Super says Berne will restore former planning board

Enterprise file photo — Melissa Hale-Spencer

Republican Supervisor Sean Lyons, in 2018, was flanked by Democratic board members, from left, Dawn Jordan, Karen Schimmer, and Joel Willsey. All three Democrats were investigated, at town expense, by the law firm Roemer Wallens & Mineaux. Nothing came of the allegations against Jordan and Schimmer, and the complainants were not revealed. They did not seek re-election. Willsey is now the only Democrat on the board.

BERNE — Many of the sweeping changes the Berne Town Board made on New Year’s Day are being walked back.

For now at least, the GOP-backed majority board has set aside making Thomas Spargo chair of the planning board and has also reinstated members of the conservation board.

Also, after several Republican-inspired investigations of Democrats, there are currently no open investigations, according to Supervisor Sean Lyons.

Despite speculation in Berne this week that the town board will serve as the planning board going forward, Lyons said on Friday that, after a public hearing on July 22, he expects the town board to adopt a local law creating a five-member planning board and to reinstate the five members who had been serving on that board.

Lyons said the town board’s thinking is: “This is kind of getting out of hand. Let’s bring this back in. Let’s just get back to what we had.”

The speculation arose after Wednesday’s town board meeting. In the midst of a discussion on a permit to mine the Grippy Quarry, Councilman Joel Willsey says he asked if the town’s building inspector was acting as the planning board now.

He was told that the town board was acting as the planning board, which hasn’t met since February.

At its Jan. 1 reorganizational meeting, the town board — with the first GOP-backed majority in decades; Willsey is the lone Democrat — had demoted planning board member Emily Vincent to alternate status so that Thomas Spargo could be named the board’s chairman.

But because Vincent was removed as a full member without a hearing, the town had violated state law, and a legal challenge by Vincent was upheld by the State Supreme Court. Vincent was reinstated and Spargo was removed. 

Following this, the Republican-backed members of the town board proposed a law to expand the number of members of the board from five to seven, which would have created room for Spargo and one other appointment — a proposal that was widely criticized.

Spargo, a former state Supreme Court justice, had been found guilty of bribery and extortion in 2009 and was sentenced to 27 months in prison.

In the process of researching the proposal, Councilman Mathew Harris said he discovered that, although there are a number of references to the town’s planning board throughout its codebook, there is no law that designates one. This means that the current planning board is not a legal entity, and is akin to a committee, rather than a board, Harris said.

The Berne Planning Board has met and issued decisions for nearly half a century.

After repeated attempts, The Enterprise got no response from the New York State Department of State to confirm, as Harris claimed at the May 13 town board meeting, that it has no record of a certificate that would grant the planning board its legal authority. 

“While the board made a motion in 1972 to create a planning board,” Harris said in the May 13 meeting, “it did not make a law, nor did they have a public hearing … So here we are. We don’t have a planning board.”

On Wednesday, July 15, planning board member Lawrence Zimmerman sent The Enterprise a copy of a letter the planning board wrote to Lyons, stating, “At the July 6, 2020 Town Board meeting Mr. Harris proclaimed that the Town Board is now acting as the Planning Board of the Town of Berne. It is readily apparent that the Town Board is, in fact, operating in this fashion.

“The Town Board approved paying an engineering firm for its review of the Grippy mine permit. That permit review has never been before the Planning Board nor the Conservation Board. The Town Board‘s attempts to circumvent the statutory functions of the Planning Board subjects the Town to potentially expensive litigation and further censure by the courts … .”

The letter concludes, “Please advise if Mr. Harris’s proclamation indeed represented the will of the Town Board and is, in fact, the manner in which the Town Board has determined it will henceforth administer the planning function of Town Government, or were Mr. Harris’s statements ill-informed and illegal.”

Lyons told The Enterprise on Friday that the plan now is to pass Local Law 5, to legally create a five-member planning board, and then “to reinstate the five-member board, exactly how it was … without Mr. Spargo.” He believes both measures will be taken on July 22 as long as the hearing doesn’t result in “drastic changes” to the bill.

“Mr. Michael Vincent graciously offered to chair in the interim,” Lyons said of a long-time planning board member. Before the Spargo appointment, Todd Schwendeman had chaired the planning board and its members had recommended him for chairman in 2020.

“It will be right back to normal and legal … It’s going to be great,” said Lyons.

Asked if the town board would be handling the permit with Grippy Mine, which is owned by Helderberg Bluestone, Lyons said, “Right now, the town board has no role with Helderberg Bluestone. Hopefully, we can get the planning board squared away in the next two weeks and they can deal with it.”

Years ago, the Westerlo Town Board had disbanded its planning board and served as the planning board itself. Westerlo has since reinstated a planning board.

Lyons said the reference at Wednesday’s meeting to the town board handling the Grippy Mine permit was not to indicate Berne was following what Westerlo had done but, rather, that “in the absence of a planning board, the town board is the planning board so to speak.”

 

Other boards

The GOP-backed Berne Town Board had made some sweeping changes on New Year’s Day. On Jan. 1, the board did not, as is usual, appoint chairs for the conservation board or for the Switzkill Farm board.

Asked about the reason for the holds, Lyons told The Enterprise on New Year’s Day that the town board may decide three different groups — the conservation board, the Switzkill Farm board, and the youth council — should be merged.

The town, under the leadership of Democratic Supervisor Kevin Crosier, paid $475,000 in 2014 for what is now called Switzkill Farm, acquiring 350 acres and the buildings on it, including two large buildings — one that served as a retreat house and another as a gathering place, known as The Lodge, for the Buddhist group that had owned it.

Grants, mostly from the Open Space Institute, and funding from Albany County provided all but $112,500 of that total cost. The remainder came out of the town’s capital projects fund.

The purchase was controversial, and Republicans have used it as a campaign issue. Expulsion of two Buddhists tenets in 2018 had also been controversial.

Lyons told The Enterprise after the Jan. 1 meeting, “The new board wants to verify we’re following the code and that money is properly spent for programs.”

The Switzkill Farm board had sponsored a variety of festivals and hosted a summer camp, among other open-to-the-public activities.

Lyons said on Friday, “We tried some things at the organizational meeting and really quickly, maybe a month later, we realized that maybe those weren’t the right steps so we got those boards back reinstated pretty quickly.”

At the town board’s Feb. 12 meeting, the town board appointed Kathleen Moore as chairwoman of the conservation board and also reinstated the members of the conservation and Switzkill Farm boards, Lyons said.

“The conservation board actually had two or three meetings after we reinstated them,” he said.

Moore confirmed on Friday that the conservation board she chairs had met several times and put recent meetings on hold because of coronavirus restrictions.

Moore added in an email on Saturday that she had not been told by the town that she was not being reappointed as chairwoman at the Jan. 1 reorganizational meeting. “No one contacted me directly or officially with that information. I found out via someone else’s Facebook post that that was the case,” Moore wrote, adding, “No one contacted me about the necessary information for the supposed ‘audit’ that was supposed to be done, either.”

Willsey questioned the need for an audit since the members of the conservation board are unpaid volunteers and, he said, they don’t spend money.

Moore's email went on, “Therefore we continued to meet. We met at our usual time and place on January 6 and February 10 (before my ‘official’ reappointment on February 12), and again on March 10, before the suspension of public meetings … As far as I was concerned, I was still chair and the CB was continuing to function — we were (and are) in the middle of some important projects.”

Lyons said a chairperson has not been named for the Switzkill Farm Board “only because there’s a new parks advisory board that we’re trying to work into and that would absorb most of the members.”

The hope, he said is “to have an overall advisory panel for all our parks.” In addition to Switzkill Farm, this includes the town park; a pocket park behind the store in Berne; the Switzkill natural area on Switzkill Road, southwest of the farm, in the valley; and “a couple of little spots of land that we own that we’d just like to spruce up,” said Lyons.

 

Investigations

At its June 29 meeting, the board’s four Republican-backed candidates voted, in Willsey’s absence, to censure him for discrimination. The censure was based on a complaint by Deputy Supervisor Dennis Palow, a combat veteran, who felt discriminated against because of Willsey’s concern he might have post-traumatic stress disorder.

Palow had filed a complaint against Willsey with the Albany County Sheriff’s Office on Aug. 21, 2019, according to an incident report, which led to an investigation but no arrest. The report states that Palow alleged Willsey had disclosed Palow’s “privately diagnosed PTSD [to] the public” without Palow’s consent and that Willsey “sent out to the media” an email. The report goes on to say that Lyons stated that he feels no threat in working with Palow but that Willsey “is harassing and discriminating against” Palow.

Actually, Willsey’s email, which he had labeled confidential, was shared by Lyons with local conservative talk-show host Melody Burns. Willsey had emailed Lyons after a board meeting last July, where he felt threatened by Palow, to express concerns about his behavior, including that he was “very concerned about the potential for a PTSD situation.”

Burns wrote on Facebook that the Democratic board members were “attacking” Palow by suggesting that “because he is a combat vet, he is a mass killer. By saying this the Town Board Members are labeling all Combat Veterans as being damaged and killers.”

That misinformation likely played a role in drawing a massive crowd of about 50, many from out of town, to support Palow during the Aug. 28 board meeting, where Palow read excerpts of Willsey’s emails to jeers.

Willsey had endured months of investigations before he retired a year ago from his job at the state’s Department of Transportation, spurred by complaints from Randy Bashwinger, the town’s highway superintendent who also chairs Berne’s Republican committee.

“Two IT technicians went through my computer at work repeatedly and found no trace of me going online with my work computer” for campaign use, Willsey said this week.

The allegations were found to have no merit.

The investigation of Willsey that led to the GOP-backed candidates censuring him was spurred by a complaint from Palow and was investigated by Roemer Wallens & Mineaux, an Albany-based law firm that specializes in labor law, which did not return calls to The Enterprise.

After The Enterprise wrote about the June 29 censure, two former town board members, Dawn Jordan and Karen Schimmer, both Democrats who did not seek re-election, revealed that they, too, had been investigated.

“Berne Republican and Republican party-backed officials have a clear pattern of harassing elected and appointed officials who dare to disagree with them,” Jordan wrote in a July 9 letter to the Enterprise editor.

In it, she detailed how she was interviewed by a lawyer from Roemer Wallens & Mineaux, not told what the charges were, and was without legal counsel herself.

“I was appalled. However, when I was told the allegation and who brought it, I admit, I laughed in disbelief.” Jordan wrote. “During our budget process, when raises for employees and officials had been discussed, I had voted, along with councilmembers Willsey and Schimmer, to not grant Randy Bashwinger the 18-percent raise he had requested or the 10-percent alternative that Supervisor Lyons proposed.”

Similarly, Schimmer said this week that she, too, was investigated by the same firm for insisting that adults supervising teenagers’ camping out at Thompsons Lake go through background checks. Both Jordan and Schimmer voted against appointing Bashwinger to the town’s youth council.

When Lyons was asked this week about the investigations against Jordan and Schimmer, he said, “I really can’t talk about any investigations but what I can tell you is that I don’t have any open investigations at the moment.”

He did say the investigations were all conducted by the same law firm. Lyons said he did not know the cost of the investigations.

The Enterprise has filed a Freedom of Information Law request to learn the costs, which has not yet been answered.

Asked if he thought it was worthwhile for the town to spend money on such investigations, Lyons said, “I don’t think that that is ever a good expenditure. I’m more into the type of management style that I would much rather have people work their differences out than file grievances or cause investigations so personally … I don’t agree with this approach but it’s not my position to determine whether it’s worthy of investigation or not.”

Lyons said that, according to town policy, he is obligated “to move every investigation to an independent investigator and have them take care of it and it’s not for me to decide … I’m not deciding if it’s a worthy case or not.”

The “Town of Berne Employee Handbook” says that “all complaints of discrimination, harassment, and sexual harassment” are taken seriously and that “any complaints from employees and non-employees” will be addressed.

The investigation of a complaint, the handbook says, is to be conducted by someone appointed by the town supervisor unless the complaint is against him. Complaints are to be “handled and investigated in a manner that is as impartial and confidential as possible,” the handbook says.

While Palow was the complainant for the recent investigation of Willsey, The Enterprise asked Lyons who lodged the complaints against Jordan and Schimmer.

“I certainly can’t answer that,” he said.

Asked if any citizen could lodge a complaint for an investigation to ensue, Lyons said, it had to be an employee or an elected official.

“It’s very unusual,” he said of the frequency of investigations of Berne Town Board members. 

Lyons concluded, “I hope to be through it and not have any more of it.”

On Friday, however, Willsey said harassment was ongoing and pointed to the Berne Highway page, run by Bashwinger, who posted a notice on July 9 addressing the public on where the highway crew would be clearing brush and added in capital letters, “Also please watch for one of our town board members. He is apparently hiding in the brush to take pictures of the guys working. I would hate for him to get hurt by traffic.”

“Bullying is not the answer …,” responded Gerard Chartier, Willsey’s brother-in-law, in a post after which Bashwinger posted: “bullying are you friggin kidding me I have [been] taking this a--holes s--t for years I am done with it”

Bashwinger emailed the town’s attorney that he would be calling the state police on Willsey for harassment. Willsey responded that the highway superintendent’s falsely reporting an incident to the state police “is just more documented GOP harassment.”

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