GUILDERLAND — The Guilderland Public LIbrary is in need of a new trustee, after Michael Marcantonio resigned on Sept. 19, “effective immediately.” 

The board will follow its historical practice of appointing the candidate who got the next-most votes in the last election, which is Mark Keeling, board President Bryan Best told The Enterprise this week. The board does it this way because Keeling’s run shows that he was recently interested, and because thousands of residents voted for him, Best said. 

Keeling told The Enterprise he had accepted the offer and will join the board. Keeling, 48, who lives on Siver Road, is the vice president of a national insurance company. 

Marcantonio’s resignation came after another board member, Barry Nelson, had accused him, at the previous meeting, when Marcantonio had been on vacation, of a conflict of interest that the board then went into executive session to discuss. 

At the July 18 meeting, Nelson had told other board members he wanted to discuss what he said was Marcantonio’s “violation of the code of ethics” and a “conflict of interest.”

Marcantonio’s wife works for the library and, as a trustee, Marcantonio was involved in contract negotiations with the union for library staff.

While the library’s lawyer and board president along with Marcantonio say there is no legal conflict of interest, the library’s code of ethics is clear that trustees must publicly disclose, in writing, any interests they or a spouse may have in matters or resolutions before the board, including “any … actual or proposed contract.”

The code also states, “It is incumbent upon any officer to disqualify himself/herself immediately whenever the appearance of or a conflict exists.”

Marcantonio had discovered Nelson’s accusation when he watched a video of the meeting on the library’s Facebook page “to get caught up,” he told The Enterprise. None of his fellow board members had called Marcantonio to tell him about the developments at the July meeting, he said this week. 

Best responded, through The Enterprise, that the board had asked him to contact Marcantonio and that he had planned to, but that Marcantonio found out about it by watching the video before he’d had a chance to call.

“I believe he contacted me Monday morning and the meeting was Thursday night,” Best said, referring to the board meeting, which was held on Thursday, July 18. Best added that it is his understanding that Marcantonio knew of Nelson’s “concerns with his objectivity before the July meeting.”

Both Nelson and Marcantonio were elected to the board for the first time in 2018, in a race that was uncontested. 

Conflict of interest? 

There is no legal conflict of interest in Marcantonio’s being involved in contract negotiations with the union his wife is part of, say Marcantonio, Best, and the library’s counsel.

Nelson said at the July 18 meeting, “The problem with this board member is his wife works for the library; she’s a member of the union that we are negotiating with.” He was referring to the Civil Service Employees Association, or CSEA. 

Guilderland Public Library Director Timothy Wiles confirmed this week that Michael Marcantonio’s wife, Roseanne Marcantonio, works about eight hours a week in the library's Collection Services department as a senior clerk; she previously was a full-time employee and is a past union president. 

Nelson told the board members on July 18 that, when the board’s personnel and labor-management committee started doing contract negotiations with the union, Michael Marcantonio began attending meetings and “voting as if he was a committee person” and not only agreeing to what the union was asking but also offering better terms than the union was requesting. 

Marcantonio declined to give specifics about negotiations with the union, but told The Enterprise, “I was trying to keep an open eye on both sides of the fence.”

Marcantonio went on about Nelson, “He said I was too liberal — I don’t know where he got that from — and that I kept giving in to the union, and I don’t know where he got that from. None of that is true. My biggest complaint was that he brought this up when I wasn’t there to defend myself.” 

Other board members — first Barbara Fraterrigo and then Caitlin Downey — said at the meeting that they felt these concerns would be better raised in executive session, and the board later voted to meet privately.

At the board’s next meeting, on Sept. 19, Best said that he wanted to read a statement from the library's counsel, Kristine A. Lanchantin of Girvin and Ferlazzo, who did not attend either the July 18 or the Sept. 19 board meeting. 

“A trustee who is the spouse of a library employee does not have a conflict of interest and can vote on anything regarding union contract negotiation,” Best said, reading from the statement, which continued, “He or she can and probably should recuse themselves from votes that affect their spouse, but in no way, shape, or form have to.”

Lanchantin told The Enterprise in an email that her advice was “based on the guiding case” of Stettine v. County of Suffolk, decided in 1985 by the state’s highest court, the Court of Appeals.

“[T]he court found that there was no conflict of interest where the county’s negotiator was entitled to the same benefits as those in the bargaining unit, with which he bargained a contract (which resulted in additional benefits to which he was then entitled),” Lanchantin wrote.

Lanchantin said that members of a board will often recuse themselves from a vote, “to avoid ‘the appearance of impropriety,’ but it is not required.”

Richard Stettine had filed the suit that Lanchantin referenced on behalf of taxpayers, arguing that the defendant should not be entitled to the 63-percent increase in salary he had negotiated for himself.

The high court was split, 4 to 3, with the majority finding that CSEA Suffolk is a voluntary nonprofit association within the meaning of General Municipal Law § 802 and is therefore excepted from the proscriptions of General Municipal Law § 801.

The dissenters found that, while CSEA Suffolk may be a voluntary nonprofit association, it is not the type of voluntary association intended to be excepted under General Municipal Law § 802, which was meant only for nonprofit corporations or associations that are charitable, such as nonprofit hospital corporations, nonprofit animal shelters and volunteer firemen's associations, because it was intended to protect contracts between a municipality and charitable organizations or organizations formed for the public benefit and not contracts entered into with labor unions whose sole purpose is the betterment of their members.

“I am at a loss,” wrote Judge Richard Simons in the dissenting opinion, “to know why the courts should construe the section broadly and condone a practice cynically indifferent to the public interest. All the more is this so because counsel for the union asserts that the practice is not unique, but indeed quite common among municipalities.”

Two other cases speak to the issue of when public officers engage in a breach of ethics by misusing office for private gain. 

One is Tuxedo Conservation & Taxpayers Assn, v Town Bd. This 1979 case arose over a proposal by Sterling Forest Development Corp. for a $200 million, 3,900-residential-unit project that would quadruple the local population. The application had been turned down in 1975 and 1976. In 1977, the town board delegated to the planning board authority to hold public hearings, retaining its own role as lead agency. 

There was considerable public opposition to the project. On the town board, 3 members were for it and 2 against. On Election Day in November 1977, the complexion of the board — effective Jan. 1, 1978 — changed to become 3 to 2 against the project instead of 3 to 2 for it. The town board passed a local law in December 1977 to remove the planning board’s authority over the environmental aspects of the project, and took over. 

Although the State Attorney General’s Office and the Department of Environmental Conservation had asked for more time to provide statements on the project’s impact, the town board voted on Dec. 28, 1977 to grant preliminary approval to Sterling. 

The vote was 3 to 2, and the controlling vote in favor was cast by appellant Martineau, who, in addition to being a town board member, was a vice-president of an advertising agency that has City Investing Corp. as a corporate client. Sterling is a wholly-owned subsidiary of City Investing Corp. 

Martineau did not recuse himself. He had submitted a question on whether there was a conflict of interest to the local ethics board, but had not received an answer. 

An Article 78 proceeding was brought against the town board in its administrative capacity, and against Sterling and U.I.D.C. of New York. In its decision to uphold the decision in favor of the taxpayers, J. Cohalan of the New York State Supreme Court, Appellate Division wrote, among other things, “[W]e deplore Mr. Martineau’s participation in the vote. Not because of the result, but that he voted at all, even though it may have meant putting the matter over until the advent of the new year. We direct his attention to the soaring rhetoric of Chief Judge Cardozo in his opinion in Meinhard v Salmon (249 NY 458, 464): ‘A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.’ This statement was written with reference to a fiduciary, but it should apply as well to public servants.

“On behalf of Martineau it is asserted,” the opinion continues, “that he did not violate section 809 of the General Municipal Law, which forbids certain specified conflicts of interest. Be that as it may, while the anathema of the letter of the law may not apply to his action, the spirit of the law was definitely violated.” 

The other relevant case is Zagoreos v. Conklin. At issue, in 1985, were efforts by Orange and Rockland Utilities to gain municipal approval to build several structures needed to convert two oil-burning generating units into coat-burning units at a plant in Stony Point. 

The conversion was included in the State Energy Master Plan and Orange and Rockland had been successful in getting approval of a final environmental impact statement and several necessary permits from the Department of Environmental Conservation. 

The proposed construction involved the extension of a prior noncconforming use in a general floodplain zone and would have required a number of variances; because of the site’s size, a large-scale development permit from the town board was also necessary. 

The court set out to determine whether certain proceedings before the zoning board of appeals and town board were “fatally tainted by a conflict of interest arising from the participation in these proceedings of several employees of O & R who were also members of those public bodies.” 

In the opinion, J.P. Lazer wrote that “it is inconceivable” that considerations of their future with the company did not “loom large in the minds of the three” as they made their decisions. 

He wrote, “Although the mere fact of employment might not require disqualification in every instance, we conclude that under the circumstances of these proceedings, the failure of the three O & R employees to disqualify themselves was improper.”

He continued, “In light of the unusual nature of the applications and the substantial controversy surrounding the matter, it was crucial that the public be assured that the decision would be made by town officials completely free to exercise their best judgment of the public interest, without any suggestion of self-interest or partiality. Anything less would undermine the people’s confidence in the legitimacy of the proceedings and the integrity of the municipal government.”

These two cases differ from the questions raised by Nelson, however, since both involve public officers who would receive direct benefits from their own decisions that would not also be equally available to others affected by the board’s decisions. 

Marcantonio resigns

Best said at the September meeting that opinions had been shared about a trustee’s work with the personnel and labor-management committee, and that, since that trustee was not there to give his perspective, “I want to remind the public and everybody that these were in fact one person’s opinion, and don’t necessarily reflect what actually happened.” 

Immediately after Best spoke, Marcantonio announced his resignation with a brief statement, saying that he had signed up to represent the community in the spring of 2018 for “what I consider to be an oasis on Western Avenue, the Guilderland Public Library.” He had a strong passion to assist with the expansion-and-renovation project, he said, and to represent the library’s great employees, and encourage new and different programs and events the library could offer. 

“I did not sign up for the constant wrongful accusations from trustee Barry Nelson, of which I can now feel I believe I was bullied,” he said.

Marcantonio said that this was the fourth time Nelson had accused him, in public meetings, of wrongdoing; he did not want to elaborate on the other instances, which he said were “too private” but were recorded in his notes on meetings. He also said he was “having a tough time accepting how the last situation was handled at the last board meeting, from the administration, from the board chairman, and from the board.” 

Marcantonio told the board in September, referring to the previous meeting, “I wasn’t there to give my point of view, and to this day, do not know what was discussed in the private meeting, in the executive meeting.” 

Talking with The Enterprise this week, Marcantonio said, “I was very involved my first year, especially with the renovation-expansion project. I never missed anything.” His decision to resign came after a lot of soul-searching, he said, which he said led him to the conclusion, “It’s a volunteer position, why am I beating myself?” 

Nelson declined to comment this week.

Appropriateness of executive session 

There has been some confusion around whether the board legally went into executive session and on what basis. 

The state’s Open Meetings Law says that a public body may go into executive session in order to discuss “the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.” 

Longtime former executive director of the state’s Committee on Open Government, Robert Freeman, wrote in an advisory opinion on the topic of public bodies going into executive session: “Both the Open Meetings Law and the Freedom of Information Law are permissive. While the Open Meetings Law authorizes public bodies to conduct executive sessions in circumstances described in paragraphs (a) through (h) of §105(1), there is no requirement that an executive session be held even though a public body has the right to do so.”

Lanchantin said, “While I was not present in executive session, so I do not know what was discussed, it is appropriate to discuss concerns raised about a board member, in executive session. No action was taken in executive session.” 

If the board has the authority to discipline a trustee, then it would be appropriate to go into executive session to discuss a complaint about that trustee, said Kristin O’Neill, assistant director of the Committee on Open Government in the New York State Department of State. O’Neill added that, when a board goes into executive session, it should specify why it is doing that.

It is not clear that the board was discussing discipline of a trustee or, rather, whether there had been any conflict of interest. 

Bryan Best told The Enterprise the board should have made its reasons clearer. “I was slightly caught off guard by the discussion,” he said, “and wanted to handle it with the appropriate care the issue deserved, while still trying my best to follow the law as I understood it. Although Mike is not an employee, his wife is. We should have made it clear that the board was going into executive session regarding the employment and financial history of an employee and with regard to a contract negotiation, which this issue is all tied into.” 

If the board went into a closed session to discuss “collective negotiations pursuant to article fourteen of the civil service law,” that would have been legal, and could have been cited, but just mention of a contract negotiation wouldn’t qualify.

Best also told The Enterprise, “I am always hesitant to go into executive session, unless the law allows for it. I believe in transparency and I don’t believe that executive session is for topics that are simply uncomfortable.” 

The Enterprise asked Lanchantin in an email whether the topic wouldn’t have been better dealt with in public, rather than executive session, since it involved a general question about whether Marcantonio’s actions represented a conflict of interest, and not anything related to the hiring, firing, or demotion of an employee. 

She responded, “I’m sorry Elizabeth but you are asking me for legal advice that I am not employed by you to give. You may wish to consult your newspapers legal counsel. Thank you.”