Democracy withers out of public view

 — Forest Byrd

For decades, at the start of a new year, we’ve always gotten a thrill covering what many may consider routine — the swearing in of new leaders for the towns we cover and the appointments that follow, an annual and reassuring ritual in a democracy.

This year, in particular, even though we attended the Guilderland Town Board’s reorganizational meeting remotely — were were glad the town was keeping people safe from the coronavirus — after the insurrection at our nation’s Capitol on Jan. 6, 2021, it was gratifying to see a smooth transition of power.

Councilwoman Christine Napierski, with her husband holding a Bible for her, raised her right hand to take the oath of office, repeating the words said by Justice Denise Randall, robed in black, who administered the oath.

We noted with a smile that all four councilmembers, and even the judge, were women.

Napierski had had a long and courageous battle to win her seat, starting when she was overlooked by the town’s Democratic Party to run for the judge’s post to which she had briefly been appointed after the former judge had been accused of, and was later convicted of, a crime.

Napierski pushed successfully for the party to switch from a caucus to a primary to choose its candidates.

Next up was Amanda Beedle who took the oath with her husband by her side. A newcomer to politics, she had bested the incumbent in the primary and teamed up with Napirski to campaign door-to-door for the Nov. 2 election. The pair decided to agree to disagree on their differences.

“I look forward to serving with all of you,” said Beedle to the elected officials in boxes on the screen.

Next came the list of appointments, read by Supervisor Peter Barber who had faced no challengers in November’s election. All of the votes on the appointees were unanimous and there was no real discussion.

Councilwoman Laurel Bohl thanked everyone who had applied — the list of appointments for various town boards and committees was long — as she noted some of the votes were 2 to 3.

That’s when our sense of satisfaction began to fade.

What were these votes?

Councilwoman Rosemary Centi thanked all the people who applied. “You are wonderful,” she said.

Barber thanked the town board members, noting their discussions on the job candidates had been “spirited.” He said, “We kept our cool.”

From decades of carrying a dog-eared copy of the Open Meetings Law with me to meetings, I well knew that elected boards were entitled to go into executive session to discuss “the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointments, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.”

So I realized the board members and board members-elect could interview candidates for these appointments and discuss their merits in private.

But I also knew that, according to the state law, those interviews and that discussion had to take place after a meeting had been advertised or posted and the board then had to adjourn, by vote, into executive session, stating the reason for the session.

The board also had to produce minutes of that session, which included the way each member voted on the appointment.

Guilderland’s town government is good about posting notices of its meetings but I didn’t see any for these interview discussions that had run in the legal notices in our paper. Guilderland is also good about posting videos, agendas, and transcripts of meetings — but I didn’t see any on the website.

So I called Supervisor Barber, expecting he could tell me where to look.

Instead, he told me, “It’s interviews so it’s personnel.” He also said, “Other towns do exactly the same.”

Barber also noted it was “a hybrid situation until December 31,” meaning the two newly elected board members were part of the interviews and discussions for appointment although they were not yet sworn in as board members.

So I double-checked that Barber, Centi, and Bohl were all part of these online sessions. They were. Three members of a five-member board constitutes a quorum.

When I pointed that out, Barber said, it was a private, informal conversation, just a way to reach consensus. He explained, “At some point, after we’re done with all the interviews, we have an executive session to talk about the appointments.”

I then checked with the state’s Committee on Open Government. While a board can hold interviews in an executive session, said Kristin O’Neill, assistant director of the Committee on Open Government, “It needs to have an open session first that is noticed to the public; the public is allowed to attend either virtually or in person, and then they can make the motion to go into executive session … They can’t just have a stand-alone executive session.”

The board members would then be permitted to vote on their choices in executive session but minutes must be taken, which are accessible through a Freedom of Information law request.

A 1998 advisory opinion from the Committee on Open Government about the Beaver River School Board interviewing candidates for the position of athletic director with no notice given prior to those gatherings makes the same point. “Thereafter, a candidate was selected and appointed at an ensuing meeting,” it said.

The advisory opinion cites a landmark decision by the state’s highest court, the Court of Appeals, in 1978, which found that any gathering of a quorum of a public body for the purpose of conducting public business is a “meeting” that must be convened open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized.

So to say a session is a workshop, or an interview, or a personnel matter, or a discussion to reach consensus doesn’t negate the application of the Open Meetings Law.

In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated: “We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action.

“Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one’s official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute.”

The court also dealt with the characterization of meetings as “informal,” stating: “The word ‘formal’ is defined merely as ‘following or according with established form, custom, or rule’ (Webster's Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body.”

The Guilderland Town Board members and members-elect who met to discuss 2022 appointments were clearly conducting town business.

We would guess that some of the 3-to-2 votes Bohl referenced were herself and Napierski — both of whom ran on tenets of controlling development — as opposed to the three others: Barber, who argued successfully in court for Pyramid to be able to build a Costco and a 222-unit apartment complex; Centi, who voted to appeal the citizens’ suit that temporarily halted the Pyramid projects; and Beedle, who had served on the planning board that voted to approve the Pyramid projects.

Appointments to town boards — especially in a town like Guilderland experiencing growth — are pivotal in how the town is shaped.

Last year, Bohl alone, in a public session, voted against reappointing Stephen Feeney, the longtime chairman of the planning board. She gave her reasons in public and Barber responded. Thus the public had a chance to see how its public servants worked and to understand the reasons behind the decision.

This January, after discussion — and perhaps a 3-to-2 vote; we have no way of knowing — was held in private, Stephen Feeney was again appointed planning board chairman but as part of a single unanimous vote on a long list of appointees.

We shouldn’t have to guess on how each of our elected representatives voted in making the board’s ultimate choices. According to state law, the town should make those executive-session votes public. This can be done after an executive session, when the board resumes for a public session, or in minutes from the closed session.

As the legislative declaration for the Open Meetings Law states, “It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.

“The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.”

We are living in an era when each of us must do our part to safeguard democracy. Yes, town governments may seem small but they are close to home and their decisions have deep consequences for our everyday lives.

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