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Niskayuna attorney gives opinion on ‘abstention’ voting

Niskayuna attorney gives opinion on ‘abstention’ voting

Niskayuna attorney gives opinion on ‘abstention’ voting
Niskayuna Town Supervisor Yasmine Syed, left, conducts a town meeting on May 8.
Photographer: Peter R. Barber

Niskayuna Supervisor Yasmine Syed -- criticized for her decision to abstain from February's Town Board vote regarding the acceptance of commercial waste at the town's wastewater treatment plant -- may be legally compelled to cast a vote on future contracts.

In a legal opinion on abstention voting issued Friday by Town Attorney Paul Briggs, the attorney said it was his legal opinion that "while a board member has the right under Robert's Rules of Order to abstain from voting, the vote to abstain should be exercised only where the vote presents a conflict of direct personal interest."

When the board on Feb. 26 voted to approve a contract with VIM Recyclers LP of Auroroa, Ill., to accept delivery of soda and soft beverage wastes from the Pepsi Bottling Group in Latham, Syed abstained from the vote.

The four Democrat members of the board voted in favor of the contract. Republican Syed had abstained from the March 2018 vote to borrow $17.5 million to pay for upgrades at the wastewater treatment plant.

"It carries on with how I voted when it came up for bonding," Syed said after the February meeting. "There were some questions that several residents here brought up tonight and they were some of the same questions I brought up when this came up for bonding. I have to, as a supervisor, take those concerns to heart."

Councilwoman Denise Murphy McGraw spoke against Syed's vote to abstain. She said she would ask for a legal opinion from the town attorney about whether board members can abstain on votes. "I was just under the impression we can't do that," she said after the meeting.

Briggs, in his legal opinion, wrote that Town Board meetings are held in accordance with Robert's Rule of Orders -- the set of rules first published in 1876 by Henry M. Robert to run orderly meetings with fairness to all members.

Briggs quoted two "Robert's" sections that deal with abstention. One read, "Although it is the duty of every member who has an opinion on a question to express it by his vote, he can abstain, since he cannot be compelled to vote."

The other, under the subsection "Abstaining From Voting On a Question of Direct Personal Interest," Briggs said the section states, "No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization."

Briggs also quoted a 1961 appellate court decision involving the Suffolk County Board of Supervisors that stated a supervisor is elected for the purpose of expressing an opinion "and a duty of action, not inaction, is assumed with the office."

Syed said she respects Briggs' legal opinion on the matter.

"He is our town attorney, so I appreciate the time and effort he put into it," Syed said.

Syed also said that according to Robert's rules, board members are allowed to abstain. "They cannot be compelled to vote," she said.

The supervisor also said she believes the 1961 Suffolk County appellate matter is a stretch to "fit the parameters" of the Niskayuna issue.

"With respect to him, it is an opinion and I will also be seeking out an opinion from the Association of Towns," Syed said.

"The supervisor has refused to vote - more than once - on a matter of great importance to the town, our wastewater treatment plant," McGraw said in an email to The Gazette. "She refused to vote because it required making a decision. I tried to help her learn about the project by scheduling multiple meetings and tours all designed at helping her get up to speed. Regardless, she still claims to not understand the project enough to do her job and vote.

"We are elected to make decisions and vote," McGraw added. "There’s no excuse for the supervisor’s abstention."

Syed also questioned the "direct personal interest" regarding vote abstention.

"If we strictly apply the direct personal interest for abstention, then arguably Councilwoman McGraw should have abstained on the vote for Open Stage Media because that was a direct personal interest," she said. "That may be something I look into also, getting a legal opinion on."

The town contracts with Open Stage Media to broadcast town meetings; the business is a client of McGraw's lobbying firm.

McGraw said her "pro bono contract" with Proctors is related to state matters for the theater, not Proctors subsidiaries such as Open Stage Media.

"I take no fee personally from them," McGraw said. "My firm receives a small stipend for administrative tasks related to regulatory compliance."

McGraw added she supports the mission of Open Stage Media.

Syed said that depending on future wastewater treatment contracts presented to the Town Board, she may be casting a vote. The next contract is not imminent.

"This is currently a pilot program, so until the pilot program is approved, we won't be entertaining any more contracts until that point," Syed said. "Probably this summer would be the soonest we would see another one."

Contact Gazette reporter Jeff Wilkin at 518-395-3124 or at [email protected]


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