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December 17, 2014
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Claims of lack of notice ill-founded

Marvin Newberg

As the town attorney for the Town of Callicoon, I respond to the unfounded allegations of violations of the New York State Open Meetings Law re a recent meeting of the Comprehensive Plan Committee as set forth in a recently published letter to the editor under the signature of Linda Babicz, Bruce Ferguson and others.

As I stated at the town board meeting on April 11, after statements were made by Bruce Ferguson that the Comprehensive Plan Committee’s meeting was “illegal,” not only has there been no violation of the New York State Open Meetings Law but the committee gave more notice to the public than required to.

As anyone who would bother to become familiar with the New York State Open Meetings Law would know, only public bodies are subject to the Open Meetings Law; and an entity whose sole function is advisory, with no power to implement its recommendations by making laws, adopting regulations, or directing changes in law or policy is not a public body performing a governmental function and is not subject to the Open Meetings Law. Authority for this proposition is Poughkeepsie Newspaper Division of Gannett v Mayor ‘s Intergovernmental Task Force et al, 145 AD2d 65 and Jae v Board of Education of Pelham 22 AD3d 581.

The Comprehensive Plan Committee is merely an advisory group with no power to adopt a town comprehensive plan and is clearly not subject to the Open Meetings Law.

Despite there being no legal obligation to place a paid notice in the local newspaper of the committee’s meeting at the taxpayer’s expense, the committee did publicly advertise its meeting by posting same on the Town of Callicoon website as well as posting a notice of the committee meeting on the town bulletin board in the town hall. These efforts by the committee members were intended to inform interested members of the public of the meeting and their opportunity to attend.

The town board did not schedule the meeting, and the meeting was not a meeting of the town board. At the very least, the signatories on the letter should publicly apologize to the Committee Chairman David Kuebler for the unsubstantiated claims of violation of law.

It should be emphasized that the Town of Callicoon goes further than is required by law to afford citizens a public comment period during town board meetings. The town, at its town board meetings, has two distinct public comment periods, one before the agenda is addressed and one after so that members of the public have a full and fair opportunity to express their concerns or make statements. It is unfortunate that certain members of the public use these public comment periods to make unfounded accusations against the board and board members, but the right of freedom of speech is sacrosanct and that right is respected and revered by the Town of Callicoon board members.

I do recall that at a prior town board meeting earlier this year, similar accusations of violations of law were made by Bruce Ferguson regarding the town board’s proceedings regarding the removal of an unsafe building, the Hessinger Building in Callicoon Center. Those proceedings were challenged in the New York State Supreme Court, and the town board and officials were found, in all respects, to have complied with the law and those allegations of violation of law were determined by the State Supreme Court to be unfounded and without merit.

[Marvin Newberg is town attorney for the Town of Callicoon, NY.]