Friday, October 14, 2011

last night's executive session: Whiteman Osterman and Hanna suing the town? violating public officer's law again? speculation?

Howl alert: before anyone starts howling: 1) if you didn't go into executive session with little explanation, people would not have to speculate about what you are doing; 2) the conclusion that Whiteman Osterman and Hanna is suing the town is based on logical induction, not inside information.

So at the town board meeting (Stuyvesant) last night, the town transferred $14,000 to zoning and planning to pay for the special counsel and special prosecutors of Whiteman Osterman and Hanna. David R. Everett of Whiteman Osterman and Hanna was there. The board and David R. Everett, attorney and lawyer and partner at Albany's biggest law firm, the largest law firm in the capital district, went into executive session for 30 minutes. The reason was "Pending litigation regarding the Glencadia matter."

The only pending litigation right now is a Federal civil rights lawsuit and Everett would have no role in that case other than perhaps as a witness, so it can't be related to that case. There is no other pending litigation, so it's a bit of a mystery. Maybe Whiteman Osterman and Hanna is going to sue the Town of Stuyvesant for non-payment? That's the only case that would seem to be a legal reason for an executive session involving a lawyer unrelated to ongoing litigation.

So either  Whiteman Osterman and Hanna is suing the Town of Stuyvesant or the town board of Stuyvesant violated Public Officer's law again. Anyone see any other possibilities?

I mean maybe they talked about who would represent them in State Court - but that is not pending litigation. They might have said "potential pending litigation" in that case. But why talk about something that may or may not happen before it happens? And they didn't say "potential" litigation. The only actual pending litigation is in Federal Court. There is no activity in town bodies: the planning boards and zoning boards are done.

Wait: I got away out for them! I can save them! They can claim that the ... means that ... is pending... but ... so .... with case law showing... which must exist... Phew!

Or maybe they talked about the Federal lawsuit, but how can they talk to a lawyer about a case he is not handling? Can you talk about pending litigation with a lawyer unrelated to the case and call that conversation privileged? I would think not, but it's certainly a fine issue for judicial review.

Perhaps they went into the session to talk about the handwritten note inserted into the public record by someone in the town, a packet of materials relating to protected First Amendment speech which the town ZBA accepted as evidence, including an anonymous slanderous note, the author of which is known to the town clerk but is not the person who delivered the package of materials to the town.

This matter does relate to pending litigation, as it is a clear violation of civil rights. The attorney in question, David R. Everett, is involved in this incident since he accepted the same packet of protected speech, included anonymous libel, as evidence for ZBA action. The only comment he made about the packet was "excellent" in an email to the town clerk.

I think they could legally go into executive session to talk about this. But they would have to state the reason as "personnel" as the person who wrote the note and the clerk herself, who accepted the note, and the secretary of the zoning board, who passed the note to the members of the board, all work for the town. But they didn't say "personnel" and name the parties.

So, no, I don't think that cuts the mustard. They couldn't have talked about that, not legally.

I will now FOIL the minutes of the executive session and by law the minutes have to be released to the public in 7 days from yesterday. But they certainly have not written the minutes yet. So they have some time to think about what they did and adjust the minutes accordingly.

The minutes will probably be one sentence.

I mean, other than Everett suing Stuyvesant, they cannot go into executive session to discuss pending litigation, not legally, unless they claim that ... means ... which is a stretch.


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