Here is a Q&A on open meetings:
The Law provides for closed or "executive" sessions under certain circumstances prescribed in the Law. It is noted that an executive session is not separate from an open meeting but rather is a portion of an open meeting during which the public may be excluded.
Okay, the meeting that lead to these minutes was held during a public meeting as per the law.
The Law requires that a public body take several steps to close the meeting. First, a motion must be made during an open meeting to enter into executive session; second, the motion must identify the general area or areas of the subject or subjects to be considered; and third, the motion must be carried by a majority vote of the total membership of a public body.
That happened in February 2011. They did these things.
Citing "personnel matters" is not a sufficient ground for going into an executive session.
Stop. That was the only reason cited. Valerie Bertram said, "We are going into executive session to discuss a personnel matter." The board agreed and off they went. No more information.
The motion to go into executive session should be more specific. For example, a motion could be made to enter into executive session to discuss "the employment history of a particular person." The person would not have to be identified.
No, nothing more than "personnel" was given as the reason. You would have never known they were hiring special counsel, if they did in fact hire special counsel as per minutes. And I am not convinced that this executive session and these minutes correspond correctly.
It is important to point out that a public body cannot vote to appropriate public monies during a closed session. Therefore, although most public bodies (except school boards in most instances) may vote during a properly convened executive session, any vote to expend public monies must be taken in public.
Stop. No. They hired special counsel and spent a ton of public money, maybe 5% to 10% of the total annual budget as a result of this executive session.
So was it a personnel issue anyway?
Here is the legal definition:
... the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation...
No medical issues, no issues of credit. We can forget those. Tal was not dismissed, suspended, demoted, disciplined, removed or promoted, as indicated by board members in subsequent meetings.
How about "appointment" and "employed"? Special counsel might be an "appointment" but you would have to actually appoint the special counsel by name, not create the category to be filled later. The contract would have to come first, then the appointment, not the other way around.
In the case of the criminal charges handled by Whiteman Osterman and Hanna as special prosecutor in court based on this executive session, that would only be after approval by a judge.
So here are the outstanding issues with this process:
1. The executive session in February was called and approved in a public meeting but the rationale for the meeting "personnel" was too vague to allow for the executive session.
2. The issue discussed was not in fact a personnel matter as defined by the law.
3. Money was spent as a result of this executive session, which is not allowed.
4. A special prosecutor for criminal court emerged from this executive session in violation of criminal court procedure.
5. The minutes were never entered into the public record and no vote to approve the minutes was taken in subsequent town board meetings. There is no evidence that the minutes were written within 10 days of the session and there are no dates by the signatures on the minutes linked above.
6. The minutes only notes "planning" special counsel but the firm has acted on the zoning boards and in criminal court.
7. Attorney client privilege claims have resulted from this flawed process which may shield further errors and violations.
8. The minutes authorize the supervisor to enter into a contract which would then have to be approved in public meeting and no such contract was entered into the public record.
Conclusion: Large amounts of public money have been misappropriated without legal authorization. Claims of attorney privilege have been abused by an attorney without legal standing to do so.
Remediation: Whiteman Osterman and Hanna should return all funds to the taxpayers of Stuyvesant and this process should be restarted and done over legally and publicly at the next public town board meeting. All records held as privileged should be released on the town website.
Fake response: Since I didn't get a real response, I wrote my own fake response.
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