There are three important things that need to be fixed about how our town government operates: compliance with state laws on access to public records kept on private email servers and devices; an ethics code that doesn’t require meaningful disclosures by public officials; and a lack of any rules for public hearings.
In each of these areas, our town code is woefully deficient. And town taxpayers pay the price.
Riverhead’s private email server problem
The town has no code concerning compliance by town officers and employees with the state open meetings or public access to records laws. It needs one.
Riverhead’s code need not reiterate what the state law says, but it should spell out things that its officers and employees must do to comply with those two important laws.
There are many areas of concern, but for now I will focus on one — and its a doozie. The town has no regulation governing the use of private email accounts and other private methods of electronic communication for public business. A public officer’s written and electronic correspondence concerning public business are public records subject to the Freedom of Information Law. Public records are not to be deleted or destroyed.
If a public officer uses a private email account or text messages on a private cell phone to discuss public business, those communications are subject to the Freedom of Information Law just as emails and text messages on government accounts are.
The town has no code prohibiting any elected or appointed official or employee from conducting public business using private email accounts or private mobile devices. There is no code requiring the preservation of any such records, even though these records are public records as per state law.
Former supervisor Sean Walter refused to use his town email account at all. Every email communication with him had to be directed to his private Optimum email account. His staff monitored his official account and forwarded things to his private email. And if you wanted to address him directly, the private email was the one to use.
Councilwoman Giglio, who has an outside business, also uses her private business and personal email accounts for public business from time to time. I know this because I have received emails from her private business email account pertaining to town business.
When I submitted a FOIL request for those meeting notes, I also requested copies of emails between the councilwoman and any representative of Triple Five, sent between the date of the opening session of the CAT hearing and the date of my FOIL request.
The response I got from the town attorney was that there were no such emails. I asked for a certification that no such records existed — as state law allows. Then things got sticky. It turns out the examination of the town records to determine that none existed was made by the town board coordinator, an at-will employee serving at the discretion of the town board. I was told the town board coordinator searched the records by searching the email inbox on the councilwoman’s town computer. But the town attorney’s office wasn’t comfortable issuing the certification I requested on the basis of that examination. So the town attorney then asked the offices’s computer consultant to undertake the examination. I am not sure how the consultant went about it, but it should have been an examination of the town’s mail server, not just the councilwoman’s email inbox on her own town computer.
And what about the private email accounts? I was told the consultant would examine that too.
Until I got the certification I requested. The certification from town attorney Robert Kozakiewicz, by email of May 18, states:
“Based upon information by others, a diligent search of emails has been performed and no emails matching or fitting the parameters of that sought in your Foil Application dated April 5, 2018 have been located. The search of emails (town server and personal) as done by others including the Town Board Coordinator, Bill London [computer consultant] and the Councilwoman.”
I called the town attorney seeking clarification about this certification. Had the consultant been given access to the servers, including the private email account? No. The search of the private email account had been conducted by the councilwoman only. That was different from what I had been told about how the search would be done, I pointed out. But the town attorney had nothing further to say.
I then submitted a FOIL request seeking correspondence between the councilwoman or any representative and the town attorney’s office concerning my original FOIL request. That request resulted in my receipt of email correspondence between the town attorney and a lawyer for the councilwoman, Anton J. Borovina of Melville.
Borovina wrote to Kozakiewicz on May 3:
“I am writing to you as attorney for Councilwoman Jodi Giglio and in response to your having provided me with a FOIL request dated April 5, 2017 [sic] by Denise Civiletti.
“Please be advised that Councilwoman Giglio conducted a search of her private email account and found nothing therein responsive to the FOIL request.”
The response by the town to my FOIL request is not adequate. This has already been decided by a state appeals court, which ruled in June 1994 that “…conclusory allegations, especially ones made ‘upon information and belief’ by persons with no apparent direct knowledge, are legally valueless” with respect to the existence of public records and the government’s obligation to conduct a “diligent search” for them. [Matter of Key v Hynes, 205 A.D.2d 779, 613 N.Y.S.2d 926 (1994)]
But what recourse do I have? I can bring a lawsuit against the town to compel production or at least an affidavit setting forth facts to support the town’s “conclusory allegation” that the records don’t exist. Where would that get me — except at least $5,000 poorer? If any such emails on the councilwoman’s account existed to begin with, they could have easily been deleted by now. So what’s the point? (The town’s email server has a “lock” on it to prevent such deletions, the town supervisor told me, though I still don’t know whether the email server itself was searched.)
All of this clearly illustrates that the town should have a code on the books governing how its employees conduct public business to ensure compliance with the state records access law — including a ban on using private email accounts for public business. And there should be penalties provided for noncompliance, so private citizens are not left with the responsibility of brining costly legal actions to enforce the law.
Ethics: When disclosures don’t disclose much
Until November 2004, the Town of Riverhead essentially lacked a code of ethics. There was an ethics code on the books, adopted in 1969. But its only substantive provision was one that required town clerk to tape record the town board’s executive — i.e. closed door — sessions and make the tapes available to any person who wanted to listen. I kid you not.
The town ignored the code, such as it was, and the board of ethics itself was long defunct, until in 2000 when the town board was inspired to appoint members to the board of ethics. Their one-year term expired without that board meeting much or accomplishing anything. They were never replaced.
In 2004 — following reporting done by local journalists (me and my colleagues at The News-Review) the town board was inspired to write and adopt an actual code of ethics, the one that exists today. It has had relatively minor amendments since its adoption, most significantly in 2015 when an amendment prohibiting any elected official from serving a leadership role in a political party committee.
But the 2004 code of ethics, while a good start, remains inadequate with respect to financial disclosure and conflict of interest disclosure requirements.
The ethics code requires “financial disclosure” by elected and certain appointed officials, but leaves it to the town board to devise the form of such disclosure. I obtain, through Freedom of Information Law requests, copies of these disclosure forms most years. It’s a waste of time, paper and money. These forms require the disclosure of almost nothing meaningful.
Elected officials who have outside businesses that involve representing people or companies before government bodies are not required to disclose the identity of their clients or the consultants with whom they have business relationships. Why should they? Here are some examples of how this can be a problem.
When the town board hires a consulting firm, often at a cost of tens of thousands, even hundreds of thousands of dollars, town board members who work with that consulting firm on projects for clients in other towns are not required to disclose that fact or recuse themselves from the vote. So a Riverhead Town Board member can vote to award a lucrative Riverhead Town contract to a consultant on Tuesday when that town board member sat side-by-side representing a private client together on a project in Brookhaven Town on Monday.
When a consultant appears before the Riverhead Town Board on behalf of a developer with an application pending in Riverhead, a town board member could be working, in his or her private business, on behalf of that same developer in Smithtown.
The taxpayers would never know about either of these situations because the town’s financial and conflict of interest form does not require disclosure of them.
Riverhead needs rules for hearing procedures
Riverhead Town has no code on the books governing administrative hearing procedures. As recent events prove, it desperately needs one.
The town needs a code that makes it crystal clear that ex parte (one-party, private) communications between members of a decision-making board and an applicant or its representatives during the conduct of a quasi-judicial proceeding are strictly prohibited. (A quasi-judicial proceeding is one to determine the specific rights of a particular entity, i.e. not a legislative hearing on a matter that affects a broader population.)
Once a quasi-judicial proceeding is begun and until after a decision has been rendered by the board, no member of the board, individually or with other board members, should meet privately with any party to the proceeding to discuss the application. Period. This goes for the planning board during the pendency of a site plan hearing, the zoning board of appeals during the pendency of an appeal proceeding, and the town board during the pendency of a site plan hearing or a “qualified and eligible sponsor” hearing.
Note the words “during the pendency” — a board or individual members may hold discussions before such a hearing is commenced, subject to the requirements of the state open meetings law. But once a hearing is begun, all communications and representations by the applicant must be made in public and on the record.
Other towns, counties and the State of New York have administrative procedure codes that govern the conduct of these meetings. Riverhead deserves no less.
Much has been said about Councilwoman Jodi Giglio’s private meeting with Triple Five. We’ll never know what was discussed, what may have been promised to the town or even possibly to her personally, or anything else about it. Maybe it was nothing. Maybe it wasn’t. But the point is, we’ll never know. The “10 pages of notes” the councilwoman said she took that she said “anyone can look at” actually turned out to be no notes at all. I obtained them through the Freedom of Information Law and I published them here.
The town shouldn’t be in this situation and if the town had an appropriate code governing hearing procedures, we wouldn’t be. The town board should act now to address this. Actually, the town board should have acted, at the very latest, as soon as this deficiency came to light earlier this year, but they haven’t even discussed it yet.
In Riverhead, too much is left to the honor system. That’s not good for government, it’s not good for taxpayers, it’s not even good for public officials acting only with the public’s best interests at heart, because, like it or not, they will always be the object of suspicion.
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