Fire Attorney, Krogmann Stonewall Open Government
Posted on Friday, 16 of September , 2011 at 11:13 am

For nearly 18 months, the Chestertown Volunteer Fire Company has thwarted the public from seeing their records and from attending their meetings in violation of open government laws.

One year ago today, on Sept. 16, 2010, two taxpayers of the Chestertown Fire District filed an Article 78 proceeding against the Chestertown Volunteer Fire Co. Inc. and chief, Jack Crossman, to compel them to comply with the Freedom of Information Law and Open Meetings Law.

In January, Warren County Supreme Court Judge David B. Krogmann ignored case law precedent established 31 years ago and incorrectly ruled that fire companies are social organizations that aren’t subject to open government laws although the Court of Appeals, the state’s highest court, has found otherwise.

Now, Terence Hannigan of Albany, the attorney representing the fire company, is attempting to thwart the issue at the Appellate Division of the state Supreme Court in Albany and in Warren County, Supreme Court Judge David Krogmann is violating court rules and state statutes in his obstinate delay in ruling on five pending motions in the matter, now all 60 days past final submissions.

The courts are supposed to the arbiters, not obstructionists.

The essential fact is that fighting fires is a governmental function and volunteer fire departments perform an essential public service. Volunteer fire departments and fire companies, while not-for-profit corporations and non-governmental agencies, perform a municipal function and are subject to FOIL and the Open Meetings Law as organized extensions of the government.

Krogmann is required to follow binding precedent of the Court Of Appeals under principle of stare decisis.

Westchester Rockland Newspapers v. Kimball was a 1980 case before the Court of Appeals concerning the application of public records laws to volunteer fire departments, a landmark decision by a unanimous court. This case established a number of important precedents including that volunteer organizations are subject to the same standards for determining if a private organization is subject to FOIL as organized extensions of the government.

The state’s highest court also found that you cannot separate the functions of private bodies between governmental and non-governmental functions and release only the records relating to governmental functions. Instead the entity must be considered in its entirety.

Binding precedent means a precedent or an existing law that courts are bound to follow. The lower court, and Judge Krogmann, are required to follow an applicable holding of a higher court in the same jurisdiction.

Hannigan, the fourth attorney to represent the fire company at the expense of Utica National Insurance Company, the insurance company representing the fire district, has failed to answer stipulation papers which the Appellate Division had directed be served on him, intentionally delaying the appeal and engaging in “dilatory conduct”.

Hannigan’s failure to comply with court rules has not only caused an unreasonable and unnecessary delay in moving the case forward at the appellate level but has necessitated that the taxpayers file a motion asking the court to accept the record on appeal without Hannigan and to award costs to the appellant taxpayers for Hannigan’s deliberate failure to obey the rules of the court.

When several taxpayers of the Chestertown Fire District began filing Freedom of Information Law requests last May and attempted to attend fire company meetings after the NYS Committee on Open Government said the fire company was subject to open government laws, the fire company and their chief, Jack Crossman, refused to comply.

Initially the fire company was represented in their obstruction tactics by Chestertown attorney John Silvestri until the taxpayers, Christine Hayes and June Maxam of Chestertown engaged an attorney to attempt to mediate the matter.

After Silvestri was told by the NYS Committee on Open Government and the Department of State that he was being “unreasonable and attempting to subvert the purposes of the Freedom of Information law”, the taxpayers retained Peter Henner of Clarksville, former assistant counsel for the New York State Assembly Majority and a recognized authority on governmental access laws within New York State who informed Silvestri by letter that unless Silvestri and the Chestertown Fire Company voluntarily complied with the law, litigation would be initiated.

Henner told Silvestri that his position was “legally indefensible”.

When Silvestri eventually reconsidered his position and agreed that the fire company was subject to FOIL, the fire company dumped him. Litigation was filed and after a succession of attorneys, Hannigan emerged to represent the fire company at the expense of the district’s insurance company although the fire company claims they are an independent, social organization, autonomous of the fire district.

Crossman is being represented by Robert Rausch of Maynard, O’Connor, Smith and Catalinotto of Latham, also at the expense of Utica National.

Hannigan first began representing the fire company when he was employed by the law firm of Carter, Conboy, Case, Blackmore, Malone and Laird. He left the firm in January and started his own practice.

Although Hannigan has boldly defied the rules of the court in stipulating to the record on appeal in the proceeding pending in the Appellate Division which challenges the January ruling of Krogmann in the Article 78 proceeding filed last September, he claims to be a member of the “Committee on Character and Fitness” of the Appellate Division.

The taxpayers filed their appeal from Krogmann’s decision on Aug. 1 in the Appellate Division. Because they are not attorneys are proceeding pro se in the matter, they cannot legally sign the certification of the record on appeal.

Under the Rules of Practice, they must ask that the attorneys for the respondents, Rausch and Hannigan, to sign a stipulation to the correctness of the record or else make proposals for amendments.

Upon the serving of the brief and record, almost immediately Rausch filed an objection, trying to hide evidence from the Appellate Division, attempting to keep a well-recognized governmental publication out of the court record, a publication which clearly defines volunteer fire companies as public bodies and subject to Open Meetings Law.

Rausch notified the plaintiffs in mid-August that he was refusing to stipulate to the record as submitted, demanding that the plaintiffs omit from the record their affidavit filed with Krogmann’s court last November which included as evidence the well-recognized publication by the NYS Department of State, “Conduct Public Meetings and Public Hearings” by James A. Coon, Local Government Technical Series”. http://www.northcountrygazette.org/2011/08/27/hiding_evidence/

The petitioners refused to remove the affidavit from the record on appeal as it is indeed part of the record in Krogmann’s court. They have agreed instead to include a letter written to the court last November by Rausch in opposition to the submission.

On Aug. 31, Rausch agreed to the amendment and signed the stipulation, agreeing to the record.

However, Hannigan has been mute since the appeal was filed and failed to respond to the stipulation request within 20 days as required by the Rules of Practice which dictates that the attorney either sign the stipulation as to the corrective of the record on appeal or to make and serve proposed amendments or objections.

The Rules provide that upon an attorney’s failure to comply within 20 days of the date of service, which was Aug. 23, the appellants can make a motion before the Appellate Division, at additional costs to them, to accept the record without Hannigan’s signature on the stipulation. The rules also allow the appellants to seek costs and sanctions against Hannigan which the taxpayers have done.

Rausch has already filed his brief in response to the appeal which the appellants have timely answered.

The motion regarding the fire company’s failure to comply with court rules pertaining to the record is noticed to be heard on Oct. 3. The clerk’s office has already stated that the appeal will be scheduled for the court’s November term, with or without Hannigan and the fire company.

Krogmann is also refusing to comply with state law and has failed to render decisions on five outstanding motions in the case as required. NYCRR 202.8 of Uniform Civil Rules established what is known as the 60-day rule. If 60 days have elapsed after a motion has been finally submitted or oral argument held, whichever was later, and no decision has been issued by the court, counsel for the movant shall send a letter to the court alerting it to this fact with copies to all parties to the motion.

The taxpayers sent such a letter to Krogmann on Sept. 1 asking for decisions to be issued but two weeks later, Krogmann has still failed to do so and has not acknowledged the letter.

On Feb. 7, the taxpayers had filed a motion to reargue and renew. That motion was heard on March 7. Krogmann was required to render a decision on that motion no later than May 7. Now 180 days later, Krogmann has still not ruled on that motion.

On April 1, Krogmann signed an order to show cause submitted by the taxpayers which directed the fire company and fire chief Jack Crossman to show legal cause why they shouldn’t answer the FOIL requests which they have ignored since last May. The requests are now a year and a half old. They were also ordered by the court to show cause why they shouldn’t have to comply with the state’s Freedom of Information Law and answer future FOIL requests.

The matter was scheduled to be heard on April 28 and according to state law and court rules, Krogmann was required to issue a decision no later than 60 days past.

But June 28 came and went and there was no decision.

There is also an outstanding motion for default judgment filed by the taxpayers after the respondents failed to timely respond to the order to show cause and dueling motions for costs and sanctions.

The questions presented by the taxpayers in their 50-page brief to the mid-level appeals court include:

Are volunteer fire departments and companies as not-for-profit corporation agencies subject to the same standards for determining if a private organization is subject to FOIL and Open Meetings Law as organized extensions of the government?

Krogmann answered this question “No”.

Can you separate the functions of private bodies that perform an essential public service between governmental and non-governmental functions and release only the records relating to governmental functions instead of considering the entity in its entirety?

Krogmann answered “yes”.

Is a volunteer fire department/company a social club and charitable organization, a private, independent organization that does not perform a governmental function and therefore not subject to Open Meetings Law or the Freedom of Information Law except concerning firematic issues?

Krogmann answered “yes”.

The appeal brief argues seven points including that Krogmann abused his discretion by declining to award fees when the statutory requirements had been met and in contravention of legislative intent. The brief also argues that Krogmann has acted without jurisdiction in ruling against judicial precedent and in contrary to the principle of stare decisis.

The Court of Appeals ruled in 1980 that all fire company activities, social and fire-related, were subject to the state’s Freedom of Information and Open Meetings Laws. Since that time, the court has made several other rulings affirming that non-governmental bodies performing an essential public service such as fire companies are subject to the Open Meetings Law.

This issue is of statewide importance. The taxpayers say that Krogmann’s ruling cannot be allowed to stand because fire companies will, like Chestertown, continue to hide their finances and their operations. The public has a right to know and has a right to attend their meetings.

The importance of accountability in fire companies and fire districts has been well established with the recent findings of state audits released by the state comptroller’s office including in Charlton where gross mismanagement by the board of fire commissioners led to the alleged theft of about $500,000 by the treasurer.

http://www.northcountrygazette.org/2011/09/14/gross_mismanagement/

http://www.northcountrygazette.org/2011/09/14/fire_overspending/

http://www.northcountrygazette.org/2011/09/07/inept_treasurers/

Krogmann actually misstated the ruling in Westchester Rockland and failed to address two more recent Court of Appeals decision on Open Meetings Law, Smith v. City University of New York (1999) and Perez v. City University of New York (2005), both of which hold that nongovernmental bodies which act on behalf of governmental bodies or which perform an essential public service, such as a volunteer fire company, are subject to open government laws.

The Westchester-Rockland case established a number of important precedents:

· Volunteer organizations are subject to the same standards for determining if a private organization is subject to FOIL as organized extensions of the government.

· You cannot separate the functions of private bodies between governmental and non-governmental functions and release only the records relating to governmental functions. Instead the entity must be considered in its entirety. 9-16-11

Pair file lawsuit against Chestertown fire company
LINK

Editor's Note: A date and missing word were corrected.
CHESTER -- Two local women who have been embroiled in a dispute with the Chestertown Volunteer Fire Company over access to the company's financial records have filed a lawsuit that asks a judge to force the organization to comply.

Christine Hayes and June Maxam filed the lawsuit this week in state Supreme Court in Warren County. They filed it pro se, without the assistance of a lawyer.

The lawsuit seeks to compel the fire company to "turn over meeting minutes, budget reports and run sheets" that were sought during Freedom of Information Law requests the two have made in recent months. It also alleges the company had an illegal "secret" meeting on Aug. 24 for which public notice wasn't given.

The lawsuit accuses the fire company of a "steadfast effort to block the review of public records and hostile denial of access to fire company records." The state Committee on Open Government has opined that the company's records should be public.

Hayes and Maxam began clashing with the fire company earlier this summer, after Hayes entered the locked Chestertown fire station using an electronic code to try to attend a July 6 fire company meeting.

Police were called and she was asked to leave.

They wrote in the lawsuit that they asked for a mediator to try to work with the fire department's lawyer to work out an agreement for documents to be turned over, but no agreement could be reached.

"The respondents have flouted their statutory obigations under the Freedom of Information Law and Open Meetings Law and have pronounced that they are not subject to open government laws.

Jack Crossman, the fire company's chief, did not return a phone message left at the fire station.
He said in July that the fire company should be considered a private "fraternal organization" because it is independent of the town, and that it had given Hayes all the information to which she was legally entitled.
The company's lawyer, John Silvestri, did not return a phone call for comment.

No court date has been set.

Smith v City University of NY
OML-AO-3398
January 17, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter of December 19 in which you requested an advisory opinion concerning the status of the Research Foundation of the City University of New York ("the Foundation") under the Freedom of Information and Open Meetings Laws. You wrote that "[i]t appears that the Research Foundation regards itself as a private corporation under contract to City University to provide general services related to the University's grant operations", but added that some Foundation employees "are physically housed at the University's central headquarters and report directly to CUNY administrators."

In an effort to learn more about the Foundation, its functions and its relationship with CUNY, I obtained a copy of its Absolute Charter, the document in which the Board of Regents designated the Foundation as an educational corporation, as well as material appearing on the Foundation's website.

The Charter describes the purposes of the Foundation as follows:

"a. To assist in developing and increasing the facilities of The City University of New York to provide more extensive educational opportunities and service to its constituent colleges, students, faculties, staffs and alumni, and to the general public by making and encouraging gifts, grants, contributions and donations of real and personal property to of for the benefit of The City University of New York;

"b. To receive, hold and administer gifts or grants, and to act without profit as trustee of educational or charitable trusts of benefit to and in keeping with the educational purposes and objects of The City University of New York; and

"c. To finance the conduct of studies and research in any and all fields of intellectual inquiry of benefits to and in keeping with the educational purposes and objects of The City University of New York and/or its constituent colleges, and to enter into contractual relationships appropriate to the purposes of the Corporation."

The website indicates that the Foundation is "legally and financially separate from the University" and is "a private not-for-profit educational corporation with 501(c)(3) status", and that pursuant to an agreement with the University approved by the State Division of the Budget, it "undertakes post-award administration of all grants and contracts awarded to CUNY faculty and staff for research, training, education and services." The website also describes the composition of the Foundation's 17 member Board of Directors, which consists of:

"...the Chancellor of the University as Chairperson, the President of the Graduate School as Vice Chairperson, two senior and two community college Presidents selected by the college Presidents, the Chairperson of the Faculty Advisory Council (FAC) to the Foundation and three other FAC members chosen by the FAC (a faculty advisory body chosen the University Faculty Senate), one full-time graduate student selected by the Doctoral Student Council, two individuals appointed by the Chancellor, and four at-large members."

From my perspective, based on the language of the law and its judicial interpretation, the records of the Foundation fall within the coverage of the Freedom of Information Law, and the meetings of its Board of Directors must be held in accordance with the Open Meetings Law. In this regard, I offer the following comments.

First, even if the Foundation has no independent responsibility to comply with the Freedom of Information Law, I believe that its records fall within the coverage of that statute.

The Freedom of Information Law is applicable to agency records, and §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

While the status of the Foundation as an "agency" has not been determined judicially, it is clear that the City University is an "agency" required to comply with the Freedom of Information Law.

Pertinent with respect to rights of access is §86(4), which defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, the Court of Appeals, the state's highest court, found that documents maintained by a not-for-profit corporation providing services for a branch of the State University were kept on behalf of the University and constituted agency "records" falling within the coverage of the Freedom of Information Law. I point out that the Court rejected "SUNY's contention that disclosure turns on whether the requested information is in the physical possession of the agency", for such a view "ignores the plain language of the FOIL definition of 'records' as information kept or held 'by, with or for an agency'" [ see Encore College Bookstores, Inc. v. Auxillary Services Corporation of the State University of New York at Farmingdale, 87 NY 2d 410, 417 (1995)]. Therefore, if a document is produced for an agency, it constitutes an agency record, even if it is not in the physical possession of the agency. In the context of the question that you raised, irrespective of whether the Foundation is an "agency", its records appear to be maintained for the City University. If that is so, the records would, based on Encore, constitute agency records subject to the Freedom of Information Law.

Second, while profit or not-for-profit corporations would not in most instances be subject to the Freedom of Information Law because they are not governmental entities, there are several judicial determinations in which it was held that certain not-for-profit corporations, due to their functions and the nature of their relationship with government, are "agencies" that fall within the scope of the Freedom of Information Law.

In the first decision in which it was held that a not-for-profit corporation may be an "agency" required to comply with the Freedom of Information Law, [Westchester-Rockland Newspapers v. Kimball [50 NYS 2d 575 (1980)], a case involving access to records relating to a lottery conducted by a volunteer fire company, the Court of Appeals found that volunteer fire companies, despite their status as not-for-profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the State's highest court stated that:

"We begin by rejecting respondent's contention that, in applying the Freedom of Information Law, a distinction is to be made between a volunteer organization on which a local government relies for performance of an essential public service, as is true of the fire department here, and on the other hand, an organic arm of government, when that is the channel through which such services are delivered. Key is the Legislature's own unmistakably broad declaration that, '[a]s state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible' (emphasis added; Public Officers Law, §84).

For the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objections cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" (id. at 579].

In the same decision, the Court noted that:

"...not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id., 581).

In Buffalo News v. Buffalo Enterprise Development Corporation [84 NY 2d 488 (1994)], the Court of Appeals found again that a not-for-profit corporation, based on its relationship to an agency, was itself an agency subject to the Freedom of Information Law. The decision indicates that:

"The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an 'agency' only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank of San Francisco Med. Socy. v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 519 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is 'inextricably involved in the core planning and execution of the agency's [BEDC] program'; thus, the BEDC is a 'governmental entity' performing a governmental function for the City of Buffalo, within the statutory definition.

"The BEDC's purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo...In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant's arguments," (id., 492-493).

Perhaps most analogous to the situation described is a decision in which it was held that a community college foundation associated with a CUNY institution was subject to the Freedom of Information Law, despite its status as a not-for-profit corporation. In so holding, it was stated that:

"At issue is whether the Kingsborough Community College Foundation, Inc (hereinafter 'Foundation') comes within the definition of an 'agency' as defined in Public Officers Law §86(3) and whether the Foundation's fund collection and expenditure records are 'records' within the meaning and contemplation of Public Officers Law §86(4).

"The Foundation is a not-for-profit corporation that was formed to 'promote interest in and support of the college in the local community and among students, faculty and alumni of the college' (Respondent's Verified Answer at paragraph 17). These purposes are further amplified in the statement of 'principal objectives' in the Foundation's Certificate of Incorporation:

'1 To promote and encourage among members of the local and college community and alumni or interest in and support of Kingsborough Community College and the various educational, cultural and social activities conducted by it and serve as a medium for encouraging fuller understanding of the aims and functions of the college'.

"Furthermore, the Board of Trustees of the City University, by resolution, authorized the formation of the Foundation. The activities of the Foundation, enumerated in the Verified Petition at paragraph 11, amply demonstrate that the Foundation is providing services that are exclusively in the college's interest and essentially in the name of the College. Indeed, the Foundation would not exist but for its relationship with the College" (Eisenberg v. Goldstein, Supreme Court, Kings County, February 26, 1988).

As in the case of the foundation in Eisenberg, that entity, and, in this instance, the Foundation, would not exist but for their relationships with CUNY. Due to the similarity between the situation you have described and that presented in Eisenberg, as well as the functions of the Foundation and its relationship to the University, I believe that it is subject to the Freedom of Information Law.

Third, the Open Meetings Law is applicable to meetings of public bodies, and §102(2) of that statute defines the phrase "public body" to mean:

"any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

By breaking the definition into components, I believe that each condition necessary to a finding that the Board of the Foundation is a "public body" may be met. It is an entity for which a quorum is required pursuant to the provisions of the Not-for-Profit Corporation Law. It consists of more than two members. In view of the degree of governmental control exercised by and its nexus with the City University, I believe that it conducts public business and performs a governmental function for a governmental entity.

In Smith v. City University of New York [92 NY2d 707 (1999)], the Court of Appeals held that a student government association carried out various governmental functions on behalf of CUNY and, therefore, that its governing body is subject to the Open Meetings Law. In its consideration of the matter, the Court found that:

"in determining whether the entity is a public body, various criteria or benchmarks are material. They include the authority under which the entity is created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies" (id., 713).

In consideration of those criteria and applying them to the matter at hand, the Foundation would not exist but for its relationship with the University; it carries out a variety of functions that the University would otherwise perform; the University has substantial control over the Foundation board in the terms of membership, for the description of the composition of the Board indicates that a majority of its seventeen members are officials of or chosen by CUNY or CUNY organizations.

Based on the foregoing, I believe that the Board of the Foundation is a "public body" required to comply with the Open Meetings Law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Executive Director