Schenectady County Legislature Democrats' caucuses criticized as violating law

PHOTOGRAPHER: Ned Campbell

The legality of the Schenectady County Legislature Democrats’ longstanding practice of meeting behind closed doors is being debated after a third Conservative legislator joined the majority caucus last month.

Niskayuna resident Elmer Bertsch said the so-called caucus meetings are a violation of the state Open Meetings Law, and Bob Freeman, executive director of the state Committee on Open Government, agreed.

“Government decisions have to be made in public and they are not,” said Bertsch, 74, one of the Legislature’s more outspoken critics.

Freeman said the closed meetings are a violation because they include members from more than one political party and a majority of the Legislature attend, which means a quorum is met. The 13-member caucus has 10 Democrats and three Conservatives. The other two members of the 15-member Legislature are Republicans.

Freeman said the Legislature is violating an exemption to the Open Meetings Law that states that “members or adherents of the same political party” can discuss public business without notifying the public, allowing the public to attend and taking minutes.

It would not be a violation for the 10 Democrats to meet in caucus, he said.

“In my opinion, the exemption regarding political caucuses represents the worst in public policy because it enables a majority of a legislative body to discuss public business in private,” Freeman said of the state law’s exemption. “In this instance, it makes no sense.”

He added, “Why not just say let’s all meet in private?”

County Attorney Chris Gardner disagreed. He said the word “adherents” allows members from different parties to meet behind closed doors.

“Bob Freeman is wrong,” he said. “You don’t have to be of the same party.”

Freeman called that a ridiculous argument, and cited a 2012 New York Appellate Division ruling that rejected a challenge to the state’s passage of the Marriage Equality Law. The Fourth Division’s ruling, which upheld a previous ruling that the law’s passage did not violate Open Meetings Law, defined exempt caucuses as “those comprised of members of the same political party.”

In Schenectady County, the Democratic caucus meets in the conference room on the sixth floor of the county Legislative Offices “as needed,” said Gary Hughes, the Democratic majority leader. Those meetings are not open to the public and members of the press are not allowed in.

Hughes said legislative issues are discussed “but always with a kind of political dimension in mind.” He also said the county has a long history of Democrats and Conservatives, and also Republicans and Conservatives, voting together.

“If that’s happening, then there’s an appropriate reason for the members of those groups to be able to have a discussion about how they’re going to work together,” he said.

He added, “I’m pretty comfortable with the process that we’re using, and I think the members are as well.”

Jim Burhmaster, the Republican minority leader, said the Democratic caucus meetings often take place before or after the monthly committee and regular meetings, which are on the first Monday and second Tuesday of the month at 7 p.m.

“If it’s important, they’ll have a caucus before we go in, or they’ll have it afterwards,” Burhmaster said.

Hughes said the caucuses are not as frequent as the scheduled meetings, however. “We can go a couple months,” he said.

While Burhmaster said the issue of Democrats and Conservatives meeting privately is not a fight “that I think is worth picking,” he also said: “If it’s illegal, then it’s another story. If it’s illegal then they shouldn’t be doing it.”

“It basically excludes two people,” he said of the process. “They’re doing legislative business. They’ve got 13 people in that room, so we are pretty much locked out of any of those decisions, and I’m afraid that’s why Grant Socha joined.”

Socha recently became the third Conservative, along with Randy Pascarella and Holly Vellano, to join the current Democratic majority caucus. Socha, who ran for election in the fall on a Republican ticket and pledged to caucus with the Republicans, said he joined the Democratic caucus to strengthen his voice on the Legislature. He represents residents of Glenville, Niskayuna and Scotia.

“I joined the majority caucus because if you are not a part of the conversation, how can you lend input?” he said.

Tuesday afternoon, he said he had yet to sit in on a caucus meeting because one had not occurred since he committed to joining the majority caucus in mid-June.

Socha’s expressed intent to remain a member of the Conservative Party while meeting with the Democrats prompted Bertsch to question the legality of the so-called caucus meetings.

“We may very well be witnessing the demise of representative government at the local level,” Bertsch said.

In further defending the closed caucuses, Gardner, the county’s attorney, said there are no votes taken during those meetings. The Legislature’s committee meetings and regular meetings, where votes do take place, are open to the public.

“There can be some informal discussion of issues and just to get a sense of what direction members generally believe we can go in, but as far as I know, there’s never been any votes on issues in caucus,” he said.

He also said that when the Republicans held the majority before 2003, it wasn’t uncommon for Conservatives to join them in caucus. The Legislature has been meeting in caucuses since at least 1990 “and I believe before that as well,” he said.

Glenville Town Supervisor Chris Koetzle, a Republican, called the practice outdated.

“It’s a throwback to the partisan days where people got together and contrived a strategy on how they were going to deal with something,” he said.

He said the five-member Glenville Town Board is all-Republican and does not caucus “because we don’t believe that’s good government.”

“Just go out and do the people’s business in the light of day so people can understand where you stand on things,” he said.

Freeman said the Legislature’s long-held practice of caucusing, in addition to violating Open Meetings Law, clearly defies the spirit of the law. Residents have a few options for addressing the issue, he said.

They can seek a court order preventing the governing body from meeting in private, and if a judge finds that significant deliberations happened in private that should have taken place publicly, the board can be forced to void its actions and even pay the plaintiff’s legal fees, he said.

A judge can also order a governing body to take open-government training from Freeman himself.

But Freeman said court action should be a last resort.

“There are things that can be done, but my hope instead is that these 13 members see the light, number one,” he said, “and number two, gain some respect for the public.”