yepsen’s discussions with the Foundation, in and of themselves, constituted a violation of the City’s Code of Ethics. The Board determined that any efforts to solicit or negotiate for outside employment with one who does business with the City (within the meaning of §13-3 (I) of the Code of Ethics) constitutes a violation of such section, including Ms. Yepsen’s discussions with the Foundation.  The Board reasoned that §13-3 (I) of the Code does not allow either for the consideration of intent or for any quantitative analysis, that there is neither a threshold for the amount of the contract or the extent to which the negotiations have progressed. The Board further stated that this section becomes relevant even upon minimal efforts to solicit or negotiate for work under the stated circumstances. Lastly, the Board reiterated its determinations from Advisory Opinion 2-2016 that (i) a zoning amendment application to various boards and officials, including the City Council was “doing business with the City” and (ii) that the Foundation would be considered the Saratoga Hospital because the Foundation was an inseparable part of the Hospital.

 

CODE §13-3(I)      

 

Section 13-3(I) provides that:

 

No officer or employee shall:

 

• engage in work for an outside employer or business who does business with the City;
• solicit work for an outside employer or business who does business with the City;
• negotiate for work for an outside employer or business who does business with the City;
• promise to accept work for an outside employer or business who does business with the City.

which,

 

• creates an implied conflict; or
• impairs the proper discharge of his official duties; or
• results in personal gain.

 

 

 

 

 

ADVISORY OPINION #2-2016

 

With respect to the Board’s determination in Advisory Opinion 2-2016, we agree that  voting on the Hospital’s August 20, 2015 application for a zoning amendment could reasonably give rise to the perception that Ms. Yepsen confronted some form of divided loyalty given (i) the close relationship between the Hospital and the Foundation and (ii) her discussions with the Foundation regarding the possible engagement of Critical Needs Now.  We also agree that it is the intent of §13-3(I) of the Code to prevent conflicts of interest whether actual or perceived.  Therefore, we recognize that an official act by Ms. Yepsen on the amendment would be contrary to §13-3(I) of the Code in that it would create an appearance of a conflict. Thus, we do not disagree with the Board’s determination that Ms. Yepsen should recuse herself, which she did, from voting on the Hospital’s zoning amendment.  It is a well settled ethical principal that disclosure, recusal and abstention is the appropriate course of action to cure any actual or perceived conflicts of interest because it removes the governmental employee from the official action, which may have been influenced by personal interests[1].

 

INQUIRY OPINION #6-2016

 

• The Board’s Interpretation of Code §13-3(I) is Misplaced as a Matter of Law and Equity

 

With respect to Inquiry Opinion #6-2016, we disagree with the Board’s interpretation of §13-3(I) of the Code as it relates to whether Ms. Yepsen’s discussions with the Foundation while the Hospital had a zoning amendment pending resulted in a per se Code violation.  We believe the Board’s interpretation of §13-3 (I) is misplaced under these circumstances and is not aligned with the general ethical standards established under Article 18 of the General Municipal Law (“GML”).

 

As set forth in its Inquiry Opinion #6-2016, in contrast to the treatment afforded under the GML as well as the Public Officers Law (“POL”), the Board took a very literal reading of this section thereby establishing a strict liability standard with no minimum thresholds.  Such an interpretation creates an absolute prohibition that results in a per se violation of the Code as opposed to creation of an ethical standard that would trigger disclosure, recusal and abstention.  Given the Code’s definition of “officers and employee”[2] and the provision of §13-3 (I) as interpreted by the Board, any part-time employee or volunteer board member would either have to resign or incur a Code violation if their outside employer or client sought a permit, variance, zoning amendment or other item from the board or body on which such officer or employee serves.  For example, a volunteer planning board member that is engaged in work for XYZ Corporation as either an employee of XYZ Corporation or has XYZ Corporation as a client would automatically be in violation of the Code upon XYZ Corporation’s submission for a subdivision, special use permit, or other action by the planning board.  In order for such planning board member not to incur a Code violation, the member would be forced to resign prior to XYZ Corporation’s submission of its application or XYZ Corporation would have to forego seeking a subdivision, special use permit or other action by the planning board. This result is unreasonable and certainly cannot be the intent of §13-3 (I) given the City’s need for civic minded individuals to volunteer or work part-time on numerous boards and commissions of the City.  Without the ability to cure an actual or perceived conflict of interest through disclosure, recusal and abstention, it would effectively make all but a handful of citizens ineligible to sit on boards of the City.

 

Applying the Board’s same standard of interpretation to Section 13-3(P)(1) of the Code would make the City’s Code more stringent than Article 18 of the GML by prohibiting “any financial interest in a business relationship, financial instrument, contract with the City, or an interest in a bank or trust company, that is prohibited by §801 of the General Municipal Law of the State of New York,” without providing for the exceptions allowed in GML §802.  Regarding this prohibited interest, the Code does not state that the City officers and employees must adhere to the provisions of Article 18 of the GML, rather a literal reading of paragraph (P)(1) creates an absolute prohibition to any financial interest in a business relationship prohibited by §801 as opposed to a disclosable interest defined in (P)(2).  This creates a very strict standard without any exceptions.  Again, this result is unreasonable and cannot be the intent of the City.  Such an interpretation by the Board of these paragraphs (I) and (P)(1) would lead to many unintended violations of the Code that could not be cured, which would make any action in which there was a violation null and void, and subject the City officer or employee to penalties pursuant to (P)(3) that incorporates by reference §805 of the GML.

 

The New York State Legislature recognized that conflicts of interest of municipal officers and employees are not uncommon due to the multitude of interactions between governmental entities and the private sector.  A goal of the enactment of Article 18 of the GML was to establish “a formula of conduct which is not only clear but reasonable, one which will permit governmental employees to share the normal benefits of the democratic society and economy they serve.  If government is to attract and hold competent administrators, public service must not require a complete divesting of all proprietary interest.  Real conflict must be rooted out, without condemning the inconsequential.”[3]  Article 18 prohibits a municipal officer or employee from having a direct or indirect financial interest in a contract with a municipality where such municipal officer or employee has the power to negotiate, prepare, authorize or approve such contract.[4]  A “Contract” is defined as any claim, account or demand against or agreement with a municipality, express or implied.[5]  Thus, almost any business relationship with a municipality will result in a contract.[6]  However, by recognizing that conflicts of interest of municipal officers and employees are not uncommon due to the multitude of interactions between governmental entities and the private sector, the Legislature provided exceptions to the prohibition.[7] Conflicts that fall within an exception are still conflicts of interest, but they are not prohibited conflicts and they can be cured by disclosure[8].  Therefore, just because you have an interest in a municipal contract does not necessarily mean that your interest is prohibited.

 

In the instant case, applications for and the granting of building permits, licenses, zoning changes, variances or site plan approvals have consistently been determined to not constitute a “contract” with the municipality[9].  Therefore, it is clear that Ms. Yepsen does not have a conflict of interest under Article 18 since the Hospital’s zoning application is not even considered a contract (i.e., business relationship with the City).  Secondly, even if such zoning application were to be considered a contract with the City, Ms. Yepsen would still not have the required direct or indirect financial interest in the amendment.  Additionally, even assuming for argument sake that Ms. Yepsen had a financial interest in the zoning amendment before the City due to being a direct employee of the Hospital, provided (i) Ms. Yepsen’s remuneration for such employment with the Hospital was not directly affected as a result of the zoning amendment and (ii) her duties at the Hospital did not directly involve the preparation or performance of the zoning amendment, Ms. Yepsen would still not have a conflict of interest that is prohibited under Article 18.   Under those circumstances, Ms. Yepsen would have a conflict of interest that could be cured by disclosure pursuant to GML §803. Common law requires recusal in addition to the statutorily mandated disclosure under §803 of the GML.[10]

 

A similar statutory provision involving the POL is interpreted and treated in a similar fashion as the provisions under Article 18 of the GML.  Section 74 of the POL establishes a rule with respect to conflicts in subdivision (2) and then sets forth eight standards of conduct in subdivision (3).  The rule in subdivision (2) states “[N]o officer or employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest”  Paragraph (f) of subdivision (3) established a standard of conduct that states “[n]o officer or employee of a state agency….should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by kinship, rank, position or influence of any party or person.”  State personnel who had been faced with substantial conflicts between their personal interests and their public duties were not deemed to be in violation of §74 of the POL where disclosure, recusal and abstentions were made. Similarly, in instances where State personnel were involved in personal matters that could reasonably be perceived as creating an undue influence on their official duties contrary to the standard of conduct contained in POL §74(3)(f), disclosure, recusal and abstention was the cure.  The occurrence of the circumstances that gave rise to the perception of an undue influence on the individual’s official duties did not, in of itself, result in a violation of the State’s Code of Ethics.[11]

 

Applying the Board’s literal interpretation to §13-3(I) as well as §13-3(P)(1) creates unreasonably strict prohibitions that fail to recognize the goal and intent of Article 18 of the GML; the enabling legislation by which the City’s Code was enacted, which requires such Code be consistent with its provisions[12].  The Board, when revising the Code, recognized that its provisions must be implemented in accordance with the “NYS General Municipal Law”[13] and within the context of the “NYS Public Officers Law and the NYS Ethics legislation”[14]. The Code explicitly provides in §13-1 that the Code was enacted pursuant to §806 of the GML and that the “rules shall serve as a guide for official conduct of officers and employees of the City of Saratoga Springs”. Moreover, the Code explicitly states that it “…shall not conflict with [ ] any prohibition of Article 18 of the General Municipal Law.”[15] The Board’s strict interpretation of §13-3(I) as an absolute prohibition opposed to a standard of conduct conflicts with the standard ethical principles established under Article 18 of the GML as well as §74 of the POL. Conflicts under analogous provisions of the POL have not been interpreted by the courts or the New York State Joint Commission on Public Ethics (“JCOPE”) as per se violations of the State’s Code of Ethics where the individuals disclosed, recused and abstained.[16]  Lastly, the wording of the Code, taken in its entirety, establishes that §13-3(I) is a standard of conduct that can be cured rather than a strict prohibition.  To illustrate, §13-3 is entitled Standards of Conduct, which contains sixteen standards of conduct enumerated in paragraphs (A) through (P) of which paragraph (P)(1) explicitly addresses prohibited interests.  Under the same §13-3 entitled Standards of Conduct, paragraph Q explicitly provides for recusal.  Therefore, it is reasonable to conclude the Code requires recusal whenever a City officer or employee runs afoul to the Standards of Conduct, which is consistent with the GML, POL and common law.

 

Based upon the foregoing, we are seeking the Board’s reconsideration of its interpretation of §13-3(I) of the Code in light of the provisions of Article 18 of the GML and the interpretations of such as provided by the courts, Attorney General and the Comptroller, as well as the interpretations of §74 of the POL by the courts and JCOPE.  An interpretation of §13-3(I) by the Board consistent with the interpretations given under Article 18 of the GML and §74 of the POL will help eliminate unintended consequences and protect innocent public officers from unwarranted assaults on their integrity, while still protecting the public from municipal contracts influenced by avaricious officers.[17]

 

 

• No Violation of §13-3(I) By Ms. Yepsen as a Matter of Law  

 

In the event the Board maintains its current interpretation of §13-3(I) of the Code as a strict liability provision, Ms. Yepsen did not violate such section by engaging in discussions with the Foundation.  In order for such discussions to result in a violation of §13-3(I), the Foundation would have to be “doing business” with the City.  Although we do not disagree with the Board’s determination that the Foundation was doing business with the City for purposes of its opinion with respect to the need to recuse, we do, however, disagree with the Board’s determination when it comes to determining a violation under a strict liability provision such as the way the Board interprets §13-3(I).  First, the Foundation, as a separate legal entity, was not the applicant for the zoning amendment.  Secondly, even if the Foundation was the applicant, the Board’s determination that submitting a zoning application is “doing business” with the City is misplaced given common law, which provides that approvals of zoning, licenses, permits etc. are not contracts (i.e. business relationships) as opposed to the purchase and sales of goods, services and real estate, leases, construction contracts, vouchers as well as designations of bank accounts and official newspapers for publication[18].  Lastly, in order for there to be a violation of §13-3(I), assuming the Foundation was determined to be “doing business” with the City, such discussions would have to either (i) create an implied conflict, (ii) impair the proper discharge of Ms. Yepsen’s duties as Mayor, or (iii) result in personal gain.  First, since the engagement between the Foundation and Critical Needs Now was never consummated, there was never any personal gain realized by Ms. Yepsen.  Secondly, as addressed above, common law clearly regards disclosure and recusal as a cure to any appearance of or actual conflict of interest[19], which Ms. Yepsen did do in this case.  Any potential for a conflict was eliminated when Ms. Yepsen recused herself from taking official action on the zoning application.  Third, Ms. Yepsen’s official duties as Mayor of the City were not impaired solely by recusing herself from taking action on the Hospital’s zoning application.[20]  It would be unreasonable to interpret this clause as applying to a single duty on a single matter given that recusal is the appropriate course of action for all public officials when faced with a potential for conflicting interest.  The Mayor has numerous public duties and matters she is charged with undertaking as a public official, all of which have not been impaired by recusing herself in this instance.  Furthermore, it was not Ms. Yepsen’s recusal from voting on the Saratoga Hospital expansion that caused the inability of the City Council to vote.  The City Council could not vote to approve the necessary zoning amendment because neighbors near Morgan Street sent a petition asking the Hospital not to build on the parcel at issue.  This petition resulted in the Council needing a supermajority to vote, which it lacked due to the recusals of Ms. Yepsen and John Franck, Commissioner of Accounts.

 

Lastly, the Board’s interpretation of §13-3(I) assumes Ms. Yepsen “solicited work” or “negotiated for” work from the Foundation.  The terms “solicit” and “negotiate” are not defined in the Code, the City Code, GML §800 or the General Construction Law.  Based upon a reasonable interpretation of these terms, however, Ms. Yepsen’s single lunch meeting with Ms. Raimo and her few, sporadic, subsequent e-mail correspondence do not amount to “soliciting for” or “negotiating for” work from the Foundation[21], especially when interpreting such terms within the context of a strict liability provision as created by the Board in its interpretation of Section 13-3(I).  Although the email correspondence indicates an exploration of the services provided by Critical Needs Now and the potential needs of the Foundation, such correspondence clearly demonstrates that there was never a negotiation over any terms or conditions for employment nor did Ms. Yepsen ask the Foundation for work.

 

CONCLUSION

 

Based upon the foregoing, we are hereby requesting that the Board reconsider its interpretation of §13-3 (I) of the Code to be consistent with the GML, POL and common law in that such section does not create a strict liability prohibition without exceptions. In the alternative, if the Board determines that the correct and appropriate interpretation of §13-3(I) is a strict prohibition without any exceptions as a matter of law, then the Board’s  determinations thereunder should be applied in the same strict technical fashion.  For example, as a matter of law, the Foundation was not technically the applicant of the zoning amendment.  Therefore, the Foundation cannot be determined as doing business with the City with respect to such zoning amendment by the Hospital.  Secondly, 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 §800, the Hospital cannot have a business relationship with the City as a result of such application. 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”.

 

A reasonable interpretation of §13-3(I) in light of the body of authoritative guidance cited herein, clearly establishes Ms. Yepsen did not violate the City’s Code of Ethics solely by engaging in a dialogue with the Foundation over potential work unrelated to the Hospital’s application for zoning, especially given the fact she recused herself from taking any action on the Hospital’s application to avoid even the appearance of a conflict.

 

I also respectfully request the opportunity to meet with the Board’s counsel to discuss this submission prior to the next scheduled Board meeting.  Thank you for your time and attention to this matter.  If you have any questions or would like to discuss further, please contact me.

 

Sincerely,

 

 

 

Robert J. Ryan

 

RJR:hr

cc:        Ms. Joanne Yepsen (via E-mail)

Tony Izzo, Assistant City Attorney (via hand delivery)

 

 

[1] Lexjac, LLC v. Beckerman (2d Dept. 2010) 72 AD3d 748.

[2] Section 13-2 of the City’s Code of Ethics defines “Officer” or “Employee” of the City as “[A]n officer or employee…..whether paid or unpaid, including without limitation,…..volunteers, interns and members of any advisory and/or decision-making board, body, council, commission, agency, departments, districts, administration, bureau or committee of the City of Saratoga Springs.”

 

[3]  L.1964, C.946 §1.

[4] GML §800 and 801

[5] GML §800

[6] 1996 Ops St Comp No. 96-14; 1984 Ops St Comp No. 84-12: 1989 Ops St. Comp No. 89-32; 1988 Ops St. Comp No. 88-23; 1988 Ops St. Comp No. 88-44; 1998 Ops St. Comp No. 98-5

[7] GML §802

[8] GML§§801, 802 and 803.

[9] Friedhaber v Town Bd. Of Town of Sheldon, 851 NYS 2d 58 (citing NY Op. Attorney General No. 74-106, NYS Comptroller Opinion No. 83-114); NYS Comptroller Opinion Nos. 91-48, 97-12, 88-68, 85-60 and 01-14.

[10] Zagoreos v. Conklin, 109 AD2d 281. Tuxedo V. Town Bd. Of Town of Tuxedo, 69 AD2d 320. NYS Comptroller Opinion Nos. 97-9; 82-200 and 92-31.

[11] NYS Ethics Commission Op. 95-29 (1995).

[12] GML §806. NYS Comptroller Opinion Nos. 82-189 and 80-234.

[13] Board of Ethics Minutes May 5, 2014

[14] Board of Ethics Minutes July 10, 2014

[15] City of Saratoga Springs Code § 13-1 [setting forth the purpose of the Code of Ethics]

[16] NYS Ethics Commission Op. 95-29 (1995).

[17] L.1964 C.946 – the trinity of purposes.

[18] 1996 Ops St Comp No. 96-14; 1984 Ops St Comp No. 84-12: 1989 Ops St. Comp No. 89-32; 1988 Ops St. Comp No. 88-23; 1988 Ops St. Comp No. 88-44; 1998 Ops St. Comp No. 98-5. Friedhaber v Town Bd. Of Town of Sheldon, 851 NYS 2d 58 (citing NY Op. Attorney General No. 74-106, NYS Comptroller Opinion No. 83-114); NYS Comptroller Opinion Nos. 91-48, 97-12, 88-68, 85-60 and 01-14.

[19] Stettine v Suffolk County, 105 AD2d 109 [2^nd Dep’t 1984]

[20] NYS Ethics Commission Op. 95-29 (1995).

[21] Black’s Law Dictionary (10^th ed. 2014) [Solicitation is defined as the “act or an instance of requesting or seeking to obtain something”.  The term “negotiate” is described as “to bring about by discussion or bargaining.”]

At tonight’s City Council meeting four City Council members, with the Mayor abstaining, voted to accept the city’s Ethics Board findings that Mayor Yepsen had violated the city’s ethics code when she solicited business from Saratoga Hospital while they had business pending before the Council. In a second 3-2 vote Commissioners Madigan, Mathiesen, and Scirocco voted to approve a resolution brought forward by Commissioner Scirocco to censure the Mayor and ask the New York State Attorney General and the Joint Commission on Public Ethics to review the actions of the Mayor.

I will be posting more details tomorrow.

As you all can see, this blog has a new look. I was helped by Kate Austin-Avon of Advokate, LLC

She was great to work with and we have some plans to further strengthen the site.

I welcome any suggestions and feedback the readers of this blog might have.

City of Saratoga Springs, NYSTEC, IgniteU NY MEDIA ANNOUNCEMENT: July 12, 2016 Contact: Commissioner of Finance, Michele Madigan: michele.madigan@saratoga_springs.org : (518) 526-9377 NYSTEC, contact Jana Behe: behe@nystec.com

IgniteU NY, contact Evan DeGennaro:edegennaro@nystec.com

Announcing the Smart City Forum and Showcase at Saratoga Springs City Center IgniteU NY, established last year by technology consulting firm NYSTEC to help foster entrepreneurship and innovation in Upstate New York, will host the Smart City Forum and Showcase at the Saratoga City Center on Thursday, July 14, 2016, from 11:30 am to 7:00 pm. The event will bring together entrepreneurs and leaders in business, education, and government to discuss the changing landscape of information connectivity and data gathering, as well as highlight innovative approaches for cities to operate more efficiently, attract and support businesses, and improve overall quality of life.  Speakers will discuss how smart solutions can make cities more entrepreneurial, vibrant, and sustainable. Enterprise presenters include Cisco Systems, EMC, and Pitney Bowes. A scheduled broadband panel will include Calix, eX2, Hudson Valley Wireless, FirstLight Fiber, and PrimeLink. The evening startup showcase will feature presentations from ParqMi and Apcera. The Smart City Forum and Showcase is part of the Saratoga Smart City Project, spearheaded by City of Saratoga Springs Commissioner of Finance Michele Madigan. The goal of the project is to help leverage existing broadband infrastructure and funding streams to foster sustainable economic growth and enhance the quality of life for all Saratogians. Together with NYSTEC, the project is led by the Smart City Commission, made up of representatives from the Saratoga region. “This is important not only to our economic viability, but also to the health, safety, and welfare of our citizens and visitors,” Madigan said. The Smart City Forum and Showcase is free and open to the public. For registration information, including a luncheon and evening cocktail reception, visit www.igniteuny.com/smartcity/

About NYSTEC With offices in Rome, Albany, and New York City, NYSTEC is a not-for-profit company offering specialized information technology consulting services. Acting as a trusted and unbiased technology advisor to government agencies and other institutions, NYSTEC helps organizations with their IT strategies, solutions, acquisitions, and security across numerous industries, including government and public safety, healthcare and human services, and education.

For more information about NYSTEC, contact Jana Behe: behe@nystec.com For more information about IgniteU NY, contact Evan DeGennaro:edegennaro@nystec.com

 

Michele Madigan

Commissioner of Finance

City of Saratoga Springs

474 Broadway

Saratoga Springs, NY 12866

518-587-3550 ext. 2557

[This is a post written by Sandra Cohen on behalf of Saratoga Neighbors For Zoning Enforcement.  It is a report on what happened at the last meeting of the ZBA regarding “Downton Walk.”  It is important for background to note that in order for the ZBA to reverse their original approval for this project, it must be shown that the project or its environment has changed.  The members of the group did an excellent job systematically documenting the changes and Ms. Cohen has done an excellent job reporting on this.  The project comes up for what is expected to be a final decision on Monday night]

 

Just as the May 23^rd session was, the June 20 meeting of the Zoning Board of Appeals became a marathon. With ten items on the agenda, several of which included their own hiccups, the agenda item saved for last was the one I’ve been following: Builder John Witt’s Downton Walk Proposal for 27 Jumel Place.

 

With Vice Chairman Keith Kaplan, sitting in for Chairman Bill Moore, the Board worked on comparing this year’s Application with the previous version(s) that had been approved in 2013/14. It was stressed in the last meeting that Significant Changes from the previous application are the only things that could allow the Board not to approve this project, so this was the focus of questioning throughout the evening.

 

It is important that it be clear that there are significant differences between the two applications submitted.

 

The ensuing financial discussion brought strong objections from Witt’s attorney Elizabeth Coreno, insisting the approval did not hinge on financials in 2013. But Board Member Susan Steer countered that the first point on the earlier decision — whether or not the benefits can be achieved by any other means feasible – was financially-based, to which Coreno acquiesced. Steer concluded that the difference between the financial information in 2013 and 2016, in and of itself, represented a significant change between the two applications.

 

In 2013, the applicant reported that his 7 homes would sell at an average price of $640,000, bringing the total of all of them to $4,480,000. After land acquisition and development costs of $905,640, $3,574,360 remained.

 

In 2016, the applicant states the average price of the 7 units will be $930,000.  Building and selling only 5 units at that average price, after subtracting the $1,303,380 land acquisition and development costs, the remaining $3,346,620 is feasible, because it is nearly the same amount as in 2013 with 7 units.

 

Additionally, selling the 7 units using today’s average price of $930,000, in essence will reward the applicant with $1.6 million more than in 2013 – to make up for the difference of only $397,740 in land and development costs.

 

Furthermore, the prices now being used by Mr. Witt and his attorney do not take into consideration the even higher prices that he supplied to the Board in February 2016 – prices between $700,000 to $1,500,000, instead of the $587,000 to $1,255,000 being used now. The prices Mr. Witt provided to the Board in February 2016 were reduced by 16% after Mr. Witt acquired an attorney in May 2016, even though Mr. Witt continues to allow the higher numbers of $700,000 to $1,500,000 to be used in newspaper articles promoting his Downton Walk development. There has been a constant calibration in price ranges, which represents an additional significant change.

 

Feasibility has significantly changed and must be considered now in evaluating “Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue other than an [these] area variance[s].”

 

Yes, the numbers supplied by Mr. Witt prove he can feasibly build five homes now, not seven, which would thereby significantly reduce the substantial nature of the variances that he is requesting.

 

When discussion turned to drawings, which have been part of the Applications, Board Member Cherie Grey questioned the size and proportions of the structures – saying she felt that the 2016 Downton Walk homes look much larger than those drawn for Magnolia Lane in 2013. Although Witt protested that the size hasn’t changed, Grey persisted, citing that original application drawings show fewer second stories on garages and were not as tall as those in 2016, which present as three stories with their 30’+ heights.

 

Coreno continued to insist their square footage has remained static, which was met with dubious responses from more than one Board member, relative to footprints versus number of stories, which absolutely affects overall size and how much more crowded it makes the lot appear. Only the footprint (first floor) measurement is “set in stone,” because that is what is used to calculate lot coverage and permeability. Hence, those are the only numbers the Board and public see prior to approval. So, in essence, both parties are correct: the footprint sizes have not changed; but the overall massing (interior square footage), more stories, and higher rooflines clearly indicate a significant change — when one compares the drawings from 2016 with those from 2013/14.

 

The Board’s final area of concern was an intensive discussion of the swimming pools, which illustrate another difference between the applications of 2013/14 and 2016. Board Secretary Adam McNeill supported 2016 as, in his words, a mirror image of 2013/14, saying, “I’ve never seen or heard of before a more precedential picture,” alluding to the Doctrine of Precedence (the legal ruling which requires a Board to approve an unchanged re-application of one that had previously been approved and then allowed by its applicant to expire.)

 

However, Board Member James Helicke pointed out that the drawings in the 2014 Variance Application indicated only three pools, versus four in the 2016 drawings – thus spoiling its status as a mirror image and representing another significant change in the application. There was a retort from Coreno that the drawings had not changed. But, Witt clarified for her that he did remove one pool for the 2014 submission.

 

Coreno also contended that the lot coverage measurement had not changed – although no pool measurements were included in those figures in any of the applications. In our view, this means that all the applications – 2013, 2014, and 2015 – were incomplete and misstated as far as lot coverage is concerned. We also do not know if the optional porches shown in the presentation were included in the original footprint measurements in any of the applications, which would add to the pools as two more significant changes.

 

And one must note that, since the pool measurements clearly were not included in lot coverage, and possibly the optional porches were not included either, these things also will mark a change in the permeability of the land that is part of the approval process is another significant change.

 

We realize the Board is anxious to close this matter, but ignoring such issues and significant changes will not be doing the City any favors. So, although they plan to present a resolution at the next meeting, on July 11, it is clear that they will be voting on something about which they do not even have all the facts.

 

During the Public Hearing, Kira Cohen reiterated the City Attorney’s explanation about significant changes in circumstances, which needed to be presented for a basis to deny the application. She directed the Board’s attention to ANW’s response to the May 23^rd question of why they had not subdivided the land to which Coreno replied that one of the two purposes of building seven condos had been because of the desire for shared maintenance, which would not be available with a subdivided parcel. Cohen countered that State Law not only allows shared maintenance in subdivisions, but also the Attorney General’s office had simplified the procedure for applying for it in January 2014, another significant change in the application.

 

Sam Brewton presented the changes in the neighborhood the project would cause on the small, settled, more than 100-year-old community, many of the inhabitants of which have lived there for a very long time. His comments centered on things that neighbors wrote when signing the neighborhood petition – at least 14 of them reversing their original signatures from the developer’s petition they signed in the early days of the process. These individuals voluntarily added their names to what is a list of 47 neighbors, and some signed the change.org petition of more than 500, mostly Saratogians or individuals who have lived here – some who have grown up here and moved on but return to visit family and lifelong friends.

 

Although Kaplan stopped this presentation saying it was irrelevant, the Board’s 2013 resolution cited “The Applicant has demonstrated, and several neighbors have testified in support, that this development will have a very beneficial impact on the neighborhood,” which refutes Kaplan’s determination that it is irrelevant to the 2016 Application. So our showing the valid diminishment of that support does represent a significant change.

 

Question number 1 in the evaluation criteria that the ZBA must consider is, “Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.”

 

Members of neighborhood do increasingly feel that this development, as currently designed, will be overwhelming in both size and price. The structure sizes will dwarf the homes surrounding it, and it will bring a superfluity of populace, traffic, and noise to this single lot.

 

Gerald Mattison addressed the financials — how much they have changed since 2013/14, reiterating such things as how home prices have risen and the lower cost of constructing fewer homes would provide the builder the ability to make the project feasible with only five homes on a subdivided lot, at today’s selling prices.

 

Jane Valetta persisted that the neighborhood has changed since the ballet and karate schools have gone. Now it’s quiet with little traffic. She also noted that none of the homes currently there rise to the $500,000 range, so even the ones at the lowest end of Witt’s spectrum will change the nature of neighborhood. She cited that the drawings have changed. The 2013 drawings made the homes look smaller and cottage-like – which is how the developer described them when he came to get signatures on his petition. But the new drawings depict three-story homes much larger in volume. That is another significant change.

 

Debra Mattison spoke of the dangers presented by the dead-end lane into the community and the issue of not having accounted for the swimming pools in the original measurements. She pointed out that pools also need their own separate fences, which must follow code. She explained that the pools will cause increase in land coverage, and would lower permeability, none of which had been taken into consideration in the original numbers. And the absence of pool fences in the drawings is another significant change.

 

At the finish of comments, the Board approved a motion to hold open the public comment period until the next meeting when they would vote.

 

These NINE changes — financial information and feasibility, overall home sizes, differences in number of pools and complete lack of pool fencing, price fluctuations, possible lot coverage increase, possible permeability decrease as a result of these other issues, new knowledge of HOA law and its more recent changes, and the increased undesirable change in the character of the neighborhood — are each significant and substantial changes that could and should allow that vote to change without violating the Doctrine of Precedence.

 

At the ZBA’s meeting on July 11, 7 p.m. at City Hall, private citizens will have their last chance to speak to the Board before they vote on this project. Currently, Downton Walk is first on the agenda. We hope many of you will take advantage of this opportunity.

 

I visited the walkway today (July 6).  I was pleased to see that the broken step had been repaired and the barrier removed.  I have no idea what precipitated this repair but am glad to see it done.  There continues to be litter along the walkway.  I do not know how frequently the area is swept but the debris from my last visit was gone and new detritus has taken its place.  Still, this represents some progress.

 

Norreida Reyes has done a terrific job in taking some very modest resources and putting out a very interesting newspaper, Saratoga Today. She recently did an interview with Angelo Calbone who is the CEO of Saratoga Hospital.  The interview was quite revealing but not in ways that Mr. Calbone may have hoped for.

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From Wikipedia

Doublespeak is language that deliberately obscures, disguises, distorts, or reverses the meaning of words. Doublespeak may take the form of euphemisms (e.g., “downsizing” for layoffs, “servicing the target” for bombing^[1]), in which case it is primarily meant to make the truth sound more palatable. It may also refer to intentional ambiguity in language or to actual inversions of meaning (for example, naming a state of war “peace”). In such cases, doublespeak disguises the nature of the truth. Doublespeak is most closely associated with political language.^[2][3]

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From the Times Union:

The proposal would give Albany Med authority over Saratoga Hospital’s budgets and strategic plans, the hiring and firing of Saratoga Hospital’s chief executive, incurrence of debt, and hospital policies and procedures. Each health system would have representation on the other’s board.

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From The Albany Business Review:

Under the agreement, Albany Med would have approval of Saratoga’s budgets and operating plans, hospital policies and procedures and contracts for clinical and management services. Albany Med would also have authority to appoint or remove the CEO, according to information submitted to the health department.

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The following is from an interview the CEO, Angelo Calbone gave to Saratoga Today Newspaper in their July 1 edition:

Regarding the AMC affiliation, Calbone explained that it was a multi-year process that involved many thorough discussions with the board. “The board has a responsibility to know and understand how this will work,” said Calbone. “We spent upwards of two years in negotiating the specific terms of the relationship, making sure a very high degree of local autonomy and control stays intact.”

Calbone explained that creating a meaningful affiliation is done through a parent model in New York State, and it is how the State Department of Health regulates them. Although the model does list Albany Medical Center as the parent, the terms in detail are unique to this particular affiliation of the two institutions, and not readily apparent in the public eye [my emphasis added].

“So, internally we knew that is how this structure would work, but ‘parent’ is just a term that is used to describe how relationships are built, and doesn’t reflect the years of negotiations on specific terms. What I believe has happened is that individuals have probably looked at the regs as they are stated in somewhat generic form as to how parent relationships in hospitals work in the State of New York, and took it literally,” [My emphasis: I mean why would we take the regulations’ language literally?] Calbone added. “But unless they were in the room with the board, they won’t know the details. This meets the spirit of those regulations, but leaves a high level of local control and autonomy in place.”

The reason they had to use the parent model goes back to anti-trust laws and other legalities that protect the American public. “We are a business,” said Calbone, “and we cannot work closely as two institutions on regional planning, working to create programs, sharing of information and movement of potential medical education back and forth; you just can’t do some of those things without a relationship because it would break the law. You must connect yourself sufficiently to do it in New York State, and that’s called a parent model.”

Calbone said unequivocally that Saratoga Hospital remains a licensed hospital, which by its nature requires a number of responsibilities to be maintained by the local board. He confirmed that the parent, AMC, would have to approve the local board members.

Although it is a confidential agreement, Calbone could say, however, that the board members put before AMC would first be recruited, interviewed, and vetted by the local board before they are put forward for action by the parent. “Also, they can’t be denied and replaced by other candidates,” said Calbone. “They can only come through the local process of the local board. You wouldn’t know that unless you were part of the negotiations.”

For Calbone’s role, the local board can unilaterally dismiss any CEO they don’t find acceptable, but in choosing a new one, it will be done collaboratively. He said the “parent model” term has been over-interpreted as too dominant, but emphasized that the standard written into regulations [JK: Oh those pesky regulations again] don’t reflect the very unique relationship established between the institutions that is very respectful of the history of the hospital and the value the local board brings to oversee the operations.

“We weren’t forced to do this,” said Calbone. “The local board felt this was the best time to move ahead and it would be helpful to us and our patients. There is grave risk to institutions over the next five years and we choose to take this time to do this while we are successful.”

I have been copying the city council on my emails to Mayor Yepsen regarding the walkway beside Putnam Market.  As of this date after two emails I have not heard from Mayor Yepsen.    I  did, however, receive an email from Commissioner Mathiesen.  He indicated that the walkway will not be fixed until the fall.  I followed up with a telephone conversation.  He explained that because the walkway is heated, the fix will involve blocking off the entire walkway.  In light of its role as an easy pedestrian access to parking from Broadway, it makes sense to do it after the racing season.

I raised with him the issue of what can be done to compel the owner to keep the area clean.  Commissioner Mathiesen assumed that this would have been stipulated in the site plan agreed to when the easement was granted.  He is going to have his code enforcement officer look into the matter.  I will keep the readers of this blog informed.

 

 

It has been a week since I emailed the Mayor asking that she take action about the dreadful condition of the walkway beside Putnam Market.  I visited the walkway today and found that there is still trash there and of course, the sawhorse blocking one set of stairs remains.  Regrettably I had no response from last Thursday’s email to the Mayor so I have written her again.Hopefully she will assign someone to find out who the owners of the walkway are so we can all find out when they are going to fix the broken stairs and when they are going to start to police the walk of trash.

Here is my latest email to the Mayor.

From: John Kaufmann []
Sent: Friday, July 01, 2016 7:46 PM
To: ‘Joanne Yepsen’
Cc: ‘Christian Mathiesen’; ‘Michele Madigan’; ‘Skip Sciroco’; ‘John Franck’;
‘Vincent DeLeonardis’; ‘Tony Izzo’
Subject: Walkway

Last Thursday I emailed you (see below) about the deplorable condition of the walkway next to Putnam Market.  Having not had response, I visited the walkway again and I attach pictures of the newest trash there.
As noted in my email, I recognize how important our city is to you so I expected to hear from you on this matter.  Do you plan to take any action?
Thank you

Sent June 23:

I have been contacted by people disturbed by the walkway that abuts Putnam Market.  For at least a month there have been sawhorses blocking part of the path there (see picture).  In addition, there does not appear to be any maintenance of the area.  The walkway is strategically located at one of the center points of the city but it has been allowed to become an unsightly embarrassment.  Trash has been allowed to accumulate there (see pictures).
I have been in touch with the Public Works Department and have learned that this area is privately owned and is not under the jurisdiction of Public Works.  I understand that the heating system that is supposed to keep the walkway free of snow needs to be repaired.  I expect that this might be a major engineering project and can understand that this cannot
be fixed overnight.  I have learned that the owner does not expect to begin work on this until after the cing season is over.  Whether this is a reasonable time frame, I do not know.  What I do know is that the walkway is dirty and unbecoming of our city.
Has the city taken any action on this matter?  If not, can the city take action to require the owner to keep the area clean and to expeditiously do whatever repairs are necessary to remove the sawhorses?
I know you take as much pride in our city as any citizen of this community and expect that you share people’s concerns that this problem be addressed.    Could you please keep me advised on this and I will share the progress with the people who read my blog.

 

Some land use board members and perhaps others have wondered why members of the public get upset trying to resolve land use issues in this city. I offer the following as instructive of what it can be like to deal with the City’s Planning Department and in particular with City Planner Susan Bardon.

On March 8^th of last year I emailed Ms. Bardon raising an issue regarding a member of the Zoning Board of Appeals.  I requested that when she forwarded my question to this person that she copy me.

On March 10^th when I had not heard from her, I emailed her again asking the status of my request.

Later that day I received the following from her:

John,

Your question has been communicated to Mr. Kaplan.

Thank you,

Susan

 According to Mr. Kaplan, Ms. Bardon never forwarded my email to him.

On April 14^th of last year, I emailed Lindsey Gonzalez in the Planning Department asking why a ZBA workshop had not been videotaped.   Ms. Gonzalez did not receive my email due to a mistake in the email address.  On April 20^th Ms. Gonzalez, having received my email, forwarded my request to Ms. Bardon.

On April 30^th, having heard nothing from Ms. Bardon, I followed up making the request to her again.

This is a follow-up to my inquiry regarding why the workshop on April 11 for the ZBA was not included in the video on the city’s web site.  As the email below documents, you received this inquiry on April 20.

I look forward to your response.

On May 2^nd I received her response:

Hi John and thank you for the reminder.

We start the webcast when a quorum is present and the board starts conducting business.

Also, there are times when board members meet to discuss legal strategy with one or more attorneys representing the City.  At these times there is no webcast. Susan

Most recently, on June 3^rd of this year, in light of the Kaplan incident I sent Ms. Bardon the following email:

Would you please see that the members of the ZBA receive copies of this email and copy me.  If you do not plan to do so, would you please advise me clearly on this.  As you may recall, Mr. Kaplan claimed that he never received the last email I asked you to forward.

JK

On June 28 at 11:36, having heard nothing from Ms. Bardon,I sent this follow-up:

I am resending an email I sent to you last week.  Please confirm that you have received this.

That same day, I received the following email from Ms. Bardon at 1:21:

I have received your email and it has been forwarded to the board.