Behind Closed Doors Bill Liblick’s “Mouth That Roars” July 18, 2014 The majority of our legislators ran on a platform of open, honest, and transparent government, but sadly the reverse has been happening at 100 North Street. Sullivan County Legislature Chairman Scott Samuelson is blatantly following in the footsteps of his predecessor Jonathan Rouis and is instead conducting most our county’s planning, business, and decision making behind closed doors. Samuelson’s closed door antics are not only angering some members of the legislature, but have also caught the attention of those who attend and report on legislative meetings. Legislator Cora Edwards is so fed up with the way our government is running she has invited Robert Freeman, Director of the Committee on Open Government (COOG) of the New York State Department of State in Albany, to come to Sullivan County on Tuesday August 26, 2014 at 4:00 PM to speak at a Public Forum about Why do we need open government and open meetings law? The meeting will be held in the Legislative Hearing Room - Second Floor - Government Center - 100 North Street, Monticello NY 12701 Since being elected to the Legislature Edwards says she has been puzzled “to say the least” by the rules surrounding when meetings are open and when they are closed. “I was told that if there are Legislators from different parties, Democrat or Republican, in a meeting and there are more than (4) Legislators, the meetings must be open.” There have been several subcommittees, such as the Transportation Sub Committee which had four legislators and avoided the Open meetings Law, along with the Casino Impact committee, and the Jail sub-committee. Recently Edwards asked for specific references to this rule regarding no more than (4) legislators. Edwards called Freeman and he referred her to the Open Meetings Law - Article 7 - Section 102.2 which defines Open Meetings and states that a Public body means any entity for which a quorum is required in order to conduct public business which consist of TWO or MORE members. Edwards asks if “that means that all those closed meetings - jail committee, transportation committee, and casino impact committee with (4) members of the legislature were not in compliance with the Open Meetings Law? She asked County Attorney Sam Yasgur for a second opinion, but his response went around in circles. (See Yasgur’s response to Edwards’ questions below) For Cora Edwards – she is alarmed about the frequency and legality of closed legislative committee meetings (transportation sub-committee; casino impact committee; jail committee). She claims that a meeting with LaBella Associates, the engineering and design firm selected to design the new jail that split legislators “was like musical chairs leaving her 10-15 minutes so that Legislator Cindy Gieger could ask her questions to the LaBella representatives.” “Not only did it feel unprofessional and embarrassing, but I thought it would have been better in keeping with our democratic form of government to have the meeting open to the public.” Edwards added, “I did not and still do not understand the need for two separate legislative meetings if the goal is for everyone to have a better understanding of the jail contract. It was not billed as a caucus meeting. In the meeting, Edwards specifically requested that any follow up meeting should be with “ALL NINE” legislators so they could hear the “SAME information at the SAME time.” Instead, Chairman Samuelson determined that at a follow up meeting on July 8, 2014 there would be TWO Separate (closed) meetings with the construction firm LaBella - one in the morning with the 2 Republicans and one in the afternoon with the 7 Democrats. At the July 8 meeting in the afternoon, Edwards specifically asked if there were questions in the morning meeting that had not been brought up in the afternoon meeting, and the representative from LaBella said he thought the questions were more or less the same. “Only later did I find out that there was a discussion in the morning meeting about moving the radio tower at the proposed jail site, and was subsequently brought up in the Public Safety and Law Enforcement meeting on July 10, 2014 which is open to the public,” Edwards claimed. This is a very clear demonstration of why you need all legislators responding to the same information at the same time. It creates more open and efficient decision-making with precious taxpayer dollars. Another reason is because we live in a democracy, and we are accountable to a host of constituents who have elected us to represent them,” Edwards said. Edwards added, “When closed meetings become the order of the day because some legislators dont want the media present - or ALL the legislators together - the end results are poor government and lack of trust in the legislative process.” “Now we face a situation where we have (3) resolutions that have been sent about the jail with less than (24) hours until to digest and understand and research and formulate questions. And this is about one of the largest capital projects that the County will face, with crushing debt implications for generations to come. Is this the beltway to operate a $200 million dollar public concern?” Edwards noted that “This does not mean that EVERY time a legislator meets with a department head or Commissioner that a news reporter needs to stand by. There is always a time - in the monthly committee meetings and when special meetings are called - for the information about daily operations to be presented to all legislators. That is different than the deliberate attempt to Divide and Conquer so that particular agendas are pushed through in the guise of the parliamentary process.” “I think that just by reading the law, Section 102.2 of Article 7 as directed by Robert Freeman is an eye opener. If more than two legislators constitute an open meeting, than we have been under a wrong assumption for the last two and a half years!” Legislator Cindy Geiger told me that “by closing the door when conducting county business, public information is not only limited to those like myself working hard to make an informed decision are left to fill in the gaps. Closed door committee meetings have included Casino Impact, Jail Project and county Redistricting meetings. According to NYS Open Meetings there is a list of approved reasons to conduct a closed Executive Session. All other business should be public business.” In a published report in the Times Herald Record Legislature Chairman Scott Samuelson said the behind closed door meetings were mainly informational meetings and were necessary claiming newly elected legislators needed to get caught up. I think its important for legislators to be fully aware of what theyre talking about before having a public discussion, Samuelson told the Times Herald Record. Legislator Jonathan Rouis told The Times Herald Record that he didnt think it was necessary for the public to be present for the meetings. The public has seen this over and over, Rouis said. I dont believe (having the public present) would have made a difference. In a blistering attack on Rouis’ comment, Edwards said it “shows the level of disregard he has for the taxpaying public. If he doesnt believe that having the public present would have made a difference, then why is he a legislator? The public is very knowledgeable about the issues they care about.” In a plea to the legislative leadership, Edwards said, “The issue they discussed in private last week is a very public one - the cost and location of a new jail. People who live in the county have been talking about this for years and will be talking some more as the proposals to finally construct a jail move through the Legislature.” Edwards added, “While state law allows closed meetings for a very small list of very specific topics, including the awarding of contracts, the private meeting that legislators held was not among them. The public has seen this over and over, Legislator Jonathan Rouis said. I dont believe (having the public present) would have made a difference. But it doesnt matter what he or others think. What matters is the law, something that lawmakers should respect.” The discussion with Robert Freeman, Director of the Committee on Open Government on Tuesday August 26, 2014 at 4:00 PM at the Legislative Hearing Room - Second Floor - Government Center - 100 North Street, Monticello, should prove very interesting. County Attorney Sam Yasgur’s Response to Legislator Cora Edwards Explaining Closed Door Meetings: “I am not aware how the discussions tomorrow are being established. I dont know how many Legislators will be in each group, whether the individual groups will have Legislators from different parties, or whether a quorum of the Legislature or a Committee will be present at one time and place. “Accordingly, I cannot provide you with a definitive answer to your question since all of those items are relevant in analyzing the Open Meetings Law provisions of the Public Officers Law. However, I hope the following will be of some assistance.” 1. Your e-mail referred to closed Legislative meetings. That statement assumes there will be a meeting as that term is used in the Public Officers Law. 2. The terms meeting and public body are defined terms in the Public Officers Law. In Section 102 of that law they are defined as follows: As used in this article: • 1. Meeting means the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body. • 2. Public body means any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body. 3. The case law applicable to Section 102 of the Public Officers law seems clear that when fewer than a quorum of the members of a Public Body gather to have a discussion, even a discussion about public business, there is no meeting of the Public Body as defined in the Public Officers Law and the gathering of less than a quorum is not subject to the Open Meetings requirements. In other words when a group of Legislators who are fewer than a quorum of the Legislature or an applicable Committee get together in private, it is not a closed meeting since it is not a meeting as defined by the Public Officers Law. Meeting is official convening of public body for purpose of conducting public business and as such when quorum of public body, such as school board, meets for purpose of conducting public business, such gathering constitutes meeting subject to Open Meetings Law. (Opinions of the Committee on Open Government, OML-AO-1422-1423, and 1427.) 4. Therefore, it would be important to know whether any of the two gatherings will include a quorum of the Legislature or a quorum of the Jail Committee. 5. Even if the gathering does include a quorum of the Legislature or of the Jail Committee, the gathering may be exempt from the Open Meetings requirements if all of the Legislators present are of the same political party and the gathering is called as a political caucus. 6. Subdivision 2 of Section 108 of the Public Officers Law, entitled exemptions reads as follows: Nothing contained in this article shall be construed as extending the provisions hereof to: • 1. ... • 2. a. deliberations of political committees, conferences and caucuses. b. for purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations; 7. A number of years ago it was held that a political caucus could only convene to discuss political matter. However, the new section states that when the Legislators of one political party gather together as a caucus they may have discussions about public business and that such caucuses are exempt from Open Meetings requirements. The Legislative Declaration which accompanied the 1985 amendment reads as follows: Legislative declaration. The legislature hereby reaffirms that the public business of public bodies of the state of New York should generally be conducted at open and public meetings. Nonetheless, as recognized by the court of appeals of the state of New York in Matter of Orange County Publications v. Council of the City of Newburgh, 45 NY2d. 947, 949 neither public nor private meetings of governmental bodies are inherently desirable or undesirable. Whichever kind of meeting is permitted or required there are . . . offsetting losses or gains. When enacting the open meetings law, the legislature intended and provided that the deliberations of political committees, conferences and caucuses should be exempt from the coverage of such law. Such exemption was enacted in furtherance of the legislatures recognition that the public interest is well served by the political party system in legislative bodies because such parties serve as mediating institutions between disparate interest groups and government and promote continuity, stability and orderliness in government. The performance of this function requires the private, candid exchange of ideas and points of view among members of each political party concerning the public business to come before legislative bodies. Recent judicial decisions have, however, eroded this exemption by holding that it applied only to discussions of political business. Accordingly, the legislature hereby declares its adherence to the original intent of the legislature, that the provisions of the open meetings law are not applicable to the deliberations of political committees, conferences and caucuses of legislative bodies regardless of (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations. 8. The Committee on Open Government also recognizes the exemption in its opinions. By way of CONCLUSION: A. If one or both of the gatherings tomorrow include less than a quorum of the Legislature or the Jail Committee, such gatherings would not be meetings as defined in the Public Officers Law and the Open Meetings requirements would not apply. B. If one or both of the gatherings were limited to the Legislative members of a single political party as a caucus, such a gathering would be exempt from the Open Meetings requirements of the Public Officers law. (A political caucus can include any guests the members of the party want to have present OTHER than a Legislator from the other party. C. No formal vote could be taken on the jail project at any gathering held in conformity with Paragraphs A and B next above since such votes must be taken in a convened meeting of a public body. D. If either gathering is a convened meeting of a quorum of the Legislature or the Jail Committee and not a political caucus or a gathering of fewer than a caucus then the Open Meetings provisions of the Public Officers Law would apply. Bill Liblick has made a name for himself of National TV Talk Shows where he spouted his outspoken views from the front row. Now he offers you his opinion every week in the “MOUTH THAT ROARS” Column in the Sullivan County Post SullivanCountyPost Join in on the Conversation on Facebook in the group Sullivan County Post sullivancountypost/2014/07/18/behind-closed-doors/
Posted on: Fri, 18 Jul 2014 12:40:43 +0000
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