On Thursday, the Board of Supervisors held one last session to pay the bills, close out business, and apparently launch one of the most-polarizing debates of the calendar year.
Typically ‘end of year’ sessions are quick, informal meetings that close things out in an efficient way. The meeting is typically scheduled between Christmas and New Years, which means that heavy action isn’t taken or considered.
Last week when the Board’s clerk released the tentative agenda for the final session of 2019—it included a resolution, which moved through the Board’s Agriculture & Tourism Committee by a 2-1 vote. That motion was to spend $50,000 to assist Seneca White Deer, Inc. keep its doors open.
As chronicled last week in the Gazette-Review, the supervisors heard from Seneca White Deer, Inc. President Dennis Money, who cited significant financial burden in form of a lease agreement for the 501(c)3 to operate on the former Seneca Army Depot, which is owned by Earl Martin.
Martin purchased the property from the Seneca County Industrial Development Agency in a deal that received a lot of attention and scrutiny. Fast-forward to present day, and the supervisors appeared poised to spend $50,000 to help SWD continue forward—if the full-board passed that resolution.
Over the weekend before the Christmas holiday—Money confirmed that he wouldn’t seek any funds from the Board of Supervisors—after making an impassioned plea for the supervisors to intervene if possible. He spoke of circumstances that felt unfair, and too harshly tilted in Martin’s favor.
Fast-forward to Thursday’s session, and instead of simply removing the agenda item that included the aforementioned resolution to spend $50,000—the supervisors heard from Martin. There was a catch, though.
He contended that speaking in open session, like Money did a week earlier, would jeopardize a confidentiality agreement he had with SWD and therefore would only address the Board in executive session.
Supervisor Robert Hayssen, R-Varick, said it could have waited until the New Year, when the new board took office.
Supervisor Ralph Lott, R-Seneca Falls, made a motion to enter executive session. That motion was seconded by Supervisor Lisa Hochadel, R-Waterloo. The cause for the executive session, which is strictly governed by state law, was said to be over current or future litigation.
It’s unclear what possible litigation exists at the County level as related to this matter.
A vote was called, and several supervisors objected. Supervisors Cindy Lorenzetti, D-Fayette; Paul Kronenwetter, R-Seneca Falls; and Hayssen all voted against the move.
“There was no litigation coming to the County,” Lorenzetti said afterward in a phone call. “Nor was the County forwarding any litigation.” She contends that executive sessions should be proposed thoughtfully and that after Money spoke publicly Martin should have as well. “Executive sessions should never give the appearance that the Board is doing anything behind the backs of the public taxpayers,” she added.
Supervisor Hayssen agreed, and called the session an illegal one. “It was an illegal meeting,” he said. “It could have waited until next year or [the supervisors who voted for it] could have convinced one of the ‘no votes’ to change their minds,” he said. “Everything Earl Martin said could have been said in a public session. I’m sorry on behalf of the taxpayers, it should not have taken place.”
The vote Supervisor Hayssen is referring to is the 402-348 weighted vote count that would have rendered the executive session motion dead. According to the Department of State, executive session can only be entered when a majority of the ‘full-membership’ votes in favor of a motion to do so. Instead, the supervisors relied on achieving a majority of those present, which significantly changed the outcome of the vote.
Board Chairman Bob Shipley, R-Waterloo, said that calling the session ‘illegal’ as Supervisor Hayssen did is an ‘exaggerated opinion’ of the minority, who did not want to enter. “It is not based in fact, nor [is it] representative of the opinion of the majority of the supervisors,” he said.
Explaining the circumstances that led the Board down this path, Chairman Shipley contends that he relied on a legal opinion given by the Deputy County Attorney. As for the legal reason for executive session—Shipley felt that ‘possible litigation’ was enough.
However, in a late-addition to this story, Kristin O’Neill, who serves as Assistant Director of the Committee on Open Government issued an opinion on the circumstances of the executive session. O’Neill says a fundamental misunderstanding centers around what constitutes a majority count for the Board of Supervisors to enter an executive session. “Pursuant to General Construction Law Section 41, which defines the term ‘quorum,’ that the Board of Supervisors may not exercise its powers absent the approval of a the majority of the whole number of the board,” she explained.
O’Neill further explained that the term “whole number” is defined as “the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.”
“Absent a quorum and the approval of the majority of the board, it is our view that it is likely that a court would find that an executive session was held in violation of the Open Meetings Law,” O’Neill concluded.