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December 11, 2016
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I’m not a lawyer, but ‘public’ means public

Bruce Ferguson

The Town of Callicoon’s new comprehensive plan will be the first in 30 years, and it’s likely to shape the future of our town for decades to come. Given the plan’s importance, the town should have made every reasonable effort to let the residents know about the “public workshop” that would have provided an opportunity to review and comment on the plan. Yet despite the importance of the meeting, the town board failed to use many of the readily available means that are typically used to give notice to the public:

• It didn’t announce the workshop at the preceding regular town meeting.

• It didn’t alert the local media, or provide a public service announcement that could have been run, for free, in the local papers.

• It didn’t publish a legal notice in the newspaper of record, which would have cost around $12 or $15.

• Residents of the town who had specifically inquired about the meeting were not informed when it was scheduled.

Instead, the town provided notice of the meeting only on its little-visited town website and, supposedly, on a bulletin board in the town hall. According to various accounts, this notice was provided either two days, or 10 days, in advance of the meeting. On the face of it, the town did a lousy job of publicizing the meeting which, no surprise, was poorly attended.

But did the town break the law? New York State’s Open Meetings Law states “Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media.”

I’m not a lawyer, but because the town claims the meeting was scheduled 10 days in advance, and because it admits that it didn’t alert the media, it seems to me that the town violated both the sprit and the letter of the law. I publicly said as much, and this brought down the wrath of town attorney Marvin Newberg. Without acknowledging the town’s obligation to make a real effort to inform the public, he wrote “anyone who would bother to become familiar with the New York State Open Meetings Law would know… an entity… with no power to implement its recommendations by making… policy is not subject to Open Meetings Law.”

In other words Mr. Newberg claims there’s a loophole in the Open Meetings Law that I didn’t “bother” to discover.

But is there really a loophole that permits municipalities to hold important meetings that aren’t subject to the Open Meetings Law? I asked New York State’s Committee on Open Government this question, and an attorney told me, “A town comprehensive plan Committee created pursuant to town law is also a ‘public body’ subject to the Open Meetings Law.” The state attorney also cited a case in which another town had a Comprehensive Plan/Master Plan Committee that held a meeting “for the purpose of reviewing the comprehensive plan” which “few members of the public attended, because there was little if any publication or notice.” The town was considered in violation of the Open Meetings Law.

To me, this sounds a lot like what happened in the Town of Callicoon.

Now maybe a clever lawyer can argue that Callicoon’s Comprehensive Plan Committee is somehow different, and perhaps what happened here didn’t run afoul of the law, but what about the bigger questions? Why should the Town of Callicoon hold important meetings without making a good faith effort to alert the public? And why should town residents pay a town attorney to defend this sort of behavior?

[Bruce Ferguson is a resident of the Town of Callicoon.]