BERNE — Berne residents have a rare opportunity to witness one of their town board’s executive sessions, called illegitimately on April 29 to discuss the conduct of Councilman Joel Willsey, the board’s lone Democrat, who had been accused of and investigated for the discrimination of Republican Councilman Dennis Palow, a combat veteran. 

The 48-minute recording reveals that the three GOP-backed board members, besides Palow, originally hoped to bring Willsey to court over the results of a hired law firm’s investigation, which concluded that he had discriminated against Palow. But the town attorney told board members they can vote only to support Palow should he attempt to impeach Willsey, a move Palow would make as a private resident.

Because Willsey is an elected official and not an employee of the town, he is outside the purview of the town’s employee handbook, leaving him immune to any potent disciplinary action by the town. 

Ultimately, no action was taken by the end of the executive session, with Town Attorney Javid Afzali explaining that any action the board takes to support Palow in his efforts to remove Willsey would need to be voted on in public, and that, as the subject of the lawsuit, Willsey would be able to request that any relevant discussion also be held in public. 

Afzali recommended during the closed session that mediation might be an effective way to resolve the issue while avoiding the complications that come with litigation.

The board would later resolve to censure Willsey for discrimination on June 29, the same night it publicly revealed the results of the investigation.

Palow could not be reached for comment on whether he has pursued or still wishes to pursue legal action against Willsey, but Willsey told The Enterprise this week that he has not received notice of any action against him.

Neither Supervisor Sean Lyons nor Afzali could be reached to comment on what it means for the town to “support” a private lawsuit.

At the board’s Aug. 26 meeting, Willsey made a motion to release the video of the April 29 executive session to the public to prove that the four GOP-backed board members had harassed him during the closed session. 

Willsey, Lyons, and Councilwoman Bonnie Conklin voted in favor of releasing the tape. Palow and Councilman Mathew Harris voted against the release. 

Lyons could not be reached for comment on why he voted in favor of the release.

 

 

Conklin, now a Conservative, had been the only Republican among four Democrats when she resigned her post as councilwoman in 2013. She said during the Aug. 26 meeting that she had been harassed in executive sessions during her original tenure as a board member.

She added that she did not think harassment happened under Lyons’s administration.

The recording of the executive session is not currently available on the town website, as other recorded meeting videos are. Town Clerk Anita Clayton told The Enterprise that, as of Sept. 1, there is no release date for the video. Clayton did not respond to follow-up questions asking why there would be a delay in publishing the video.

On Sept. 2, Clayton informed The Enterprise that a Freedom of Information Law Request would need to be submitted for the recording. Clayton, who is also Berne’s Freedom of Information Law officer, often requires The Enterprise to FOIL for simple town documents, generally taking about a month to transmit them. 

 

Illegitimate information

The session, filled with melodrama and faulty information, was called at the town board’s April 29 regular meeting, held remotely via Zoom, on the basis of “personnel matters,” which is an insufficient reason to go into executive session, according to New York State’s Committee on Open Government.

“While for some it may be a matter of semantics,” Executive Director Shoshanah Bewlay told The Enterprise earlier, “you are correct that the [Open Meetings Law] requires that the public body describe the content of the Executive Session with specific reference to one of the stated enumerated proper topics for such session, and the words ‘personnel matters’ do not appear in the statute.”

The closed session was kicked off by Palow, who summarized the conclusion of the investigation into Willsey and erroneously stated that the town board could vote to move against Willsey in court. 

“I know that a private resident is authorized to move forward with my case,” Palow said over Willsey’s various objections, “or the town board has the right to vote to move my case forward against — it would be the town against Joel.”

Later in the meeting, Afzali said that the legal action would have to be initiated by a private resident — Palow — and the board could then vote on whether or not to involve itself in Palow’s case. 

Afzali was referencing Public Officers Law Section 36, which states that a town officer “may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town ….”

Afzali said that a resident’s application to remove Willsey, as opposed to a district attorney’s, would be most appropriate since Willsey had not engaged in a criminal act.

“I have spoken with my attorney,” Palow said prior to Afzali’s clarification, “and my attorney has advised me that the town has a very strong case here to move forward and to allow the court — a jury — to go to trial and to determine whether or not to remove Joel from the board.” 

Palow also falsely stated that Willsey violated the Healthcare Insurance Portability and Accountability Act, which protects health privacy, when Willsey allegedly revealed to Lyons and the town’s then-attorney William Conboy III that Palow had post-traumatic stress disorder as a result of his military service. 

Willsey never said that Palow had PTSD and has stated on numerous occasions that he does not know whether Palow has PTSD. Rather, Willsey wrote in an email to Lyons and Conboy last August that he was “very concerned about the potential for a PTSD situation.” The email was labeled as “confidential” in the subject line. 

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 incident report says that Palow claimed Willsey had disclosed Palow’s “privately diagnosed PTSD” to the public without Palow’s consent to do so.

At the April 29 session, Palow also falsely stated that Willsey included then-councilwomen Dawn Jordan and Karen Schimmer in an email that related personal information about Palow. 

In the email that Palow read to the board during the executive session, no personal information about Palow was revealed. It was in this email that Willsey requested additional security because he felt unsafe around Palow following an exchange in which Palow told Willsey, “If you keep talking crap about me, Joel, I’ve got something for you.”

Willsey wrote in the email that he included Jordan and Schimmer so that they could provide their own perspective on potential security issues. 

In that email, Willsey requested, among other things, that the town hall be swept for weapons. 

“Considering the fact that Mr Palow spends a lot of time in the Town Hall,” Willsey reasoned, “I believe a weapon could be hidden anywhere in the building.”

In the April 29 executive session, Palow argued that that sentence amounted to an accusation that Palow was, definitively, planting weapons in the town hall. 

Palow also claimed during the executive session that Willsey was the first to publicize the issue when he spoke about Palow’s potential PTSD with a resident. 

“I don’t know what he’s talking about there,” Willsey told The Enterprise this week. 

Last August, Lyons told then-Enterprise reporter H. Rose Schneider that he had shared Willsey’s emails with Melody Burns, a conservative talk-radio host.

Burns had said in a post on the Channel 6 Facebook page that the Democratic board members in Berne had labeled Palow a “mass killer,” and were “labelling all Combat veterans as being damaged and killers,” something they adamantly denied.

Lyons told Schneider that the post was Burns’s interpretation of the emails he had shared with her. Lyons said he knew Burns from his volunteering with the Veterans’ Miracle Center [“Veterans rally for Berne councilman after Dems skip meeting over safety,” The Altamont Enterprise, Aug. 29, 2019].

When Willsey made this point in the April 29 executive session, Lyons objected in an outburst. 

“That is your first lie, from you,” Lyons yelled. “So I’m interrupting you like you interrupted, because now you are lying —”

“How did it get to her, then?” Willsey asked. 

“Good question,” Lyons said. “I don’t know.” 

Willsey said that he got that information from reading The Enterprise. Lyons maintained during the April session that he did not share the emails with Burns but he did not challenge the veracity of the reporting during the executive session, nor after any of the several times that fact was repeated in The Enterprise since it was initially reported, though Lyons has called the newspaper requesting other corrections in that time. 

Lyons could not be reached to clarify his position on the matter, and Burns could not be reached to explain how she had acquired the emails.

Palow also falsely stated that Willsey was “found guilty” by way of the investigation. While the law firm did conclude — based on falsehoods, according to Willsey — that Willsey discriminated against Palow as a veteran, it is not clear what weight the investigation carries, as no member of Roemer Wallens Gold & Mineaux returned inquiries about the investigation process to The Enterprise. 

Among the incorrect information insinuated by the report, quoted in excerpts within the town’s censure resolution, is the investigator’s assertion that, “There is no evidence that Mr. Palow was involved in the shooting of a campaign sign on Mr. Willsey’s lawn.”

Willsey has said that he never accused Palow of shooting a lawn sign.

In an email to Lyons last year, Willsey wrote that “someone shot a Kevin Crosier election sign in October 2017.”

Crosier, a Democrat, was Berne’s supervisor through 2017, when Lyons successfully ran against him.

The email does not insinuate that Palow was the vandal. 

“A sign on your lawn with a bullet hole through it makes one ponder,” Willsey wrote in that email. “This was the first red flag, an indication that your supporters are willing to do things that are not socially or legally acceptable and this was very stressful for my wife and family even before the election.”

Further, the investigation report is quoted by the board as saying, “Willsey sought to and succeeded in implementing [a] Town [security) policy on the basis of assumptions and stereotypes regarding Palow’s military service.” 

Palow’s military service is not referenced in the email that requests extra security and, when Willsey does bring up Palow’s military history and the potential for PTSD in subsequent emails, no assumption is indicated.

In the email, sent to Lyons, Conboy, Jordan, and Schimmer, Willsey called for extra security measures on the basis of Palow’s “history of calling me a liar, threatening me, and harassing and intimidating me.” Later in the email, under the subhead “Rationale,” Willsey transcribed the portion of the July 2019 meeting where Palow says, “If you keep talking crap about me, Joel, I’ve got something for you.”

The law firm’s report also states that Willsey “openly engaged in negative stereotyping with other members of the board and with news media …”

The Enterprise first learned of the emails in question when Palow read them aloud to a packed town hall on Aug. 28. Dozens of people from out of town flocked to the board’s regular meeting that evening to rally in support of Palow and veterans in general, possibly motivated by Burns’s Facebook post, published the day prior. 

During the April 29 executive session, Harris attacked Willsey for causing “real damage” to the town by making the claims he did, which resulted in the town board at the time adopting the security measures requested by Willsey in his email, including a metal detector installed at the town hall and a sheriff’s deputy stationed there during town board meetings.

“It cost the town a lot,” Harris said. “It cost the town in the newspaper, it cost the town paying for the metal detectors, it cost the town for this, it cost the town for that, it cost the town for something else. You and your two other people [Jordan and Schimmer] didn’t even show up [to the Aug. 28 regular meeting] which meant that the town couldn’t do business for a month. This is real damage to the town.”

The town did not pay for a metal detector, which it already had for use during town court sessions. The town did pay for sheriff’s deputies, whose maximum rates, according to Jordan at the time, would have been $50 per hour. The lowest rate would have been $20. 

Assuming that the deputy — who was present only at town board meetings and not other board meetings — was paid the maximum $50 per hour, and allowing for an additional 30 minutes at either end of all town board meetings held between the Sept. 11 meeting when the security resolution was passed and the Jan. 1 reorganizational meeting when the resolution was rescinded, the total cost of the town for the deputy would have been $1,725. For two deputies under the same conditions, the cost would have been $3,450.

According to town documents, the Town Board approved $825 in payments to the Albany County Sheriff’s office for security in September and October.

“The December abstract doesn’t have any bill,” Jordan told The Enterprise this week. “I’m not sure why, but I’m pretty sure there was a meeting [the deputies] missed, or were there only for a few minutes and were called out …”

“I remember Joel, Karen and I approving a payment once for $700 for deputies,” Jordan told The Enterprise this week. “... I don’t remember approving any other payments, but they must have been included in with the rest of the bills.”

Jordan added that a second deputy was present for at least two meetings over the duration of the resolution, but left before the meetings concluded.

At least one deputy was present at the Aug. 28 meeting, which the Democrats did not attend, before the security resolutions were passed.

By comparison, the town board spent more than $15,000 on investigations into board Democrats since Lyons took office in 2017. Excepting the latest known investigation into Willsey, none of the investigations revealed any misconduct.

Willsey has complained that investigations against him were triggered by baseless allegations — one such allegation being his use of the word “erection” in an email referencing the installation of campaign signs — designed to harass him, a motive he assigned to the April 29 executive session as well. 

Jordan said she was investigated by Roemer Wallens Gold & Mineaux for not granting Randy Bashwinger the 18-percent raise he had requested or the 10-percent alternative that Lyons proposed. Bashwinger, the town’s highway superintendent, also chairs Berne’s Republican committee.

Similarly, Schimmer said 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.

Willsey responded to Harris’s claim that the Democrats didn’t show up to the Aug. 28 meeting by saying that Lyons was informed in advance and that the absence was a result of Lyons’s inaction regarding security. 

At the August 2019 town board meeting, only the two Republican members, Palow and Lyons, had shown up along with a large crowd to support Palow. At the September 2019 meeting, only the three Democrats had shown up, which is when they passed the new security measures.

“It’s not what I like to see,” Jordan said at the time of using the metal detector. “I support the Constitution and the Second Amendment … But we have the right to feel safe at our meetings and not feel intimidated or harassed.”

She went on, “One person’s rights end when they infringe on another person’s rights.”

 

Views on lawsuit

In the April 29 executive session, council members Harris and Conklin, both of whom were backed by the GOP when they were elected last November, laid out their perspectives on Willsey’s alleged discrimination against Palow. Both supported Palow’s wishes to see the matter play out in court, though each had a degree of reservation.

“My daughters are Navy veterans,” Harris said. “My father, his father, my mother’s brothers, my wife’s family, [and] their children are all veterans. Long after my enlistment ended, as a civilian, I served in Saudi Arabia as part of a multi-national force supporting Operation Enduring Freedom. Mr. Willsey has dishonored and dismissed not just Palow with his behavior but all of my brothers and sisters who have honored this country.

“There’s more to this than that,” Harris went on, “… The independent evaluation provided to me by Supervisor Lyons presents a factual and compelling pattern of malice and reckless behavior that has resulted in the implementation of policies that are punitive and inconsistent with the character and the dignity of this town.

“Mr. Willsey,” Harris said, “could not make the subsequent resolution and incur the damage to the town that followed all by himself. He couldn’t. It took the cooperative effort of at least two others, and to me, this has become a case of organized disrespect, retribution, bigotry and discrimination against the people and the lawful purpose of the town of Berne. 

“No veteran from any party could or has condoned this behavior,” Harris said. “I would seek to expand the town’s legal complaint to include all of these elements. And while I recommend that we consider moving forward, I would also recommend that we do that at a time in which it is more appropriate for us to explore this. 

“Right now, we have a number of things on our plate,” Harris concluded. “We have a lot of issues in this town, and I personally would like to make sure that we give this its full attention that it’s due, but not at the expense of the people of the town right now.”

“I do have a loved one that just got back a couple years ago from Afghanistan,” Conklin said, “who does have post-traumatic stress disorder, and it’s horrible. I mean — I don’t — it’s just horrible. The minute this person got home, you couldn’t hug him, you couldn’t do anything. Couldn’t eat dinner with him. 

“But beside the point,” Conklin went on, “it’s a big deal for me, for veterans … First what I’ll say is reading over the material, there were things I feel that Sean and Dennis maybe were inappropriate or not professional about. 

“But on the other hand,” Conklin concluded, “it’s like, I just don’t think you can go to some people and ask your opinions about some people. Especially about mental health. Mental health is very discriminatory sometimes and, I don’t know. This is a very difficult situation and I wish no harm to anybody, but I’d like to follow up to go to trial.”

“The issue as I see it was very consistent harassment, threats, intimidation by Mr. Palow,” Willsey said after Conklin finished. “I asked that it be addressed more than once. I asked in writing that it be addressed … I asked that you do something to stop it. And I think you [Sean] encouraged it. It’s on the record that he’s threatened me repeatedly. It’s demonstrated; it’s documented; it’s on tape. 

“So in order for this board to function,” Willsey said, “I can’t be under constant attack. That is what I tried to address. That is why I said the emails should remain confidential. And the other reason I asked the emails to remain confidential, clearly I stated it in the emails, is that I didn’t think it was appropriate for this to be put out in the public domain in case it was related to a PTSD situation. I wanted to respect Mr. Palow’s service.”

 

Attorney’s view

At the end of the meeting, Afzali said he agreed with the recommendation made by the investigating law firm that the matter be resolved through mediation as opposed to legal action.

“Really the question is if it’s worth everyone’s time to continue this conversation with an actual neutral person,” Afzali said, “… to see if there can be a shared understanding about certain facts, and maybe when people agree on those facts you can negotiate a resolution in the end. Personally, I’ve always found that very, very helpful. Certainly, litigation is always an option, but it’s always going to be a last option because no matter what happens, nobody really wins in the end.”

Afzali said earlier that the executive session, while it could not have resulted in any action, was a “good start” toward resolution. 

“What’s been happening at this point during this executive session is a good start,” Afzali said. “Everyone’s kind of gotten the opportunity to put their grievances on the table but I think ... we can advance this conversation with a neutral mediator, not in any terms of taking action or anything but in an attempt to fix a dispute or hurt feelings because, you know, regardless of what actually happened, people’s perceptions of what happened is important, so councilmen Harris and Palow’s stories are correct for them, and your version, Councilman Willsey, is certainly correct for you. I’m not one to arbitrate those facts.”