Friday, May 27, 2011

abuse of power and silence

So it's been three weeks since we had a videoed threat. This action was seconded by another official of the town. No other official response from the town.

Valerie Bertram abused her authority as chair of the public safety committee and there has been no response from county officials. She leaned on cops to harass someone she disagrees with politically. She has done this before this year, leaning on cops to go after her political opponents.

The rule of law is suspended in Stuyvesant? Isn't this lawlessness?

What do these guys think about this? Valerie Bertram is the number three official in the county board of supervisors structure, deputy majority leader, chair of ethics board, public safety committee.

Do Beth Cozzolino, Paul Czajka, and Roy Brown approve of all of this? They must know. They've received letters.

Step up and speak.

Wrong is wrong. You can use your political position to harass people you don't like with state power. Nothing could be clearer or more wrong.


Monday, May 23, 2011

DB→ s=4π*r^2⇒1/(1000^2)*50≠1/(50^2)*2 vs. voodoo

If you're here for the story of the abuse of authority at the Columbia County Board of Supervisors Committee of Public Safety, click here.


Tonight it's back to the planning board for me in the town of Stuyvesant, New York, 12173. Representing the planning board: David R. Everett, Whiteman Osterman & Hanna, partner to town special prosecutor William S. Nolan, also of WOH, an Albany law firm.

In this blog post I will argue that the charges against me are the local equivalent of fantasy island as described in this article. And voodoo is expensive.

Every time they make me go to one of these meetings, it costs me $700 to walk in the door. In my lawsuit I ask the town to return this money to me. Plus, the $1000 the town is paying their lawyer... Plus the town's $500 per hour lawyer also writes a letter for about $1000 every month. So maybe $2500 per shot, sometimes a lot more, sometimes a bit less: January, March, April and now May. Plus other expenses...

Isn't it time to wrap this fiasco up?

I offered to settle. Instead of agreeing to my terms the board decided to have a public hearing for about $3000, mandated a sound test for $3000, then instead of accepting the results of the test that the lawyer for the board (since the board never actually votes on stuff) required, now the board wants more tests and fees. David R. Everett, Whiteman Osterman & Hanna, insisted that we review the report, although he mandated it and the results are obvious and predicted accurately beforehand in the physics paper.

When Mr. Everett came aboard, I was hoping he would insist that the board take the role of impartial arbitrator of a dispute, not an active prosecutor of one of the parties before the board, the one who voluntarily appeared. As I hoped that Mr. Everett would insist that this case be handled fairly, I offered to give him information that I am not obligated to give him. I assumed that he was asking for, say, my monthly average dog boarding totals because he was genuinely curious. His letter last week refers to my voluntarily offer to give the board information. Here is Mr. Everett's letter. Expect an official response soon. Here is the information I promised to give him, if not all he is currently asking for.

And this suggests just how much good faith one can assume in this case.

The taxpayer is the loser in this battle. I'm sick of it myself. Wouldn't it nice to be done?

You will pay more for this case than the town will pay for the justice departments, assessor's office, recreation fees... a lot, maybe combined. It could be a large piece of the 2011 budget if things are not brought under control, even before we get to federal court.

Voodoo politics is costing you a lot of money, a lot of dollars per man, woman and child in the town of Stuyvesant.

Had enough? I've been ready to quit, settle, build, study... whatever they wanted, I tried it. Its time for the board to call it quits. The science is clear.

To be clear for those that need reminding, I have been charged with something that is impossible according to the laws of physics. If I had been charged with kidnapping Santa's elves at least that would be possible because Santa does exist.

A physics professor submitted a paper showing that the charge is impossible in 2010. An engineer with a major acoustics design firm took measurements which showed that my facility produces no measurable noise at all, report submitted just this month. That is: ZERO because the normal sounds (wind, birds, cars in the distance) is MUCH louder, such that the increase from the dogs when they are encouraged to bark and are in fact barking is ZERO, nada, at the property line.

No one has consistently complained of dog barking. One household wrote a letter stating that there was no problem for four years, then complained, then says it's just my own personal dog, then says it's not loud but is annoying, then says it's loud, submits a video that shows that the barking cannot ever be loud, as indicated by the measurement and calculation.

Is this complaint really all that compelling?

Everyone else who complained only did so 1) when they were encouraged to submit statements months after my permit was revoked or 2) at the instigation and with the encouragement of Gerry Ennis.

One neighbor complained who lives 2400 feet away who I have only spoken 10 words ever talked about property values. He said that I said something negative about members of the planning board. Untrue. Other than criticizing Tom Shanahan for this outburst I had never mentioned and still have never mentioned any member of the planning board on any blog. He also mis-identified horse manure as dog waste and made a series of false statements in his letter to the board. Another neighbor who lives 1600 feet away said that I referred to her as a "hick" in an email or blog (I have never spoken to her in person). This assertion would be easy to prove true if it were true. Untrue. This same neighbor has said three times that she did not know my camp existed until Gerry Ennis told her what the source of her barking problem was. Two of her neighbors have indicated that the source is not Glencadia Dog Camp.

Members of the town board have known for months that the charge is false.

Voodoo government? Occult municipal law?

This means no noise at all as measured:

“The sound level meter constantly monitoring the dogs of Glencadia Dog Camp captured only two sustained periods of barking, both of which required the client to run around the pen with all of the dogs currently staying at the camp. During these periods of barking, measurements were taken with the other meter at the property line, see measurements 04 and 05, between minutes 18-23 (approximately). During these measurements, the average background sound levels at the property line did not increase from previous measurement when the dogs were not barking.”

-- Ken Andria of Acoustic Dimensions, May 2011

This means impossible as calculated:

“Glencadia Dog Camp has more dogs than other residents of the hamlet. However, distance is a tremendously important factor, given the inverse square calculation. Light intensity, the effect of gravity, many other forces in nature decay at the inverse square of distance given the formula of the surface of a sphere. To say that Glencadia Dog Camp obviously produces more barking noise at the relevant locations makes no more sense than to say that the sun is the brightest star in the universe.”

-- Markku Jaskelaainen of the Institute of Fundamental Sciences, Massey University, October 2010

Read the whole thing here.

Question and answer

Q: Hey, Will, couldn't you have figured out a way to make this all go away quietly?

A: In 2010 I spent $5000 on sound proofing even though I didn't think there was any real problem, as agreed with Gerry Ennis. Gerry Ennis illegally revoked my permit anyway, only a couple of weeks after I finished doing the construction.

Thanks for showing a willingness to work with us!

Q: Hey, Will, couldn't you just settle this thing? 

A: In December 2010 I offered to settle with two conditions: 1) only 50 dogs and 2) dogs in the barn from 7PM to 7AM. I offered to settle to save time and money, not because I thought the conditions were very logical. Instead of accepting my offer in good faith, the town attorney and supervisor intended to use my offer as an excuse for a second ambush (after the October ZBA travesty) and essentially render my permit void, as Valerie Bertram told me they intended to do to me.

My offer to settle, rather than leading to a quick and cheap settlement, lead to public comments and a sound test which cost me more than $10,000. I've spent $50,000 in less than a year, not including interest.

Thanks for offering to settle!

Q: Hey, Will, why don't you drop all the stuff about the missing money from the town budget and the unfair assessments and stop blogging? Maybe then they will leave you alone.

A: No deal. This government conspired and broke the law to take something that is important to me, my business. It's mine. It does not belong to Gerry Ennis or anyone else. I made it. I invested my money and time and it's how I provide for my family.

They wanted to take it from me, just like communists do after a revolution. They can't do it, but they really wanted to ruin me. Why? Jealous? Racist? anti-Semitic? Mean? Dictatorial? Cruel? Punishment? Intimidation? I don't know everything about all the reasons. I have a couple of telling hints. I know there is no good reason, so I list the possible bad ones.

Someone want to say with a straight face that this would have happened if I have gone to school with Gerry Ennis and we were buddies or something?

No, I decided, you can't just run over me. I don't know what I'm going to do, or how, but this is some bull and I'm not taking it. I never dreamed a government would lock arms and attack me like this for nothing. It just never occurred to me.

I hate conflict. I don't like to fight. I'm very easy to get along with. But this was just bull. I was complete railroaded and given no chance to present my side of the story.

At first I wanted them to back off. Boat club assessment, profitable laisse faire invoicing procedures, useless salt shed/boondoggle/slush fund: you have stuff you care about too. Why should you get to keep all that if you try to ruin me for nothing?

I expected them to back off me before it got this far, but they kept on coming. At first, I only meant to throw a brush back pitch to stop crowding the plate, do a little FOIL back. But they charged the mound. This was my first game and I wasn't prepared.

Now I want to be sure that this kind of crap will never happen to me or anyone else again. It's not enough to leave me alone. This corrupt government has to stop being corrupt and the system has to change. Then I'll be done.

But I'm not done now. I'll know when I'm done and this blog will be closed and I'll head back to the ranch. That time is far in the future.

This is a real waste of time and money. What an eye-opener.

Q: I still don't get this case.

A: Let's say you open the mail one day and it's a letter from the authorities: "Dear Will, You have kidnapped Santa's elves and until you either prove you didn't do it or let them go you will pay $200 per day in fine and fees."

So you write and ask how to appeal this decision. You have no right to appeal.

So you go ahead and prove that you didn't kidnap Santa's elves. You invite all the town over to have a look and see if anyone can spot them. You hire a professional elf finder, then another, and, nope, no sign of them anywhere.

Still, you keep paying the $200. After 6 months paying $200 per day, the guys accusing you of kidnapping the elves decide that they do need some evidence. So they get a video. They use this video to increase the fine to $300 per day.

After two months, they finally let you see the video. It doesn't show that you kidnapped Santa's elves. It's an episode of the Simpsons from 1997.

That's what happened!

Friday, May 20, 2011

emailgate: vbertram@... is not a personal email. what happens when you lie to the police?

This story is reported here first. I believe that it is a courtesy to mention the original source of a story or provide a link when other outlets pick a story up?

On Saturday May 14, two officers of the Columbia County Sheriff's department visited open government activist Martin Roby. The officers were responding to a complaint by Valerie Bertram, supervisor of the town of Stuyvesant and chair of the public safety committee Columbia County Board of Supervisors. Here is Mr. Roby's letter to the Sheriff.

Martin Roby is fresh off a series of victories in his campaign for open government locally, getting positive opinions from Robert Freeman supporting his call to release the financial information, including deposit slips and bank records without redaction.

The public safety committee chaired by Valerie Bertram deals with employment and other matters relating to the Sheriff's department, as you can see here and here.

Ms. Bertram claimed that Martin Roby sent her too many emails, or something, and that he was using her private email, the one listed on the County website here on the Stuyvesant page. Ms. Bertram never asked Mr. Roby to stop sending emails. There is nothing remotely threatening in any email sent by Mr. Roby.

It would appear that Ms. Bertram leveraged her position as chair of the public safety committee to get officers to possibly intimidate her political opponent based on false infromation. The officers would not have assumed the information to be false, or would have had trouble questioning the information, given her position. The responding officers did not in fact take any adverse actions against Mr. Roby and seemed to have acted appropriately given the information available at the time. If they had known that the email address is clearly public and that there is nothing remotely offensive or that the emails contain nothing in any way beyond the norm of political discourse, they might not have called on Mr. Roby at his residence to ask him a series of questions, run his criminal record.

Her report to the officers on Saturday (or before) contained false information: the email is not private, there is no reason to feel threatened. The fact that Ms. Bertram's accusation is ludicrous is perhaps less interesting than that it is false.

Mr. Roby did not harass Ms. Bertram. If he sent her an inappropriate email, she will be able to produce it. If there is an investigation of harassment under way at the sheriff's office, they would be willing to state that fact. There is no such investigation.

Did Valerie Bertram say that is a private email account? Why is it published on the county website? If someone who is not the chair of the public safety committee were to complain about unwanted email, what would happen?

Can I get the sheriff to send someone over to Barack Obama and ask him to stop emailing me requests to donate to Democratic candidates? Could they please stop by Kinderhook Bank and explain that I do not need a notice both when I issue an online banking payment and when the check actually goes out and that a single email would suffice? Also, please let Yelp know that I don't want any more updates on that restaurant I reviewed in 2009 because I think I never actually ate there.

And if Mr. Roby would like appeal any denied or ignored FOIL submissions, please pass them to me.  I can post them on this blog . Town attorneys do read this blog pretty regularly. Perhaps Mr. David R. Everett Whiteman Osterman & Hanna (WOH.COM) will see the FOIL appeals here and forward Mr. Roby's requests to Ms. Bertram?

This problem follows on the heals of Ms. Bertram's use of her position as the chair of the County Ethics board. As I said, the hole in the roof of the Columbia County Board of Supervisors's house gets bigger and more water comes in.

Don't forget this. I would like a statement from the town board as to whether or not equal protection and the rule of law are the official positions of the town government or if they are operate according to some other criteria.

Is it to much to ask for an up or down vote on the rule of law?

Thursday, May 19, 2011

government lawyers

In the past few months, I’ve stumbled across the issue of the obligations and duties of a government lawyer. If you have followed this blog, you are unlikely to be surprised that I think government lawyers I have come across in this battle have forgotten that they are paid by the public and should serve in the public interest.

I think government lawyers should say no to public officials once and awhile. Also, these lawyers should tell their clients to follow the rules. If the officials fire them for this, then they can go over the heads of the officials and go to the voters with the information. Or there might be some other mechanism to protect ethical lawyers. I haven't figured this part out yet.

The NYSBA Task Force on Government Ethics recently said, "There is agreement on the basic principles of public service: public servants are expected to act in the public interest; public servants are expected to act honestly." The clear thrust of the task force report (not the quote, the whole report) is that holes in the current municipal ethics framework allow for unethical behavior to flourish.

I see little daylight between the report and my complaint as filed in the Northern District, Federal Court.

This blog post deals with government attorneys who are not public defenders or prosecutors. The rules for those two types of government lawyers (defenders and prosecutors) are relatively clear. I’m concerned about the others, all the contractors and employees who work for local governments, a few of whom I have come to know over the past few months.

Courts have ruled on this. On one hand, the consensus seems to be that the attorney works for the board or legislature [Brown & Williamson Tobacco Corp. v. Pataki, Salkin, supra note 3, at 288; Upjohn v. United States, 449 U.S. 383, 389 (1981).]

This makes sense. While the attorney is paid by the taxpayers as a group and represents that government as a whole, the elected government is empowered by the citizens and taxpayers to govern, in theory. Thus, the government attorney works for an elected government as a governing body (assuming they are not up to something other than governing), not the individual citizens in that jurisdiction. The alternative to this position might be either chaos or attorneys who get to choose who and what they will do without paying attention to the duly elected governing body of the jurisdiction.

If the board is the client, of course, the board has to meet, have a quorum and vote on what the attorney should do and who the attorney will be. I have yet to see this actually happen. Somehow, the attorney just does stuff, writes letters on the behalf of the board, takes actions, maybe consulting the chair of the board, but without a vote, sometimes without a quorum. In my experience, the board seems to be standing still while the attorneys dance around and do whatever they want. That, I am quite sure, is a problem. I don't see, in fact, clear lines of authority from elected officials who vote and go on the record and attorneys who take actions based on votes conducted on the record and in public.

Lawyers do stuff based on back room, obscure deals that may not reflect the will of the majority of the board in every case that I have experienced first hand. To me, this pattern of cloudy authority seems to be the norm, not the exception.

Leaving the issue of whether the board actually voted to take the action presented in an attorney letter, let’s assume the board voted for the attorney to do something in a legal way, with a real vote. (I’ve never seen that happen but let’s pretend.) Now the board is the client and the attorney is the attorney.

To say that the town government (or county, city, etc.) is the “client” is not the end of the story, however. First, we have to note that the determination that the government is the client is based on the assumption that the elections that produced the government were free and fair. If the elected officials in fact stole their offices, then the attorney should clearly not accept taxpayer money to do their bidding even if they actually went and voted on something (again, hypothetical).

Okay, democratically elected and actually voted: now we also have to assume that the government is governing and not doing something else. If instead of governing, passing laws and stuff, the board is, say, running an illegal gambling operation in town hall, then what should the attorney do? Even if they vote to have the attorney file papers to get their poker operation online, should he or she actually do it?

Forget gambling. What if the board is giving out taxpayer money to their friends? Or assessing the properties of their allies ridiculously low? Or trying to drive political opponents out of town by destroying their businesses? Or making threats of physical violence? Or orchestrating witch hunts? Or passing laws to put their enemies in jail? Or hiring special prosecutors to put their enemies in jail? Or encouraging neighbors to observe or harass other neighbors? Or taking strange payments? Or putting a residence under sustained surveillance for no reason? Or sending in fraudulent invoices? Or not turning over deposit slips? Or ignoring FOILs? Or trolling the internet for reasons to raise the taxes of their political opponents? Or trying to stifle free speech? Or discriminating against people because of who they are? Or putting malicious documents into the public record?

We can’t assume that governments just govern. They might have some choices about what they will in fact do when they get into power.

Precedent seems clear on this: the government attorney in no way can be the private attorney for the individuals who are the elected officials. Elected officials have to hire their own attorneys to defend themselves from criminal or civil charges just like everyone else.

So, not all clients are the same. The board might be the “client” but that is not the same as my personal lawyer, me as a client… not even close.

And the courts more or less see the logic of separating the individuals from the government as a whole. “[I]t follows that . . . [a] government lawyer [is] duty-bound to report internal criminal violations, not to shield them from public exposure.” [In re Witness Before the Special Grand Jury, 288 F.3d at 293 (citing Nixon, 418 U.S. at 712-13; In re Lindsey, 158 F.3d at 1273).] And “the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials.” [Grand Jury, 112 F.3d at 920-21.] And there is the fraud-crime exception to priviledge (Id. at 505; Zolin, 491 U.S. at 573, etc.].

So, the government attorney should not take the taxpayer’s money to abet or enable individual government officers form engaging in crimes regardless of whether they were fairly elected or not, whether they actually voted on something or not.

Now here is a new problem: what do you do when the official activities of the government official are suspect and this behavior leads to a lawsuit against the local government as a whole? In terms of punitive damages, the government attorney should work to prevent the taxpayer from taking a hit by fighting the suit to prevent the court from ordering the town to pay up.

But what would the attorney’s obligation be if the lawsuit requests a remedy of, say, answering FOIL requests or asks the court to issue an order to obtain unpaid real estate taxes, all actions that would benefit the town as a whole, the taxpayers as a group? If the lawsuit were intended to increase the revenue and accountability of the government, why would the government attorney even want to spend taxpayer money fighting such a suit?

If the board didn't vote, how can the attorney know what to do with the suit? Maybe he/she should agree to the items that are in the public interest, or at least get the board to vote of whether or not they want to fight, say, a suit designed to collect back taxes from scofflaw property owners?

Why would the town spend money to fight a suit designed to collect taxes from scofflaw property owners? And if they did decide to do that, wouldn't the board have to vote?

What if the interests of the town and the official conflict? What if saving the taxpayer money, improving government services and accountability and preventing the disclosure of information damaging to the official are at cross purposes? This scenario must have played out many times. Should the official have their own personal lawyer to defend their interests? And then we have three parties?

And where is the vote? The board should settle these matters before the town goes to court and starts spending tax payer money.

The official was working in his/her official capacity and his/her official conduct lead to a lawsuit. Even if the official might have been abusing his/her authority, that might be a difficult call to make: were all of his/her actions abusive? How hard would the attorney have to work to find out? Seems like the government lawyer is duty bound to check and see if the client is in fact governing.

The town as a whole, the government is supposed to protect the official from legal bills for official work. Yet, if the official is clearly engaged in illegal activities, how is it fair to expect the citizen to pay his/her own legal bills but the wrongdoing official is allowed to avail him/herself of the almost unlimited legal budget of the government?

There have to be some kind of guidelines.

Here's what I propose as rules:

Is the government fairly elected (and agencies under that government)? If yes, then that board is my client.

Is the government official or board asking me to do something that has to do with governing? If yes, then I can respond to the request. If no, then I must decline the offer.

Is the governing official or board doing something clearly illegal? If yes, then I have to tell them to stop in writing.

Is the governing official or board possibly doing something illegal or unethical based on reasonable information but I'm not sure? If there is a good chance they are doing something illegal AND/OR they are asking you to do something unrelated to governing, then the attorney must ask the governing official for more information and inform the official in writing that there may be an ethical issue at stake. The attorney must then wait before acting until the issue is resolved.

This would need some more clarification but you see how it would work: a stop and check letter. Joe says you, official, are stealing and that is why you are asking me to go and start proceedings against this same Joe. Send the stop and check letter.

The board should not be able to hire any other attorney until the matter in the stop and check letter is resolved. It doesn't have to be a crime... something unethical. Stop and check. Everything is kosher? Okay, then we proceed? Not sure? Then stop.

Is the governing official or board asking me to do something without getting legal approval (voting)? If yes, you must tell them in writing how to legally request these services, outline the procedure for hiring and ordering attorney work.

Is communication between officials and lawyer confidential? If the communication addresses issues of governance, yes. If the communication is about anything other than governing, no. That is why the attorney needs to send the official a letter when the issue has moved out of the governing realm, to advise them that they are not their personal attorney and can ethically and legally (if I had my way) deal with governance issue.

Now, what does governing mean? Certainly, passing legislation is governing and threatening to beat someone up or attempting to deprive them of their property on the basis of the ethnic composition of their family is not. There will be some other areas that are not so clear.

Rules: these might work.

Wednesday, May 18, 2011

william nolan: special prosecutor in stuyvesant

The other blog has the latest news of the day.

Clearly, the town hired a special prosecutor to go after me without the town attorney recusing himself officially and without requesting permission to hire said prosecutor. Here is the audio that verifies the facts.

Here is the brief written by the special prosecutor from the Albany firm of Whiteman Osterman & Hanna, William S. Nolan, on behalf of the Town of Stuyvesant:

This document raises two questions: 1) Can the town hire a special prosecutor to prosecute me for a dog barking violation without requesting permission from a judge first? 2) Is William Nolan in violation of New York State ethics laws for accepting this job on behalf of the town of Stuyvesant when the charge is clearly false and the circumstances of the charge are so suspicious?

First, the special prosecutor issue: in every case I could find, local governments request special prosecutors only when the person charged with an offense, say, works for the District Attorney or is a public official or is somehow connected to a public official or if the local officials cannot handle the case due to the lawyers for the town being TOO CLOSE to the defendant. Here are the cases:
Prosecutor Is Changed in the Trial of a Senator
"Judge Leonard G. Tilney Jr. allowed an adjournment in the DWI case against a local attorney so a special prosecutor can be retained"
"The Staten Island District Attorney is confirming he’s sought a special prosecutor to investigate the Working Families Party and that the year-long request has still not be answered.”
"Governor Mario M. Cuomo requested that the Commission investigate this matter to determine if the appointment of a special prosecutor was warranted."
"A state judge yesterday refused to appoint the special prosecutor sought by Nassau County District Attorney Kathleen Rice to look into possible misconduct at the now-closed county police crime lab."

You can see in all these cases, the DA or town attorney had to request PERMISSION from the judge first.  In Stuyvesant, this didn't happen. Also, if it were to happen, they would have to give a reason. What is the reason? Am I too close to Tal Rappleyea? He's my long lost cousin or something? Maybe I used to work for the town of Stuyvesant or something?

I don't know. I don't see any cases of a town arbitrarily choosing, without even voting at the town board level, to hire a special prosecutor just because they don't like the defendant and he has a lawyer that is better than the town lawyer. I filed motions. Tal didn't know what to do with them. So he said they (and I don't know who they are) should hire another lawyer.

I don't think it sounds kosher.

Next, Mr. William Nolan of the Albany firm of Whiteman Osterman & Hanna (attorneys, lawyers at, accepted the job as a government attorney. Let's consider this:

DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer.
A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.
Can a charge that is impossible according to the laws of physics, that is only supported by evidence which proves that the charge is false, which was issued by an officer who knew it was false when he issued it, could this impossible, false charge, based on a conspiracy to manufacture evidence, possibly not fall under the category of "charges when he knows or it is obvious that the charges are not supported by probable cause"?

Here is my response on the stuyvesant forum to questions about this issue:

On May 18, 2011, at 9:49 AM, Michelle Richardson wrote:

I'm confused. Is this for the town court case?

Yes, criminal dog barking as per 1978 law. Never enforced in the history of the town before they came after me. Allows for up 15 days in jail without a jury trial.

That was dismissed, right?

Yes. But they can refile and I spent over $2000 defending myself, so I'm not just going to let it slide.

Or is this something else? What happened in town court, exactly?

Four days after I met with Valerie Bertram to discuss $10,000 missing from the attorney budget line, I was given a ticket based on the law, January 15. The incident of barking was on December 30, 2010 as captured by the video I link on my site. The officer who handed me the ticket said he knows it's not true. The video proves the charge is not true. There were discussions about this action in town hall on the day the ticket was issued.

We went to court. $500 out of my pocket. The judge did not dismiss but asked for written motions.

My lawyer wrote motions. That cost me $1000. The town hired a special prosecutor to answer the motions. We came back to court. $500 more.

Who hired the special prosecutor, specifically? The Town of Stuyvesant?

Yes. From the same $450 an hour law firm that is handling my planning and zoning stuff.

If so, I agree, this would be public business and should be subject to a public motion and vote, not decided in a back room somewhere.

There was no motion in court to hire the special prosecutor and no vote in the town meeting. That's all I know.

Can you please fill in details so we can follow the sequence of events? Thanks!


 backdoor attempt to regulate municipal officials.pdf backdoor attempt to regulate municipal officials.pdf3 minutes ago
105-field=documents.pdf 105-field=documents.pdfApr 19, 2011 2:51 am
annual meeting program 2009.pdf annual meeting program 2009.pdfjust now
columbia_co_crash_fs.pdf columbia_co_crash_fs.pdfApr 19, 2011 2:51 am
dog-law-response.pdf dog-law-response.pdfjust now
Ethical Issues.pdf Ethical Issues.pdfjust now
Ethical_Considerations_for_Town_Attorneys.pdf Ethical_Considerations_for_Town_Attorneys.pdf4 minutes ago
ILR-eliminating_political_maneuvering.pdf ILR-eliminating_political_maneuvering.pdf4 minutes ago
May2min.pdf May2min.pdf4 minutes ago
Municipal Ethical Standards- The Need for a New Approach Report.pdf Municipal Ethical Standards- The Need for a New Approach Report.pdfApr 19, 2011 2:51 am
New York Columbia County Public Libraries.pdf New York Columbia County Public Libraries.pdf4 minutes ago
Prosecutorial_Ethics.pdf Prosecutorial_Ethics.pdf4 minutes ago
Rule3.8.pdf Rule3.8.pdf4 minutes ago
sec13_0407.pdf sec13_0407.pdf4 minutes ago
SSRN-id1120289.pdf SSRN-id1120289.pdf2 minutes ago
SSRN-id1493502.pdf SSRN-id1493502.pdf2 minutes ago
SSRN-id1690833.pdf SSRN-id1690833.pdf3 minutes ago
The Lawyer's Code of Professional Responsibility.pdf The Lawyer's Code of Professional Responsibility.pdf4 minutes ago
Vol. 35, No. 2, Spring 2003.pdf Vol. 35, No. 2, Spring 2003.pdf4 minutes ago

Tuesday, May 17, 2011

BOS resolutions issue

The fruits of Martin Roby's campaign to get the Columbia County Board of Supervisors to put the resolutions online is starting to bare fruit. Read about the issue more here.

Monday, May 16, 2011

FOIL issue in Stuyvesant

I wrote this event up here. And now it's in the Register Star, a week later.

I cut out Freeman's stump speech because that isn't news. Also, Freeman said that the reason given for blacking out the invoices was invalid. He also ruled that bank account numbers should not be blacked out. He further agreed that the FOIL appeal officer should have responded to my appeals. She did not, as is clear by reading this blog.

That might be the story: on every issue of policy, Freeman had to side with the opposition (no redaction) and on substance, the supervisor claimed to have responded when she did not in fact do so. The letter Valerie Bertram referred to said that it was okay to black out the invoices but now Freeman says it's not okay, when he considers the reason for it, which is that there might be a lawsuit.

Here is my complete (if poorly and quickly written) email to Bob Green, referenced in the article:

I did receive a letter from the other lawyer in Freeman's office, Camille, and she said it was okay to black out the invoices. Camille's letter did not address the substantive issue in my complaint about blacking out attorney invoices, that the reason was bad, possible lawsuit. We seem to have settled that issue on Monday.
The response, obviously, was from Freeman's office, not Val. So it doesn't really account as a response from Val to my appeal, does it?
Here is the letter I wrote prior to Monday's meeting:
I note 16 issues, or cases.
This might be a good time to list the things I have not received through FOIL to the town:

-- Incomplete Boat Club documents, no photos, no inventory, etc., as per Bob Green article and Lee Jamison meeting (please prepare and advise of cost of duplication)
-- Document retention policy (I would still like a the URL link from the clerk sent to me directly to verify that the policy I found through google on Mr. Freeman's advice is correct as applied to the town of Stuyvesant)
-- Monitoring of Stuyvesant Forum by Howard Gleason (some response as to how the filing of public political statements is made in the assessor's office as Mr. Gleason clearly read and copied my post of 8/20/10 and refers to it in his letter of 11/13/10, some not about where this post is in assessor's office and a copy of any memos or documents that accompany the filing or use of this post)
-- Email from 8/16, response as to "instruction" issue, see PDF sent to Mr. Freeman
-- Redaction of invoices: I would like 2009 and 2010 unredacted

Now I have appealed (as of meeting Monday) more things:

-- Did not receive ZEO report to planning board March 2011
-- Did not receive cancelled checks, Tal Rappleyea
-- Delay in release of Platt video
-- Did not receive notices of violation, ZEO, FOILed 2010 August
-- Email about joint planning/zoning meeting: further inquiry
-- Redaction of account numbers in bank statements, all bank statements for the years: I would like 2009 and 2010 unredacted

Sunday, May 15, 2011

county resolution issue

The community found an error in one of the resolutions published by the county after they voted. Here is more on the issue and a list of upcoming stories for the week.

Friday, May 13, 2011

sound test is out

The sound test is done. How did this test come about?

1) August 2010 Gerry Ennis revokes my permit; 2) Fall 2010 I appeal; 3) December 2010 lawyers come up with an arbitrary settlement; 4) my name appears on the planning board agenda against my wishes; 5) I appear before the planning board; 6) instead of approving the agreement between lawyers, the planning board calls for a public hearing; 7) after the public hearing, the new attorney for the planning board says the arbitrary settlement is arbitrary and wants an objective standard and asks for a sound test; 8) I find the most qualified person I can to conduct the test on the day when I have the most dogs possible available to make as much noise as they can; 9) I conduct the test and the report is not ready for April meeting and ask for more time, planning board says no and we have a discussion in April which costs me more money; 10) the report is now done.


In March, Mr. David Everett of Whiteman Osterman & Hanna said he wanted an objective standard. The previous agreement for a limit of 50 dogs was dismissed as arbitrary. That offer, the arbitrary agreement made in December 2010 to limit the hours and dogs, is therefore off the table. The arbitrary agreement was meant to save time and money did not in fact save time or money. I never thought it made any real world sense. I thought an offer to settle would speed things up. It did not.

If we are going to go by sound science, then the permit needs to be restored as it was in 2009 immediately. The evidence of compliance is now well documented and evidence of wrongdoing is nil.

In March, Mr. Everett asked for a sound test. A test was done on the only day available with an above average number of dogs in residence in the months of April, May or the first half of June. The test was conducted by an engineer with experience and certification who works for an international acoustics design firm.

The report of this test is enclosed here.The plain meaning of the enclosed report is obvious and no retainer for engineering review is necessary. In any event, I would only pay for review by a qualified acoustics engineer with no standing connection to any Columbia County town government.

The fact that Glencadia Dog Camp is a very light use of the property is obvious to anyone who has made a site visit, including the many dozens who came to my open house in November 2010, including members of the planning and zoning boards. I think the fact that I mailed an invitation to inspect my business to every registered voter in the town suggests I have nothing to hide.

I think the truth of this matter is abundantly obvious to everyone who wants to see it. If you read the complaints carefully and note the comments about "dripping faucet" and taped phone calls and letters from 2009, you can't but conclude that these are not complaints that deserve this level of attention.

Here is a single PDF containing 1) the new sound report based on measurement, 2) the paper submitted last year showing much the same thing based on pure calculation, 3) your brief showing some of the problems with the process that lead to the revocation of permit in 2010, and 4) other ancillary materials showing the credentials of physics and engineer, video evidence, map of the area, and distances and dates of complaint/complainers.

As the legal brief shows, correctly following procedure and law would never have produced the revocation of permit that started this process. The two science papers enclosed show sound science clearly shows that there is no problem with noise. There is no evidence of any problem what so ever.

I tried to settle. The offer was rejected as arbitrary. The board wanted public comments. I agreed to public comments. The board asked for a sound test. The sound test shows the same as the physics paper submitted last fall: the charge of loud barking defies the laws of the universe.

A more ridiculous charge cannot be imagined and there is no public interest in pursuing this matter further. After more than $50,000 in expenses on my part and a similarly large number on the part of the town of Stuyvesant, it is time to close this matter.

My permit was duly issued in 2009. There is no evidence of any violation and there never was any legitimate evidence of any problem what so ever. Any objective standard would indicate no need to add conditions.

This matter needs to be closed immediately.

Thursday, May 12, 2011

couple of stories on the other blog

At wikicoconews, I talk about the comptroller's audit of New Lebanon and the issue of Columbia County Board of Supervisors resolutions. Some developments.

Monday, May 9, 2011

FOIL in Stuyvesant

If you are new to this blog, you might want to start here or here and if you want to see a normal Stuyvesant meeting you can check this out. For other local news today, try the other blog.

Now, tonight I was at a meeting with Robert Freeman of the Committee on Open Government. His office offers opinions on FOIL law, among other things. Here Freeman explains it himself:

Here are some of the highlights of the meeting, I would say:

1. Bank account numbers should not be redacted.

I don't have video for this. Audio to come. Martin Roby and Robert Freeman go back and forth and in the end, Freeman agrees that bank account numbers should not be blacked out.

2. Did Valerie Bertram respond to my FOIL appeal on the issue of attorney redaction at all or not?

Under the New York State Freedom of Information Law, if an appeal is denied, you can appeal the decision to the appeal officer of the agency or government. So, when my FOILs are denied, I appeal to Valerie Bertram, supervisor of the town, who is also the FOIL appeal officer.

The issue is the redaction of the attorney invoices. Here is the invoice unblacked out. Here is how the invoices looked when I got them through FOIL.

Here is an exchange between me, Robert Freeman and supervisor Valerie Bertram about whether or not she answered my FOIL appeals:

Here are the sum total of my FOIL appeal responses from Val. I only received email and never anything in any other way. I have also enclosed my letters to her, including FOIL appeal, in the PDF linked. Two short paragraphs, as follows:

December 18, 2010:
Mr Pflaum,
It is my understanding that the audio files were sent to you today, 12-18-10. Your other request is very vague and I am not sure of the issue as you have already received all the pertinent information on attorney bills. If you would like to clarify exactly what you are looking for I will be happy to look into it further.

(no follow up after I responded about "vague")

January 24, 2011:
Mr Pflaum,
After speaking with the Town Assessor I can confirm that the information that you received in response to your original FOIL request was a two page inventory listing and a list of sales. No 'packet' of information now exists or did exist at the time the article was written that included pictures of the inventory. Mr. Green was given the same information that you received as a result of your FOIL request. Your FOIL request has been satisfied so there is no basis for appeal.
No where is the issue of the redaction of invoices mentioned. In the complete exchange you can read my request for an appeal of this issue.

Here is the complete exchange:

3. Why does the Register Star not take towns to task for delaying and obstructing FOIL?

Bob Green, writing for the Register Star, talks about some town, not Stuyvesant, that routinely claims that they do not have electronic records. Here is Green's exchange with Freeman:

So why is that the Register Star doesn't complain about incomplete and delayed FOILs?

4. Fire companies and FOIL

I think Martin probably knew that about the 1980 decision, but maybe not.

5. Document retention discussion

Martin thought I was being too pushy, but here's my thought: the law says that if you don't get an answer you like you can appeal. I got an answer to my FOIL of the document retention policy of the town which was unclear to me: I couldn't be sure what the policy was. The town gave me this URL:

This was a few months ago. I see no link to a document retention policy. Where is it? Search "document retention policy" and we get:

"Results 1 - 10 of about 160 for document retention policy. Search took 0.45 seconds."

So then Freeman told me to google MU1. Now, this shows that he thinks he knows the answer but I wanted to get the answer from the town. Why should he have to tell me? Why can't the town?

So I will google MU1:


Ah, here is it, 5th link in google:

And I click there and, presto, here it is:

So now I can safely assume that everything in this document is binding on the town of Stuyvesant. That's what I wanted the whole time!

Freeman here says that I should have known without asking. Then he says that I am smart enough to figure it out.

Why do I have to figure it out? It's easy to give someone the link to the proper document.

I didn't understand. I appealed. My appeal was ignored. Is that okay or not? Why is Freeman answering the underlying question and not dealing with the FOIL issue?

I don't want to guess. I want to know specifically what the policy is as adopted and I want the town, not Freeman, to tell me.

I want the town to tell me "this is our policy and you can read it here."

I mean, maybe I was being a bit pushy but I didn't like the answer and I didn't have equal access to the floor. When I got a chance to ask, I wanted to get an answer: why don't I know what the document retention policy is for the town of Stuyvesant? Is it hard to provide it?

Not for Freeman. He told me to google MU1 and after a couple of bad hits, I found something that I guess I can assume is the right thing.

Remember this? I mean, it's not Freeman's job to the town clerk in Stuyvesant. I want the clerk to do her job and Freeman to do his.

You see, the president cannot fix the sorting machine in every little town. And the FOIL guy for New York State cannot answer every FOIL for every clerk in the state. Instead of answering my question about the MU1, which I never heard of, he should have gotten on the town to do what the law says.

And Jimmy Carter/Dan Akroyd at least didn't tell the caller from Kansas that she was smart enough to figure it out herself.

Here is the synopsis of what I appealed prior to today:

-- Incomplete Boat Club documents, no photos, no inventory, etc.,  as per Bob Green article and Lee Jamison meeting
-- Document retention policy
-- Monitoring of Stuyvesan Forum by Howard Gleason
-- Email from 8/16
-- Redaction of invoices

Now I have appealed more things:

-- Did not receive ZEO report to planning board March 2011
-- Did not receive cancelled checks, Tal Rappleyea
-- Delay in release of Platt video
-- Did not receive notices of violation, ZEO
-- Email about joint planning/zoning meeting
-- Redaction of account numbers in bank statements

31 Photos? Cancelled checks? Deposit slips? Attorney invoices unredacted? Notices of violation? Bank statements with account numbers?

Friday, May 6, 2011

case outline

Consider the phrase “there are two sides to every story.” There can be some truth in that idea sometimes. But not always. If you read that a gang attacked an old lady walking down the street, there are probably two sides to the story although generally we don’t worry ourselves too much with the gang’s side of the story. If we learn that the leader of the gang is the son of the governor, and the governor described the incident as a harmless prank, that fact might be interesting but it doesn’t change the essential fact that a mugging, not a prank, occurred. If we later learn that the old lady whipped out a can of mace and a cane and beat the gang to a pulp, even that wouldn’t change the essence of the story: it’s still a mugging.

I think this analogy helps understand this case. In this analogy, I am the old lady. The gang is the government of the town of Stuyvesant. The similarity between a gang and this town government is that both are groups of people acting together to violate the law. If the town is not like a street gang, then the town board can go on record as opposed to the video-ed threat of physical violence, support for that threat by another official/employee online, theft of political signs, against public calls to "move out of town" by official/employee, documented, frequent pre-dawn surveillance. The town of Stuyvesant has made no attempt to guarantee the rule of law in this town, no attempt to assure residence that lawlessness by government officials and employees is not tolerated.

This analogy, the street gang thing, as dramatic as it may sound initially, is the best way to understand how it came to be that I did nothing wrong yet ended up with simultaneous planning, zoning, assessment and criminal proceedings, was threatened with physical violence, denied the perception of fire protection, and my house was put under surveillance by town officials. Racial / ethnic bias emerge in a couple of points in the story.

In 2003 my family moved from Brooklyn to Columbia County, then in 2004 we settled into our current home in Stuyvesant Falls. Our house is an old farmhouse built in 1790 on 15 acres set more than 1000 feet from the nearest neighbor in an agricultural district.

In 2005 I started Glencadia Dog Camp, a dog boarding facility for New York City dogs. The dogs stay in the barn next to our house and enjoy the open space of the country. In 2009 I found out that I was supposed to have a site plan review by the planning board to operate a business out of my home. I submitted the site plan and was unanimously approved without condition. At no time during the first four years that I operate the business did I have any trouble with any neighbor or with the town government.

The previously relatively benign relations with the town changed in November 2009 a few weeks after the town elections. The election of 2009 may or may not be critical to everything that followed. Furthermore, we do not need to know all the details of how and whenGerry Ennis, ZEO, began to interact and encourage complaints to determine that Ennis, acting in his official capacity, overstepped his authority. In other far more substantial instances of businesses violating zoning rules, of residents complaining about much louder noise, or of residents reporting multiple buildings constructed without permits, Gerry Ennis, ZEO, took no action. In my case, Ennis immediately violated a number of rules and laws and took drastic action, highlighting the threat to imprison me before we ever spoke on the phone about the matter.

First, I was charged with loud, unusual noise. When that charge seemed to be impossible according to the laws of physics, the charged morphed into a claim that I created too many jobs and employed too many people for my zoning permit. Officials trolled the internet for things I said and distorted the clear meaning of my statements to try to close my business for creating too much prosperity. Sadly, this charge is also not true. I wish that I could hire more people. I could create the work. I’m not allowed to do hire more people by town law. Next, I was accused of misrepresenting the nature of my business when I went to the planning board in 2009. When that seemed to be an unsustainable accusation, I was charged with not handling dog waste in an appropriate way. This charge seems to be based on the mistaken observation of horse manure used as fertilizer. None of these charges are true and there is no public interest in pursuing any of these charges. I mean, really, even if they were all true, who would care? But they aren’t true. I did nothing wrong.

As I will argue, we are here because the members of the government of the town of Stuyvesant, elected and appointed, conspired to intimidate and attack me in order to stop me from exercising my constitutional rights, to stop me from investigating the systematic wrong-doing occurring in the town, to stop me from publicizing the rampant abuse of authority in town, and to send me a message not to participate in local politics.  I had simultaneous planning, zoning, criminal, and assessment battles with the town and appear to be denied fire protection. I was denied due process. Various proceedings were routinely stacked against me. I was effectively ambushed in bad faith negotiations. My house was put under surveillance. Extraordinary and coordinated efforts by numerous town officials were required to file criminal charges against me based on perjury. Neighbors were encouraged to submit coordinated and false statements to the town government for the purpose of harming me. These false and coordinated statements were presented at various public town forums in an unfair way. A member of the town board threatened me physically.

I was attacked by the town government as a whole with the full knowledge and approval of the supervisor, Valerie Bertram. Not only did I do anything wrong, there was never a shred of credible evidence that I did do something wrong at any time. Moreover, officials of the town threw procedures and fairness to the wind in their determination to punish me.

Why? Why all this trouble? I tried to settle and did everything the town asked me to do, did every test, built every structure, respond to every attempt to settle even when I suspected another ambush, spent every dollar they asked me to spend. Since they wouldn’t show any evidence that I did do something wrong, I went out of my way to prove that I did not do something wrong, although that is not how the American system of justice is supposed to work. I borrowed and spent and showed good faith.

There was one small inappropriate payment in 2009 but in general the motive for this harassment was not, it seems, to extract money from me directly. Rather, like the gang beating up a witness to another crime, the main motive was to stifle my political activities and set an example of the power of bullying in town. Creating a climate of fear and intimidation was part of a strategy of maintaining authority with few questions that allowed the clique in power to abuse their authority to their own benefit, as they have done for years. They were going to lean on me and make me pay through the nose. Get out of town or shut up, to paraphrase the fire chief.

In terms of local dynamics, officials felt free to throw all the powers granted to the town by the state at me because I was the kind of person who doesn’t matter to the officials in charge and to their system of maintaining power. I was not born in Stuyvesant. Former New York City residents, parents of an adopted African child, foreign wife, Jewish last name, politically active in the opposition: we, my family and I, stood out. I was fair game.

Also, official knew, as I did not, that when it comes to enforcement of ethics for local government in New York State, no one is on the case. The foxes are guarding the hen house and there is no watchdog.

If the possible motives I mentioned are not in fact the reasons for the sustained and broad attack, then the other side can explain how we ended up where we were. If not who I was, where I came from, what my family is like, or what I did politically, then why? Why was I attacked? There is no good reason for this campaign against me. Other people who are not from Brooklyn or don’t have black children or Jewish last names or foreign-born wives broke rules very explicitly and openly and routinely and nothing happened to them, except they were hired by the town, they were allowed to break the rules more explicitly or their property assessment were reduced.

For whatever combination of reasons, my business, my family and I were treated remarkable differently from cases with some parallels to mine involving long time town residents, supporters of the current town government, who do not have some of those other attributes that made us stand out. In other words, if I were a buddy for decades of the guys running the town, I could have operated an oil refinery, a strip club or a satellite launching pad without a permit without worrying about complaints from the neighbors. I certainly would not have been before judge Bruno were I a member of the Hook Boat Club. This pattern of favoritism extends to every aspect of town government.

The town’s side in this case may claim they are public servants doing the best they can, trying to be fair. The evidence says otherwise. Perhaps, as the supervisor and town attorney began to argue in mid-January 2011 but not before, the other side will argue that they never tried to shut my business down. Again, the evidence is clear that they did try and that if I had not borrowed money against my home equity to fight back, they would have happily rolled over me and ruined me and my family for no good reason.

Perhaps the other side will claim or imply that I failed to work with them reasonably to resolve this dispute. But at every turn, my good faith efforts to settle my matters before the town were turned into opportunities for renewed attack against me. I did everything I could do short of groveling and begging for mercy to resolve the issues before the town.