Berne town and planning boards clash while attorney defends apparent lie

The Enterprise — Noah Zweifel
Supervisor Sean Lyons, left, and attorney Javid Afzali at one of Berne's July town board meetings, held at the town park due to coronavirus restrictions.

BERNE — Tensions were high at the Berne Planning Board’s Dec. 3 meeting, where members of the planning board rebuked the town board and its attorney, Javid Afzali, for scheduling a public hearing on a proposed local law about home-based businesses that should have first been referred to the planning board according to the town’s own statutes.

This led to a spat between Afzali and planning board member Larry Zimmerman, a former trial attorney. 

In addition to the home-occupation bill, the town board has scheduled public hearings for Dec. 9 to review a solar-energy-facilities law — which Zimmerman and other planning board members claim is also subject to planning board review — and a law that would constitute a town park advisory board. 

The home-occupation bill, which would amend the town’s zoning laws to allow home-based businesses in the town, is required by Section 190-67 of the town codebook to be referred to the planning board before a public hearing.

“Every proposed amendment,” the law reads, “unless initiated by the Planning Board, shall be referred to the Planning Board. The Planning Board shall report its recommendations thereon to the Town Board, accompanied by a full statement of the reasons for such recommendations, prior to the public hearing. 

“If the Planning Board fails to report within a period of 45 days from the date of receipt of notice or such longer time as may have been agreed upon by it and the Town Board,” the law says, “the Town Board may act without such report.”

The statute applies to all laws under chapter 190 in Berne’s codebook, appearing to preclude the solar facilities law, which is assigned its own chapter. The home-occupation law is filed under Section 190. 


Chairman’s letter

Before the Dec. 3 meeting, planning board Chairman Michael Vincent sent a letter to Supervisor Sean Lyons, informing him that holding public hearings for the proposed solar and home-occupation laws would violate the town code, citing Section 190-67. 

Vincent also wrote that the town board failed to submit the laws to the county planning board and failed to subject them to a State Environmental Quality Review; however, Section 239-M of General Municipal Law requires county and state review prior only to final action.

“It has been brought to my attention that the Town Board has posted Public Hearings for two new Proposed amended laws, Large Scale Solar and Home Occupation,” Vincent’s letter, dated Dec. 1, reads. “The town board is in direct violation of our town law.”

On Dec. 2, Afzali emailed Vincent a statement condemning him for making a legal interpretation and for sharing the letter with the media. Vincent did not share the letter with The Enterprise, the town’s paper of record, and The Enterprise did not know the letter existed until it obtained a copy of Afzali’s email. 

“Furthermore,” Afzali’s email to Vincent reads, “your decision to send the letter with its baseless legal conclusions to the media is a serious breach of your duties and obligations to the Town as a public officer and appointed official, and a transparent attempt to garner public support for you or your board member’s [sic] future political aspirations.”

The Enterprise was made aware of the town board’s apparent violation of the law by a resident who is not a member of the planning board. 

Afzali also apparently lies in the letter by claiming that the planning board reviewed the laws at a meeting on Nov. 3, and that the board could have raised its concerns with Afzali — who is present at planning board meetings as a Zoom operator — at that time. 

“As you well know, both proposed local laws are on your board’s November 3, 2020 agenda for consideration,” Afzali asserted in his letter. “If you had concerns with process or procedure, those concerns could have been handled at the public meeting with me present.”

In reality, the planning board met on Nov. 5 and no laws were presented for review. When the planning board asked councilman and planning board liaison Mathew Harris about the yet-to-be-proposed solar law at that meeting, Harris declined to provide any information. 

Afzali stated during the Dec. 3 planning board meeting that he meant to refer to that night’s meeting, for which review of the laws was at one point on the agenda (but removed the day of), but he could not explain why the subsequent sentence was in the past tense. 

Afzali could not be reached for comment before press time, nor could Lyons or Harris, both of whom were carbon-copied on Afzali’s email to Vincent.

The planning board ultimately resolved in a unanimous vote to request formal notice from the town board to review the laws that need to be reviewed. 

It appears, though, that the public hearings will still take place on Dec. 9 despite the fact that the planning board won’t have a chance to make its required recommendation by then.

Afzali argued that the town board can open a public hearing and leave it open, allowing the planning board to make its recommendation within its statutory 45 days, even though the law explicitly states that the review must take place before the public hearing.

“I will be the first one to object if they take a vote,” Afzali said of the town board.


Getting personal 

At one point during the Dec. 3 meeting, the animosity between Afzali and the planning board led to a heated exchange.

Zimmerman was attempting to argue that Afzali was not the planning board’s attorney when Afzali interrupted, saying, “You don’t have to inform me of anything. You’re a planning board member. You have no legal authority. You can sit there and yap all you want; it has no legal impact on this board or on this town.”

“Are you done?” Zimmerman asked. “May I speak now?”

“You have permission to speak, go ahead,” Afzali replied.

“Oh, don’t be insulting, Mr. Afzali,” Zimmerman said.

But, as Zimmerman attempted to make his case, Afzali spoke over him, prompting Zimmerman to ask, “Will you stop interrupting me?”

Afzali replied, “There’s nothing you can say that I’m interested in.”

Also during the meeting, Deputy Supervisor Dennis Palow, who sat in the gallery, accused Zimmerman of having two dogs that were not registered with the town, but planning board member Emily Vincent informed Palow that Zimmerman’s dogs were dead.

Harris, who was also in the gallery, cut off Palow, apparently to preserve the already-faltering decorum.


Afzali’s record

This is not the first time that Afzali has allowed a town to run afoul of the law, or at least scrape along its bedrock. 

In 2019, as Knox’s attorney, Afzali did nothing to stop the town board from inappropriately removing two transfer-station employees with Civil Service protection from their positions. 

New York State law protects laborers who have been on the job for five years or more from dismissal or disciplinary action without undergoing the proper procedures. The two employees said they had no warning and were given no reasons for being replaced.

The two employees filed an Article 78 — an instrument that allows citizens to challenge government actions — against the town and, following out-of-court discussions between Afzali and the workers’ lawyer, were reinstated later that year.

Afzali lives in Knox and his father-in-law is one of the workers who was tapped to replace the removed transfer-station workers. Walsh has noted that he was hired by the town six months before the transfer-station appointment as a park laborer.

It was announced on Jan. 1 this year that Afzali would resign as Knox’s attorney, which took effect in April when the town appointed a new lawyer. The reason for Afzali’s resignation was never disclosed. 

In Westerlo, where Afzali is still town counsel, the town board voted in 2019, under Afzali’s guidance, to advertise the position of assessor, which was then held by Peter Hotaling, who had Civil Service protection.

The Enterprise confirmed with Albany County Department of Civil Service Deputy Personnel Officer David Walker that Hotaling could not be removed from his position “except for incompetency or misconduct shown after a hearing upon stated charges pursuant to Section 75 of Civil Service Law.”

Hotaling, who never received a hearing but was ultimately replaced, filed an Article 78 against the town that he withdrew last December. Neither he nor his attorney would tell The Enterprise the reason for the withdrawal.


Firebrand attorney

Though he has not yet made an error of the same magnitude in Berne, Afzali has attracted criticism for muting residents during public hearings that are held through conference calls (an issue that’s been raised in Westerlo as well) and allowing executive sessions to be called inappropriately.

In April, the Berne Town Board had appointed Bond Schoeneck & King for its legal counsel with Afzali serving as the firm’s lead counsel in the town.

Afzali is no longer with Bond Schoeneck & King, having moved to the firm Harris Beach, but he is still Berne’s attorney despite this change. Lyons has not responded to multiple inquiries from The Enterprise regarding the mechanics of Afzali’s retention. 

Westerlo Supervisor Bill Bichteman told The Enterprise that the town can retain Afzali individually without altering its original appointment, which, like Berne’s, contracts not Afzali but his firm, and that Westerlo will update the appointment at its reorganizational meeting next year, depending on the town board’s vote. 

Foreshadowing his dismissal of Zimmerman, Afzali once muted former Berne supervisor Kevin Crosier – a Democrat who often strongly disagrees with his Republican successor – during a remote public hearing in May on the town board’s controversial and ultimately unsuccessful law to expand the planning board from five to seven members

Crosier had been criticizing the board for its short-lived appointment of convicted felon and disbarred New York State Supreme Court Justice Thomas Spargo to the planning board as its chairman when Afzali muted Crosier, saying the comment was irrelevant to the law being discussed. 

Afzali muted every participant in the meeting that night after the meeting devolved into irrelevant insults between residents and board members, providing Lyons an opportunity to close the meeting.

Since this early incident, Afzali has been viewed as a partisan player by some in the town, including Councilman Joel Willsey, the town board’s lone Democrat. 

Willsey has said that Afzali challenged Willsey to sue him after Willsey raised the issue of Afzali’s willingness to let the board go into executive sessions for “personnel matters,” a common but nevertheless illegal justification. 

Willsey claims that Afzali asked Willsey to prove that “personnel matters” is an insufficient reason for an executive session, at which point Willsey brought up the Open Meetings Law webpage, which explicitly states that “personnel matters” is insufficient, prompting Afzali’s alleged challenge.

“While for some it may be a matter of semantics,” Executive Director of New York State’s Committee on Open Government Shoshanah Bewlay told The Enterprise earlier this year, “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.”

This directly contrasted advice Afzali gave the town board in April. “Under the Open Meetings Law,” Afzali said, “a permissible reason to go into executive session is to discuss personnel matters, which includes disciplinary matters.”

Willsey once alleged in a letter to the Enterprise editor that “it appears [Afzali] is representing the best interests of the Berne GOP organization at taxpayers’ expense. It appears the GOP found a lawyer who would make its political goals his priority.”

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