The Newburgh Advocate » Government Transparency

Keep public records public

Newburgh Advocate — Thu, 06 May 2010 14:31:20 +0000

5.6.10: Keep public records public: From today’s Guardian, article on the Supreme Court case that may take the “public” out of “public records.” Dan Kennedy writes, “Information technology has given us the tools to govern ourselves more openly and transparently than we ever have before. It would be sadly ironic if that technology is now used as an excuse to cover up public records lest they become too public for those who wish to take part in democracy, but who lack the courage of their convictions.” Source – http://www.guardian.co.uk/commentisfree/cifamerica/2010/may/06/supreme-court-public-records

Foil a la Newburgh

Newburgh Advocate — Mon, 28 Dec 2009 21:41:00 +0000

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

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From: McKean, Elizabeth

Fri, Jun 13, 2008 at 9:49 AM

To: “Vitek, Lorene”

Cc:

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

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From: Jane Johnston

Mon, Aug 18, 2008 at 11:51 AM

To: “McKean, Elizabeth”

Cc: “Vitek, Lorene”

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]

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From: McKean, Elizabeth

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

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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

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From: Mercer, Janet (DOS)

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

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from: Vitek, Autumn

to:

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

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From: Jane Johnston

Fri, Aug 22, 2008 at 1:49 PM

To: “Vitek, Autumn”

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]

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From: Jane Johnston

Fri, Aug 22, 2008 at 4:26 PM

To: “Mercer, Janet (DOS)”

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]

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From: Jane Johnston

Mon, Sep 15, 2008 at 7:59 AM

To: “Vitek, Autumn”

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]

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[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.

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Subject: FOIL Request

From: Jane Johnston

Sun, Sep 21, 2008 at 8:34 PM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

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.

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.

A. Jane Johnston

Newburgh, NY 12550

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From: Jane Johnston

Sun, Sep 21, 2008 at 8:48 PM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

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.

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.

A. Jane Johnston

Newburgh, NY 12550

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From: Vitek, Lorene

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

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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

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Subject: FOIL Request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:26 AM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

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

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Subject: FOIL request

From: Jane Johnston

Wed, Oct 22, 2008 at 9:27 AM

To: “Vitek, Autumn” , “Vitek, Lorene” , “McKean, Elizabeth”

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]

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RE: Question regarding timely response to FOIL/further information

Wed, Oct 22, 2008 at 2:06 PM

From: Mercer, Janet (DOS)

To: “A. Jane Johnston”

October 22, 2008M E M O R A N D U MTO: Persons seeking written guidance or opinions concerning open government laws

FROM: Robert J. Freeman, Executive Director

We have received your correspondence in which you raised questions and/or requested a written advisory opinion involving the interpretation of New York’s open government laws, and we apologize for the delay in response.

For a variety of reasons, we are unable to prepare written responses to your correspondence as quickly as we would like. Awareness of open government laws has increased, due in part to the desire for greater accountability and the enactment of amendments to both the Freedom of Information and Open Meetings Laws. As a consequence, the staff of the Committee on Open Government is receiving more telephone, email and other written inquiries than ever before, and we are asked with greater frequency to provide training and education to government associations and agencies, public interest groups, students and news media organizations.

Notwithstanding the growth in interest in open government laws and the service provided by the Committee, its staff now consists of an Assistant Director, Camille Jobin Davis, our office manager for thirty years, Janet Mercer, and myself. In view of the backlog of requests for written responses, we are often unable to respond in writing for several months. To serve you efficiently, we are offering an opportunity to obtain verbal responses to your inquiries. If that is acceptable, please phone the Committee, and we will speak with you immediately or soon after receiving your call. If you continue to want a written response, please so inform us by phone, fax or by transmitting an email to janet.mercer@dos.state.ny.us. If we do not hear from you within 3 weeks of your receipt of this memorandum, it will be assumed that a written response is no longer desired. Please note that answers to your inquiries may be found in the thousands of advisory legal opinions indexed by subject and available on our website.

It is gratifying that so many have developed an awareness of the importance and utility of our laws relating to the public’s right to

know and seek the guidance from the Committee on Open Government. However, the interest in those laws has become so overwhelming that we are unable to provide detailed written responses to inquiries as efficiently as we would like.

Thank you for your consideration and forebearance.

RJF:jm

Robert J. Freeman

Executive Director

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

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Subject: FOIL request of October 22, 2008

From: Vitek, Autumn

Mon, Nov 10, 2008 at 3:44 PM

To:

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

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Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Nov 10, 2008 at 3:55 PM

To: “Vitek, Autumn”

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]

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Subject: FOIL request of October 22, 2008

From: Jane Johnston

Mon, Dec 1, 2008 at 5:28 PM

To: “Vitek, Autumn”

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 wrote:

[Quoted text hidden]

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[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

Tue, Dec 23, 2008 at 12:05 PM

To:

Cc: “Vitek, Lorene” , “Zapata, Lourdes”

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”

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

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

Subject: FOIL request of October 22, 2008

To:

Dear Ms. Johnston:

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”

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” , “Vitek, Lorene” , “McKean, Elizabeth”

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:

1.a. The original, completed UDAG application.

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.

A. Jane Johnston

Newburgh, NY 12550

++++++++++

Subject: FOIL Request

From: Jane Johnston

Wed, Dec 16, 2009 at 9:42 PM

To: “Vitek, Autumn”

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.

We turned the microphones on

Newburgh Advocate — Mon, 17 Aug 2009 01:14:40 +0000

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

…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.

IDA Accounting Nightmare an Embarrassment and Outrage

Newburgh Advocate — Thu, 22 Jan 2009 03:06:07 +0000

[Video deleted]

On Friday, January 16, the Newburgh Industrial Development Agency held a special meeting. Board members listened to a memo written by treasurer Michael Curry that described the great difficulties he had encountered in attempting to access the IDA’s own records. Lourdes Zapata, the administrative director of the IDA, indicated to Mr. Curry that he would have to sign a confidentiality agreement to see the records, on the advice of Corporation Counsel Geoffrey Chanin. Ms. Zapata explained to Mr. Curry that the IDA’s records were “intermingled” with City records. Mr. Curry wondered if “intermingled” might mean “cannot be found.”

Mr. Curry and Joshua Smith both stated that neither would sign a confidentiality statement at this time. Mr. Smith pointed out that Mr. Chanin is the city’s attorney, not the IDA’s, and his interests may differ from the IDA’s.

Newburgh IDA is Delinquent

[Video deleted]

Mr. Curry read an email from Ms. Zapata written upon learning that the IDA board would not fund her “under $1,000″ trip for training to Albany. Through this email board members learned that the Newburgh IDA is actually in delinquency: “The IDA is currently listed as a delinquent Industrial Development Agency by the New York State Authority Budget Office, and, as such, has no authority to offer state tax exemptions,” wrote Ms. Zapata.

“This was, by the way, for the record, news to us,” said Spencer Gulliver.

Mr. Curry continued reading Ms. Zapata’s email: “the IDA has not filed, as far as I can tell, the appropriate documentation with the State for the past two years at least.”

IDA doesn’t know how much money is in its accounts

In explaining why the board turned down Ms. Zapata’s request for training, Mr. Gulliver said there was an online tutorial and training for the reporting system. Mr. Smith brought up the another reason for the refusal: “And when we don’t know how much money we have in our own accounts.”

“That is the second reason why, we don’t know how much we’re spending currently,” said Mr. Gulliver.

“Nor are we granted access…” said Mr. Curry.

“Also, this is the very same person that knew about our delinquency but never informed us,” said Jack Penney. “Why send her away to learn something, we’re not even going to find out what’s going on right now.”

“This is an atrocity to the City of Newburgh, and we’ve been left in an accounting nightmare,” said Mr. Gulliver. “It really is, it’s a disaster.”

“It’s an embarrassment, and an outrage,” said Mr. Curry.

Three motions pass

At the meeting’s conclusion, the board passed three motions:

Motion 1:
The IDA will freeze all financial activity until we are all granted access to information pertaining to the Industrial Development Agency, including financial information and all other information to be requested by the treasurer.
Motion carried unanimously.

Motion 2:
Effective this date, the chairman, vice chairman, secretary and treasurer of the Industrial Development Agency shall be the only authorized signatories on bank accounts of the IDA. Treasurer will sign checks up to $1,000 and all other checks will be countersigned by one other officer of the board. This resolution will be transmitted to the banks immediately.
AYES: Bedrosian, Maldonado, Penney, Gulliver, Smith
ABSTAIN: Curry

Motion 3:
As of this date, all previous signatories are nullified on IDA accounts.
Motion carried unanimously.

Full coverage of the meeting:

Courthouse Art Jury Picks Commissioner’s Associate for $75K Work

Newburgh Advocate — Fri, 16 Jan 2009 05:33:55 +0000

On Wednesday evening, January 14, the Newburgh Arts and Culture Commission (NACC) ratified the courthouse art jury’s chosen artist. The commission approved the artist without revealing the artist’s name. NACC Chair Stuart Sachs sent a follow-up email on Thursday announcing the name of the artist: Bryan Guglielmi. The next step is for the nomination of Mr. Guglielmi to be presented to the city council for their approval of the $75,000.00 commissioned work, which would then be installed in the new Newburgh Courthouse.

Mr. Guglielmi was a student of Garin Baker, current NACC commissioner and former chair of the commission. Mr. Baker served on the jury for the selection process and had input in the selection of jurors. Mr. Baker also hired Mr. Guglielmi to do work on his murals in the City of Newburgh.

NACC retroactively votes to approve sending letter for waterfront sculpture

According to Karen Conway, NACC commissioner, a letter was sent in support of a sculpture project by Greg Wyatt to the NEA from the NACC – without the commission having discussed it or met openly as a public body. The commission voted to approve the action retroactively, with one dissenting vote. Ms. Conway noted that it was a “time issue” due to the changeover in presidential administrations; the aim was to have the letter reach the current National Endowment for the Arts administrator, who will be stepping down soon.

How much will the project cost? Ms. Conway suggested it would cost the city nothing, as the NEA and the sculptor would pay for the work destined for a waterfront location. In an email on January 17, Ms. Conway clarified that the NEA was requesting that the city apply for an additional $10,000 grant for maintenance.

Commemoration of Burial Grounds at New Courthouse

Also at the meeting were Yaniyah Pearson and Pam Krizek, who gave a presentation on the activities of their committee, which is organized around determining appropriate commemoration of the burial grounds at the new courthouse.

New NACC Website

In other business at the meeting, Mr. Baker’s son, Harrison Baker, gave a presentation on the new NACC website, which he is being paid to produce.

Part 1 of 11 Meeting Opening

Part 2 of 11 Presentation regarding commemoration of burial grounds at the new courthouse

Part 3 of 11 Report from Martha Zola, Director of Economic and Cultural Development

Part 4 of 11 Retroactive vote of approving letter endorsing Wyatt

Part 5 of 11 Presentation by Harrison Baker on the new NACC website

Part 6 of 11 Report on the NACC nominating committee

Part 7 of 11 Martha Zola enquires about the funding mechanisms committee

Part 8 of 11 Ratification of the chosen, unnamed artist for the courthouse commission

Part 9 of 11 Selection of a treasurer for NACC

Part 10 of 11 Garin Baker proposes joining Americans for the Arts

Part 11 of 11 Announcements and meeting conclusion

City Council Breaks Open Meetings Law

Newburgh Advocate — Wed, 04 Jun 2008 02:30:58 +0000

It’s time to award another Closed Door Award. This one goes to City Manager Jean Ann McGrane and Economic Development Director Robert McKenna for shutting out the public to a meeting that had a majority of the city council present and thus fell under the Open Meetings Law.

According to Jenny Loeb, a community organizer for Community Voices Heard, she and one of her organization’s members, Maretta Melvin, endeavored to attend a meeting this evening the council held to discuss the Master Plan. Mayor Valentine, Councilwoman Angelo, and Councilwoman Bell were already in attendance when Ms. Loeb and Ms. Melvin were asked to leave.

Marge Bell expressed concerns that it should be an open meeting and that closing it would be a violation of the law.

However, both Robert McKenna and Jean Ann McGrane told Ms. Loeb the meeting did not fall under the Law and that she and Ms. Melvin were not welcome. Ms. Loeb explains that “they said it was considered ‘staff providing information.’ We asked if the Council members were speaking as well, and they confirmed that they were.”

To shed light on how the City Council broke the Open Meetings Law, I turn to Robert Freeman, Executive Director of the New York State Committee on Open Government. The following text is transcribed from the video below, recorded during Mr. Freeman’s visit to the Newburgh Free Library in the fall of 2006.

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What is a meeting?

The Open Meetings Law applies to meetings of public bodies. A public body is a group of two or more, that would either be elected or appointed to carry out some sort of governmental function collectively as a body.

Like a city council, a school board, a town board, a planning board, a zoning board of appeals, a state assembly or senate; all of those groups of people, who function collectively as a group, constitute public bodies required to comply with the Open Meetings Law.

But back in 1977, the law defined the term “meeting” to mean the formal convening of a public body for the purpose of officially transacting public business.

Well, gee, all over the state, all kinds of boards and councils and committees were saying, look, we’re not conducting a meeting, we’re just going to talk. We’re not going to vote, we’re not going to take action. We won’t be transacting public business. This isn’t a meeting, it’s a workshop, it’s a work session, it’s a study session, it’s everything but a meeting.

Now, I have no idea whether there’s anybody here today who might have been on the city council in 1978, but the contention was that the so-called work session was held solely for the purpose of discussion and there’s no intention to take action were not meetings, and that they fell beyond the coverage of the Open Meetings Law.

Well, anybody here from the Times Herald Record?

Well, they sued. And they won. And the case went all the way to the Court of Appeals, the state’s highest court, and the Court of Appeals said very simply, that any time a majority – a quorum, if you will – gathers for the purpose of conducting public business, that’s a meeting covered by the Open Meetings Law, even if there’s no intent to take action, irrespective of the manner in which the gathering may be characterized as.

Now, I know that the city still has work sessions, but they’re open to the public.

Right? Damn well better be. They have to be open.

Thus, even though the meeting was characterized as “staff providing information,” because there was a quorum, the meeting should have been open to the public.

Ms. Loeb believes the council may have been trying to escape her organization’s scrutiny. CVH is engaged in a campaign “to get [the council] to support better protections for affordable housing for Newburgh residents in the Master Plan.”

Will it take another lawsuit to assure the council complies with the law?

Will the new IDA Board be compliant with reform bill 8703a?

Newburgh Advocate — Wed, 28 May 2008 02:26:51 +0000

At the end of the City Council meeting this evening Mayor Nicholas Valentine revealed an update as to what has been going on with the Newburgh Industrial Development Agency Board. He stated that there have been private interviews with members of the council and staff to create a new IDA board and that there would be an announcement in June.

Unlike the other board appointments, such as the Board of Ethics, there has been absolutely no mention of the IDA decision making process through work sessions. This process has been shielded from public view.

What does the IDA do?

Lots of times we don’t see it, because it doesn’t really get major headlines.

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The mayor in the video above mentions a few examples of IDA transactions, such as the parking garage deal for St. Luke’s Cornwall Hospital, or the Unitex project which has hired 160 people from the City of Newburgh. The Board is charged with promoting economic development, and can do so through real estate transactions, such as selling the vacant lot on Broadway, and offering economic incentives such as PILOTs (payments in lieu of taxes). Bonds can be generated, as in the case of St. Luke’s parking garage, to the tune of $21 Million.

What are the rules on IDA Board Membership?

The current IDA law, Article 18A Title 1 Section 856 of the General Municipal Law, states regarding board members:

2. An agency shall be a corporate governmental agency, constituting a public benefit corporation. Except as otherwise provided by special act of the legislature, an agency shall consist of not less than three nor more than seven members who shall be appointed by the governing body of each municipality and who shall serve at the pleasure of the appointing authority. Such members may include representatives of local government, school boards, organized labor and business. A member shall continue to hold office until his successor is appointed and has qualified. The governing body of each municipality shall designate the first chairman and file with the secretary of state a certificate of appointment or reappointment of any member. Such members shall receive no compensation for their services but shall be entitled to the necessary expenses, including traveling expenses, incurred in the discharge of their duties.

Currently, there is a reform bill 8703a in Albany which would transform the IDA law.

The bill had passed the Assembly and was in the Local Government Committee of the Senate when it was recalled back to the Assembly on May 20, where it sits for a third reading.

What changes does the reform bill 8703a propose?

The full text of the Bill and its status can be read here. Regarding the makeup of the board:

Such members SHALL include representatives of local government, school boards, organized labor

DESIGNATED BY THE LARGEST CENTRAL LABOR FEDERATION IN THE MUNICIPALITY, and ENVIRONMENTAL ORGANIZATIONS.

The bill also requires that individuals with IDA business ties or ownership interests are not on the board, and requires that board members attend a certain percentage of all hearings (a mere 10%) or forfeit their office.

The legislators have offered the following justification at the end of the bill:

JUSTIFICATION : There are 116 IDAs throughout the State that provide almost $400 million in net tax exemptions each year. They are an important economic development tool to promote job creation and business retention. In return for increased economic activity and job growth, IDAs provide exemptions from local, county and school taxes. IDAs also issue low-interest bonds, called industrial development revenue bonds, which allow companies to borrow money at low cost.

IDAs should be supporting responsible businesses that will deliver on their promises to provide good jobs and services to New Yorkers. Since IDAs give businesses significant local tax breaks, local communities should get the promised benefits in exchange for sacrificing this much needed revenue. This bill will greatly increase the accountability of IDAs to the taxpayers and municipalities for whose benefit they are created. It will serve to ensure a greater degree of uniformity in the application process, more careful analysis and deliberation in the decision-making process and enhanced monitoring once IDA benefits are conferred. This bill would ensure that IDAs operate efficiently and in the public interest.

Inaugural Closed Door Award

Newburgh Advocate — Thu, 22 May 2008 02:51:31 +0000

Today’s post marks the inauguration of the “Closed Door Award,” an award that is given to distinguish gratuitous use of executive session by a governmental body.

The gratuitous use of executive session is anathema to good government and open government.

Now there is a way to recognize when a governmental body inappropriately shuts the public out. Feel free to give your board, council, or committee an award each time you witness gratuitous use. Count up the worst offenders by year’s end and perhaps we’ll have the opportunity to make another award or form of recognition for the Most Closed Door Awards.

Today’s Closed Door Award goes to the Orange County Legislature’s Physical Services Committee, for calling an executive session for Lenny Llerena’s presentation “Update re: hangars to be built at Airport.”

Mr. Llerena’s presentation was first on the agenda, and it was only after the presentation was set up, complete with powerpoint visuals projected onto a screen, that the call for “executive session” was made. There was a pause until an administrative assistant helpfully suggested the rationale of “contract negotiations.”

I have made an artistic video to commemorate this award, complete with the audio of Robert Freeman, Executive Director of the New York State Committee on Open Government, accompanied by the visuals of the video I recorded while waiting at the Orange County Government Center for the Physical Services Committee to return from executive session. Mr. Freeman was the guest of the Newburgh Free Library, where this audio comes from, in the fall of 2006.

Congratulations!

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