In a surprising video, the city attorney seems to advise for less transparency…and City Councilors appear to comply.
March 12-18, 2017 is Sunshine Week, a national initiative spearheaded by the American Society of News Editors to educate the public about the importance of open government and the dangers of excessive and unnecessary secrecy.
The Geneva City Council hosted their annual Planning Retreat on January 26-28, 2017 at the Geneva Housing Authority Offices. The retreat was open to the public, and covered a broad range of topics. At-Large City Councilor Mark Gramling, an outspoken advocate for transparency and community engagement, provided a live Facebook video stream from many of the sessions. Citizens of Geneva should be grateful to Councilor Gramling for providing this service, but if our city government as a whole values transparency, they should be providing an uninterrupted live video stream of the retreat every year.
On Saturday January 28th at 8:45am, a presentation entitled “The Role of Executive Sessions in Council Operations” was offered. Although scheduled for 90 minutes, the video (unfortunately) only lasts about 30 minutes, but there are some disconcerting statements made by Geneva City Attorney Emil Bove that should interest every Geneva citizen who values transparency in city government.
“An Incredible Headache”
The video begins with the meeting in progress, and City Manager Matt Horn warning Councilors about the danger of discussing specific legal matters in email, which he confirms are “FOIL-able,” meaning that copies of those emails can be requested by the public under the Freedom of Information Law. After a short discussion, City Attorney Emil Bove states:
“This is a good time to talk about electronic discovery. So, I don’t know if you’re aware of this but in serious litigation the plaintiff’s attorney would serve a notice on our attorney that would say ‘release all emails by any member of the city government regarding this situation,’ which is an incredible headache for Matt (Horn).”
Although Bove is speaking about a hypothetical request for specific documents from an attorney, these types of requests are commonly made by citizens under FOIL. Does Mr. Bove’s candor in describing such requests as an ‘incredible headache’ reflect the city’s willingness to respond to such requests?
Councilor Breaks City’s Silence on Foundry
Just moments after the Horn reminded attendees that the meeting was ‘open’ and being broadcast live on the internet, and shortly after Bove warned attendees not to comment on or discuss with residents any issues that were in litigation, Ward 6 City Councilor John Greco publicly commented on an issue that is currently in litigation:
“Another big thing that’s coming up right now is the Foundry thing. We have to be careful what we say when people call us because it’s a lot of money involved, and the city cannot afford it.”
If you’re a Ward 6 resident living in the lead and arsenic contamination zone and you were wondering what your Ward councilor thinks about the situation that you and your family are facing, you now have your answer.
“Try to imagine if it was a private lawsuit, someone was suing you individually, they had a lawyer, you had a lawyer, you would not be talking and discussing the case with your opponent, or your opponent’s attorney.”
Describing city residents who have filed claims against the city for failing to inform them of known lead and arsenic hazards for thirty years as “opponents” might be an accurate legal description, but it’s also a tactless way to refer to those families whose lives have been upended by the Foundry debacle.
Lakefront Parcel Sale Revisited
Because the seminar focused on the use of executive session by City Council, Bove moved on to discuss situations and subjects that are exempt from Open Meetings Law guidelines and therefore can be discussed, privately and out of the public eye, by City Council in executive session meetings.
The exemption dealing with buying, selling or leasing property has been discussed in detail here on Geneva Believer in reference to the aborted lakefront land sale, although at the retreat, the discussion more specifically referenced the firehouse lease(s) issue from 2014.
Essentially, City Council is allowed to discuss the acquisition, sale or lease of real estate in executive session “only when publicity would substantially affect the value thereof.”
Regarding this type of exemption, Bove said:
“If you were buying real estate, individually, you wouldn’t be going out on the corner and saying “I’m thinking about buying property at 55 Exchange Street, and I want everyone here to know that I’m offering $55,000. You wouldn’t do that, it could affect the deal, so anytime you’re discussing acquisition, sale or lease of real property, this is a proper and a very important exception to the open meetings law. I don’t think there’s any question about it.”
While Bove’s opinion is that City Council may discuss any land sale in executive session under all circumstances, this position is in direct conflict with the opinion of New York State’s Committee On Open Government Executive Director Robert Freeman. Freeman believes that because a municipal body’s responsibility is to best serve the public, their job is to get the most money possible for the sale of any parcel, and the only case in which a land sale can be discussed in executive session is one where the city would make less money by publicizing the sale.
When Ward 3 Councilor Steve Valentino asked if discussions of RFQs (“request for quotation,” or bids placed on a parcel for sale) should be publicly available, Bove replied:
“Discussion about the bids, the details of the bids, all the sorts of things that you would be normally be discussing when you’re talking about real estate, to me, that’s executive session discussion.”
After Ward 4 Councilor Ken Camera referenced discussions he had with Freeman regarding the land sale exemption and how Freeman’s opinion differed from Bove’s, Bove responded:
“Robert Freeman is an absolute advocate for everything being open, so you (City Council) are the ones that decide this.”
Matt Horn added:
“Robert Freeman’s take was that “substantially affect the value thereof”means depress the value thereof.”
“Robert Freeman’s opinion is an opinion..the text of the law doesn’t read ‘negatively effect the value thereof.’
There are two ways to interpret the phrase “significantly affect the value thereof.” One interpretation means more transparency.
The other interpretation, endorsed by the City attorney and City Manager, means less transparency.
(What the) Hail to the Chief?
According to Bove:
“We’ve all heard about the President of the United States has a privilege, Executive Privilege. What that means is when the president is discussing what to do about some situation and he’s interacting with his advisors and they’re giving him advice…not just the attorneys…there’s an executive deliberation process going on, that is privileged. Those discussions are privileged.”
“So, you’ve got a mayor and a City Manager and the City Manager is discussing with you (the mayor) what decision we’re going to make about something, and it’s going on emails or maybe he meets with you in executive session…those discussions…are privileged.
…Robert Freeman is never going to agree with that one.”
Confidential or Not?
When I asked the Committee on Open Government if attendees of executive sessions were bound to confidentiality, I was told that unless there was a local law requiring confidentiality in executive session meetings, attendees are not legally required to keep the information confidential. Because there is no law in the Geneva City Code requiring confidentiality by executive session attendees, confidentiality is not required.
Well, guess who disagrees with the opinion of the Committee on Open Government on this issue? Emil Bove does:
“Does the city need to pass some ordinance saying “What we’re discussing in executive session is confidential?” You could. But you shouldn’t be discussing anything in there that doesn’t fall into one of these exceptions which we feel, as your attorneys, is confidential.”
Emil Bove believes that there is a statute in the New York Muncipal Law that requires executive session confidentiality:
1. No municipal officer or employee shall:
b. disclose confidential information acquired by him in the course of
his official duties or use such information to further his personal
Once again, we have two interpretations, and the one that restricts transparency is the one endorsed by city officials.
What Say You, Council?
Throughout the meeting, while there were important questions asked by many Councilors (including questions about how the city attorney’s positions are in conflict with those of the Committee on Open Government), the Councilors in attendance seemed to consistently acquiesce to the positions of the city attorney. Perhaps the most eloquent statement in detailing how most of Council seems to be responding to the city attorney’s positions on transparency came from Ward 2 Councilor Paul D’Amico:
“I think it would be important today for…in those times where it might be left up to your interpretation, sometimes your interpretation could be something that’s convenient to how you want to approach it. If there’s ever any question about executive session, I would suggest that we defer to our city attorneys and abide by whatever that recommendation is. We can’t keep searching for information and it might be convenient to do something that isn’t in the best interest or doesn’t represent the majority.”
Rather than blindly obeying the city attorney’s recommendations and refraining from ‘searching for information’ about the role of transparency in city government, we need Councilors who will do their research, who will reach out to the Committee on Open Government and who will form their own conclusions about what is best for the people of Geneva.
Below is the full video described in the article. Thanks again to Councilor Gramling for providing the video.