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Tuesday, May 11, 2010

Town Board Agenda Displays More Conflict


They just never seem to learn how to do the right thing and work together in North Greenbush. Thursday's agenda is yet another in your face example of board members not sharing information with the public and each other. There are numerous appointments to boards which provide the public with no name for the public comment period, rendering it virtually useless. And there appears to be yet another effort, this time led by Lou Desso, to turn the Town Ethics Board into a political tool of one board faction, that of the majority.

Desso apparently plans to appoint his very own "Democrat" to the Ethics Board rather than permit the minority Democrat on the board, the Supervisor, to offer that nomination. This is very similar to what the County Legislative Republicans attempted when they tried to hijack the County Ethics Board by appointing the Democratic members with loyalists who happen to be registered as Democrats but who are GOP allies. Al Spain was their first attempt at this but pressure brought a change of direction and Minority Democrats were eventually able to nominate their Democratic choices which were accepted by majority Republicans.

Not here in North Greenbush though, when the GOP's Desso is apparently determined not to accept a Democratic nominee for the position supported by the only real functioning minority party board member, Supervisor Ashworth. She placed the name of former Councilman Alan Michaels on the agenda only to be be hit with a competing resolution from the GOP's Desso.

Republicans have already placed a partisan figure on the board with the appointment of a former GOP Town Chairman. Their first Democratic choice resigned as quickly as he was appointed and for 5 months, the Ethics Board has not been able to function with only two members. With an Ethics Complaint lodged against Al Spain for failing to recuse himself from a vote to appoint his brother's lawyer to a paid town position in apparent exchange for free legal services, it's clear the Republicans want an Ethics Board THEY can trust!

So it will likely become a GOP tool Thursday night rather than a somewhat fair and balanced broker of political disputes. Hey, kind of reminds us of Desso serving in a conflicting elective office and that cute March Madness analogy of trying to play for both Duke and Butler! Play ball Lou! Shucks, which team is he on today??? A Republican trying to rig the game by appointing the other team's players?

Then there's that pesky FOIL request that the Town Clerk is apparently trying to avoid answering. It revolves around the controversial minutes of a Comprehensive Plan meeting which was a multi violation of the State's Open Meetings Law, from a lack of a quorum for voting to the apparent failure to take any minutes. The "minutes" showed up one day in the Town Clerk's Office, all 35 words of them, and no one but no one wants to say who created them. None of the 5 CPC members at the meeting apparently took them and none will admit to having taken them. Yet somehow they miraculously appeared as an official public record in the Town Clerk's Office and were supplied and certified as a true copy of an official town record. So who wrote these minutes and brought them to the town clerk? No one's talking, especially the town clerk and CPC Chairman Al Spain who as of yet hasn't had the courage to admit he simply neglected to take them. He prefers to let his friend the town clerk take the heat for her role in disseminating the so called minutes pursuant to a FOIL request. Trouble is, those minutes are obviously phony and contrived and rather than answer a FOIL request that would prove their falsification, we instead will be treated to a good old fashioned cover-up.

The Freedom of Information Law is designed to open the doors of government. It has unearthed embarrassing and unlawful acts by government officials over the many years of its enforcement in our State. Thursday night, we'll get a look at what the town clerk is not responding to as required by the statute which reads:

S89(3) (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.

(b) All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.

4. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.

The Town Board is the Appeals Officer for the town on all FOIL matters. If the Board sustains the response of the Records Access Officer as fulfilling the FOIL under the statute and the aggrieved party disagrees, then and only then does the party have the legal right to take the matter to court under Article 78. A judge will then review the actions of the Records Access Officer and the Town Board in sustaining the response of the Records Access Officer. He can sustain the actions of the town or rule that the town failed to comply with the law and order the town to answer the foil in accordance with the statutory requirement.

The sad thing about this particular FOIL is how simple it would be for the Town Clerk to comply with the law by answering it honestly. There are 6 items or sets of records requested. If they don't exist, she need only state so in writing to fulfill the request. Ask yourself why she is afraid to say the records requested don't exist? One of the records is an audio tape of the June 2nd CPC meeting which in all likelhood does not exist. So why be afraid to say so? Another is the computer file from which the minutes were created. Something scary there too? Another item is the emails, if any, she sent, requesting a copy of the minutes and the responses from committee members to that request. The only potentially damaging thing there is if the records do exist and they inform her that there were no minutes taken. Now we may be touching a raw nerve.

The bottom line in all of this is that the public has the right to know that public records are not being falsified by town officials for any reason. That the records kept on our behalf are true and accurate and not created to protect someone's negligence. Town officials should be anxious to show they did nothing wrong. We wonder why they are not?

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