Is Clarkstown Violating the Open Meetings Law?

BY MARIA MIRAKAJ BROWNSELL

At the last Clarkstown Town Board Meeting in February, Tom Nimick of New City spoke his three minutes asking questions about the town’s compliance with the Open Meetings Law. He specifically referenced resolution #38-2012 which had to do with the retention of lawyer Jay Savino. He did not receive any specific response from the board, so at this Tuesday’s workshop he brought the topic up again.

In regards to Resolution #38-2012, Nimick asked about where the decisions were made. “Mr. Gromack and Ms. Mele informed me that they were made in executive session last year. I mentioned to them that this was not proper business for executive session and Ms. Mele simply replied that she disagreed,” he said.

Councilman Hoehmann contradicted Nimick’s concept however. He said, “The action was taken in public. We voted on this in public. And if you go back over the records, there have been discussions and public comments about our desire to reduce the town attorney staff. That’s a matter of record. And it has been reduced, so there have been ongoing discussions that have been documented. It involves the disciplinary of another employee, certainly a matter for executive session.”

“I respectfully disagree. I think this board does an excellent job in complying with the law,” said Town Attorney Amy Mele. She stated that final decision about Mr. Savino was made at the town board meeting with the public, so that there was no reason for there to be minutes from the executive session.

Nimick said the board members are contradicting themselves. Prior to the workshop meeting, Nimick claims Supervisor Gromack said that a decision was made in executive session about the retention of Mr. Savino. At the workshop meeting he was told that there are no minutes from that session because the final decision was made at the public meeting.

According to section 103 of the Open Meetings Law, “Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section one hundred five.” Section 105 lists in detail what type of topics shall be part of an executive session, including issues that put the public in danger, disclosing the identity of a law enforcement agent, the grading of tests, and other more discreet matters.

“None of the three decisions underlying Resolution #38-2012 fall within those guidelines. In other words conducting the deliberations and making the decisions on these matters in executive session were violations of the Open Meetings Law,” said Nimick.

Section 106 of the Open Meetings Law state that “Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon,” and that “minutes of the meetings shall be available to the public within one week from the date of the executive session.”

“Since Mr. Gromack told me that the decisions underlying Resolution #38-2012 were made in executive session, according to the Open Meetings Law they should be recorded in the minutes of executive session. I requested to see the minutes of every executive session from 2011 and have been informed that no such minutes exist – in direct violation of the Open Meetings Law,” said Nimick. After requesting minutes from every executive session from 2011, he was informed that no minutes exist. He was told that no decisions were made, so minutes were not required.

Nimick reached out to the other four board members and warned them legal action may be pursued. He explained that if a resolution is challenged in court and declared void, the town will be liable for the attorney fees. He asked the board to avoid the fees and declare the resolution invalid themselves.

“My question is about the parameters used, the authorization for the decision to bid out, contract out this work. Those are the decisions I asked about, none of those appear here,” said Nimick.

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