Judge: Towns failed to follow law 

The failure by two Herkimer County towns to follow state Open Meetings Law proved costly when a judge cited that as one factor in voiding their approvals of a wind-turbine project, court records show.

The Jordanville Wind Project’s future is now in doubt, putting at risk hundreds of thousands of dollars in funds the turbine farm could generate for the towns of Warren and Stark.

In addition, shutting out the public from key discussions on the project helped prompt state Supreme Court Justice Donald Greenwood to order the towns to pay the legal fees of the wind-turbine opponents who brought the lawsuit. The amount of legal fees could not be learned.

Members of the Warren and Stark town boards “circumvented the purpose of the Open Meetings Law, which is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public,” Greenwood ruled.

The judge also cited as “particularly troubling” that when the Stark Town Board calls an executive session in its small meeting place in the town garage, “the public is required to leave the building until the executive session ends.”

The state’s top expert on open government said municipal government officials should heed the lesson in this case.

“The message will be clear: Complying with the Open Meetings Law is serious business,” said Robert Freeman, executive director of the state Committee on Open Government.

Freeman called such cases exceedingly rare because lawsuits are rarely brought over Open Meetings Law.

“I disagree with it, but you can’t argue with a judge,” Stark town Supervisor Richard Bronner said Thursday. “All you can do is appeal his decision.”

Open Meetings Law requires public bodies to convene in public to discuss government business. Certain matters detailed in the law may be discussed in executive session without the public present.

But going behind closed doors always requires a majority vote by the government body in a resolution that includes specific reference to the reason for doing so.

Greenwood found that the town boards of Warren and Stark failed to follow these steps on multiple occasions, including:

* On May 4, the Warren Town Board improperly went into executive session for an hour to discuss negotiations with an attorney. When the board emerged, it immediately voted unanimously to accept a final environmental impact statement for the project.

“Although respondents have argued that it was expected that the petitioners intended on pursuing litigation, the fact that a decision would almost certainly lead to the litigation does not justify conducting in executive session business (that’s) properly the subject of the public meeting,” Greenwood concluded.

* On June 20, the Warren Town Board entered executive session and stated no reason. After about 90 minutes, the board voted to issue the Jordanville Wind Project a special use permit through three resolutions offered by special counsel.

“The decisions apparently reached at executive session affected the public and directly related to the possibility of a municipal matter becoming an official enactment,” Greenwood said in voiding the permit issued by Warren.

Warren Town Supervisor Richard Jack could not be reached Thursday.

Greenwood also found that the Stark Town Board twice violated Open Meetings Law by not stating a reason when going behind closed doors on evenings when the wind-turbine project was at issue.

Stark’s actions approving the project are now also void.

“We didn’t do anything illegal, in my opinion,” Stark supervisor Bronner said. He expressed frustration that Greenwood’s ruling delaying the wind-turbine project places the blame on local governments, which stand to lose millions of dollars.

But he said he would review the decision and make changes in how the board applies Open Meetings Law, if necessary.

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ABOUT OPEN MEETINGS LAW
Under state Open Meetings Law:

Every meeting of a public body shall be open to the general public.

Board may go into closed-door, or executive, session to discuss specific topics cited in the law, including public safety matters, the identity of an informer or specific litigation.

Before going behind closed doors, board must vote in favor of a resolution that cites the specific area of the Open Meetings Law under which the executive session would fall.

Failure to follow these steps can cause judges to void government actions, as occurred this month with the approvals by the Warren and Stark town boards of the Jordanville Wind Project.

Click here to read the full details of the court ruling

The Observer-Dispatch

13 December 2007