Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file such a suit. The bill, sponsored by Representatives Steve Cohen of Tennessee and Charlie Gonzalez of Texas, both Democrats, would create a federal anti-Slapp law, modeled largely on California’s statute…

The Newburgh Advocate was started to raise awareness of a SLAPP suit to silence critics of work on the 96 Broadway property.  More on 96 Broadway from the Newburgh Advocate here, here, here, and here, and from the THR here, here, here, and here.

On Friday, May 14, Senator Kirsten Gillibrand, Congressman Maurice Hinchey, and Mayor Nick Valentine held a roundtable discussion on drug and gang challenges facing the Newburgh community.  The session began with brief formal remarks before opening up to questions and comments from the invited community members.

Gillibrand said she is seeking funding for violence prevention efforts.  From the Record:

Gillibrand said she is working on legislation that would designate $1 billion over five years toward operations that prevent violence. That would include operations such as Thursday’s raid on 78 suspected members of the Bloods and Latin Kings street gangs in Newburgh. Nearly 600 federal, state and local law enforcement agents descended on the city to arrest the targets. As of Friday evening, 64 of the 78 were in custody on federal drug charges.

Coverage of the press conference about Thursday’s raid here.

Full video of the roundtable below, or may be downloaded here:

Just a day after a New York Times article profiled the troubling impact of gangs in Newburgh, NY, multiple law enforcement agencies took action in an early morning raid this Thursday, May 13.

Later on Thursday, the US Attorney for the Southern District of New York, Preet Bharara, held a press conference at the White Plains Federal Courthouse.  In addition to Mr. Bharara, George Venizelos of the FBI, Newburgh Police Chief Eric Paolilli, Orange County District Attorney Frank Phillips, and Orange County Sheriff Carl DuBois spoke.

Full video of the conference is below, and may also be downloaded:

The US Attorney has charged 78 members and associates of the Newburgh Bloods and Latin Kings with nacotics-trafficking crimes.  The Thursday morning strike was a collaboration of local, state and federal law enforcement, working together as the Hudson Valley Safe Streets Task Force.

Additional coverage here and here, and the DOJ press release here.

“Gang violence is nothing new in this dilapidated city an hour north of Manhattan. Built along a scenic bluff on the west bank of the Hudson River, Newburgh has long been known for problems far out of proportion to its population of 29,000. In the 1960s and ’70s, it was racial strife and disastrous urban renewal efforts. In the 1980s, when the city was known as “crack alley,” it was drug-fueled violence, which has ebbed and flowed here ever since…”

Also include Where Gang Violence Devours Youth, a photo gallery.

Video excerpts from the city council work session Thursday, March 4, 2010.

The work session began with a grave report on the city’s financial status, given by Dwight Hadley, CPA, and assisted by Christine Mitchell, CPA, the city’s new comptroller:

Next came a presentation by Dr. Jerome Blue on the status of the Liberty Street School project:

The third presentation was regarding the Community Resource Officers, or CROs. Representing the Newburgh Enlarged City School District were Ralph Pizzo and Mike Pacella. The school district has offered to pay the city for two new police officers in exchange for staffing Newburgh Free Academy and North Junior High School with a CRO each. Also assisting with the discussion were two former CROs, who spoke of the benefits of the positions, and FBI agent Maryann Goldman, who spoke about the seriousness of Newburgh’s gang problems (as reported in the cover story of the Times Herald-Record) and urged the council to fund the positions.

Full video of the entire CROs discussion here:

Finally, from later in the work session, discussion on the Home Improvement Loan Program.

[video deleted]

This program is administered by Demetrius Faulk. Courtney Kain, Acting Director of the Planning Department, explained the program with Demetrius. It was during discussion of this program that (at 6:15 on the video) Councilwoman Marge Bell notes that the records show her as the recipient of a $13,500 loan. Bell says she did receive some funding, but she says she did not receive $13,500.

The loan originator is listed as the Newburgh Community Development Agency (NCDA), which corporation counsel Bernis Nelson recommended dissolving earlier in the work session.

I look at it almost as a tourist attraction. The international attention would put Newburgh on the map… The businesses around here would benefit. People would be going to restaurants and traveling around the Newburgh area who’ve never been here before.

This came as pressure mounted against holding the trial in the federal courthouse in New York City.

The Mayor also appeared on myfoxny.com:

The video above also includes an excerpt from a press conference held by County Executive Eddie Diana, at which Mr. Diana sharply disagrees with Mayor Valentine. Diana does not want the trials in Orange County, and has written as much to President Obama.

But what of the city council of Newburgh itself? Although media reports suggest implicitly or explicitly that Valentine has the support of his colleagues, when his colleagues are actually asked, their opinions are far from unanimous in support.  The Newburgh Advocate asked them what they thought.

Regina Angelo – “A shot in the arm”

Reached by telephone, Regina Angelo said she agreed with Mayor Valentine, that the trials would “help businesses.” She pointed out that there’s a “hotel right there,” and that restaurants would benefit. She said it would be a “shot in the arm for us… [we'd] really be on the map.”

Marge Bell – “I am absolutely opposed to this folly”

[I'm] shocked that the mayor would launch this kind of campaign without consulting the other members of the council.   Where did he receive the authority to speak for the entire council?  Inviting the trials here shows a total disregard for the residents of our city.  Safety and disruption of our way of life needed to be considered first.  The whole notion is ill hatched, and I am absolutely opposed to this folly.

Christine Bello – “It’s like making a business deal over an open coffin”

As always this is something that the Mayor did without even consulting the rest of us prior to going public with this.  He pitched it to me after the headlines, stating that the city could negotiate getting the courthouse paid off and possibly securing the salaries and benefits for 10 police officers for ten years.  I would have to see that offer in writing in order to believe it.  Generally if it sounds too good to be true it is.  The only thing the feds have announced is that they would pay for the security required.  With the military like security I believe it would limit businesses in the vicinity of the courthouse rather than economically stimulate them, something that would put some out of business.  I’m told that these trials could go on for years; that is a long time to have your business interrupted, and still survive.

Personally I feel that these characters should be tried by a military tribunal.  There is nothing worth putting a bulls eye on our already beleaguered little city.  When Valentine stated that he had no fear of terrorist threats here I wasn’t surprised; he does not even acknowledge the existing crime stats. Unlike the Mayor, I live AND work within a block either way of the courthouse, it’s very troubling to me.  Aside from the security concerns I get an overall uneasy feeling about this.  It’s like making a business deal over an open coffin, or selling souvenirs at the Alamo. It just doesn’t feel right.  Not to mention, what would this do to our own court cases that are already running behind? I don’t believe this was well thought out.

Curlie Dillard

As of post time, Councilman Dillard had not responded to requests for comment.

More points to ponder…

According to this press report, NYPD Commissioner Raymond Kelly outlined a security plan that would include two perimeters, one “soft” and the other “hard.”  The soft perimeter would be monitored by cops, while the hard perimeter would be blocked off.  Any permutation of a similar plan here in the City of Newburgh would almost certainly place a portion of 9W/Robinson Avenue at the intersection with Broadway within those perimeters.  What impact would this have on the city?

Does Newburgh have the symbolic capital to hold such a trial?  The Nuremberg Trials were held in Nuremberg in part because of its association as the birthplace of the Nazi Party.  Additionally, it had an intact Palace of Justice with an adequate prison nearby.  There doesn’t seem to be an adequate corollary for our current situation.  If anything, New York City would have made the point that “[t]his is where the attack occurred, and New Yorkers should have been proud to see justice done here.”

From: Jane Johnston
Sent: Thursday, June 12, 2008 4:26 PM
To: McKean, Elizabeth
Subject: FOIL Request

Records Management Administrative Office
Elizabeth McKean, RMO
123 Grand Street
Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:
1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh for the years 1985 through 2008.
1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh for the years 1985 through 2008.
1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh for the years 1985 through 2008.
1.4. Invoices submitted by the National Development Council to the City of Newburgh for the years 1985 through 2008.
1.5. Invoices submitted by William Loewenstein to the City of Newburgh for the years 1985 through 2008.
1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh for the years 1985 through 2008.
1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass.
1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007.
1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008.

(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

A. Jane Johnston

++++++++++

From: McKean, Elizabeth <records@cityofnewburgh-ny.gov>

Fri, Jun 13, 2008 at 9:49 AM

To: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>

Cc: <Jane Johnston>

Subject: FOIL Request – City of Newburgh

Lori,

As City Clerk and FOIL officer, would you please process Jane Johnston’s FOIL request below, distributing the requests to the relevant departments.

Thank you!

Betsy

++++++++++

From: Jane Johnston

Mon, Aug 18, 2008 at 11:51 AM

To: “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Cc: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>

Subject: FOIL Request – City of Newburgh

Dear FOIL officer:

As of June 12, 2008, when I made my initial request, I have received no further communications regarding my FOIL request apart from the message below.

According to FOIL, I should have received a response within five business days:

§89. General provisions relating to access to records; certain cases.

3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. An agency may require a person requesting lists of names and addresses to provide a written certification that such person will not use such lists of names and addresses for solicitation or fund-raising purposes and will not sell, give or otherwise make available such lists of names and addresses to any other person for the purpose of allowing that person to use such lists of names and addresses for solicitation or fund-raising purposes. If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search. Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven and subdivision three of section eighty-eight of this article. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.

(b) All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the committee on open government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form.

I hereby request a response to my FOIL request.

Sincerely yours,

A. Jane Johnston

[Quoted text hidden]

++++++++++

From: McKean, Elizabeth <records@cityofnewburgh-ny.gov>

Tue, Aug 19, 2008 at 8:18 AM

To: Jane Johnston

Subject: FOIL Request – City of Newburgh

Jane,

Lori Vitek is the FOIL Officer, and she will be in touch with you; she is working with the Corporation Counsel.

Betsy

++++++++++

From: A. Jane Johnston

Sent: Monday, August 18, 2008 12:59 PM

To: dos.dl.InetOpenGov

Subject: what to do about a FOIL request that’s been ignored

I filed a FOIL request via email on June 12, 2008, to the City of Newburgh and have heard nothing back since then.  I just sent a request for a response and quoted the section 89, paragraph 3, about “within 5 business days” in hopes that this will garner a response.  What recourse do I have, though, apart from continued requests for a response back?

Kind regards,

A. Jane Johnston

++++++++++

From: Mercer, Janet (DOS) <Janet.Mercer@dos.state.ny.us>

Wed, Aug 20, 2008 at 10:16 AM

To: “A. Jane Johnston”

Cc: lvitek@cityofnewburgh-ny.gov

Subject: what to do about a FOIL request that’s been ignored

Dear Ms. Johnston:

I have received your inquiry concerning your inability to obtain a response to your Freedom of Information Law request directed to the City of Newburgh.

The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, (89(3) of the Freedom of Information Law states in part that:

“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…(

It is noted that new language was added to that provision in 2005 stating that:

(If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.(

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request.  When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied.  However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access.  That date must be reasonable in consideration of the circumstances of the request.

The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon (the circumstances of the request.(  From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, (84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.”  Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure.  As the Court of Appeals, the state(s highest court, has asserted:

“…the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom.  By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception.  The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].

In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

(The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the  materials fall within one of the exceptions to disclosure.  Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL((Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see (89(4)(a)].  In such a circumstance, the denial may be appealed in accordance with (89(4)(a), which states in relevant part that:

“…any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.  In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.

I point out that the person designated to determine appeals by the City of Newburgh is Geoffrey E. Chanin, Corporation Counsel.

In an effort to enhance compliance with law, a copy of this opinion will be forwarded to the City Clerk.

I hope that I have been of assistance.

Janet Mercer

Committee on Open Government

One Commerce Plaza

99 Washington Ave., Suite 650

Albany, NY 12231

(518) 474-2518

(518) 474-1927 – Fax

Website:  http://www.dos.state.ny.us/coog/coogwww.html

++++++++++

from: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

to: <Jane Johnston>

date: Fri, Aug 22, 2008 at 12:41 PM

subject: Your FOIL Request dated June 12, 2008

mailed-by: cityofnewburgh-ny.gov

Dear Ms. Johnston:

Your communication regarding your FOIL request is received.  I apologize for the delay in this matter, which has resulted in part from the efforts of City staff to locate the records you have requested.

I have urgently requested that any contracts and/or related paperwork which may exist between the City of Newburgh and William Lowenstein and/or Community Initiatives Development Corporation, and including invoices as you have also requested; and also the disclosure statements you have requested, be forwarded directly to me as soon as possible.

Please note that your request includes records going back to 1985.  Some of these records may be in the City’s archives in secure storage, while others may not have existed or may no longer exist.  By copy of this letter I am asking the City’s Records Management Officer to ensure that any such records which may have been transferred to our archives be identified and copied so that they may be provided in response to your request.

We will also determine if the volume of paper involved in fulfilling your request is so large that another format, such as CD or floppy disk, would be a preferable medium.

Thank you for your patience.  If you would like to speak with me personally about your request, please telephone me at (845) 569-7335.  I hope to be able to fulfill your request, at least in part, within the next two weeks.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

++++++++++

From: Jane Johnston

Fri, Aug 22, 2008 at 1:49 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Subject: Your FOIL Request dated June 12, 2008

Dear Mr. Chanin,

Thank you for your reply.  I appreciate your efforts and look forward to hearing from you.

Kind regards,

A. Jane Johnston

[Quoted text hidden]

++++++++++

From: Jane Johnston

Fri, Aug 22, 2008 at 4:26 PM

To: “Mercer, Janet (DOS)” <Janet.Mercer@dos.state.ny.us>

Subject: what to do about a FOIL request that’s been ignored

Dear Ms. Mercer:

I just wanted to thank you again for forwarding your opinion to the City of Newburgh.  I received this email from the Corporation Counsel today and am happy to report that it looks very promising that the request will soon be answered.

Kind Regards,

A. Jane Johnston

[Quoted text hidden]

++++++++++

From: Jane Johnston

Mon, Sep 15, 2008 at 7:59 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Subject: Your FOIL Request dated June 12, 2008

Dear Mr. Chanin,

It is over three weeks since I have heard from you and I am wondering if I could receive an update on the status of my FOIL request.

Kind regards,

A. Jane Johnston

[Quoted text hidden]

++++++++++

[MAIL PACKET RECEIVED SOMETIME AFTER ITS POSTMARK OF SEPTEMBER 12, 2008, with the following cover letter]

September 11, 2008

A. Jane Johnston

Re: Freedom of Information Law (“FOIL”) Your Request of June 13, 2008

Dear Ms. Johnston:

In reply to your Freedom of Information Law (“FOIL”) request, dated June 13, 2008, please find enclosed copies of three contracts between the City of Newburgh Industrial Development Agency (“IDA”) and Community Initiatives Development Corporation (“CIDC,”) dated September 1, 2005, September 1, 2006, and September 1, 2007.

Please note that your FOIL request sought records involving the City of Newburgh, which is a completely separate and legally independent entity from the IDA.  We have conducted a search and so far have not found any contracts between the City and CIDC; however, on the premise that you would have an interest in these contracts involving the IDA I am forwarding same to you.

Regarding your other requests, would you please provide more descriptive details concerning a “Disclosure Statement” of William Hauser dated on or around January 29, 2006 regarding Den Cass?  We do not maintain a separate file for such documents.  To what would such statement be related?  Perhaps such a document rests in some other file related to a specific project.  Please keep in mind that Den Cass was a private organization, and that Mr. Hauser is a private independent contractor, not a City employee.

Also, any further descriptive information you could provide concerning your request for “disclosure statements” of William Loewenstein would also be helpful to us in identifying the requested records.

Thank you for your cooperation.

Sincerely,

Geoffrey E. Chanin

Corporation Counsel

GEC/dt

Enclosures

W/out enclosure

cc: Robert H. McKenna, Director of Planning & Development

Lorene Vitek, City Clerk

A note regarding the above letter of Mr. Chanin’s: by coincidence, I was reading through the city council proceedings of the year 2004, a hefty volume available to the public at the Newburgh Free Library.  I was amazed to come across Resolution 199-2004 or August 9, 2004: “A resolution authorizing the city manager to enter into an agreement with Community Initiatives Development Corp. for the assistance in the implementation and financing of economic and housing development in the City of Newburgh.” By curious omission, this resolution is NOT listed in the index of this volume preceding the resolutions; those two pages, 47 and 48, are missing.  Did Ms. McGrane sign the contract that is attached to the resolution with CIDC?  If she did, and if she were billed by CIDC, then it is curious such records could not be found.  Of course it is entirely possible that Ms. McGrane chose for some unknown reason not to sign the contract and enter into consulting with CIDC, in which case there would be no records.  As it stands, of the three contracts Mr. Chanin provided with this letter, dated Sept. 1, 2005, Sept. 1, 2006, and Sept. 1, 2007, only the 2005 contract has a signatory for the Newburgh IDA: Robert McKenna.  The 2006 and 2007 contracts are ONLY signed by the CIDC representative.

++++++++++

Subject: FOIL Request

From: Jane Johnston

Sun, Sep 21, 2008 at 8:34 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Dear Mr. Chanin,

Thank you for your letter of September 11, 2008 in response to my FOIL request of June 13, 2008 (your noted date).

Thank you for enclosing the CIDC recent contracts.  However, this does not entirely satisfy my original FOIL request, and I am happy to provide further details to aid you in producing the documents.

I would sincerely appreciate your timely attention to this matter.

I have amended the original request with additional details, highlighted in yellow:

(1) Please email the following records if possible:

1.1. Consultant contracts, if any, between William Loewenstein and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.2. Consultant contracts, if any, between Community Initiatives Development Corporation and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.3. Consultant contracts, if any, between the National Development Council and the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.4. Invoices submitted by the National Development Council to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.5. Invoices submitted by William Loewenstein to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

1.7.a. Disclosure Statement of William Hauser dated on or around January 29, 2006 regarding Den Cass. Provided in Mr. Hauser’s capacity as the city’s consulting engineer, this document indicates that Den Cass has no relationship to the firm of McGoey Hauser; any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

1.7.b. Any other disclosure statements of William Hauser from the time period 2002-2007. For the years indicated, any documents, if they exist, stating other groups, firms, or employment Mr. Hauser was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

1.8. Any disclosure statements of William Loewenstein from the time period of 1985 through 2008. Any documents, if they exist, stating other groups, firms, or employment Mr. Loewenstein was employed by and/or any property holdings he might have or had that would have been furnished for ethical reasons to prevent or reveal any potential conflict of interest.

(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

A. Jane Johnston

Newburgh, NY 12550

++++++++++

From: Jane Johnston

Sun, Sep 21, 2008 at 8:48 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Subject: FOIL request

Records Management Administrative Office

Records Management Officer

123 Grand Street

Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:

On July 24, 1986, there was a public hearing at the City Council meeting regarding an Urban Development Action Grant Application for the construction of professional office space at 298 Broadway in the City of Newburgh, New York, which was then approved and submitted.

1.a. The original, completed UDAG application.

1.b. Any correspondence from 1986 regarding this UDAG application, including correspondence with Dan Marsh, William Loewenstein, NDC, Community Development Group, the federal government, and/or other parties.

(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

A. Jane Johnston

Newburgh, NY 12550

++++++++++

From: Vitek, Lorene <LVitek@cityofnewburgh-ny.gov>

Mon, Sep 22, 2008 at 1:21 PM

To: Jane Johnston

Subject: FOIL request

FOIL ACKNOWLEGMENT.doc

35K

September 22, 2008

A. Jane Johnston

Re: FOIL Request– UDAG Application

298 Broadway

Dear Ms. Johnston:

Your request for certain records and materials from the City of Newburgh pursuant to the New York State Freedom of Information Law (Public Officers Law, Article 6, known as “FOIL”) has been received and are hereby acknowledged.  We are identifying and collecting the records, which is the subject of your request.

Under State law, the statutory fee which the City of Newburgh may charge in connection with the production of such records is .25¢ per page for 8½” x 11” photocopies; and/or the actual cost of reproduction of certain other materials and records as stipulated in Chapter 163 “Fees” of the City of Newburgh Code.  If the fees to be charged in fulfilling this request could amount to a significant sum, the City of Newburgh will notify you of this fact before taking any action, which would incur such costs.  You will then be invited to come to the City offices to inspect the subject records to select which of them you wish to have reproduced.  This will spare you unneeded and unintended expense.

Please convey any questions, comments or problems you may have to the City of Newburgh Freedom of Information Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550.  In the event your request, or any portion thereof, is denied, you may appeal such denial in writing by sending such written appeal to the City of Newburgh Freedom of Information Law Appeals Officer, in care of the Corporation Counsel, 83 Broadway-City Hall, Newburgh, New York 12550.

Yours truly,

Lorene Vitek

City Clerk

++++++++++

From: A. Jane Johnston

Sent: Friday, October 10, 2008 12:25 PM

To: dos.dl.InetOpenGov

Subject: Question regarding timely response to FOIL/further information

Dear Committee,

On June 12, 2008, I made a FOIL request to the City of Newburgh that was not responded to until the Committee member Janet Mercer’s opinion was sent.  In September I received an answer to this request, denying in part due to lack of identifying information.  On Septmeber 21, I sent an email, which should have been received Monday September 22, providing the additional information to identify the records in question.  Three weeks have elapsed since this email and I have received no response or acknowledgment.  Is the law the same regarding these secondary requests as the initial requests?  Many thanks for your insights regarding this issue.

Kind regards,

A. Jane Johnston

++++++++++

Subject: FOIL Request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:26 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Dear Mr. Chanin,

One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.

Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days.  I will also forward you the opinion from the Committee regarding FOIL requests.

Please let me know if I should take this to understand that my requests have been denied; in which case I will then take appropriate action.  It is my hope that this is not the case, and that my requests will be fulfilled.

I am sending this by email, as per our verbal conversation some weeks ago; if it is preferred or necessary that I follow up in writing please let me know and I will do so.

Sincerely yours,

A. Jane Johnston

++++++++++

Subject: FOIL request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:27 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Please note my preceding email; this was my second FOIL request.

Kind regards,

A. Jane Johnston

On Sun, Sep 21, 2008 at 9:48 PM, Jane Johnston wrote:

[At this point I resend the two original FOIL requests]

++++++++++

RE: Question regarding timely response to FOIL/further information

Wed, Oct 22, 2008 at 2:06 PM

++++++++++

Subject: FOIL request of October 22, 2008

From: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

Mon, Nov 10, 2008 at 3:44 PM

To: <Jane Johnston>

Dear Ms. Johnston:

I am in receipt of your FOIL request dated Wednesday, October 22, 2008.  I regret the delay in replying to your request.  Your have requested records from the year 1986.  Specifically, you have requested copies of the original UDAG application for a grant in connection with the construction of professional office space at 298 Broadway in the City of Newburgh; and any correspondence in connection with such UDAG application, including but not limited to correspondence with Dan Marsh, William Lowenstein, NDC, Community Development Group, the federal government and/or other parties.  If such records are on hand and available in the Office of Economic Development in City Hall, we will provide them to you in approximately ten (10) days or less.  If they are in electronic format, they will provided to you in such format.

If the records are still in existence, then they may be in storage in the City archives.  If so, they must be requested and, if found, retrieved from such storage.  This process may require approximately four (4) weeks.

I will keep you advised of the status of the retrieval of the records you have requested.  Thank you for your communications and understanding regarding this matter.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Nov 10, 2008 at 3:55 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Mr. Chanin:

Thank you very much for your email today.  I was about to compose a letter in expectation that my request had been denied, so I am greatly relieved and thankful that the request will be honored.

I greatly appreciate your efforts, and the efforts of all involved in finding the relevant records.

Kind regards,

Jane Johnston

[Quoted text hidden]

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Dec 1, 2008 at 5:28 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Mr. Chanin,

More than two weeks have passed since I received this email.  I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.)  Please let me know what the status is of this.

Kind regards,

A. Jane Johnston

On Mon, Nov 10, 2008 at 3:44 PM, Vitek, Autumn <AVitek@cityofnewburgh-ny.gov> wrote:

[Quoted text hidden]

++++++++++

[WRITTEN PACKET MAILED TO CORPORATION COUNSEL]

December 13, 2008

Geoffrey E. Chanin, Esq.

Corporation Counsel

City Hall, 2nd Floor

83 Broadway

Newburgh, NY 12550

Via Certified Mail

Re: FOIL Request of June 12, 2008 and September 21, 2008

Dear Mr. Chanin,

By your failure to furnish the documents I have requested according to the Freedom of Information Law or to provide a timely response indicating when these documents will be provided, I understand that my request has been effectively denied.

Therefore, as within my FOIL rights, I do hereby request that within ten days of receipt of this letter the requested documents be furnished or I be provided with a written explanation as to why my request has been denied and when the documents will be furnished.

For your convenience and reference I am providing a timeline of our correspondence complete with copies of the emails, including the Department of State’s Committee on Open Government’s opinion, written by Janet Mercer, in response to my query about “what to do about a FOIL request that has been ignored.”

As one additional note, to be perfectly clear, I have requested documents not ONLY from the year 1986, but from the time period of 1985 to the present, as specified in my original FOIL requests and as I indicated in our phone conversation.  I would imagine that, for example, the recent invoices of Mr. Loewenstein’s Community Initiatives Development Corporation would be fairly accessible in the Office of Economic Development.

I look forward to receiving the requested documents.

Sincerely yours,

A. Jane Johnston

CC: Councilwoman Marge Bell, Councilwoman Christine Bello, Councilwoman MaryAnn Dickinson

Att: Timeline, original FOIL requests and additional email correspondence

December 13, 2008

TIMELINE OF CORRESPONDENCE

June 12, 2008: Email from Jane Johnston, “FOIL Request”

August 20, 2008: Email Opinion of Janet Mercer, Department of State, re: “what to do about a FOIL request that’s been ignored”

September 11, 2008: Letter of acknowledgment for my June 12 (June 13 by your description) request

September 21, 2008: Email from Jane Johnston “FOIL request” including UDAG application and various correspondence (see attached for specifics)

September 21, 2008: Email from Jane Johnston “FOIL request” providing additional identifying information to clarify my request of June 12 (June 13 by your description)

September 22, 2008: Emailed letter from City Clerk Lorene Vitek acknowledging the UDAG application FOIL Request (my request of Sept. 21)

October 22, 2008: Email from Jane Johnston to Mr. Chanin, “FOIL Request:”

“One month ago, I made two FOIL requests; one was a new request, which I will forward separately, and the second was the request copied below, providing additional identifying information for my request of June 13.

“Unfortunately, I have received no further acknowledgment to these requests, or indication of how long they might take to fulfill; according to the Committee on Open Government, I should have received some such indication within twenty days.  I will also forward you the opinion from the Committee regarding FOIL requests.”

November 10, 2008: Email from Mr. Chanin stating that the documents would be provided, if available, within 10 days or less; and documents retrieved from storage within approximately four weeks.

November 10, 2008: Email from Jane Johnston thanking Mr. Chanin for acknowledgment of request and providing a timeline for furnishing of documents.

December 1, 2008: Email from Jane Johnston “FOIL request of October 22, 2008″ that

“More than two weeks have passed since I received this email.  I would appreciate receiving the correspondence mentioned in the first paragraph as soon as possible (you had promised within ten days.) Please let me know the status of this.”

++++++++++

Subject: FOIL Request

From: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

Tue, Dec 23, 2008 at 12:05 PM

To: <Jane Johnston>

Cc: “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “Zapata, Lourdes” <LZapata@cityofnewburgh-ny.gov>

Dear Ms. Johnston:

We believe we have found the invoices submitted by Community Initiatives Development Corporation.  Copies of the same will be available in the City Clerk’s Office on Monday, December 29, 2008, as this data is not available electronically.

We will treat your request as a continuing one and provide you with copies of the requested documents, including in e-mail format where available; when same are identified.
Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

++++++++++

Mr. Chanin did provide the CIDC invoices from 1/05 – 9/08, but missing from these were the invoices for 1/1/07 – 1/31/07 and 5/1/07 – 5/30/07.

On October 22, 2009, Corporation Counsel Geoffrey Chanin resigns, putting Assistant Corporation Counsel Michelle Kelson into his seat.

Following the December 14, 2009 City Council meeting, I approach acting corporation counsel Michelle Kelson and mention my languishing FOIL requests.  She directs me to resend the requests to her, although she acknowledges that FOILs are not her “top priority.”

++++++++++

Subject: FOIL request of October 22, 2008

From: Jane Johnston

Tue, Dec 15, 2009 at 12:58 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Ms. Vitek/Ms. Kelson:

I would appreciate it if you would forward this email to Acting Corporation Counsel Michelle Kelson.

Ms. Kelson: attached below is one of the last emails I received from Mr. Chanin regarding my FOIL requests.  I am still actively seeking the information requested and would appreciate your attention to this matter.  I will also forward to you the original FOIL requests, as amended, in their most recent form.  These original requests are more reliable descriptions of the records I seek than Mr. Chanin’s summary.

Kind regards,

A. Jane Johnston

Newburgh, NY 12550

———- Forwarded message ———-

From: Vitek, Autumn <AVitek@cityofnewburgh-ny.gov>

Date: Mon, Nov 10, 2008 at 3:44 PM

Subject: FOIL request of October 22, 2008

To: <Jane Johnston>

Dear Ms. Johnston:

I am in receipt of your FOIL request dated Wednesday, October 22, 2008.  I regret the delay in replying to your request.  Your have requested records from the year 1986.  Specifically, you have requested copies of the original UDAG application for a grant in connection with the construction of professional office space at 298 Broadway in the City of Newburgh; and any correspondence in connection with such UDAG application, including but not limited to correspondence with Dan Marsh, William Lowenstein, NDC, Community Development Group, the federal government and/or other parties.  If such records are on hand and available in the Office of Economic Development in City Hall, we will provide them to you in approximately ten (10) days or less.  If they are in electronic format, they will provided to you in such format.

If the records are still in existence, then they may be in storage in the City archives.  If so, they must be requested and, if found, retrieved from such storage.  This process may require approximately four (4) weeks.

I will keep you advised of the status of the retrieval of the records you have requested.  Thank you for your communications and understanding regarding this matter.

Sincerely,

GEOFFREY E. CHANIN

Corporation Counsel

GEC/av

FOIL request

++++++++++

Subject: FOIL request

Jane Johnston

Tue, Dec 15, 2009 at 1:02 AM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Ms. Kelson,

Here is the other FOIL request.  Thank you very much for your assistance.

Kind regards,

A. Jane Johnston

———- Forwarded message ———-

From: Jane Johnston

Date: Sun, Sep 21, 2008 at 8:48 PM

Subject: FOIL request

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>, “Vitek, Lorene” <LVitek@cityofnewburgh-ny.gov>, “McKean, Elizabeth” <records@cityofnewburgh-ny.gov>

Records Management Administrative Office

Records Management Officer

123 Grand Street

Newburgh, NY 12550

REQUEST FOR RECORDS BY EMAIL

Dear Records Access Officer:

(1) Please email the following records if possible:

On July 24, 1986, there was a public hearing at the City Council meeting regarding an Urban Development Action Grant Application for the construction of professional office space at 298 Broadway in the City of Newburgh, New York, which was then approved and submitted.

1.a. The original, completed UDAG application.

1.b. Any correspondence from 1986 regarding this UDAG application, including correspondence with Dan Marsh, William Loewenstein, NDC, Community Development Group, the federal government, and/or other parties.

(2) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

(3) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

(4) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (845) xxx-xxxx.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

A. Jane Johnston

Newburgh, NY 12550

++++++++++

Subject: FOIL Request

From: Jane Johnston

Wed, Dec 16, 2009 at 9:42 PM

To: “Vitek, Autumn” <AVitek@cityofnewburgh-ny.gov>

Dear Ms. Kelson,

Please note that in the FOIL request I sent to you yesterday, I should let you know that Mr. Chanin did provide some of the invoices to satisfy request 1.6.  I have invoices between CIDC and the Newburgh Industrial Development Agency from roughly 2005 to present.

This was the only request Mr. Chanin honored, despite prodding from the Committee for Open Government.

On Tue, Dec 15, 2009 at 1:00 AM, Jane Johnston wrote:

1.6. Invoices submitted by Community Initiatives Development Corporation to the City of Newburgh OR the Industrial Development Agency OR the Local Development Corporation OR the Urban Renewal Agency for the years 1985 through 2008.

Kind regards,

A. Jane Johnston

++++++++++

As of Monday, December 28, 2009, I have received no acknowledgment or update of any kind from Ms. Kelson or anyone in city government regarding the FOIL requests, which are now over a year and a half old.

Acting City Manager and City Comptroller Charles Emberger, Corporation Counsel Geoffrey Chanin, Acting Director of Planning and Development Courtney Kain, NIDA member Jerry Maldonado, NIDA Treasurer Michael Curry, and NIDA Acting Chair and Vice Chair Joshua Smith.

On Thursday, August 13, the Newburgh Industrial Development Agency (NIDA) gave a presentation at a special work session of the Newburgh City Council.  Acting Chair and Vice Chair Joshua Smith spoke for the NIDA, describing the many struggles and setbacks that have stymied the agency since the new board’s appointment in 2008.

A brief history of NIDA 2008-2009

Previously the city council and two additional appointees made up the NIDA.  Due to the passage of the  New York State Public Authority Accountability Act of 2005, the council could no longer legally make up a majority of the board.  Back at the May 2008 city council meeting Mayor Valentine states that new NIDA board members will be announced in June.

But no June announcement was forthcoming.  And on July 15, 2008, a quorum from the old  NIDA meets for one last time, and awards what appears to be a no-bid contract to Urban Design Associates with a ceiling of $50,000.  At this last meeting the then NIDA Administrative Director Robert McKenna also gives quite an optimistic update on the West Street Medical Tech Project, which is the project currently under scrutiny due to the potential partial or total loss of a $1.75 million grant from the Economic Development Administration, part of the Department of Commerce.

Finally, at the July 21, 2008 council meeting, the board is appointed.  But it is not until September 2, 2008, that the new board convenes.  At that meeting, Smith told the council last night, “we did something new for the IDA…  We turned the microphones on, so that the public could hear what was going on.”

NIDA board members continue to meet, often more than once a month, including September 15, 2008, September 29, 2008, October 20, 2008, throughout the fall and into the present. McKenna announces he will retire on December 18, 2008.  The day before he retires, he writes a check from the NIDA checking account, unbeknownst to the board, for $388,825.97.

Lourdes Perez takes over as administrator following McKenna’s retirement.  At the January 5, 2009 meeting, the board passes a unanimous call asking for a state audit of the NIDA.  At the January 16 meeting, the board recounts how they learned that NIDA is a “delinquent” agency that failed to file financial reports, that the treasurer had been unable to ascertain how much money was in the agency’s bank accounts, and that the accounting situation is “an embarrassment and an outrage.”  They pass resolutions to freeze account access and limit disbursement authority to the board.

The HUD audit and stealth government

The Department of Housing and Urban Development (HUD) issued audit 2009-NY-1008 on February 24, 2009 investigating how the City of Newburgh administered its Community Development Block Grant (CDBG) program.  HUD charges that “the City lacked documentation to show that $558,344 in CDBG funds used to pay for administrative costs was for reasonable and necessary expenditures.”

On January 28, 2008, the acting city manager John Platt responds to the draft of the HUD audit.  Copied on the letter are the City of Newburgh Council, Corporation Counsel Geoffrey Chanin, and Lourdes Zapata, Director of Planning and Development at the city.  Platt writes that

The majority of any unsupported expenditures for administrative costs have already been reimbursed.  The IDA reimbursed the CDBG program $388,825.97 on December 18, 2008 upon completion of an internal review of applicable/reimbursable costs…

As to the remaining balance, we are currently reviewing our internal records and will document that such funds were properly expended.  We will determine whether any journal entries or other records were recorded in error.

The NIDA board had no idea that this had happened and had not authorized the transfer.  On March 31, Vice-Chairman Joshua Smith writes to Zapata, City Comptroller Charles Emberger, and Acting City Manager Dwight Douglas, stating

This transfer of IDA funds was accomplished without the knowledge, consent or approval of the IDA Board.  On behalf of the IDA Board I thus demand that Ms. Zapata promptly, and no later than Friday, April 10, 2009, restore to the IDA account the full amount of $388,825.97 that had been withdrawn without the Board’s knowledge, consent or approval.

When the city fails to return the funds by the specified date, NIDA files suit against the city manager, city comptroller, and city planning director on May 6 to demand that they do so.

NCDA questions bring strange segue

In April of 2009, I was researching the Newburgh Community Development Agency (NCDA), and discovered that a personal injury suit had recently been filed against the NCDA by Elaine and Hector Lopez.  Ultimately I would write about this suit in the post “Who is negotiating with Ms. Lopez?” on May 7.  In preparing to write about the NCDA, following the conclusion of the April 27 council meeting I ask Mayor Nick Valentine when he thinks the agency last had met.  According to state law, the NCDA is made up of the city council.  Mayor Valentine states that he thinks it was about two years ago, to handle a property deal.  He then segues into talking about the NIDA.

“We screwed the IDA,” he says, “we didn’t give them their $418,000 for the Broadway School… They could sue… But they’re not going to sue, because we appointed [them],” and, he explains, they’d just get rid of them, appointing a new board.

Mayor Valentine’s memory is slightly off on the Broadway School amount.  At the September 4, 2008 work session, then City Manger JeanAnn McGrane gives the council a presentation on options to reduce the cost of the courthouse bond, including “nonrepayment of IDA loan $511,701.”  On her powerpoint slide and in the video, Ms. McGrane clearly states that IDA approval would be needed to forgive the loan.  That approval is never sought.

Mayor Valentine confirms with Corporation Counsel Geoffrey Chanin at a May 21, 2009 work session (at the end of this video, and also below) that the Newburgh Industrial Development Agency Board serves at the pleasure of the city council, and that “there are no time limits.”  The NIDA suit predates this inquiry by two weeks.  The NIDA board serves at the council’s pleasure… or not.

What about the NCDA?

Following the publication of the post “Who is negotiating with Ms. Lopez?” on May 7, the city council discusses the NCDA and, to some extent, the NIDA and the Newburgh Local Development Corporation (NLDC) at two work sessions, on the above mentioned May 21 and also June 18 meetings.  At these sessions, the council majority of Bell, Bello, and Dickinson express reluctance to take on the governing of an additional body on top of their council duties. On June 18 Councilwoman Bello asks whether the NIDA could take over the NCDA, since the Authority Accountability Act requires training and strict reporting of financial information, requirements that the NIDA board fully understands to which it is “working diligently” toward compliance.  Interim City Manager Dwight Douglas dismisses this idea, and Mayor Nick Valentine says, “I don’t care what it’s from, we’re in a lawsuit,” and bursts into laughter, to the dismay of Councilwoman Marge Bell.

June 18 part 1:
[video deleted]

June 18 part 2:
[video deleted]

In this excerpt, Councilwoman Christine Bello states her preference not to be a part of the NCDA. Interim City Manager Dwight Douglas tries to explain how the city council is already conducting NCDA business, unbeknownst to them, and suggests that he and corporation counsel Geoffrey Chanin will look into what the implications are of this and report back to the council. “I feel chastened,” Douglas says, that he hasn’t done that research already for the council.

May 21 part 1:
[video deleted]

May 21 part 2:
[video deleted]

Why wasn’t the risk explained to the city council?

Watching these meetings, I could not understand why Corporation Counsel Geoffrey Chanin did not emphasize the necessity of responding to the personal injury lawsuit filed by Elaine and Hector Lopez.  If the council did not take action and, at a minimum, hold one meeting as the NCDA to authorize the hiring of legal counsel to represent the agency in this case, they would be at risk of a default judgment.  At one point during these discussions, Councilwoman Bello expresses her extreme reluctance to take on the NCDA, but says if she really must, she will.  But Douglas and Chanin humor the council’s request for more time and more information, and say they will get back to them.

The workaround

Conveniently, four days after the June 18 work session, on June 22, things get much easier for Corporation Counsel Geoffery Chanin.  The attorney for the Lopezes, Peter C. McMahon, files a “supplemental summons” listing the City of Newburgh as a co-defendant along with the NCDA.  In this document, McMahon writes almost duplicate statements implicating the city along with the NCDA:

4. Upon information and belief, and at all times hereinafter mentioned, the Defendant, NEWBURGH COMMUNITY DEVELOPMENT AGENCY, owned the lot and/or parking lot at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

5. Upon information and belief, and at all times hereinafter mentioned, the Defendant, CITY OF NEWBURGH, owned the lot and/or parking lot at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

6. Upon information and belief, and at all times hereinafter mentioned, the Defendant, NEWBURGH COMMUNITY DEVELOPMENT AGENCY, maintained the lot and/or parking lot located at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

7. Upon informition and belief, and at all times hereinafter mentioned, the Defendant, CITY OF NEWBURGH, maintained the lot and/or parking lot located at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

8. Upon information and belief, and at all times hereinafter mentioned, the Defendant, NEWBURGH COMMUNITY DEVELOPMENT AGENCY, controlled the lot and/or parking lot located at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

9. Upon information and belief, and at all times hereinafter mentioned, the Defendant, CITY OF NEWBURGH, controlled the lot and/or parking lot located at Section 12, Block 6, Lot 5, Newburgh, County of Orange, State of New York.

On July 29, attorney Michael E. Catania from the firm Tarshis, Catania, Liberth, Mahon & Milligram files a request for judicial intervention on this suit, signing as “Attorneys for Defendant CITY OF NEWBURGH.”

And, at the August 10 city council meeting, under the “communications” portion of the meeting, the council votes and approves unanimously referring this suit (among many others) to the corporation counsel for action.  Did any of them even realize this was the same NCDA suit that necessitated the earlier work session discussions?

Even Mr. Chanin’s memory seems a little fuzzy.

“I noticed that the Lopez suit, Elaine and Hector, was referred… they were originally suing NCDA?” I ask him.

“Ok, it’s not registering, but keep talking.”

“Ok, I just noticed that it was referred…”

“All claims are referred to the corporation counsel to the power to act because technically, under the charter…” he goes on.

“If the Community Development Agency is listed as a party, do they still have to reply?”

No answer.

“You had explained to me earlier, that if somebody sues the CDA, they have to hold a meeting and appoint somebody to respond.”

“In the absence of the CDA… You can’t just not show up… when you get a notice of claim, if it’s against any city agency, whether it’s the NCDA or the IDA or some other [entity]… if they have not formally met to act, it’s incumbent on me to defend the city… at least until they decide to meet, and make another decision.”

No NCDA, but that doesn’t stop them from collecting debt

The same day things get easier for Mr. Chanin, the city comptroller Charles Emberger decides things would not get any easier for NIDA.  On June 22, Mr. Emberger writes a letter of demand to the NIDA.  They need to pay $169,518 to the Newburgh Community Development Agency – that’s right, the same agency that has no board members, no administrative director, and, according to the July 2009 Annual Report on Public Authorities in New York State issued by the Authority Budget Office, has not submitted either budget reports or annual reports in PARIS, the required state filing method.

Emberger sends his letter to the NIDA:

To back up his claim, Mr. Emberger includes the first two pages of the June 15 letter from HUD’s New York office, from Vincent Hom, the Director of Community Planning and Development.  Mr. Hom writes at the top of page 2 that (emphasis mine)

The Office of Inspector General stated in the report that documentation provided by the City during the January 2009 exit conference to demonstrate that the $388,825.97 was reimbursed to the CDBG Program was found to be acceptable.  After review of the documentation, we agree in that assessment.  In order to resolve this recommendation, the City must submit evidence that overall receivables from the IDA to the CDBG Program including the $388,826 have been reduced in the City’s records and supply documentation for the remaining balance of $169,518 which clearly indicates that these costs were for eligible CDBG administrative expenses; or repay ineligible or inadequately documented costs from non-federal funds. The City shall arrange to submit additional documentation or have materials available for examination within 45 days of the date of this letter.

Despite the city’s claim in their January 28 letter to HUD, included in the February 24, 2009 Audit, that

As to the remaining balance, we are currently reviewing our internal records and will document that such funds were properly expended.  We will determine whether any journal entries or other records were recorded in error.

…for whatever reason, that documentation must not have been forthcoming, since Mr. Emberger sends the bill to the NIDA.

What are the consequences?

I ask the New York State Authority Budget Office, to whom agencies such as the NCDA and the NIDA–as well as the Newburgh Local Development Corporation–must file financial reports, if there are any consequences to the NCDA failing to file or meet as a board.  Matt Anderson replied, stating:

The ABO does not have statutory authority to compel reporting or to require the board to meet on a regular basis.

I also ask if an agency is not being administered by its board or an officially appointed administrative director, could the city manager and/or the city comptroller act on the agency’s behalf?  Mr. Anderson replied (emphasis mine):

We do not believe that a city employee can act in place of the board without the specific authorization of the board. It is our understanding that the Office of the State Comptroller has issued opinions that appear to conclude that only the agency can appoint personnel and this power cannot be delegated to officers or employees of the agency.  I suggest speaking with the Office of the State Comptroller for further information on this issue.

The Office of the State Comptroller did not provide an answer to repeated requests for comment on this issue.

What about HUD?

I ask HUD’s New York office if it matters to them that the NCDA is not filing financial reports and without an active board.  Newburgh annually receives HUD money in the form of CDBG funds, and those funds have been administered, as far as I can tell, by the NCDA (whether the council is cognizant of that or not.)

Adam Glantz answers that there is no requirement that the CDBG funds be administered by the NCDA; “the eligible applicant is the City of Newburgh,” and were the NCDA to somehow be dissolved, the city could apply directly.

Does HUD have any problems granting CDBG moneys to an agency that has no officially appointed director and is not acting in accordance with the authority requirements of New York State?

Mr. Glantz says no.  “HUD regulations allow that the chief executive to designate a public agency to administer and monitor its programs,” he writes, “HUD regulations only require only that an agency have “continuing capacity” to carry out the program activities in a timely manner.”

NIDA auditors stymied

NIDA board members were kept in the dark about the $388K check for the HUD audit.  And the Newburgh planning and development office apparently wasn’t any more forthcoming with the NIDA auditors.  At the July 13, 2009 meeting, the 2007 audit is accepted. The auditors describe in their difficulties gaining access to records and city personnel at arranged appointments, writing that “when we showed up, no one was there…”

Paging the NLDC

The day after Robert McKenna retires, on December 19, 2008, a letter is written to him from the State of New York Authority Budget Office.  Writes the ABO,

As you [McKenna] know, recently we mutually determined that your local development corporation met the definition of a local public authority under the Public Authorities Accountability Act (Act).  This letter is intended to continue the communication between our offices and to prepare your LDC to meet the requirements of the Act…

We look forward to working with you in the spirit of open, transparent and accountable government embodied in this legislation.

Yet this letter only came to the knowledge of the city council through the efforts of a citizen.  That these various agencies must comply with the Public Authorities Act was something that seemed of greater importance, awareness and urgency to Councilwoman Bello at the June and July work sessions than to either City Manager Dwight Douglas or Corporation Counsel Geoffrey Chanin.  Despite promises, no public follow-up happens regarding these issues.  With the assignment of the Lopez suit to corporation counsel, the immediate heat is off.

At the conclusion of the NIDA’s presentation on August 13 (first video on this page), the subject of the NLDC comes up, and when it does, Mayor Valentine brusquely draws the meeting to a close.  The members of the NLDC are present, although they might not all know it.

Why the confusion?

In January of 2003, the city’s charter is changed, merging the NIDA and the NCDA into a new city department:

ARTICLE XIV
Department of Planning and Development
[Added 1-27-2003 by L.L. No. 1-2003]

§ C14.00. Establishment; head.
There shall be a Department of Planning and Development, headed by a Director of Planning and Development, who shall be appointed by the City Manager and who shall serve at the pleasure of the City Manager.

§ C14.01. Director of Planning and Economic Development.
The Director of Planning and Development shall be appointed on the basis of his education and experience in carrying out the duties of the position. Among the Director’s functions and duties, but not by way of limitation, shall be the following:

A. To act as a full-time administrator of the Department, the Newburgh Local Development Corporation and the Newburgh Industrial Development Agency offices to ensure a coordinated and comprehensive approach to community and economic development within the City of Newburgh.

B. To develop and administer a combined and integrated staff to support the Newburgh Community Development Agency, Newburgh Local Development Corporation and the Newburgh Industrial Development Agency and other community-based programs recognized by the Council.

In the aftermath of the Savoy scandal, NIDA administrator and board changes, City Manager William F. Ketcham recommends the reconfiguration in part to reduce the influence of “politically motivated” decisions.  If the administrative director to these agencies is under the city manager’s control, perhaps abuses like the $380,000 unauthorized transfer to the Savoy partners would be less likely to happen.

As late as January 10, 2005, the city council appoints the officers of the Newburgh Community Development Agency, in resolution 9-2005.  They are:

Mayor Nicholas Valentine – Chairman
Councilwoman Regina Angelo – Vice Chairman
Dawn Gobeo – Treasurer
Councilwoman Else Figureoa App – Secretary

Time passes; Robert McKenna takes care of things, and, until the passage of the Public Authorities Act in 2005, there isn’t much reason to do anything differently.

It is a strange coincidence that it is another $380K sum of questionable provenance that has drawn this tangle of agencies and government authority under scrutiny.

Conference tomorrow on NIDA vs. City Manaager, City Comptroller, and City Planning Director suit

Monday morning, August 17, attorneys representing the NIDA and the City Manager, City Comptroller, and City Planning Director will meet in Goshen and perhaps come up with terms for a settlement.

The saga of the city’s public authorities – the Newburgh Industrial Development Agency, the Newburgh Community Development Agency, and the Newburgh Local Development Corporation – will no doubt continue.