BERNE — The Berne Town Board and deputies from the Albany County Sheriff’s Office appeared to violate federal and state laws with the forcible ejection of a resident who was speaking in opposition to a proposed law at a public hearing, despite the fact that the resident had not violated any rules laid out by the town supervisor just minutes beforehand.

The resident, Kevin Crosier, a former town supervisor, is a Democrat while the board members are backed by the GOP.

Crosier, the first person to speak before the board at the Berne-Knox-Westerlo auditorium on Feb. 20 about its draft ATV law, had thanked them for the opportunity to share his thoughts and was just getting into the substance of his comments when Supervisor Dennis Palow interrupted him and tried to draw attention to a photo he had brought up on a large monitor that he said was of Crosier riding a utility vehicle on a roadway.

The apparent purpose of the photo, which had already been making the rounds on social media, was to show Crosier using one of the kinds of vehicles that the proposed law would allow on town roads, where they are currently prohibited except to cross from one property to another. Crosier is among a great many people who have spoken out against the law. 

“That looks like me,” Crosier said as audience members jeered at Palow for interrupting. “Are you going to allow me to speak?” asked Crosier.

“No,” Palow said, before attempting to justify that decision by saying that Crosier had done something similar to another former supervisor, Republican Sean Lyons, at a board meeting five years ago. 

When Crosier asked again if he would be allowed to speak, Palow said, “I’m going to tell you to sit down and be quiet.” He repeated his command a number of times before ordering sheriff’s deputies to escort Crosier out of the building, which they did to a deafening chorus of opposition from most members of the audience. 

“I’ve been here all my life,” Crosier exclaimed proudly to the crowd — which responded with cheering and clapping — as he was walked out by the deputies. 

Such a large crowd had shown up on Feb. 8 at the originally scheduled hearing, surpassing a maximum capacity of 90, that Monday’s hearing was scheduled for a larger venue.

Nothing Crosier had said during his short time present at Monday's hearing went against the parameters that Palow had established when the meeting started not long beforehand. 

“Everyone who signed up will have a chance to talk tonight,” Palow had said. “Keep it to three minutes, if you can. There will be no profanity. You will not disrespect this board up here. If you do, I will ask you to leave. If you don’t leave, I will have the sheriff escort you out of here. OK? Keep it to the ATV proposed law, your comments.”

Minutes later, all Crosier had managed to say before he was interrupted was, “Thank you for allowing me to speak this evening. It’s the town board’s responsibility to protect the health, safety, and financial stability of our community.”

Each of those concepts is directly relevant to the law because of the impact critics (and supporters) say it will have on those things. Over the past month, The Enterprise has printed more than 20 letters to the editor on the proposed law, with the vast majority opposing it.

Crosier did not return to the hearing — which continued for about two hours despite the extreme upset the incident had caused — after he was removed. 

Open Meetings

The state’s Open Meetings Law holds that members of the public are entitled to attend all government meetings, except for those that occur in an executive session. 

While access can include livestreams, and some members of the public appeared to be streaming or recording the public hearing on their own, the town of Berne does not have an official stream, nor does it publish any of these streams on its own platforms. 

In an advisory opinion from 2012, then-Executive Director of the Committee on Open Government Robert J. Freeman wrote that while a member of the public can be removed from a meeting for violating “reasonable” rules of conduct established by a board, it cannot remove members for non-conduct reasons, such as being from outside the town or having a disagreeable political stance.

“It would be reasonable, in my view, to adopt rules regarding decorum, outbursts, disruptions and the like,” he wrote. “However, barring an individual from attending based on that person's politics or point of view, without more, would be contrary to law.”

He also said that a town supervisor cannot singularly make the decision to remove someone for reasons that the supervisor makes up, writing that “the town supervisor doesn't make the rules. The rule of law prevails over his directive, and further, as one of five members of the board, he has no unilateral authority to bar an individual from attending meetings.”

Crosier’s attorney, Jeff Baker — who was present to speak to the legality of the ATV law, which Crosier and other residents have threatened to challenge in court — went further, telling the town board members that they had broken federal law by removing Crosier. 

“By making the Albany County Sheriff’s Department complicit in your illegal action, you have violated the federal civil rights of my client ...,” he said. “I strongly suggest that you apologize to Mr. Crosier for your behavior, or the town may very well likely face a lawsuit, for which it will also be responsible for attorney’s fees, for violating the First Amendment rights of somebody who was just addressing the board.”

The audience cheered at this.

According to a guide to First Amendment cases as they relate to local governments published by the University of North Carolina School of Government in 2022, courts look at three things when considering cases involving a local government restricting communication. 

The first thing they consider, according to the guide, is whether the communication in question is protected under the First Amendment. According to the federal Congressional Research Service, only obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography are recognized categories of unprotected speech (and subject to considerable debate still). 

Political and ideological speech, which is that relating to “‘politics, nationalism, religion, or other matters of opinion,’” are meanwhile the most fervently protected by the Supreme Court, the service writes. 

“A government regulation that implicates political or ideological speech generally receives strict scrutiny in the courts,” it notes, “whereby the government must show that the law is narrowly tailored to achieve a compelling government interest.”

The second thing courts look at, the UNC guide says, is where the speech is being restricted. It goes on to categorize forums as either:

— Traditional public forums, which are areas open to the public where conversation is free-flowing, such as a public park or sidewalk);

— Designated public forums, which is a space opened up by the government for free expression regardless of whether that space is traditionally used for that purpose, such as a theater;

— Limited public forums, which are spaces reserved for speech regarding a particular topic, and likely what the Berne public hearing falls under; and

— Nonpublic forums, which are areas not reserved for public expression, such as a government office.

The guide says that, “In a limited public forum or nonpublic forum, restrictions on speech are permissible if they are: 

— Viewpoint-neutral, and  

— Reasonable in light of the purpose of the forum.” 

Crosier told The Enterprise after the meeting that another attorney had approached him after he was removed and told the deputies that they had “no right to remove me and they had violated my rights.”

The deputies, Crosier said, “kept saying the supervisor told us to.”

“Craig Apple will get an earful,” Crosier said of the county sheriff.

The sheriff’s office could not be reached for an explanation of what authority the deputies had to remove Crosier. 

Only board member Tom Doolin immediately responded to an Enterprise inquiry to each of the town board members about the incident and the comments made by Crosier’s attorney. 

“From my position at the furthest [end of] the board table I did not clearly hear an inappropriate comment from Mr. Kevin Crosier,” Doolin wrote in an email. “There was only the beginning comment, ‘The board is responsible for the health and safety…’ Thereafter I am unclear on continued comment due to escalating noisy chatter for his removal.

“I was open to all comment pro or con from the community and appreciate the attendance at the public hearing regarding local law 1,” he went on. 

Doolin also said that the hearing — during which the vast majority of those who spoke were against the law — made clear that the law is not viable for the town at this time, and that it would likely take years to get it to such a state. 

“I am not an ATV rider and that is why I was open to the discussion,” he said. My background as a medical provider and having worked in the ER at St Peter's Hospital and Moses Ludington Hospital ER in the Adirondacks, I have seen the trauma that single rider vehicles can cause (motorcycle, snowmobiles, ATV).”

Doolin said he agreed with Helderberg Ambulance Squad Captain Neal Hogan, who had brought up concerns during the hearing about the safety of ATV riders and the burden the increased activity would likely have on first responders.

“I do not see this as a viable law for the Hilltown community in Berne,” Doolin said. “The Hilltown Riders can work on a program to expand to the future but this town needs stronger support services for incidents that could occur from all services (Sheriff, ambulance, fire).” 

“There is so much out of alignment with this law that it cannot stand on its current form,” he continued. “I think there is years of planning and development before even a possibility of such a recreational ATV law. Mr Crosier and I likely in the end would agree this is not for Berne at this time.” 

Reactions

Westerlo Supervisor Matt Kryzak, a Republican, spoke out against Palow’s decision to remove Crosier to The Enterprise after he had learned of the incident independently.

“The purpose of a public hearing by definition is to give the public an opportunity to express its views and to make inquiries,” he said. “Per the Association of Towns Law Manual, the rules pertaining to public participation must be reasonable and uniformly enforced. 

“You need to treat all residents the same,” he went on. “You can’t pick and choose who the rules apply to based on if you agree with what they have to say. I don’t agree with removing residents from a public hearing unless they are using obscene language or become verbally abusive, threatening, or a danger to the public.”

The incident had also given more firepower to critics of the law, who were often critics of the town board altogether, which has eroded trust among some residents for the way it handles and advertises public meetings, among other things. 

In questioning how the proposed law would be enforced, resident Karen Storm speculated that, in trying to get help managing ATV riders speeding down her road if the law is passed, “by the time we call the sheriff’s department — although they do a wonderful job escorting people out — they’re just not going to get here [in time.]”

Others were less coy. 

One resident, whose name could not be heard clearly, remarked that the incident reflected poorly on the board’s values. 

“Thank you for allowing me the courtesy to speak, unlike the discourtesy you showed to Kevin Crosier,” the man said. “I find that really alarming, and I’m wondering what kind of democracy we’re going to see in regards to this bill.”

Referencing the fact that all members of the board were elected on the Republican line, he added, “I’m a registered Republican, who likely will not be voting for you in the next election.”

Resident Fred Atkins said that Palow’s behavior was “disgusting.”

Former town board member Dawn Jordan, who served alongside Crosier in public office, noted that she also drives her utility vehicle between her pieces of property on a town road, asking, “You gonna kick me out too?”

The crowd cheered for each of these speakers. 

But after it all, Palow seemed unfazed when he addressed the incident at the end of the meeting, which prompted up to half the audience to walk out as Deputy Supervisor Anita Clayton tried to add her own thoughts amid what seemed to be the intentional and disdainful noise of their exit. 

“I know everybody got a little upset when a certain member got removed tonight,” Palow said. “So let me just say this, and you take it for what you want. Five years ago, that same person did it to a previous town supervisor at a board meeting. He actually told him to sit down and shut up, and ‘We’re tired of your lies.’”

“So be better,” one woman shouted. 

Clayton attempted to turn the attention back to the law and people’s outrage over that but inadvertently highlighted the Crosier incident, saying, “We knew people were opposed [to the law], but if you do not start somewhere, if you do not listen to everyone and —”

Several people shouted remarks at her that were unclear, but she responded to these saying, “Excuse me, yes I will, because Mr. Crosier has said some pretty disgusting things about me on Facebook.” 

People continued to exclaim things at her, and she said, loudly and angrily, “I don’t care. Yes he did.”

She also said, apparently in response to someone saying Crosier’s removal was prejudicial, “Yes, it is prejudicial … It’s OK for him to criticize and we have to take it because we are elected officials. That’s right, we are. We are. And there should be decorum.”