Rensselaerville continues to comb ethics law after first case
The Enterprise — Marcello Iaia
Privileged: Rensselaerville town Attorney Thomas Fallati responds to requests from a former supervisor, Marie Dermody, for documents being discussed by the board at a Feb. 18 meeting about the procedures of the ethics board. Fallati cited attorney-client privilege and Supervisor Valerie Lounsbury, left, said a document before board members contained sensitive information describing the town’s first ethics investigation.
RENSSELAERVILLE — A more detailed timeline and defendant protections for ethics investigations were discussed by the town council and its attorney on Feb. 18 with the hope that any future cases would be less expensive and more streamlined than the first.
Following the board of ethics’ first case, deemed unfounded in 2012, the town has sought to clarify its procedures for investigating complaints against Rensselaerville employees and officials. The board’s investigation of an assessor processing family tax exemptions lasted seven months and incurred expenses because it hired a lawyer.
Since the case, the board has not made any amendments to the code of ethics.
Town Attorney Thomas Fallati addressed recommendations made by the five-member board of ethics in March last year and others submitted by town board members Jack Kudlack and Margaret Sedlmeir.
He said a time period could be set for the ethics board’s future investigations, which could be extended by town board approval.
“I think this is where we ran into problems before,” Supervisor Valerie Lounsbury said during the meeting. “And I think that they did have problems getting people in so they could, you know, question them, and try to get through everything they had to get through, but it went on for quite some time.”
The town’s code of ethics, adopted in 2008, currently allows up to 90 days for an investigation, but doesn’t provide any process for extending it. The board also discussed a defined window of time for a complaint to be filed — 90 to 120 days after the action or 30 days from its discovery — and 10 days for the board of ethics to hold an initial meeting to determine whether or not a complaint has probable cause. Its decision then, as to whether or not legal counsel for the ethics board is necessary, would be subject to town board approval.
Lounsbury said the board would need at least 10 days to publish a legal notice for the initial meeting.
“That’s true, although, as a practical matter, they’re going to be able to go into executive session, given the nature of it,” Fallati said, referring to a public meeting made private. “But you do want to honor the noticing of it.”
Georgette Koenig, a co-chair of the ethics board, said from the gallery that schedule conflicts like planned vacations added weeks of time to the first investigation.
“The town board had no idea why this thing was always going over the time limit,” said Councilman Robert Bolte.
Procedures and expenses
Fallati said the code should be explicit in allowing parties to cross-examine witnesses and present evidence, though this was done for the recent case.
The board of ethics had said it operated without a clear a standard and burden of proof. Fallati said that a lower standard is typical for administrative proceedings, called substantial evidence, describing it as “a good amount of evidence to support the allegation.” The criminal standard of “beyond a reasonable doubt,” he said, would be too burdensome for the board of volunteers to maintain. He added that the state law governing ethics boards doesn’t mandate which standard is used.
Supervisor Valerie Lounsbury asked whether the town is obligated to reimburse, or indemnify, any legal expenses a defendant incurs. The town’s current code makes no provision for indemnification.
“I think we’ve all learned something by the first case we had,” said Lounsbury, adding that it involved extenuating circumstances.
“We can’t say anything about it,” said Lounsbury. “But it was like, it kind of gave everybody a different outlook.”
A defendant found guilty of an ethics complaint should pay for his or her own expenses, Bolte and Lounsbury agreed. Lounsbury said, with taxpayers’ money, the town should be careful to limit the costs incurred. Rates and circumstances for reimbursement could be set out in the law, Fallati said.
Bolte asked why anyone found not guilty would have to pay at all.
“If you didn’t help employees that were accused wrongly, you’d have nobody that’d want to run for any office in the town,” Bolte said.
In its review, the board of ethics asked whether hearsay should be considered in its investigations.
“My recommendation would actually be that you allow that, that you do not employ the rule of evidence,” Fallati said, noting hearsay could be given less weight and would require professional advice to ignore.
He said the code should specify records given to parties be written transcripts. The board had asked whether or not former employees could be compelled to testify, but Fallati expressed doubt that such a rule could be enforced.
“We can’t forget that we are not judge and jury here,” Lounsbury said.
Referring to another recommendation, Fallati agreed that the findings should be kept confidential.
The code now says, “The complaint, records, and other proceedings related thereto shall remain confidential until the Board of Ethics makes a recommendation for action to the Town Board or dismisses the complaint.”
“We don’t interpret that to mean it becomes public at that point,” Fallati said after the Feb. 18 meeting of the provision.
Fallati told The Enterprise on Wednesday that the board’s discussion hadn’t addressed whether or not a finding of cause would be subject to disclosure, but it would be clarified later.
“Both as to the old case and any amendment going forward, and I believe the board shares this view, if there is a negative finding…then, yes, it would be kept confidential permenantly,” said Fallati.
Flow of info
Sitting in the gallery before Fallati arrived from a snowy drive, former town supervisor Marie Dermody asked the board if documents before council members were available for people in the audience to follow the discussion.
“By law, you have to,” Dermody said, after Lounsbury said none were available. Dermody cited the state’s Open Meetings Law.
Fallati said his legal memo to the board was privileged, but Lounsbury held up a packet of the ethics board’s draft recommendations and made copies of it for the four in the audience and sat down again.
“I’ll have to have those back, those copies,” Lounsbury said, retrieving the papers. “The reason being is that there is a cover letter here that I do not think that we should distribute because of information in it that relates to the case that we reviewed, and that should not be public.”
In an article published in Municipal Lawyer in 2008, Robert Freeman, the director of the Department of State’s Committee on Open Government, outlined the application of the Open Meetings Law and the Freedom Of Information Law to boards of ethics. He wrote that ethics boards, as public bodies, are subject to requirements of posting notices for meetings and taking minutes, including executive sessions.
Reasons for withholding documents relevant for ethics boards, Freeman wrote, fall under the FOIL provision for protection from unwarranted invasions of personal privacy. Records can be subject to that protection if ethics charges are dismissed, without merit, or don’t result in disciplinary action, Freeman wrote, or if the records are irrelevant to the performance of official duties; the identity of the complainant may be withheld for the same reason.
Records that are considered “intra-agency materials” can be withehld, according to the law, which Freeman wrote describes the opinion or recommendations following an ethics investigation.
Once the board, like the town council, responsible for the final decision adopts an opinion as its own, however, it becomes a final agency determination and could be disclosed if it finds misconduct.
The town board agreed to schedule a follow-up meeting at its regular one in March.
In addition to its procedures, the board of ethics made recommendations for changes in the assessors’ office. None of those recommendations were discussed on Feb. 18.
Lounsbury told The Enterprise that the town board suggested to the assessors that all three sign off on each exemption application and that their records are kept more securely.
“I’m sure they’re much more conscious,” she said.
In recent meetings, the town board:
— Approved, 4 to 0, a transfer from the retirement fund to the unemployment fund to cover a 2013 expense, and a $300 transfer from supervisor’s miscellaneous contractual fund for a new printer.
Councilwoman Margaret Sedlmeir was absent during the Feb. 13 meeting;
— Heard Lounsbury read a card from former town Clerk Kathleen Hallenbeck, thanking the town board for a retirement reception, gifts, and for engraving her name on a plaque.
“I have so many good memories to reflect on,” Lounsbury read;
— Heard Lounsbury describe procedures initated between Highway Superintendent Randall Bates and Middleburgh Central School District for communicating about road conditions. She read a letter from the district’s superintendent, Michele Weaver.
Bates had told the school recently that his crew needed additional time to clear the roads before buses arrived at homes in Rensselaerville. Lounsbury read that seven children couldn’t be transported that day;
— Approved, 4 to 0, a motion to charge one dollar for each incoming fax. The town already charges for each outgoing fax;
— Heard from Lounsbury that Victoria Kraker, the town’s new clerk will be acting as secretary to the water and sewer committee.
“That’s because that’s a salaried position, that’s always been paid to the town clerk,” Lounsbury said. “And we can’t pay money out of the general fund for a special district, so we have to keep it that way”;
— Heard the 2013 annual report from Mark Overbaugh, the town’s building inspector and code enforcement officer.
The building department processed permits for six home repairs, one home replacement, four renewals, seven solar systems, three new homes, 13 new accessory buildings, one deck, two home additions, four agricutlral-use buildings, one commercial building, and two septic sytems.
“The cost of the permits was only $2,698.47,” said Overbaugh. “I know we talked about that doesn’t quite — ” he said, interrupting himself and looking at Lounsbury.
When asked about the unfinished statement, Overbaugh told The Enterprise that he couldn’t explain because it was between him and Lounsbury. Lounsbury said she didn’t recall the moment, when asked later;
— Heard from Assessor Richard Tollner that about a dozen residents have not yet been reached in the town’s effort to inform people of the need to register with the state’s Department of Taxation and Finance to continue receiving Basic School TAx Relief exemptions.
He said his office found veterans who had not filed for a veterans’ tax exemption. Board members asked about their control over the exemption and Tollner said he would research the topic;
— Heard from Douglas Story, the town’s water and sewer treatment officer, that the water system filtered an average of 18,200 gallons per day in January. He said the sewer treatment pumped an average of 5,500 gallons per day.
“So, obviously, a big discrepancy, still,” Story said. “Fortunately, nothing that shut us down,” he added, suggesting he forsees no major issues until after winter.
He said he would look into sharing costs of shipping water samples for testing with the town of Westerlo, where he is also a water-treatment officer. Story has had trouble getting the samples to a lab in Albany through shipping services.
Lounsbury said she would attend water committee meetings, in place of Sedlmeir, who can no longer attend;
— Heard from Lounsbury that contracts with the town’s three fire departments and ambulance had been signed;
— Re-appointed, 4 to 0, Maryanne Overbaugh to a new term on the board of ethics, from Feb. 14, 2014 until Dec. 31, 2019;
— Accepted, 4 to 0, Chris Schiralli, John Delia Jr., and Ethan Willsie as new members to the Rensselaerville Fire Company.
— Endorsed, 4 to 0, the application of the Carey Institute for Global Good in Rensselaerville for a grant from the Hudson River Valley Greenway. The funds would help its project to erect a “brewshed” that will serve as a farm brewery and resource for business planning.
— Approved, 4 to 0, the purchase of a paper shredder from Bolte for $250 at the Jan. 9 meeting. Bolte abstained.
“It’s just like brand new and I’ll warrantee it,” said Bolte.
— Accepted, 4 to 0, a disclosure from Councilwoman Marion Cooke that she is employed by G & H Lumber, a vendor with the town. Cooke abstained.