JOHNSTOWN — The city Common Council voted unanimously Tuesday to place a ballot referendum before voters Nov. 3 to abolish the city’s elected Water Board.
The council voted following a public hearing.
This will be second time in five years the city of Johnstown has attempted to eliminate its independently elected Water Board and assume direct control of the city’s water fees, which they refer to as water rents.
In 2015, Johnstown’s Charter Review Commission — which was chaired by current city mayor Vern Jackson — recommended the city end the division of power between the elected city government and the elected water board. Voters rejected the proposal 817-583.
Since then, the conflict between elected city officials and elected Water Board members has boiled over into accusations of official misconduct, a grand jury report, arrests, lawsuit threats, Water Board members escorted by city police out of the Water Department building, resignations and accusations of incompetence and lying by both sides against each other.
Former Water Board president George DiMarco was one of six public speakers allowed into the city’s socially-distanced public hearing Tuesday night. He said the council is ignoring the will of the voters by going after the independence of the Water Board again. He said the city has ignored other recommendations from the Charter Review Commission — including the creation of a new ethics law — but persists in pursuing control of the city’s water rents. DiMarco rattled off a list of as-yet incomplete city projects as examples of why the city shouldn’t control the city’s water system.
“This is a complete farce,” DiMarco said. “[The mayor] feels [the city] can do a better job, where’s the Miller Street bridge? Four years into the making. Where’s the Linden Avenue Project at? They’ve still got gravel, and only halfway down the road. Come on! There are a lot of problems. Can [the Water Board] do better, probably they can do better, but I think this can all be solved maybe with a commission, a joint commission with an independent leader.”
Jackson and Councilman-at-Large Craig Talerico argue the city Water Board has neglected its duties to maintain the city’s water infrastructure particularly with respect to the Cork Center spillway dam on Route 29. They argue the dam could have been fixed three years ago for a cost of approximately $1 million, but the Water Board never presented the city with a plan to do so and the cost has now risen to $3.5 million.
Jackson said Johnstown and neighboring city Gloversville are the only two cities he is aware of in all of New York state where an independently elected Water Board controls the water rents and the city has no control over the money or the water fee or water rent rates.
In New York state, municipalities are allowed to spend surplus water revenue, above the cost of the water department’s expenses, on general fund expenses, a typical practice for many cities, including the neighboring city of Amsterdam.
Jackson said that during his term as mayor, City Treasurer Mike Gifford has told him the Water Department has never produced a surplus, and is in deficit of about $450,000 for its most recent budget.
Former Water Board president John Swierzowski, who resigned earlier this month, said he believes the Water Board has a fund balance of unspent water rents totaling between $800,000 and $1 million and the city wants to control that money. He said the normal operating procedure for paying the Water Department employees has been for the Water Board to send checks from the city’s water rents to Gifford, who then cashes them and pays the department’s employees, but Gifford hasn’t cashed the water rent checks in more than six months. Employees have been getting paid through the city’s general fund.
Jackson said he doesn’t know if the water board has a fund balance, but if it does, he said, that means “they’ve been overcharging the city and they should cut the rates.”
Swierzowski said the Water Board has approved no water rate increases for the past five years because the city’s water meters don’t work and need to be upgraded, but that can’t happen unless the city government is willing to work with the Water Board to get it done.
Gifford did not attend the public hearing Wednesday, although his name was mentioned more by officials on both sides of the dispute than any other person.
Jackson said he excluded all city department heads from the meeting, using the coronavirus pandemic executive powers granted to municipal leaders by Gov. Andrew Cuomo. He then added that he would have allowed Gifford to come to the meeting had he requested to do so.
Acting Water Board President Mike Capparello said the board can’t know for certain how much money it has because Gifford has refused to meet with them, and the board’s own clerk can’t determine how much money they have without knowing what Gifford has done or will do with the checks the board has sent him.
Capparello said Gifford and other city officials have manufactured each of the problems they have blamed on the Water Board by systematically removing their control over the department’s personal, its building and keeping its board blind to its own finances.
Talerico said the city can no longer get insurance for the potential property loss from a rupture of the Cork Center spillway, which he said New York state has determined is a potential “loss of life” hazard.
Swierzowski said the reason the Water Board has not acted on the spillway is that Gifford has refused to meet with the Water Board for over a year, and the Water Board has no power to borrow money through a municipal bonding process without approval from the city. He said Water Board officials did present Gifford with a plan to act on the spillway that would have been less than the current estimates.
DiMarco said city residents should remember why the city created its independent Water Board in the 1980s. “When the city was in charge of the water they screwed all kinds of things up,” he said.
Water Board member Brandon Lyon said he believes the city’s desire to abolish the Water Board is an attempt to seize control of the water rents. He said the public should consider how water lead levels have risen in municipalities like Amsterdam where the city can spend the surplus water revenues on general fund expenses.
Grand jury report
Part of the struggle between the elected Water Board and the elected city government was played out in 2019 when city officials issued a criminal complaint against Water Board members after a dispute between the two entities with respect to payment to Water Department employees.
In December a Fulton County Jury, probing a complaint filed by the city of Johnstown with Fulton County District Attorney Chad Brown, chose not to issue official misconduct indictments against three Water Department employees who had charged the city for “out of title” labor on their timecards, listing it as “overtime.”
A 16-page report from the grand jury, released Dec. 11, stated Water Board President John Swierzowski ordered the workers to put in for “out of title” work, effectively promoting the three employees to a higher pay rate, pending an official promotion, which had to be approved by the city government. The promotions were never approved, but the workers continued to put in for the “out of title” work. The workers are not named in the report.
According to the report, a police investigation, conducted by Johnstown Police Chief David Gilbo, determined the workers were charging the city for hours when they were not using equipment that would have justified the “out of title” pay raises, and the higher compensation was stopped. City police did not arrest anyone, but brought the results of the investigation to the grand jury.
Jackson at the time said the city was hoping for an opinion on whether it was a crime for the employees to put in for the “out of title” work, but the city didn’t get that.
“We wanted an opinion from the D.A. They didn’t indict, they didn’t name anybody,” Jackson said.
The grand jury also rendered no opinion on whether Swierzowkski had the authority to authorize the three workers to put “out of title” work onto their time cards.
“Members of the water board believe they are completely independent of the City and have full autonomy within the Water Department, which includes Water Department employees,” reads the report. “The mayor, as the de facto CEO of the city, believes the water board falls within the jurisdiction of the city and is under his purview. This dynamic has resulted in a situation that is, at best, dysfunctional or, at worse, hostile.”
The grand jury report has a footnote stating one past member of the Water Board quit his position due to the health problems caused by the ongoing conflict.
Water Department employees have been taking direction from the city’s Water Board in the absence of an appointed water superintendent.
The grand jurt took testimony from 26 witnesses regarding the Johnstown police probe of the “out of title” work as well as an additional dispute regarding properties the city owned on Linden Avenue and then sold to people who want to put houses on them. At the time of the sale the properties did not have water lines connected to them, and the city and the Water Board have fought over the authority to connect the lines. One of the properties was purchased by Fulton County Clerk Linda Kollar.
Rather than issue indictments, the grand jury chose to issue these four recommendations:
• The city and water board should agree to hire a water superintendent, a position not filled since at least 2014.
• The parties should establish a clear chain of command for the city’s Water Department, which currently operates with the elected Water Board issuing directives to Water Department employees who work under a CSEA public employee labor contract with the city and the Water Board.
• The Water Board must put in place bylaws.
• The city and the Water Board should take all necessary steps to ensure any future land projects have gone through the necessary steps to get Department of Health approval for installing water lines prior to sale of city land.
The recommendations are not court orders, and the disputing parties didn’t have to follow them.
Swierzowski said his Water Board attempted to hire a water superintendent, former Gloversville DPW director Dale Trumbull, but the city wouldn’t allow it, and ultimately had the city police escort him off the premises.
Swierzowski himself was also escorted out of the Water Department building after Jackson mandated it remain closed due to the coronavirus pandemic.
Jackson provided The Daily Gazette with an expanded version of the grand jury report, not initially released, that recommended the removal or discipline for Swierzowski for his “complete lack of professionalism,” even though the grand jury had recommended no charges against him.
Swierzowski said he decided to quit the board because it was clear to him that the city of Johnstown was willing to use police power to harass and intimidate Water Board members and it was no longer worth it to him to have his name dragged through the mud.
“I’m washing my hands of this [expletive] nightmare,” he said.