NEW SCOTLAND — With the fate of the old Bender melon farm at stake, the town board has decided to hold an ethics hearing to determine whether the co-chair of a committee appointed to advise the town board on commercial zoning should be removed from the committee.

Co-chairwoman Elizabeth Kormos, who owns a real-estate and health-care consulting company, is accused of having a conflict of interest because she once represented a developer who was interested in the Bender property.

Currently, Sphere Development, of central New York, has proposed building a 750,000-square-foot retail mall on the Bender property located at the intersection of routes 85 and 85A. Massive citizen protests led the town board to adopt a commercial building moratorium while a committee was charged with recommending zoning to comply with the town’s 1994 comprehensive land-use plan.

Kormos favors a 50,000-foot cap supported by New Scotlanders for Sound Economic Development, of which she is a member. Sphere has called for Kormos’s removal from the committee. She has refused and said there is no conflict.

At a contentious meeting last Wednesday, the town board met in executive session to discuss the ethics hearing. The board asked Roselyn Robinson, who chairs the Commercial Zone Advisory Committee, to provide to the supervisor a written statement of her comments during the executive session. The supervisor, Thomas Dolin, will send it to town board members and Kormos’s attorney.

After rounds of debate among attorneys — both town officials and local residents — at the town board meeting, the board reluctantly went into executive session to hear why Robinson had charged Kormos with having a conflict of interest, and to determine if an ethics hearing were necessary.

According to Kormos’s attorney, Peter Lauricella, the board cannot hold a hearing until after Kormos has been charged in writing with a violation in writing.

Early in the meeting, Supervisor Dolin said that a hearing was unnecessary.

“What I’ve seen, it doesn’t come close to a conflict of interest,” Dolin said.

“There’s much more to it that that,” Robinson said about her initial e-mailed request for guidance to the town board. “There are factual issues regarding her relationship to the principal.”

Robinson said that Kormos had more than a one-time dealing with a developer who had been interested in the controversial Bender farm property.

 “Somebody has to come up with a formal charge,” said Dolin, an attorney and former town judge. “You can’t just have a hearing for a conflict of interest.”

Robinson also said that she was uncomfortable sharing more facts with members of the town board before the hearing is convened.

Dolin said that Robinson should let the board and Lauricella have a written statement of the charges she is bringing against Kormos. He said that copies to the board and Kormos’s attorney would not violate Kormos’s confidentiality.

“I have some concerns about that, as well,” Robinson said.

Dolin said that any further discussion would take place in executive session.

“From this moment forward, this matter is confidential and is not to be shared with spouses or [others],” Dolin said to the board.

“Reasonableness standards”

Before the board met in executive session, Town Attorney Michael Mackey suggested that only Kormos and her attorney needed to see the written allegation.

“I certainly don’t need to see it. The board doesn’t need to see it until the hearing,” Mackey said. “The board is essentially judge and jury. You can’t prejudge the issue. You’ve got to keep an open mind.”

Mackey said that the board must keep from judging and prosecuting at the same time.

Lauricella, however, said that the charges against Kormos must come from the town board.

Robinson said that she did not want the board to appoint an attorney to represent her charges against Kormos to the town board.

“I don’t think this is an evidentiary hearing,” she said.

Mackey argued that the board would need to swear in witnesses and apply a “reasonableness standard.”

“I think there is some question as to what the process really is,” said board member Richard Reilly.

Mackey said that the board was not dealing with a criminal conflict of interest, to which the town’s ethics law refers.

New Scotland resident Saul Abrams, an attorney and member of NS4SED, a grassroots group that has opposed Sphere’s plans, told the board that it would be “unfair” for Robinson to “prosecute” Kormos at the hearing and then evaluate Kormos’s opinion if Kormos then remains on CZAC. He noted a potential bias of the chairwoman, meaning Robinson.

“It seems to be a lot of excitement, and we don’t know if it’s excitable,” said board member Deborah Baron.

“Whatever happens, we’re all going to move forward,” Reilly said.

“It’s really up to Roz,” Dolin said about Robinson’s refusing a town-appointed attorney.

“I’m fine with it,” Robinson said. “Liz is a friend of mine, has been for years.”

Necessary hearing?

Local environmental attorney Dean Sommer, a member of NS4SED, protested the board’s decision to hold a hearing.

“You don’t know what the allegations are,” he said. “You don’t know, at this point, if you need a hearing.”

Sommer said that the ethics hearing procedure was one that the board was “largely creating.” He said that the board should have made a determination of whether or not a hearing would be appropriate. He suggested that the board ask Mackey what burden of proof the board would need.

“I suggest you do it in stages,” Sommer said.

“Dean makes a good point,” Mackey said. “Maybe Roz should formalize the complaint” to the town board.

“You might as well do it correctly the first time,” Sommer said. He said the board should “take a step back” following “basic due process.”

Lauricella told the board that Robinson and the other members of CZAC had “no authority and no jurisdiction” to handle or begin an investigation into Kormos’s alleged conflict.

“I can do this right now,” Robinson said. “That is absolutely not accurate. This is really starting to piss me off, frankly. I was trying to give Liz the chance to [step down].”

The board agreed to finish the remainder of the agenda before entering executive session, so that audience members could leave to watch the final presidential debate.

“This is more fun,” quipped town engineer Mark R. Dempf.

Other business

In other business, the board:

— Told a New Salem resident that Dolin and Dempf spoke with the Bethlehem supervisor and superintendent of public works on Sept. 10.

“They finally know what we were talking about,” Dolin said about a water project extension in New Salem. “They shook their heads ‘no.’ We may have to go it alone.”

Dempf said that the cost for Bethlehem to maintain its current extension would be reduced if it works with New Scotland.

“They’re spending the same amount or more money over 10 to 15 years,” Dempf said. “There could be a savings for Bethlehem to work with New Scotland. They finally listened. We used the M word, which is a million, and they took a step back.”

“Trying to go alone, the numbers don’t work,” Dolin said. “They’re moving very slowly. Unfortunately, we’re working with very [newly-elected] people.”

— Agreed to establish a governance committee with two board members on an audit committee and on an internal control committee. Internal Control Officer Darryl Purinton suggested that only two people would participate at a time, excluding the supervisor, Dolin said.

Reilly said that, by keeping the committees separate, four board members can participate with a one-year rotation. Board members serve four-year terms, and each will serve on a different committee each year, Reilly said.

“It’s an experiment,” Dolin said.

Reilly said that the committee assignments will be made by the January organizational meeting;

— Agreed to counter offer the sale of property formerly known as Elsie Place to George Petruska for $500. Petruska offered to buy it for $100.

Dempf said that the property was on a “paper street” of illegal width that had been dedicated to the town;

— Heard from Highway Superintendent Darrell Duncan that his department will purchase an ice-rink liner for the town park soccer field for about $2,400. The department will create a 12- to 18-inch berm around the rink, he said. The funds for the liner will come out of the $2,700 basketball- court budget, he said;

— Agreed to increase the amount spent on the Heldervale Sewer District Expansion #4 from $180,000 to $320,000;

— Set a public hearing for the proposed Cold War veterans’ tax exemption on Dec. 10 at 6:45 p.m.;

— Agreed to renew the town contract with Penflex to administer the Length of Service Awards Programs with the Onesquethaw and New Salem fire districts; and

— Agreed to a request by Town Clerk Diane Deschenes to puchase a conference recording system for $1,494 to be paid out of the 2008 budget, but taken out of the 2009 budget. Deschenes said that the old cassette tapes currently used are difficult to get and that the current machine is not working well.

The new system will allow her to upload records to the town computer, and e-mail voice recordings of meetings, she said.

Board member Douglas LaGrange and Dolin both said that they would like town business to be recorded on CDs with the new equipment, but Baron and Deschenes said that state recommendations suggest eliminating records after three to four months. They also said that the board accepts recorded minutes as the official record.

One audience member suggested that the town use a 30-gigabyte hard drive box to keep millions of pages of records, rather than CDs. Another advised against it.

“What is the official record? You’ve got two records,” he said.