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Claims of lack of notice ill-founded

By Marvin Newberg
June 2, 2011

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.