Payments In Lieu Of Health Insurance

There is no doubt that the cost of health insurance is of serious concern to us all.

Health insurance benefits make up a huge chunk of all municipal budgets. The Village of Seneca Falls pays the full cost of health insurance benefits for its full-time employees; retirees must pay a percentage of the cost.

Be that as it may, there are ways to contain the cost of municipal employee health insurance plans. The New York State Comptroller's Office provides some suggestions on their website. One of the suggestions is to offer "payments in lieu of health insurance" to employees who have access to health insurance from another source, usually through a spouse. These payments can provide a cost saving to taxpayers, especially when the payments are less than the full cost of the insurance plans provided by the municipality.

The Village of Seneca Falls offers this alternative to eligible union employees.

The Comptroller's Office states that a municipality can authorize offering employees a "payment in lieu of health insurance" in one of two ways - by passing a local law to provide it or by including it in a collective bargaining agreement. Seneca Falls Village union members have this language in their contracts.

Here is what the NYS Comptroller says about how municipalities may authorize payments in lieu of health insurance:

Payments in Lieu of Health Insurance Coverage

Because many employees have health insurance coverage available from a second source, such as benefits under a spouse's plan, offering the option of a cash payment in lieu of health insurance coverage can be beneficial to both your local government's budget and to the employee. Employers realize a savings by paying employees an amount less than the cost of health insurance premiums, and employees increase their income. These payments may be authorized by local law, or pursuant to a collective bargaining agreement.

To qualify for the payment, employees must demonstrate that coverage is available from another source. Employees will want to compare their current plan with the alternate one to weigh the benefits and risks of switching plans. The municipality may also wish to contact the IRS concerning the income tax consequences it sees as a result of a payment in lieu of health insurance benefit.

The Village of Seneca Falls also offers payments in lieu of health insurance to its non-union employees. However, the Board authorized such payments by a simple resolution as part of adoption of its personnel policies on April 3, 2006, and not by a local law. Local laws, of course, require that the Board hold a public hearing.

Given the importance of this issue and the potential savings for Village taxpayers it would be prudent for the Board to review their program and ensure that it is properly authorized. If the simple Board resolution including these payments in the Village's Personnel Policy is inadequate to properly authorize them then a local law should be drafted, a public hearing on the draft law should be held, and if the Board deems it acceptable it could be passed.

First, though, there should be open discussion in advance regarding how many employees are eligible overall (both union and non-union), any alternatives regarding actual percentage of payments to be offered, and the potential savings to taxpayers.

One of the required duties of the Village Administrator is to review all Village insurances and make recommendations to the Board regarding alternatives. Have there been any reports regarding insurance coverages made to the Village Board?

Jumping the Gun

It is a curiosity, perhaps, to note that the Village Board has scheduled their annual reorganization meeting for Tuesday, April 1st at 6:30 p.m., with a Public Hearing on the 2008-09 Village Budget to take place at 7 p.m. the same evening.

It is a curiosity because it seems that the Board is jumping the gun regarding the commencement of their next terms of office. Regarding the commencement of the terms of village officers, NYS Village Law states:

S 3-302 Official year, terms of office,
extension or reduction of terms, biennial elections.

1. An official year begins at noon on the first Monday in the month
 following the date of the general village election or the date such
an election would have been held had elections been held annually.

2. The term of office of each elective village officer shall commence
at the start of the official year following his election; the term of
office of each officer appointed at the annual meeting of the board
of trustees shall commence at the start of the official year in which
he is appointed; and the term of office of each officer appointed at
any other time shall commence at the time of his appointment.

The first Monday in the month following the date of the general Village election is April 7th, which would also coincide with our Village's regular meeting date of the first Monday after the first Tuesday of each month.

The budget, by law, is not required to be adopted until May 1st and doesn't go into effect until June 1st. So it is also curious to note that the Public Hearing will take place so quickly, the same night as reorganization.

In any case, why are we in such a rush to begin new terms of office before they legally begin? What was wrong with waiting a few more days for the regular Board meeting date? And if there are questions about the budget, will the Board agree to adjourn the Public Hearing rather than formally close it so that more discussion can take place to address questions before May 1st?

Pull The Shades Up At Village Hall!

I have posted previously, more than once, about the need for our local elected officials to commit to open government, rather than just pay lip service to it when convenient or when running for re-election.

One of my posts was a reminder of Sunshine Week, March 16-22, a time to remember the laws and principles of open, accessible government across our nation. It is interesting, and certainly disheartening, to note that our Mayor and Village Board did nothing to reinforce their commitment to open government during March 2008. One week after Sunshine Week, the Village Board, in concert with the Town Board, clearly violated the Open Meetings Law in conducting an executive session to discuss a joint municipal facility!

My first reaction is, gee how hard is it for these elected officials? Do we have to hit them over the head with this every day in order to get them to comply with the law and to embrace "public" governance rather than "shadow" governance?

Sadly, apparently so. The Finger Lakes Times is correct in taking the Village and Town Boards to task for their secretive actions. The owners of the involved property that was rejected by the Boards were correct in taking them to task for their secretive actions.

While the Times article in today's paper points out that there are reasons for and against a joint municipal facility at any number of sites, the main point of the article should not be forgotten - that is, that the principles and legal requirements of open government were ignored by ten of our local elected officials in this matter. Ten people who have been given the privilege of the public's permission to conduct the day-to-day operations of our public facilities, to direct our community's progress, and ensure its continued welfare.

As we all know, trust, as well as respect, must be earned. How can we trust or respect the decisions of our elected officials if they believe that they must hide from the public while discussing our business, or consider the public a nuisance to be avoided in the decision making process?

As I posted after the March election, Mayor Smith would do herself and the public a tremendous service if she would finally come out from behind the shield she uses to avoid putting herself on record and vote on all matters that come before the Board.

I would ask this: if the Finger Lakes Times had not first reported that the Boards had conducted an illegal executive session, and if the owners of the rejected property had not followed up and contacted the local media and also questioned the use of a secret discussion of the joint facility, would the public have EVER learned anything about what Mayor Smith believes about the location of such a facility? Would the public have EVER learned any of the thought processes and considerations that went into deciding which facility or parcel of land would be best suited to OUR needs?

My guess is no, we would not. No amount of hedging and explaining by our elected officials about why the decision was made this way will suffice. And this is inexcusable. Their actions have put our community in danger of possible litigation. By holding an illegal executive session the Boards could be sued under Article 78 of the Civil Practice Laws and Rules to nullify their actions.

What was gained by risking potential litigation, the potential ire of taxpayers, and the embarrassment of failing to do basic things correctly?

Now that objections have been made public in the newspaper we learn that Mayor Smith wants to re-open the discussion, post-decision, to try to convince her team to change their minds. She should have made her arguments last Thursday during an open session, where she might have been able to convince all of those present, the public included.

I reiterate my challenge: pull up the shades at "Municipal" Hall!

A Challenge - Be Counted and Accountable!

Village elections may be over, but it is important that residents do not become disinterested or complacent about local government. We must continue to pay attention to the actions and statements of the Board.

As I posted previously, one of the complaints I heard time and again from people when I was going door-to-door is that the current mayor was not voting on resolutions before the Board. People felt this was an inappropriate skirting of responsibility, and merely a convenient way to avoid accountability.

Now that Mayor Smith has been afforded another four year term, I challenge her to take this opportunity to alter her governing style and provide taxpayers with the obvious way to hold her accountable for decisions and a way to validate her leadership: You asked residents to cast their votes for you; the least you can do for us, starting now Mayor Smith, is to cast a vote on each resolution that comes before the Board.

Campaign Assertions

No doubt many Seneca Falls residents have questions about claims that have been made by the candidates for village offices this election season. Many Seneca Falls residents could likely dispute some of the claims that have been made by each of the candidates. We all sit back and chuckle sometimes at the amazing feats of governing that suddenly appear in the weeks before election day!

Never before have we seen so many claims of accomplishments than in the 2008 village election, mainly from the three incumbents of course. In the 2nd Ward we received a six page listing (and listing, and listing, and listing....) of accomplishments of the Board. It appeared to be mostly just copied off portions of departmental reports stapled together. If nothing else, it's good to know the village's employees are working so hard!

An example of one issue that all of the candidates seem to be focusing on, and taking credit for, is the joint Town/Village Comprehensive Plan. Candidates have touted this accomplishment and have pointed to it as a mandate for lower taxes and consolidation of services. But the Plan itself doesn't mandate anything. The Plan, as its name implies, is truly "comprehensive" in scope. It covers all aspects of community functions and development. A Comprehensive Plan's purpose is to guide the future growth and development of Seneca Falls through specific actions that can result in a better future for our community. It suggests changes to laws and policies, as well as suggests actions and partnerships that go beyond just the Town/Village relationship. The candidates have not focused on how they propose to implement actions included in the Plan. What they have focused on is only the results of the resident survey. The survey showed that the majority of residents want lower taxes and want the town and village to determine where services can be shared and costs can be reduced. This cannot be where the discussion ends!

Obviously if a candidate points to the results of a survey and says "yeah, that's what we want and that's what I will work toward" it sounds good.

But the hard part - and the part that usually becomes a stopping point for elected officials - is actually utilizing a Comprehensive Plan's recommendations. When it comes time to enact changes, or budget for services called for in the Plan, well, the enthusiasm often wanes. This is true not only for Comprehensive Plans, but other plans and studies that are generated by municipalities.

This is why taxpayers all too often can complain that studies and plans just collect dust on a shelf.

I would suggest to our candidates that the greatest accomplishments will come from thumbing past the Table of Contents and Introduction and then starting the work.

Spending Our Tax Dollars

A few examples of how Village taxpayer dollars have been spent in the last four years:

• In 2005, $2,000 was spent to purchase new office furniture for the Administrator/Clerk/Treasurer. There was nothing wrong with the existing furniture in the office, in fact it was relatively new. Most Village department heads and other staff have used the same office furniture for years and years, being mindful of controlling costs. Purchases such as this - for replacement of equipment that is still well-functioning, such as office furniture - used to be discouraged unless absolutely necessary.

• The Village sponsors annual Christmas parties for Board members and employees at the Seneca Falls Community Center. Free breakfast buffet, beverages, and prizes are included, paid for by taxpayers. There's also a visit from Santa. The meal is provided by the food service company Sodexho through the New York Chiropractic College. This is arranged by Third Ward Trustee Petroccia, who works for NYCC. These parties are called "Christmas organizational day" or "organizational meeting/Christmas party" by the Village. Adding the words "organizational meeting" allows them to get past state laws that prohibit spending taxpayer funds on entertainment and gifts. These parties cost taxpayers a total of $806.35 during the holidays of 2005 and 2006. Interestingly, only $120.85 of that total amount was spent at a downtown restaurant. Christmas and other parties have been held each year, for an unknown total cost. While holiday celebrations are a nice part of a work environment, these should not be held at taxpayer expense.

• The south canal wall project was not originally embraced by the Thruway Authority/Canal Corporation. They had planned a nearly $1 million extension of the north wall up to the Community Center that would have been finished in 2007 (see email at left - names removed to shield state employees from any fallout). After the state Senator intervened the project was re-directed to the south wall in 2004. Without public discussion at any public Board meeting Mayor Smith represented to state officials that the Village would spearhead the project after the Thruway Authority refused to pay for work on the south wall. The Village does not own any property at the south canal wall between the Ovid and Bridge Street bridges. The NYS Thruway Authority/Canal Corporation owns the land on which the new ornamental lights and boater service pedestals are located, back to twenty feet. Beyond the twenty feet the land is owned by Seneca Knit Development Corporation, a subsidiary of the Seneca County Industrial Development Agency. Canal Street legally ends at the corner of Center Street. The Village deeded over the remainder of the old Canal Street to the Mill property years ago and it is now owned by SKDC. The Village stated in their application to NYSDOT for a member item grant that this was a "highway reconstruction" project to improve Canal Street. The Village does not have any kind of agreement with the Thruway Authority for use and maintenance of the property. There is no proper access to the walkway and pedestals; the service pedestals are not operational - no power or water for boaters when they tie up. But the ornamental lights operate and have been lit every night since September 2005. Village taxpayers pay the electric bills. But note - it is improper for a municipality to provide such service on property it does not own. NYSEG bills from the meter for the lights show that it costs about $225 a month (in 2005) to run them. For 30 months at an average $225 per month Village taxpayers have paid about $6,750 to light "the wall to nowhere."

These are just a few examples that were relatively easy to find. Village Board members continuously proclaim their fiscal conservatism, bragging about budget cuts, protecting the taxpayers, and watching every dollar. Obviously, they all could do a better job.

Sunshine Week - March 16-22, 2008

This week is the celebration of "Sunshine Week" across America.

Sunshine Week, an initiative of the American Society of Newspaper Editors, focuses a spotlight on open government at the national, state, and local levels. The basic idea: government of, by, and for the people must be open and accessible. The presumption is that government records and meetings are open. Very few exceptions to this rule are allowed.

We are fortunate that New York State provides easy and accurate guidance regarding questions on open government, open meetings, and the accessibility of public records. A simple phone call or email to the Department of State’s Committee on Open Government usually results in a prompt response, even in writing if desired. This is a free service. You can also click here to find the Committee's page of videos on NYS Open Meetings Law and FOIL.

There has been a disturbing trend in recent years, on the part of elected and appointed officials at all levels of government, to conveniently ignore the basic premise of open government. One excuse or another for this is often given, but the public is usually told that these transgressions against open government are either inadvertent, or worse - are for our own good. While excuses are sometimes legitimate, more often they simply contribute to a government more comfortable operating in the shadows. One of the greatest threats to our form of government is the quiet chipping away of the very civil liberties we blindly assume our government is protecting and promoting.

When fulfilling a request for public records is unnecessarily delayed, denied, or delayed for research into the accessibility of the requested records, open government is being thwarted. When chance meetings and/or social occasions involving a quorum of a public body develop into discussions about public business, open government is being thwarted. When government officials deceive the public about the purpose of a closed meeting, open government is being thwarted. Even candidates for office who profess to support open government all too often succumb to the convenience of the shadows once elected, thwarting the very principle of the public’s right to know and participate in its government. When this happens, every voter is cheated; every vote is based on deception.

Sunshine Week is aptly named. Sunshine clears away the shadows. Sunshine is a natural disinfectant, used for ages when cleaning house. Sunshine Week reminds us that it is the people who made the government, and the people have a right to know what its government is doing and how it makes decisions. When elected officials present “pre-determined” decisions and policies, the public is being cheated out of its part in the deliberative process. Occasionally there is public outcry to “hold our elected officials accountable” in one issue or another. But it is the public’s responsibility to remain actively vigilant and aware by asking questions and making sure there are answers and an open and free venue for discussion. And it’s incumbent upon government officials to accept their responsibility to follow the law and embrace the public as partners in open government, rather than adversaries or obstacles to agendas.

Telling Truth To Power

A necessary skill in an elected official is the ability to accept the truth of a situation. It is essential for those who work for elected officials to be able to "speak truth to power." Without that ability on the part of staff, and without that skill on the part of elected officials, the public is denied proper, well-informed representation.

At various times in the past, the Mayor and some Village Board members both publicly and privately referred to me and the Heritage Preservation Commission as "obstacles" to proposed development projects, particularly the Seneca Knitting Mill complex. Certainly Mayor Smith and Board members are entitled to an opinion. However, it would have been more credible for them to base their assertions on fact. It would also be incumbent upon them to educate themselves and fully understand the process when dealing with state grants before attaching labels to their own staff, and to members of the public who might ask questions and expect answers about any proposed development.

In the case of the Seneca Knitting Mill development, it was my experience that questions were unwelcome, regardless of their relevance to the Village's role in supporting the project; advice regarding the development process as it related to state agencies and grants was also unwelcome.

When an application for demolition of various structures on the site was presented to the Heritage Preservation Commission in November of 2004, the Commission had questions regarding the effect their decision might have on state preservation grants that were under contract to the development corporation. These questions were not meant to throw an obstacle before the project, but to ensure that the Commission's decisions would not in any way negatively effect the project's ability to utilize the state grants. The state had already made a decision about which buildings on the site they would approve for demolition using their grants. But the developer was proposing additional demolitions.

The Commission Chair contacted the NYS Office of Parks, Recreation and Historic Preservation to clarify and ensure that any decision they made regarding demolition of any additional structure on the site would not be contrary to the State's approvals.

Because of this contact, the Commission was publicly chastised at their November 10, 2004 meeting by Senator Michael Nozzolio and Seneca Knit Development Corp. representatives. Not only was the Commission publicly reprimanded for asking a question, I was also later brought into an executive session of the Village Board on December 14, 2004 to explain why I would have allowed the Commission to ask state officials questions about the project. I was told in no uncertain terms that questions about the project and historic preservation issues related to it should have been run through the Senator's office.

It should be noted that while Mayor Smith was a member of Senator Nozzolio's staff she informed Village staff that she had been named the Senator's "point person" for the project. Memos about the project from Mayor Smith were generated from her computer in the Senator's office on Fall Street. It appeared she was expected to ensure smooth approvals for all aspects of the project. Questions by Village staff, officials, or the public seemed to be regarded as attacks on the project.

I was also chastised during the December 2004 executive session as allegedly preventing the Seneca Knit Development Corporation from moving forward with the repair of part of the Mill complex roof. As I explained to Mayor Smith and the Board, the Preservation Commission had in fact approved the proposed roof repairs months before, and that the state had also previously signed off on the repairs that were to be funded under their grant program. Also, SKDC had just received additional approvals from the state on December 10th. Rather than the local Commission or the state, it was the development corporation itself that had delayed acting on the roof repairs. Here is a copy of the letter the state sent to Seneca Knit Development Corporation after SKDC had proposed more changes to their project (at that time, Bruce Bonafiglia's private development company, Revitacor, was directing the development for SKDC). It appears to me that there was no reason to question me or the Preservation Commission about delays, when it was the developer that had not acted while continuing to alter their plans. Paragraph #5 of the state's letter also makes it clear that the project still required legal and contractual coordination with the state before the work could be started. There is no mention of the need for any further local approvals.

Despite having provided the Board with proof otherwise, Third Ward Trustee Tony Petroccia continued to claim I personally had delayed the project. I suggested that the Board contact the developer or the state to determine why they had not yet acted to repair the roof. I never heard again about this issue from Mayor Smith or the Village Board. Now, more than three years after the Village Board accused me and the Preservation Commission of being obstacles to the project, the roof at the Mill site is still not repaired and the Village Board appears to have dropped their interest in pursuing this issue. Sadly for the National Women's Hall of Fame these repairs are now their responsibility, since the property was subsequently transferred to them.

Here you can click on the image of a letter written to me by the former NYS OPRHP Historic Sites Restoration Coordinator, Mr. Richard Lord. He also had an opinion regarding the characterization of myself and the Preservation Commission as "obstacles" to the Mill development.

Occasionally, developers believe that the terms of contracts for state grants don't actually apply to them. Seneca Knit Development Corp. was awarded grants totaling several hundred thousand dollars for repairs and for demolition of specific buildings at the Mill complex. Part of the requirements under state grants is that the recipient must follow proper bidding procedures. At the Mill site approximately $200,000 was spent on demolitions that were approved by the state and local Commission and was paid to the Sessler Wrecking Company. When the SKDC requested reimbursement under the grant for the state's portion of the demolition cost the state denied their request. Why? Because they had not put the demolition contract out to bid as required by their grant contract, but had simply hired Sessler.

That failure to put the demolition out to bid cost SKDC $100,000 that they would have been reimbursed had they followed the required procedures of the grant.

Now, four years later, Mayor Smith says she believes that state grant monies carry "too many strings." Trustees Petroccia and Campese say they agree with her.

These "strings" are actually the terms and conditions of accepting public money for a project. They are built into the contracts of state grants in order to protect the public's money from being spent irresponsibly. These "strings" are provided up front to municipalities and not-for-profit organizations who apply for project assistance. Contracts for state grant funds are not made with a wink and a nod. A signature on a state grant application means that the signer understands and accepts its terms.

Sadly, "telling truth to power" appears to engender scorn from some elected officials who either don't want to hear the truth or perhaps find the truth inconvenient. This behavior isn't exclusive to Seneca Falls. But we should not accept such behavior simply because we expect it and aren't surprised when it manifests itself. When this behavior is tied to the desires of special interests it undermines the ability to act in the best interests of the public.

Follow-up: Annual Financial Audit

I previously posted about the Village's legally required annual financial audit. At the February Village Board meeting an item was listed on the agenda as "auditor recommendations," but it was not read aloud or discussed by the Board. A Freedom of Information law request was submitted for a copy of the "recommendations." The copy was shared with me and I posted it along with questions that occurred to me after reading it.

It would seem from the auditor's recommendations that there would be a full audit also available, as the recommendations appear to be based on the auditor having spent considerable time in the office. But what was missing from the recommendations was any mention of the financial conditions of the Village. That seemed curious, as the auditors have been working with the Village since the Fall of 2006, and it was certainly the public's expectation that the CPA the Village Board hired would be conducting a review of the Village's finances. NYS Village Law requires such review. Otherwise, why hire an auditor?

The person who submitted the FOIL thought so, too, and followed up with the Village Treasurer and asked for a copy of the full audit. Here is the response from the Village Treasurer:

"Ray Wager’s firm was hired to perform an audit however the original scope changed after they completed the preliminary testing and evaluations on data and procedures for the 2005-2006 FY (the summation of which is found in the brief report that you are questioning). It was collectively decided (by the Board publicly) to hire them in a “tech assist” capacity in an effort to ensure the validity of the numbers reported, as there had been some discrepancy going all the way back to 2000-2001 (& prior) in the Capital Projects fund. The tech assist has been completed, all cash accounts reconciled and verified, and all reports have been filed with the State. This administration sought to dispel any doubt as to the validity of the numbers reported on the AUD and to provide the public with assurances as well, and therefore authorized this additional work to be done by the CPA firm. Ray Wager’s firm has been scheduled to return after the close of the 2007-2008 FY to complete a full audit."

The Treasurer claims the Village Board changed the scope of the CPA firm's work after the firm completed preliminary testing and evaluations on data and procedures for 2005-2006. But the CPA firm's recommendations are dated January 8, 2008, 15 months AFTER the firm was originally hired.

The public was told at the time the Comptroller rejected the Village's 2005 AUD that the Treasurer was "working closely with the Comptroller's Office" to resolve the material reporting discrepancies the Comptroller noted and would submit a correct report. The Comptroller offered to provide any technical assistance the Village needed in order to meet the requirements of the financial reporting. So can we then deduce from what the Treasurer stated above that the Village turned away the free technical assistance offered by the Comptroller in favor of paying a private CPA to fix the AUD?

Has it really taken the CPA almost 15 months to straighten out the Treasurer's 2005 annual financial report? The Treasurer states "there had been some discrepancy going all the way back to 2000-2001 (& prior)." However, each year until the current administration took office the annual AUDs were submitted without question or rejection by the state Comptroller.

The Treasurer claims that the annually required audit of the Village's finances will take place AFTER the current fiscal year. This was not brought up at the public Board meeting. If someone had not submitted a FOIL for the document and then asked for a copy of the full audit we would not know about the Board's recent actions and future plans for financial reviews.

Perhaps now the Village Board should come clean about how they have handled the issue of "material reporting discrepancies" in the Treasurer's reports, how much they have spent to straighten out the discrepancies when they could have utilized the Comptroller's office for free, and provide an answer as to why they needed to be cajoled to perform an audit in the first place when they budgeted for audits for three years but did not perform one.

So Far, We've Been Offered A Dignified Campaign

One week from today Village residents will vote to elect a mayor and two trustees to serve as our voices in local government for the next four years. These final seven days before the election are the last days voters will be able to hear from candidates, consider their views and positions on issues, and decide which lever to pull on March 18th.

Candidates get quoted regarding their positions in local newspapers; they walk door-to-door in an effort to introduce (or re-introduce) themselves to voters while offering an opportunity to ask specific questions; they create websites; and they send out campaign literature through the mail.

In the campaign rhetoric we hear the words "I" and "team" a great deal, despite the old saw that there is no "I" in the word "team." We are told that "I did this" or "I accomplished that", or "our team has done some wonderful thing" or "we will do one thing or another." This is all part and parcel of election campaigns. No one really believes that any one person can be credited with the accomplishments or blamed for the failures of a village board. No one candidate can deliver on all of the promises they make, and they should not promise that a "team" will do so either, because in a democratic society there should be open public discussion and some disagreement amongst the "team" from time to time. Individuals should occasionally step forward and offer alternatives. This usually brings about more thoughtful and lasting solutions. This is human nature, and the deliberative process at its best.

This community deserves only a respectful and considerate offering of criticism between the candidates, and it should only be about decisions and policies, not personalities. And it should never, ever be sniping, whining, or reminiscent of a playground brawl.

So far, the candidates have kept the campaign dignified. The candidate who offers negative sniping will likely find themselves on the short end of the vote count on March 18th.

What we must do now is pay attention during these final days of campaigning, and then make sure we vote on Tuesday.

Open Government Must Be Second Nature, Not Second Choice!

In a previous post I spoke about the need for Village officials to embrace open government laws and principles. I said that "Village government must do a better job being open, accessible, and responsive to the public. There is very little information a municipality cannot legally, openly share with its residents. Confidence in our village government can only increase when information is easy to access and cheerfully shared."

For some time now we have heard various elected officials tout themselves as champions of open government. Especially now in an election year we are bound to hear candidates either praising their records on open and accessible government, or making promises to be committed to the spirit and letter of these laws. Unfortunately, in the blush of a campaign it may be easier to say you will be the shepherd of accessibility and openness than it is to follow through once elected.

Let's consider the way current Village officials seem to handle the principles of Open Government:

The joint Town/Village website includes pull-down menus for both the Town and Village Board meeting agendas and minutes that can be downloaded by the public. However, neither the Town nor the Village Board post their agendas. If the intention was to be able to utilize the website as an opportunity toward meeting the requirements of the NYS Open Meetings Law for public notice of meetings, then this website is failing in this regard.

If both Boards wish to keep the public up to date and informed regarding agenda items for upcoming meetings then they must post these on the website, and in a timely manner. Claiming that agendas are always changing is no excuse for not releasing them. Once an agenda is placed in a Board member's packet it is an official agenda even if it is subject to further modifications. Give the public a general idea of what is to be discussed at a meeting and let them decide in advance whether to attend or to speak during public comment.

• Why aren't agendas posted on the Village website?

To continue with the Town/Village website, the Town seems to be doing a good job of posting meeting minutes, including minutes from late 2003 right up to the January 9, 2008 joint town/village board meeting. The Village, however, only has meeting minutes posted for 2004 and portions of 2005, but that is all. We are three years past the last Village Board minutes available online.

• Why are there no more minutes of Village Board meetings posted online after August 16, 2005? Why isn't it a matter of routine to get this information out to the public each month?

Many other municipal websites include the agendas and minutes of various appointed boards and commissions. The Seneca Falls website does not include these for either the town or village.

• Shouldn't the website be expanded to include information from the various appointed public bodies, including both Zoning Boards of Appeals and Planning Boards; Village Water and Sewer, Cemetery, Heritage Preservation, and Heritage Area Commissions; and the Seneca Falls Economic Development Corporation?
  

The Freedom of Information Law (FOIL) is New York State's tool providing the public with a means of access to government documents. Under FOIL government must respond to reasonably described requests within five days, and the presumption is that records shall be accessible. Access to records can be denied only for a very narrow and specific set of reasons, and sometimes portions of records need to be redacted. This is only reasonable.

• Why are many FOIL request responses inordinately delayed, usually attributed to the need to conduct "research" into the record's availability, or to misplaced requests?
  

Any questions about the accessibility of a record can quickly and easily be answered by contacting the NYS Committee of Open Government by telephone or email. They usually get back to you the same day or within a day or two. Their website is also available to check for previously issued opinions that can help clear up any questions about accessibility of records, or open meetings concerns. Claiming a need to "conduct research" to determine availability of a record is more likely a delaying tactic.

• Does the Village Board utilize executive sessions for legitimate reasons?
  

There was once a time when executive sessions at Village Board meetings were rare. However under the Costantino and Smith administrations executive sessions became commonplace. Rarely are motions to enter into executive sessions made that meet the requirements of the NYS Open Meetings Law. I include here a relevant section of "Your Right To Know," a publication by the NYS Committee On Open Government, regarding closed door sessions:

When can a meeting be closed?
The law provides for closed or "executive" sessions under circumstances prescribed in the law. It is important to emphasize that an executive session is not separate from an open meeting, but rather is defined as a portion of an open meeting during which the public may be excluded.

To close a meeting for executive session, the law requires that a public body take several procedural steps. First, a motion must be made during an open meeting to enter into executive session; second, the motion must identify "the general area or areas of the subject or subjects to be considered;" and third, the motion must be carried by a majority vote of the total membership of a public body.

Further, a public body cannot close its doors to the public to discuss the subject of its choice, for the law specifies and limits the subject matter that may appropriately be discussed in executive session. The eight subjects that may be discussed behind closed doors include:

1. matters which will imperil the public safety if disclosed;
2. any matter which may disclose the identity of a law enforcement agency or informer;
3. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
4. discussions regarding proposed, pending or current litigation;
5. collective negotiations pursuant to Article 14 of the Civil Service Law (the Taylor Law);
6. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
7. the preparation, grading or administration of examinations; and
8. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.
   

These are the only subjects that may be discussed behind closed doors; all other deliberations must be conducted during open meetings.

It is important to point out that a public body can never vote to appropriate public monies during a closed session. Therefore, although most public bodies may vote during a properly convened executive session, any vote to appropriate public monies must be taken in public. The law also states that an executive session can be attended by members of the public body and any other persons authorized by the public body.

The Board must describe the reasons for adjourning to executive session and explain, in open session, why an executive session was necessary. If the reason is litigation, the Board should first identify the specific litigation; if they need to discuss employees they cannot merely cite "personnel" as the reason; they must use the proper wording from the law, but don't have to include the employee's name; also the Board should cite the exemption that applies to the executive session. A public body may not use an executive session because they are afraid that an action it takes may lead to litigation. Such executive sessions are limited to a discussion of strategy for proposed, pending or current litigation.

During his term Mayor Brad Jones invited Robert Freeman, Executive Director of the NYS Committee on Open Government, to come to Seneca Falls and make a presentation to the Village Board, the staff, and the public regarding freedom of information and open meetings laws. Mr. Freeman gave his presentation at the American Legion. It was well attended and it was videotaped. Perhaps this tape is still in the Village's archives and could be shown again on Public Access Channel 12.

In 2004, former First Ward Trustee Phil Dressing requested that the Village invite Mr. Freeman to come back to Seneca Falls to make another presentation. Mr. Freeman agreed, and again spoke to the Board and the public and answered questions.

Over the last four years members of the Village Board and staff, including the Village Administrator/Clerk/Treasurer (the designated Records Access Officer), have attended several conferences and training sessions for elected and appointed officials, mostly at taxpayer expense. These conferences have often included training sessions on open meetings and freedom of information laws.

• Have any Village of Seneca Falls Board members or staff attended training sessions on open meetings and freedom of information laws? If not, why not? If they have, then why are there so many instances of delays in releasing records, or breaches of open meetings law, particularly when it comes to executive sessions?

Given the availability of almost instantaneous answers and advice from several state sources, and of regular training sessions on these subjects, our Village officials should be able to respond in a timely manner to almost every records request as a matter of routine. Complying with the open meetings law shouldn't be regarded as a nuisance, since following the laws are part of their oath of office.

Village officials really must try harder to "get it." Everything they officially do belongs to the public.

This vitally important responsibility of local government should be second nature, not second choice!

"Feeding the Fund Balance" Redux

For the 2003-04 Village Budget, then-Fourth Ward Trustee Diana Smith prepared and made a PowerPoint presentation at a public meeting explaining the details of the budget proposal by then-Mayor Costantino. One of Smith's biggest criticisms of Costantino's budgets during his term of office was that they included collecting taxes for services that were not provided. Smith's presentation called it "Feeding the Fund Balance": collecting taxes for items listed in the budget but then not providing the services; filling positions; or making purchases, thereby adding money to the annual surplus. This would allow the Board to build up enough surplus to use to hold the line on taxes in the next year's budget.

It was right to criticize such a deceptive practice. It was right to shine a light on the habit of turning the village budget into an unencumbered "savings account" that could be used to promote the notion that taxpayers were being well served while dipping into a padded surplus to lower the next year's tax rate.

Smith suggested back then that collecting taxes for services you have no intention of providing; positions you have no intention of filling; and goods you have no intention of buying was a serious deception being perpetrated on the public.

But, has this practice changed under Diana Smith's administration?

In 2005-06, Smith budgeted $60,000 for the purpose of paving a street owned by a private developer. She called this amount "reimburseable." This was put in her budget despite the fact that she had been advised that providing funds to pave a street not owned by Village taxpayers was an illegal gift of public funds. Village Attorney Seld and other Village officials had advised Smith that the Board could not do such a project, regardless of any kind of expected future "reimbursement" from the private developer. But she went ahead and put it in her budget, it was approved by the Board and taxes were collected for it.

No subdivision paving project ever happened - because it could not legally happen. What then happened to these funds? Were they used for another paving job that was legal? Or were the funds just rolled over into the surplus?
In 2004-05, Smith and the Board approved a budget with $25,000 to be added to the Heritage Area Visitor Center Improvements Capital Reserve Fund. In February of 2005 Smith announced at a meeting of the Heritage Area Commission, with members of the public and press in attendance, that this money would not be deposited as budgeted (her decision) but would be deposited in the General Fund Surplus.

In 2006 when Diana Smith announced that the position of Village Planner was being eliminated, she claimed that it was necessary to do so in the middle of the fiscal year because the Board needed to utilize the remainder of the Planner's salary to pay for the Village's contribution to the salary of a joint Town/Village Economic Development Director. This amounted to approximately $24,000. The new position was to be filled no later than December 31, 2006. However, this new position was not filled until August of 2007, three months into the next fiscal year. This means that the portion of the former Planner salary that was not paid out because the position was eliminated could be rolled over into the surplus.

So far under Diana Smith's fiscal plans we can point to at least $109,000 budgeted for public services not provided that later could be redirected to the surplus. Not having scoured through each Smith budget it is unknown how many other line items may have been budgeted, taxes collected, and then not provided so that the Board could "Feed the Fund Balance."

And now that Smith has altered the way budgets are presented - by lumping together subaccounts to veil individual line items - it is almost impossible to tell what is being spent on what. At the end of the year there is no announcement of what are called "encumbrances" - which is money not yet spent on a particular budgeted item by the end of the fiscal year, but is expected to be spent. The money is then encumbered by the Board for that specific use in the next year. If you don't "encumber" funds for a specific use the money rolls over into the surplus, to be used for whatever.

This allows the use of unencumbered funds to artificially reduce the tax rate, and make elected officials look as though they are doing us a huge favor by giving us back the money they didn't have to collect in the first place! Instead of budgeting for needs they are for budgeting for reelection.

Now that her name is on Village budgets, Mayor Smith has abandoned the use of PowerPoint presentations to provide in-depth analysis of Village spending. Publicly, the current Village Board merely glosses over the budget with little discussion. As Smith stated in 2004, "Our Taxes Should Not Be Based On Public Relations." Are we still feeding the fund balance, and should we reward elected officials who play this deceptive game of budget padding?

Seneca Falls taxpayers should closely scrutinize the upcoming 2008-09 budget; pay attention to which positions are included in the salary schedule. Then watch to see which positions are actually filled, or if a vacancy occurs in a position during the year whether it gets filled. Pay attention to scheduled projects, then watch to see if the projects get done. If the answer is "no" then ask yourself, are we just "Feeding The Fund Balance?"

The images in this post are actual slides from the 2003-04 PowerPoint presentation prepared and given by Diana Smith and Phil Dressing.