Letter to Endicott Village Board from NoBurnBroome: SungEel’s private meeting with ‘community leaders’

June 26, 2020

To the Village Board of Endicott

Dear Mayor Jackson, Trustees, and Village Attorney McKertich,

We write to tell you our concerns of the private Zoom meeting for ‘community leaders’ convened for Monday, June 29 at 2:30 pm, by SungEel’s Public Relations firm, Stephen Donnelly & Associates of Owego.

This PR firm states in its invitation to Monday’s meeting:

“The purpose of this Zoom session is to inform you, a respected leader for our local community, of the facts related to the SungEel project as well as dispel the myths that have been presented by a select few individuals.”

Aside from the disappointment that “community leaders” would attend such a meeting that excludes concerned residents, attendance of this meeting by a majority of the Village Board (and other public bodies like the Town of Union and the School Board) would be a violation of the State Open Meetings Law, which requires that all meetings of public bodies be open to the public (see relevant legal details below). The only exception is for an executive session.  Meeting with the PR Firm for SungEel does not fit any exception.

The invitation of unnamed ‘community leaders’ makes it even worse. It gives the appearance that SungEel is manipulating community leaders into acceptance of the proposed battery incinerator without the benefit of knowledgeable concerned citizens who have researched the matter extensively.

Please determine how many of the Board Members will attend this meeting. If that number is over two, we recommend you request that the meeting be re-scheduled so that the public can attend.  Better still we recommend that the village board organize a meeting where SungEel’s experts present their case and equal time be given to NoBurnBroome’s experts to present our concerns.

Meanwhile, Stephen Donnelly’s characterization of our opposition to this plant as consisting of “myths that have been presented by a select few” is both inaccurate and unfair. From its outset NoBurnBroome’s views have been transparent, discussed openly and science-based. An objective assessment of the response to our efforts would indicate that we represent the majority of the citizens in Endicott, not “a select few.” See our June 22nd letter to Governor Cuomo signed by 80 residents of Broome County.

We also believe that people with a scientific background would recognize the validity of the scientific analysis of this process as presented in our White Paper (released to the media yesterday). This paper presents the risks the SungEel lithium-ion recycling project poses to the village of Endicott and the DEC’s failure to adequately assess those risks.

Lastly, most people in Endicott would agree that any taxpayer money (via Empire State Development) earmarked for Endicott should be used to encourage clean economic development not more pollution for an already health-compromised community.

Please be good enough to respond to this letter,

Ellen Connett, Carol Layton and Ellen Tiberi
On behalf of the Team at NoBurnBroome.com

The following is information from the NYS Committee on Open Government.
Contact them for any questions you may have
at 518-474-2518.

  • 100. Legislative declaration.
    It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.
  • 102. Definitions.As used in this article:
    1. “Meeting” means the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body.
    2. “Public body” means 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.
    3. “Executive session” means that portion of a meeting not open to the general public.
  • 103. Open meetings and executive sessions.
    (a) Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section one hundred five of this article.
    (b) Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in facilities that permit barrier-free physical access to the physically handicapped, as defined in subdivision five of section fifty of the public buildings law.
  • 105. Conduct of executive sessions.
    1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:
  1. matters which will imperil the public safety if disclosed;
    b. any matter which may disclose the identity of a law enforcement agent or informer;
    c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
    d. discussions regarding proposed, pending or current litigation;
    e. collective negotiations pursuant to article fourteen of the civil service law;
    f. 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;
    g. the preparation, grading or administration of examinations; and
    h. 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.

The following is from a 2004 opinion from Robert Freeman, Executive Director of the NYS Committee on Open Governbment, that is on point:

 In a landmark decision rendered in 1978, the Court of Appeals, the state’s highest court, found that any gathering of a majority of a public body for the purpose of conducting public business is a “meeting” that must be conducted open to the public, whether or not there is an intent to have action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 Ad 2d 409, aff’d 45 NY 2d 947 (1978)].

The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called “work sessions” and similar gatherings held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law. In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

“We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one’s official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute” (60 AD 2d 409, 415).

The court also dealt with the characterization of meetings as “informal,” stating that:

“The word ‘formal’ is defined merely as ‘following or according with established form, custom, or rule’ (Webster’s Third New Int. Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body” (id.).

Based upon the direction given by the courts, when a majority of the Board convenes to discuss the Village business, any such gathering, in my opinion, would constitute a “meeting” subject to the Open Meetings Law, even if it is characterized as a “workshop.”

This letter was sent to:

Village of Endicott
Mayor Linda Jackson <VOEMAYOR@endicottny.com>
Deputy Mayor Cheryl Chapman <CCHAPMAN@endicottny.com>
Trustee Patrick Dorner <dorneradjjmd@verizon.net>
Trustee Eileen Konecny < EKONECNY@endicottny.com>
Trustee Ted Warner <twendicott@aol.com>
Village Attorney Robert McKertich <rmckertich@cglawoffices.com>
Village Manager Anthony Bates <abates@endicottny.com>

Union Town Council members:
Richard Materese <supervisor@townofunion.com>
Thomas Augustini <taugostini@townofunion.com>
Frank Bertoni <fbertoni@townofunion.com>
Heather Staley <hstaley@townofunion.com>
Sandra Bauman <sbauman@townofunion.com>

State and Congressional Representatives:
NYS Committee on Open Government at https://www.dos.ny.gov/about/contact.asp?DCODE=COG#emailcontact
NYS Senator Fred Akshar < akshar@nysenate.gov>
NYS Assemblywoman Donna Lupardo <LupardoD@nyassembly.gov>
U.S. Representative Anthony Brindisi <NY22ABima@mail.house.gov>

Broome County Legislators:
Scott D. Baker <scott.baker@broomecounty.us>
Greg W. Baldwin <greg.baldwin@broomecounty.us>
Richard P. Balles <rick.balles@broomecounty.us>
Stephen F. Flagg <stephen.flagg@broomecounty.us>
Matthew J. Hilderbrant <matt.hilderbrant@broomecounty.us>
Mary A. Kaminsky <mary.kaminsky@broomecounty.us>
Kim A. Myers <kim.myers@BroomeCounty.US>
Cindy L. O’Brien <cindy.obrien@broomecounty.us>
Matthew J. Pasquale <matthew.pasquale@broomecounty.us>
Daniel J. Reynolds <daniel.j.reynolds@broomecounty.us>
Susan V Ryan <susan.ryan@broomecounty.us>
Jason E. Shaw <jason.shaw@broomecounty.us>
Bob Weslar <bob.weslar@broomecounty.us>
Mark R. Whalen <mark.whalen@broomecounty.us>
Kelly F. Wildoner <kelly.wildoner@broomecounty.us>



%d bloggers like this: