A Big Win for the Little Guy . . .

The Jordanville Wind Farm received a “setback” in court according to yesterday’s paper. The ruling is being greeted with the usual moaning and groaning when governmental officials — and big business interests — don’ t get their way. But in reality, the ruling is a big win for the little guy. . . on two levels.

A Big Win for Open Government

As reported today, the Towns of Warren and Stark will now pay for their failure to comply with the Open Meetings Law. Anything decided by the towns in violation of that law is void. This is a good thing. When decisions are made illegally behind closed doors, it usually is because government is being co-opted by private interests for their own benefit and the expense of their neighbors. Some of our Towns in Oneida County need to read this decision and learn a lesson from it. When government runs openly and honestly, everyone benefits.

A Big Win for the Environment

Another aspect of the ruling is that government decisions that are made without a ‘hard look’ at their environmental impacts will also be set aside. This has long been the law, but it is often forgotten because, quite frankly, local government seems to have been bought off by business interests, it’s easier and less costly to ignore one’s environmental responsibilities, and it is unlikely that private individuals or civic groups will fork over the money needed to sue. This case, however, was the exception: people did sue — and they won. If they had not, GOVERNMENT would have simply continued to violate the law. Some of our Towns in Oneida County need to read this decision from the environmental angle and learn a lesson from it. New Hartford in particular should read very carefully the “Pyramid” case cited within this decision. Again, this decision is a good thing. If environmental impacts are ignored, it is usually the neighbors – – – the little guys who derive no benefit — who are hurt. When all the impacts are revealed and studied and mitigated, everyone benefits.

Forgery . . . and Silence . . .

This story in the O-D, and earlier postings on UticaSux got my attention just before the election. They raise concern about the tactics of the people we pay to enforce and uphold the law. Even more concerning is the failure of local officials and the Oneida County Bar Association, now that they have been made aware of the incident, to publicly call for an investigation. Fear of retribution, perhaps?

Per the O-D:

A fake DNA report created by Utica police investigators last year to pressure a suspect into confessing has raised questions about whether some investigative tactics go too far. . . . “I told him that I believe what was done was an investigative tactic that was totally unacceptable,” McNamara said recently. “It rose to a level that would violate the principle of fairness, and that tactic should never be used again.” Pylman agreed. “If you feel that strongly about it, we won’t do it anymore,” Pylman recalled telling McNamara.

So, it is undisputed that a “fake DNA report” was created by Utica police as an “investigative tactic.”

What a tactful way of putting it . . .

Local attorneys and officials had better brush up on their Penal Law. It’s written in plain English, and there are few elements, so even they should understand.

 PENAL LAW TITLE K, OFFENSES INVOLVING FRAUD, ARTICLE 170, FORGERY AND RELATED OFFENSES:

§ 170.05 Forgery in the third degree.

A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument. Forgery in the third degree is a class A misdemeanor.

The fake lab report is a “written instrument” as that term is defined in PL §170.00 (1), and the intent to deceive the suspect is evident from how the instrument was used.

The “investigative tactic” appears to have been the crime of forgery — and (at least) a misdemeanor.

Although investigators did create a phony DNA report in September 2006 to indicate a match with Wright’s DNA, they did not falsify an official document, Pylman said. He also emphasized it is not against the law for police to lie to suspects.

Although a state lab report would seem “official” to most people, there is nothing in the law that requires the forged item to be an “official document,” so Chief Pylman’s defense is irrelevant.

“They did what any good cop would do, but they pushed it a little too far,” Pylman said of his investigators. “But what’s got to be realized is that they did not have any malicious or evil intent.”

Whether the intent was “malicious” or “evil” is irrelevant because the penal law does not require “malicious” or “evil” intent. What it requires is only an intent to deceive — and that clearly was what was intended here.

McNamara at first was concerned investigators may have committed a forgery by including a forensic scientist’s signature on the last page of the falsified DNA report, he said.

But he determined police never presented the signature to Wright as a means of authenticating the report, he said. Thus, in his mind, no crime had been committed.

The lack of a signature appears to be in dispute. O.C. Public Defender LeLand McCormac certainly thought there was a signature:

“The fact that police officers would tamper with an official document … signed by a forensic scientist, and use such in a vain attempt to elicit a confession by (Wright) demonstrates outrageously deceitful, manipulative and coercive conduct shocking to the conscience and undermining the public’s faith in the integrity of … our criminal justice system,” McCormac wrote in the Feb. 8 document.

But there is no requirement in the law for the forged item to contain a signature, so DA McNamara’s defense is also irrelevant.

So we clearly have a crime that is at least a misdemeanor that has been committed. But it may actually be worse . . . a lot worse.

§ 170.10 Forgery in the second degree.
A person is guilty of forgery in the second degree when, with intent
to defraud, deceive or injure another, he falsely makes, completes or
alters a written instrument which is or purports to be, or which is
calculated to become or to represent if completed: . . .

3. A written instrument officially issued or created by a public
office, public servant or governmental instrumentality; . . .

Forgery in the second degree is a class D felony.

Here is where the “official” nature of the instrument and whether or not it contained a signature become important: when we look at a forgery as a “felony.” A state police lab report would seem to meet the criteria of an “official” document under §170.10(3). A “signature” would be evidence that the document “purports” to be an official document. As indicated above, the O-D article contains enough information to suggest that these things were also present.

There is possibly more than forgery. How many hands knowingly dealt with the falsified report, used the report, and or directed its use? There are also crimes of possession specified at both the misdemeanor and felony levels. From the text of the penal law Article 170, how many can you identify that may have been committed here?

A misdemeanor is clearly evident and is bad enough. A felony is worse. A felony committed by a government agent as part of his or her official duties is outrageous. The situation suggests that several people may have been involved, and that both forgery and possession of a forged instrument may have been committed.

The reputations of Utica and other police agencies, manned by many good, brave, and noble men and women, are tarnished by such behavior.

An investigation is needed, all involved need to be identified, culpability needs to be determined. . . .

And some heads need to roll.

NYRI: Lights Out for Central/Upstate NY

The Feds have announced our fate: we’re in the middle of an electric transmission corridor to serve the coastal megalopolis.

And if you think New York State might hold sway, think again by checking out Arizona’s fate.

The commission found Arizona customers would pay more to build the line, but not receive adequate financial benefit. The commission also cited environmental concerns. (Business Journal of Phoenix)

Sound familiar?

Clearly the Federal Government is OK with trashing smaller regional economies for the benefit of large metropolitan areas — so arguments of that nature will fall on deaf ears. It seems to me we should be concentrating on whether the Feds have the right to do this.

Whatever happened to the concept of states’ rights?

Spitzer Apology

A breaking headline tonight from the OD and AP “AG’s probe: Spitzer aides plotted to discredit Bruno requires some reading between the lines.

According to the story, AG Cuomo concluded that Spitzer’s top media spokesman, Darren Dopp, and homeland and public security chief William Howard “with the direct, unprecedented assistance of state Deputy Superintendent Preston Felton, conspired to release politically damaging information about Bruno’s use of state aircraft, including trips that included political fundraisers.” In a nutshell, the State Police created records of Sen. Bruno’s travels — allegedly in response to a Times Union FOIL request — which were to be used to embarrass the Senator.

FOIL requires disclosure of existing documents, it does not require new ones to be produced. However, FOIL does not prevent new documents from being created to meet a request for information. The spirit of the Freedom of Information Law is open government — as much information should be made public as possible. And if a particular request would demand that a new document be produced, while the law does not require that this be done, production would certainly be in the spirit of FOIL (full disclosure).

While the idea of people of one party trying to smear a person in another is repugnant, if the information disclosed is not of a personal nature, but rather involves official activities and spending taxpayers’ money, why shouldn’t it be made public? There is no indication in the story that any of the information was falsified. It is clear that had these officials not misbehaved, the public would have no clue how Mr. Bruno was spending their money.

The suggestion that this information should not have been disclosed (and is exempt from FOIL) because it puts Sen. Bruno in jeopardy seems like an excuse to keep things quiet. His travel schedule is being disclosed long after the fact, and long after any potential for harm. I would love to know how a travel itinerary from months ago “if disclosed could endanger the life or safety of any person” [see POL§87(2)(f)]

This passage was particularly interesting:

“The report found Bruno’s use of the state aircraft was appropriate under a state policy that “is overly permissive and porous and allows for an abuse of taxpayer funds.”

“We find that Senator Bruno used state aircraft for trips during which he conducted both legislative business as well as political or personal business,” the report stated. “We further find that such mixed usage is permissible under existing New York state policy.”

I thought Mr. Cuomo was probing the behavior of Spitzer officials, not determining whether Mr. Bruno’s travels and spending were appropriate. The comment about Mr. Bruno’s being in compliance with state policy is gratuitous.

My overall impression was that Mr. Cuomo’s report, and the news story, were carefully crafted — perhaps to ease the tension between the governor and majority leader.

Lessons Learned:

1) Government officials will bend the rules to keep information secret.

2) Government officials will excuse an abuse of taxpayer dollars as long as state policy is not violated.

3) Government officials will sacrifice other government officials who tell the public too much. And …

4) The right of the people to know how their money is being spent will always take a back seat to politics.

Econonomic Development that We Don’t Need

A troubling story appeared in last night’s Sentinel. Judge Tormey is looking to establish a facility either at Griffiss or in Whitestown to handle an expected flood of trials associated with the state’s civil confinement program for convicted sex offenders.

According to the Judge, having the trials on location at one of the area’s already heavily secured facilities “would set the wrong tone.“

The hearings can be held either in the county of conviction, or the county of incarceration.

Just because it is convenient for the State to send most of its sex offenders to us should not require us to also process their civil confinement matters.

If jurors are needed, that would be an unfair burden to place on Oneida County citizens and their employers. Jury duty is no longer a civic duty when it becomes a service to other parts of the state.

Also, processing these matters locally suggests that many of these offenders will be released locally rather than where they came from.

This is a burden that we should not have to bear. Instead of accommodating these issues (and perhaps increasing his supervisory responsibilities), Judge Tormey should lobby to have these matters transferred back to the counties of conviction.

Don’t Tread on Us . . .

Sometimes “what goes around comes around,” as someone astutely pointed out on Story Chat referring to Mr. Picente’s complaint that the Federal National Interest Electric Transmission Corridor designation for Oneida County is unconstitutional. Just like Oneida County shoved a huge garbage dump onto the small (in population) Town of Ava, the Federal Government may be about to shove the NYRI power line onto politically insignificant Oneida County.

Shame, shame on us for thinking it was OK for someone else to sacrifice their environment for our needs . . . and dismissing their complaints as “NIMBY” sentiments . . . or merely standing mute while it all happened. . . NOW we will know how it feels. Maybe we will learn a lesson from the experience, and change our ways.

If we were somehow forced to become our brother’s keeper, our decisions would be different. People would still find ways of accommodating their needs, but the negative impacts would be kept at home. For example, if Oneida County could not dump on Ava, it might have retained its incinerator in Rome and improved on it, keeping the negative impacts within the region receiving the benefits. If Downstate was unable to force Upstate to supply it with power, the Shoreham nuclear plant would be operating, there would be less opposition to offshore wind farms, or there would be controls on local growth . . . again keeping the negative impacts in the area receiving the benefits. We would be good neighbors to other regions.

While there are always winners and losers in government decision making, we seem to have lost the ability to accommodate each other’s needs . . . We’ve become selfish . . . Or maybe it is simply that we do not have to look out for others’ needs any more. People in population centers can simply use the government that they control to bludgeon their less populous neighbors into taking their garbage, or generating their power. It was not always that way. Our government has changed.

Congressman Hinchey also calls the federal move “unconstitutional.” Maybe it is. But the conversation needs to be much broader than federal power corridors. It needs to address what is meant by “equal protection of laws,” and, ultimately, it may require the Supreme Court to revisit some old decisions.

How Presumptuous…

The story about NYRI in today’s OD was disturbing in its implications.

In response to some proposed federal legislation that would curb federal power,

“New York Regional Interconnect hit back in a news release, saying that blocking the proposed line could “put our state on a path toward slower economic growth, degraded and insecure infrastructure and loss of opportunity, jobs and local tax revenues.” “

“OUR STATE??” We don’t really know who NYRI is, though, from what little is known, they appear to be Canadian investors. Who is NYRI to speak for the state? With higher electric rates, NYRI’s proposal will be be another nail in upstate’s coffin. New York has already put itself on a path toward lost opportunity, but we don’t need outsiders to tell us how to run our household. When the situation hurts downstate enough (those who would benefit from NYRI), New Yorkers will find a solution that is fair to ALL New Yorkers. How dare a private company try to impose its will on a region.

How dare the federal government cooperate!

As most us older folks learned in school, the federal government is supposed to be limited, with most of the powers of government reserved to the states and the people. But the Congress and the courts have year-by-year expanded the role of the federal government into aspects of our lives the would make the Founding Fathers roll over in their graves.

NYRI’s statement reflects an attitude that unfortunately has been accepted by government: that private corporations know what is best for the people. Those who have the inside track with government officials can get what they want. The courts seem to have gone along with this (as in the Kelo decision).

When the general public no longer feels safe and secure in their homes, the government is not doing its job. We are fast approaching that point.

A Loose End . . .

We still don’t know what Judge Tormey decided in the Utica OD – OCIDA – NYRI litigation. It might be interesting to see whose names are on that lease and How Much NYRI will pay the railroad for use of its right-of-way.

The People Giveth … and They Taketh Away

As expected, NYRI strikes back against the state law intended to remove its powers of eminent domain.

“It’s unconstitutional for the legislature to pass a law that targets one person or company, or singles them out for different treatment,” [power line project manager William] May said.

That may be true, and certainly is a good argument. . . . It might even persuade a court . . . But let’s not lose sight of the forest by focusing on the trees.

The power of eminent domain is a government power, not a private one. It must be used to promote the public interest. And this is what makes this matter different from the usual “violation of equal protection of laws” situation. NYRI only had the power of eminent domain because the legislature, at one time, gave it that power. Obviously, the legislature has changed its mind.

“The law seeks to punish NYRI for proposing a project that is intended to meet a public need,” . . . May said.

No, the law seeks to prevent NYRI from creating a public harm.

While NYRI can argue that it is fulfilling a public need, it is the legislature’s prerogative (not a private corporation’s) to determine whether the exercise of its power will serve the public interest. It arguably could even be a violation of the separation of powers doctrine for a court to decide otherwise.

And when talking about what is or is not Constitutional, let’s not lose sight of from where the Government gets Its power: WE THE PEOPLE.

While multinational corporations seem to be remaking laws world-wide to suit their liking, and while they seem to be aided and abetted by many elected and non-elected officials (maybe even at the highest legislative, executive and judicial branches in this country), ultimately, under our Constitution, the will of the people must prevail.

And when the government no longer derives its powers from the consent of the governed: “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. . . . “

Closing the Barn Door . . .

Yesterday’s O-D Edict-orial, “Preswick shouldn’t be tax exempt” exhorts “Town, school district, county must remain unified.” Few of this region’s beleaguered taxpayers would disagree with either the OD’s conclusion or direction. Prestwick’s clientele are screened by the entry fee to be well-heeled and certainly do not need a tax break.

In reviewing the issue, the editors were careful to point out that the exemption in-issue stemmed from an agreement entered into by “a previous Town board.” Perhaps this is a veiled criticism of a previous administration?

Mme. Publisher’s husband, Jerome Donovan, was not so veiled, however, during his appearance on WIBX’s “First Look” yesterday. (Please note the synchronization with the editorial, as well as his occupancy of the entire program between 8 and 9 AM, and that no calls were entertained. Being part of the region’s elite apparently brings privileges in getting one’s point across.) Mr. Donovan quite plainly accused former officials of failing to exercise “due diligence” and implied that the Town’s counsel was guilty of malpractice.

The criticism is unfair (and the motivation for same is questionable). Town consultation with its attorney IS “due diligence,” and an attorney’s failure to predict how a future court would rule on a legal “gray-area” is NOT malpractice. As we noted a few days ago, although perhaps wrong in hindsight, and although we do not like it now, the Town ‘s original decision was rational because it guaranteed that the Town would receive a stream of income from Prestwick.

If the implications of the Prestwick Glen project had been brought to the public’s consciousness 5 years ago, perhaps the potential customers would have let it be known that they do not want to be perceived as avoiding their fair share of taxes. Perhaps Presbyterian Homes would have realized that their reputation (as opposed to tax status) as a charitable institution would be threatened. Perhaps other local charities would have pressured Presbyterian Homes to rethink its proposal, because of a potential negative reflection on all charities. Perhaps no agreement would have been made.

The editorial is correct, but it comes too late to make a difference . . . Like closing the barn door after the horse escapes.