Temporary Restraining Order Granted!

 

In a whole host of illegal moves and violations of the law including the firing or unauthorized removal of personnel, Chairman Demetrius Lawrence and several board members conspired to get Carmen Martinez the job of District Manager of CB9. MS. Martinez is a known political friend of corrupt and disgraced former Assemblyman Clarence Norman and is a long time friend of Borough President Eric Adams, and the cousin of the Eric Adams secretary. She was removed from her position at Comptroller's Scott Stringer office in June of 2014, (during the same time she was illegally placed on CB9 board by Eric Adams) for stealing 14 years of time and other things. MS. Martinez has been offered by CB9, what is believed to be $120,000 for the Job of District Manager, which would make her the 3rd highest paid District Manager of Brooklyn, just behind two others who have 25 years and 38 years of experience, where as she has only 3 months of volunteer experience.

 

The below Order to Show Cause and Petition was presented in Court on August 3, 2016 and a Stay was granted to prevent MS. Martinez from being hired as District Manger until the hearing date scheduled for Thursday, August 4, 2016.At a IAS Part 72 The  Brooklyn Supreme Court of the State of New York, held in and for the County of Kings at the Courthouse thereof, located at360 Adams St., Brooklyn N.Y. 11201On the 3rd day of August 2016.

#Please note that the evidence cited may be reviewed inside the court and is not contained on this website.

Order To Show Cause and Interim Order

BEFORE Hon. Richard Velasquez

Justice SC

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In the Matter of The Application of

ALICIA BOYD and  LORRAINE THOMAS

Petitioners

-Against-                                                                                                                              

CARMAN MARTINEZ, in her official capacity as                                              

Community Assistant of Brooklyn's Community Board 9,                           Index No:   4985/16            

DEMETRIUS LAWRENCE, in his official capacity as                                                     

Chairman of Community Board 9,                                                                                         

DR ZORINA FREDERICK, in her official capacity as First Vice Chair of

Community Board 9, and BROOKLYN COMMUNITY BOARD 9,                                                                                 

Respondents,

for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

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                                Upon the Petition, verified on August 2, 2016, the affidavit of Alicia Boyd, dated August 2, 2016, and the Petitioners’ brief, and good cause being shown therein let  Respondents  appear on the 18th day of August , 201, at 9:30 am  in the fore noon of that date, at the Brooklyn Supreme Court Courthouse, 360 Adams St., Courtroom IAS Part 29 Courtroom 724, Brooklyn New York, pursuant to New York City Charter Chapter 70 section 2800, Brooklyn Community Board 9 Bylaws, The Open Meeting Law Article 105, and Freedom of Information Law Article 84, why an Order should not be entered:

  1. Voiding the hiring of respondent Carmen Martinez as District Manager of CB9;
  2. Requiring Respondents to create a temporary service contract under another employment line for Carmen Martinez until the merits of the petitioners’ petition is decided by a court of law.
  3. Requiring the Respondents meet with the community residents and petitioners on or before September 16, 2016 to discuss and adopt rules of procedures, which follow the law, for the hiring of a District Manger.  This should include but not be limited to, job description, requirements, procedures of resume reviews, interview procedures, interview questions,  voting methods, recording process, salary  scales, back ground checks and the creation of a 3rd search committee.  These rules of procedures need to have the full support of the petitioners, community residents and board members.
  4. Null and Void the election of Officers to the board of CB9 performed on June 28, 2016 and order a new election process including a voting process that adheres to the law.
  5. Pending a hearing Petitioner are requesting a stay of the hiring of Carmen Martinez as District Manager
  6. Granting such other and further relief as is just and equitable; and it is further

 

Let  service of this Order, and the papers upon which it is based, be served upon Respondents Community Board 9, and any other parties entitled to notice by personal service on or before the 12th day of August, 2016 be deemed good and sufficient Service.                     

Enter: RLK____________JSC

 

Brief in Support of the Order To Show Cause and Interim Order

  1. Please take notice that this brief has been prepared by Alicia Boyd, acting as Prose in the above captioned case and is based upon the annexed petition, exhibits, affidavits and the affidavit of support for the Order to show Cause.
  2. Evidence cited in the above annexed documents clearly show that Respondent have just chosen to completely ignore every rule, law and procedure set down to which they are govern by.
  3. The courts have cited, variously; the establishment of bad faith; acts intended to violate or evade the law; violation of OML; intent to minimize public awareness of political actions and decisions; patterns of violations of law; discouraging attendance at public meetings; lack of quorum; and failure to provide proper notification, all as grounds upon which to void the actions of governmental agencies.
  4. Bad Faith (Aurgher v. Purcell, 109 Misc.2d 531, 440 NYS2d 480, affirmed 87 AD2d 888, 449 NYS2d 527 (2nd Dept. 1982); Intention acts to violate/evade law (Village of Philmont v. X-Tyal International Corp., 67 AD2d 1039, 413 NYS2d 767 (3rd Dept. 1979) and ( Tri-Village Publishers, Inc. v. St. Johnsville Board of Education, 110 AD2d 932, 487 NYS2d 181 (3rd Dept. 1985); Persistent patterns of violations (Reese v. Daines, 62 AD3d 1254, 877 NYS2d 801 (4th Dept. 2009); Repeated violations of the OML Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994); Intentionally or knowing discourage attendance (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009); minimize awareness of decisions Previdi v. Hirsch, 138 Misc.2d 436, 524 NYS2d 643 (1988); issues should have been discussed in public White v. Kimball, Mayor, City of Jamestown, Supreme Court, Chautaugua County, January 27, 1997; deprive opportunity to influence decisions Weatherwax v. Town of Stony Point, 97 AD2d 840, 468 NYS2d 914 (2nd Dept. 1983); Lack of members present to vote(Town of Eastchester v. NYS Board of Real Property Services, 23 AD3d 484, 808 NYS2d 90 (2nd Dept. 2005); Lack of quorum Reiff v. NYC Conciliation and Appeals Board, 128 Misc.2d 851, 491 NYS2d 565 (1985)) and (City of White Plains v. New York State Board of Real Property Services, 18 AD3d 549, 795 NYS2d 292 (2nd Dept. 2005); multiple violations and procedural concerns (Van DeLoo v. City of Schenectady, Supreme Court, Schenectady County, September 6, 2002); failure to comply with notice requirements White v. Battaglia, 79 AD2d 880, 434 NYS2d 537 (4th Dept. 1980), appeal denied 53 NY2d 603, 439 NYS2d 1027 (1981);
  5. In the case of Civil service hiring the courts have upheld that hiring can be voided if significant requirements are not met,  (Mark v. Department of Civil Service, 91 Misc. 2d 523 (Supreme Court Kings County 1977), (McCluskey v. County of Suffolk, 9 Misc. 3d 1106(A) (Supreme Court Suffolk County 2005) and Ensley v. New York City Dep't of Personnel, 173 Misc. 2d 1035 (Supreme Court NY County 2007)
  6. However it is clear that the Courts are very reluctant to fire employees because of the potential harm that could come about due to this action, and thus have instead ruled to prevent the hiring of a potential civil worker, until a dispute has been settled.  In  Mark v. Department of Civil Service, 91 Misc. 2d 523 (Supreme Court Kings County 1977))  “It is in the interests of justice to maintain the status quo rather than make permanent appointments which may not be recalled, even if it is ultimately determined that they were made in error ( Matter of Wolff v Hodson, 285 NY 197; (Matter of Canarelli v New York State Dept. of Civ. Serv., 44 AD2d 645). Indeed, the Department of Motor Vehicles has requested that the Department of Civil Service not take any action to make appointments prior to a final determination on the merits of petitioner's allegations.
  7. In regards to this petition, despite the fact that the board has already voted to hire respondent Martinez, they have not done so because they have not decided upon her salary and thus cannot present her with an offer of the job for her to accept.
  8. However, Respondents are preparing today, August 2, 2016, to enter into executive session to vote on her salary, despite the clear violation of this act.  According to the Public Officers Law Article 7 of the Open Meetings Law, section 105, a public body may enter into executive session, “however that no formal vote shall be take to appropriate public moneys.”(emphasis added)  The appropriation of a salary for a civil service worker is public moneys and thus it is clear they plan on violating this rule tonight. (Attached as Exhibit A here and as Exhibit Q in Petition)
  9. If the Courts grant the relief sought under this order to show cause, there is a way not to cause harm to respondent Martinez by allowing her to gain a salary on a temporary basis until a determination on the merits of the case are concluded. 
  10. This would afford the petitioners the opportunity to demonstrate clearly the need for the vote for district manager to be overturned and at the same time, afford respondent Martinez to receive monetary compensation for her “volunteer” time.
  11. In regards to the null and void of the officers of the board that were elected, it is clear that this entire process was done in violation of the law.  However, the urgency in this manner pertains to the fact that this board is now continuing to conduct business, making recommendations, scheduling of meetings during the summer time when technically the board is closed etc…  To which a lot of these actions may become permanent or lead to permanent conditions which would be impossible to overturn, without lengthy ligation or possibly not at all or harm done to residents or board members.
  12. Without immediate intervention it is possible for months to go by with an illegal board in place making decisions that can’t be overturned.  It would be in the best interest of everyone involved that a new committee and vote be established that is lawful before the new year begins in September than to think of disrupting this board’s constitution during the middle of the year.
  13. Finally, it is clear that a new District Manager is needed, for the board has been without one for almost ten months due to negligence and irresponsible behavior exhibited by respondent Lawrence.  Thus the ordering  of the meeting of community residents, petitioners and board members to discuss and adopt lawful rules of procedures for the hiring for a District Manager before the beginning of the first new board meeting in September, will allow the process of finding a new District Manager to go a lot smoother and faster.   At the first board meeting, it is possible to have everything in place so that the new committee will have a blueprint to work from and know that their work is lawful and in compliance with the law.
  14. Unless Relief is granted Petitioners will suffer irreparable injury in that a permanent District Manager may be in place that is not qualified and may cause harm to the board based upon her prior experience at stealing time and other things for 14 years.  Also the new executive board may also conduct business that has a permanent negative effect upon the community and board members which cannot be erased or overturn depending upon the decisions that are made by them. 
  15. The Petition, and the claims made herein, have not been brought previously in this or any other court.

Petition

THE PARTIES

Petitioner ALICIA BOYD is a resident in Brooklyn New York.

Petitioner  LORRAIN THOMAS is a member of Brooklyn Community Board 9 and performs her duties in Kings County.

Respondent CARMEN MARTINEZ is the volunteer  District Manager for  Brooklyn Community Board 9 and performs her duties in Kings County.

Respondent DEMETRIUS LAWRENCE is the Chairman of the Brooklyn Community Board 9 and performs his duties in Kings County.

Respondent  Dr. Zorina Frederick is the First Vice-Chair of the Brooklyn Community Board 9 and performs her duties in Kings County.

JURISDICTION AND VENUE

  1. Venue is proper based upon Petitioners and Respondents doing Business in Kings County.
  2. The Court has jurisdiction under Section 7801 of the Civil Practice Law and Rules to review administrative decisions of Respondents.
  3. First Cause of Action - The Illegal Removal of Personnel
  4. Second Cause of Action - Tampering with Voting Records
  5. Third Cause of Action - Refusal to allow CB9’s board members to attend and be informed of the 2nd search committee meetings.
  6. Fourth Cause of Action - The Abuse and Violation of Executive Session
  7. Fifth Cause of Action - Voting in Secret
  8. Sixth Cause of Action - Refusal to post the ad in Newspaper for District Manager
  9. Seventh Cause of Action - Refusal to Give Notice of Meetings to the Public and Board members
  10. Eighth Cause of Action - The Null and Voiding of the 1st Search Committee by Respondents.
  11. Ninth Cause of Action - The Appropriation of Public moneys in an Executive Session
  12. Tenth Cause of Action – Misappropriation and Management of Public Funds
  13. Eleventh  Cause of Action -  Other violations
  14. WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to Article 78 of the Civil Practice Law and Rules:
  15. On the First Through Eleventh Causes of Action, declaring null and void CB9’s decision to hire Carmen Martinez as district manager, grant the request for an “In Camera” inspection of Ms. Witherspoon employment history; seek a subpoena for the records of the Community Board, granting a request for a lawful procedure and process to be determined, planned and carried out for the selection process, hiring and appointment of a salary for a District Manager and the awarding of Attorney and legal fees.
  16. Twelfth  Cause of Action – Declaring null and void CB9’s decision to hire respondent Carmen Martinez as district manager.
  17.  Thirteen Cause of Action- Requesting an In Camera Inspection of Ms. Witherspoon Employment history
  18. Fourteen Cause of Action- Seek a subpoena for the records, emails, tape recordings and minutes of Community Board 9.
  19. Fifteen Cause of Action - Granting a request for a lawful procedure and process to be, planned and carried out for the selection process, hiring and appointing of a salary for a District Manager of Community Board 9.
  20. Sixteen Cause of Action  – Declaring null and void CB9’s voting of Officers to the board done on June 28, 2016 and new voting process take place.
  21. Awarding of Attorney and Legal Fees
  22. GRANTING such other and further relief as the Court may deem just and proper.

STANDING

Petitioners Alicia Boyd has standing because she is a member of the community served and is the head of a local community group and who are served by Respondents; because conduct of Respondents actions are affected by Petitioner and her group that she represent and threatened by Respondents’ decisions; because they have attended all pertinent meetings of Respondents; have been requested and denied to be present and observe the actions of respondents according to the law, prevented from providing information to the public, have been denied the right to attend meetings, denied the right to videotape meetings, and have been denied the right to participate and observe the process of hiring an District Manager.

Petitioner Lorraine Thomas has standing because she had been denied the right to observe and participate in the process of hiring a District Manager, which is her responsibility as a board member.  She has been denied the right (1) to be a member of the search committee; (2) to attend the search committee meetings; (3) to receive information and notification of these meeting; (4) to review the resumes of potential candidates; (5) to attend all interviews of potential candidates for District manager; (6) to have her votes and her fellow board members voting be conducted via an open ballot; (7) to receive all minutes to all meeting including executive sessions of the board; (8) to review all information concerning Ms. Witherspoon, CB9’s community assistance, including but not limited to correspondence, work history in relationship to her employment for CB9; (9) and because she has requested and been denied the right to receive information regarding the hiring of a District Manager.

Introduction

This petition is brought by a member of the Community Board 9 of Brooklyn “CB9”, who is appointed in accordance with the New York City Charter Chapter 70 section 2800 (a) a community residents and who is the head of a community base organization, who members come from Community Board 9 area, both whom seek to void the purported hiring of respondent Carmen Martinez as District Manager of CB9, seek to establish lawful procedures for the selection, hiring and salary of the District Manager, seek an In Camera review of the work history of Community Assistant Ms. Witherspoon, and seek a subpoena of CB9’s records.

 

This Petition is brought pursuant to New York City Charter Chapter 70 sections 2800 which authorizes the members of the CB9 to hire a district manager and assistants, who serve at the pleasure of the community board and shall provide the board with staff support and technical assistant it requires to fulfill the duties by this charter or other law and to perform the public duties of working with the community in processing community residents complaints.  This dispute principally concerns the events which occurred at search committee meetings, executive board meetings and general board meetings, regarding the topic of selecting, hiring and salary determination of a District Manager, which have occurred from October 27, 2015 to July 21, 2016.

 

Petitioners allege that an illegal scheme has been created to place long time friend and political ally of Borough Hall president Eric Adams, Carmen Martinez as District Manager, with one of the highest paying salaries in N.Y.C. because she was removed from her position within the Comptroller’s office for stealing 14 years of time and other things. 

 

In order for respondent Martinez to be positioned for this job the following actions occurred; (1) respondent Martinez was placed illegally on the board by Borough President Eric Adams; (2) the only staff, Ms. Witherspoon, running the community board office was removed from her position to provide respondent Martinez the opportunity to gain experience working in a District Office, to create relationships with board members and to control the information of the board from the community and other members of the board; (3) the Executive board was overpowered by respondent Lawrence, to prevent board members or residents from seeking recourse regarding the behavior of members of the board; (4) the entire process of the selection and procedures of hiring a District Manager have been conducted in secret; (5) board members have been denied the right to attend and participate in the search committee meetings; (6) votes have been conducted in secret to attempt to protect the board members from retaliation from Borough Hall and preventing the community residents from knowing how board members have voted; (7) voting records have been tampered with to hide the doings of the search committee; (8) non-voting methods have been employed to determine the final three candidates; (9) appropriation of public moneys have been voted upon and planned in executive session, which is a violation of the law; (10) and minutes of meetings have been changed, amended and withheld from both board members and community residents.

Statement of Facts

The hiring of a District Manager is governed by CB9’s bylaws, the City Charter, the Open Meetings Law,  the Freedom of Information Law and Parliamentary Procedures of Robert Rules of order.  Under the Open Meetings Law, section 105 a public body may enter into an “executive session” to review the employment history of a person, leading to the employment of a particular person.  These executive sessions are closed to the public, but it must adhered to the following conditions; (1) be a part of an open meeting; (2) all members of the public body may attend; (3) public notice and an agenda must be given prior to the session; (4) minutes must be provided within 7 days to the public; (5) a majority vote of the total membership of the public body must affirm to enter into an executive session; (6) no action by formal vote shall be taken to appropriate public moneys;  and (7) only the purposes listed under section 105. 1 of the Open Meeting Law may be discussed.

 

CB9 Bylaws section 11.1 (b), states a search committee for District Manger must present 3 candidates to the board and must post a notice in the local news media of the availability of the position of the District Manager position.  According to Corporation Counsel Opinion No. 9-91, all community board votes including the election of officers must be conducted by open ballot, where each Board member’s vote is recorded and made public. The New York City Charter Chapter 70, article 2801 b. states that decisions of boards and committees are done through the process of voting.

 

History

On June 16, 2014, Respondent Carmen Martinez “Martinez” was relieved of her duties as a top aide at the NYC comptroller’s office for stealing 14 years of time and other things.  In the same month respondent  Martinez was illegally placed on Community Board 9 “CB9” in violation of the City Charter by her long time “friend”,  Borough President Eric Adams. (The illegal placement is fully documented  in Boyd Vs Community Board index #1835 and Attached as Exhibit A)

 

October 24, 2015, at Community Board 9 general Board, in an Executive Session Pearl Miles, District Manager for CB9 was removed from her 30 year old position.  Respondent Demetrius Lawrence “Lawrence”, during the open meeting portion of the meeting, selected seven members for the 1st search committee, based upon an open process where any CB9 board member could become a member of the search committee.

 

The firing of District Manager Pearl Miles left CB9, with only one staff running the District Office, respondent’s Community Assistant Ms. Witherspoon, who had been employed for over two years.

On October 29, 2015 petitioner Alicia Boyd, “Boyd”, sent an email to respondent Lawrence stating  her opposition to a rumor of the intention of placing respondent Carmen Martinez “Martinez” as the new District Manager, due the unlawfulness of this such behavior.  She also enclosed the Open Meetings laws  requiring  proper notification and transparency of the Search committee meetings.  (Attached as Exhibit B)

 

On November 12, 2015, according to the minutes of the 1st search committee, members of the 1st search committee and respondent Lawrence met and created the criteria, job description, salary range and all other related items regarding the hiring District Manager.  The community and board members were not made aware of this meeting and neither community residents nor other board members were present.  (Attached as Exhibit C)

 

On December 3, 2015, at the 1st search committee meeting, Pamela Yard, Vice-President of the B&W Sterling St. Block Assn., requested to be on the committee and was told that the committee was closed to all non-board members. It was also noted that respondent Martinez had placed an application to be the District Manager of CB9. (Attached as Exhibit D)

On December 17, 2015 at CB9’s 1st search committee, the board members of the committee stated that “all members of the community are welcome to participate in the process with the exception of casting any votes for the selection of the new DM [District Manager] and “The Search Committee will follow the Bylaws that require public notice of the availability of the position of District Manager to be made in the local news media.” (Attached as Exhibit)

 

On January 21, 2016 at CB9’s Search Committee, Respondents stated they would place the ad in the paper and any “executive sessions” planned; the community would be notified within 7 days and be provided an agenda for these meetings. (Attached as Exhibit F)

 

On January 25, 2016, at CB9’s Executive Committee meeting, respondent Lawrence, in violation of CB9’s bylaws placed all the chairs of committees onto the Executive Board, with voting power, without knowledge or consent from the CB9 members. (Attached as Exhibit G)

 

On March 22, 2016 at CB9’s the general board meeting, the community was informed that the 1st  search committee had  selected three candidates, but the community was not told who they were.  However, later it was learned that respondent Martinez was not one of the final three candidates. (Attached as Exhibit H, page 3)hardcopy minute of March 7, 1st Search committee final)

Respondent Lawrence stated during the aforementioned meeting, that the final results of the 1st Search Committee needed to be voided because a majority of the 13 meetings had not had quorum, despite him attending most of them and never complaining. 

 

In an email Respondent’s CB9’s former Chairman of the 1st search committee, Hector Robertson, made the accusation that his committee’s work was being challenged because respondent Martinez was not one of the final three candidates chosen.  He stated that the refusal to supply the minutes to the public to his final meeting was “deliberate” and was done to “relinquish and invalidate the entire search committee process in an effort to obtain the results that he [respondent Lawrence] wants” (Attached as Exhibit  I)

 

On March 31, 2016 petitioner Boyd, obtained the copy of the 1st search committee minutes from CB9’s staff, Ms. Witherspoon.   In a private conversation with petitioner Boyd, initiated by Ms. Witherspoon,  Ms. Witherspoon expressed serious concerns of “higher ups” wanting to force the community board to put Ms. Carman Martinez in the position as the District Manager. She expressed fear and anxiety for herself for what was transpiring at the Board and was seeking help with understanding why it was so important to have respondent Martinez as the District Manager.

 

On April 1, 2016, respondent Dr. Zorina J. Frederick “Frederick”, stated in an email to the board that she felt who had ever given petitioner Boyd the minutes to the search committee meeting should be punished.  She stated “I am appalled at such behavior, and I think whoever is responsible should be severely dealt with”. (Attached as Exhibit J)

As of April 7, 2016, Ms. Witherspoon was removed from her position as the Community assistant without  the knowledge or consent of respondent CB9 board,  and respondent Martinez was then allowed to fill in her position as a “volunteer”.  

 

On April 20, 2016 at CB9’s general Board meeting, during a heated debate between respondent CB9’s  board members surrounding the proposal to null and void the 1st search committee’s findings, respondent Lawrence moved the entire Board into executive session, stating “we can’t have this, we need to slow ourselves down, we are here to talk as board members, without interruptions.”  ( Attached as Exhibit K)

 

During the Executive Session, the board voted (1) not to provide the community board members with the resumes of the final three candidates; (2) they voted yes to declaring the first committee results null and void; (3)and voted yes to allowing respondent Lawrence to handpick the new search committee, with the  chairman of the committee to be decided at a later date. (ibid)

April 20, 2016, at CB9’s general board meeting, a new ad-hoc election committee was formed to determine the candidates for office of the new executive board.  

 

On April 29, 2016, petitioner Lorraine Thomas “Thomas” sent a letter to respondent Lawrence inquiring about the unlawfulness of entering into executive session at the April 20, 2016, general board meeting.  She stated that she had been in contact with Bob Freedman of the New York State Committee on Open Government and was told that “the motions that were voted upon during that session dealt with procedural processes should have been discussed in public and did not provide grounds for going into executive session.” (Attached as Exhibit L)

 

On May 24, 2016, at CB9’s general board meeting, the election committee had stated that they had met, and had possible candidates for the election of officers in the June.  However, these meetings were held completely in secret. No one knows dates nor have any minutes have been produced regarding these meetings.

 

On May 27, 2016 and June 5, 2016 petitioner Thomas requested of respondent Lawrence to be informed about the 2nd search committees schedule because she wanted to attend these meetings.  Her requests were ignored. (Attached as Exhibit M)

 

On May 31, 2016 the 2nd search committee minutes declared, based upon three meeting done in secret, on May 4th, 11th and 31st that respondent Martinez was ranked the number one choice of the 2nd search committee.  However no voting process was conducted, recorded or produced.  Instead respondent Frederic stated that a process of elimination had occurred, but gave no further explanation or evidence as to how this process had occurred. (Attached as Exhibit N hard copy Minutes of May 31, search committee)

 

On June 20, 2016 at CB9’s executive board committee meeting, during a very heated discussion regarding the minutes of the 2nd final search committee meeting, respondent Lawrence sent the entire committee into executive session despite not having quorum to do so.  The Issues to be discussed were the ranking order created by the 2nd Search committee; the refusal to share the minutes with the public and other board members; and information being hidden regarding the Search Committee results.  After two hours in the executive session, no information was given to the public about what had been determined or discussed. (attached as exhibit O)

 

At this meeting, respondent CB9 member inquired as to how the salary of the new District Manager was going to be determined and respondent Demetrius stated that respondent CB9 board was not allowed to determine this salary but was the job of New York City, because it is civil servant job. (ibid)

On June 28, 2016 at CB9’s general board meeting, during the open part of the meeting, petitioner Boyd stated that respondent Lawrence had lied to the board members and that it is the CB9 board members who determine the salary of the District Manager.  

 

In an executive session, board members were told that the 2nd search committee meetings were held in secret to prevent board members from attending and that a secret ballot had been conducted for the final vote of the three candidates, because board members had expressed fear of losing their appointments if they did not vote in accordance with Borough Hall’s wishes.  39 board members were present, but only 37 board members votes were counted. There was a request to determine respondent’s salary, but respondent Lawrence refused and tabled the discussion, stating he needed to find out how to go about making that determination.

 

On June 28, 2016 at CB9’s general board meeting, respondents conducted a close ballot process in voting for the Officers of the board, despite petitioner Boyd reading the letter of the law regarding the requirements for community boards to conduct open ballots voting.

 

On July 18, 2016, respondents CB9’s executive board voted during an executive session, in which no work history  regarding respondent Martinez was disclosed or discussed, to pay respondent Martinez $120,000, which would make her the third highest paid District Manager in Brooklyn, just behind Gerald Esposito, from Community Board 1, who has 39 years of experience and Dorothy Turano from Community Board 18, who has 25 years of experience. Respondent Lawrence noted that he was just going to simply put the recommended $120,000 salary for a vote at the general board meeting.  If respondent Martinez were to get this high pay salary the board would only be able to hire three people instead of four.

 

On July 21, 2016, at a “special general board meeting” respondents were unable to get quorum and stated that Ms. Martinez has not been offered the job, because a salary has not been set.  There was a request to give her a temporary contract, until the board met again in September to finalize her salary.

 

On July 27, 2016 respondent’s Parliamentarian and member Fred Baptist, requested information regarding the aforementioned proposal, but was simply ignored. (Attached as Exhibit P)

 

Respondents sent around the agenda for Tuesday, August 2, 2016 of special general board meeting to enter into an executive session to “vote for the District Manager’s salary”. (Attached as Exhibit Q)

First Cause of Action

The Illegal Removal of Personnel without Consent or Knowledge of the Board

 

The New York City Charter Chapter 70 Article 2800 section g states:

Each community board may employ such other assistants as it may require within budgeted appropriations for such purposes or funds contributed for such purpose. Any funds appropriated by the city to enable the community boards to conduct their duties and responsibilities pursuant to this chapter shall be allocated directly to each board subject to the terms and conditions of such appropriations. The basic budget appropriation for the personal service and other than personal service needs of each community board


Petitioners allege that respondent Lawrence illegally removed the only paid full time staff, Ms. Witherspoon, at the CB9’s office, without the knowledge and consent of the board and he lied to the board members and the community countless of times making claims in public that Ms. Witherspoon was first on vacation then sick and then on FMLA leave and was intending to return to the board. 

 

Petitioners allege Ms. Witherspoon’s removal, was for three things(1) to punish Ms. Witherspoon at the request of respondent Frederick because Ms. Witherspoon had followed the law and provided petitioner Boyd with the minutes of the 1st committee meeting which contained the three candidates that had been chosen by the 1st search committee.  Respondents didn’t want the community to be aware of the final three candidates; because it would be clear the reason for the nulling and voiding of the 1st search committee’s work was because respondent Martinez had not been chosen as one of the three candidates.

 

(2) To enable respondent Martinez the opportunity to gain an advantage over the other applicants by  “volunteering” at the District Office, helping her to establish relationships with board members and to gain experience at running a community board district office, because she had no such experience and other applicants did.

 

(3) To have absolute control of all information coming through the Community Board office including communications, emails, and minutes pertaining to running of the board and the hiring of the District Manager.  And to ensure that the community resident and certain board members would be kept in the dark concerning the search committee dealings, decisions, procedures.

Second Cause of Action

Tampering with Voting Records of Search Committee

 

Petitioners allege respondent Frederick, has tampered with the voting records of the search committee. Respondent has stated on an official FOIL request that no voting records were conducted via the search Committee, despite her stating on June 20, 2016 during an executive committee meeting that “We actually cast a ballot, a secret ballot, and, uh, we ranked them, the 3 candidates”.  This position of a “secret ballot was supported by petitioner’s statement that on June 24, 2016, during the executive session respondent Frederick stated that a secret ballot had been done regarding the selection of the three candidates. (Attached as Exhibit R and Attached as Exhibit O )

Respondents Frederick is refusing to give these voting records, to prevent the community from  being aware of exactly how the ranking of Carmen as number one was created and who voted for it.  In fact Respondent board member Warren Berke described the ranking system as foolish. (ibid)

Third Cause of Action

Refusal to Allow Board Members to Attend and Informed  of the 2nd search Committee Meetings.

 

Public Officers Law, Article 7 section 105 section 2 states: Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.

Petitioners are making the allegation that respondents violated the Open Meetings Law during the 2nd Search committee meetings by not allowing their own members to be able to attend the search committee meetings. 

 

On June 28, 2016, at CB9’s general board meeting during the executive session, where the final selection of the District Manager was done, respondent Frederick, stated to the entire board that board members were not allowed to attend any of the 3 Search Committee meetings, where resumes and interviews were conducted.  This was to ensure that no one else would be able to determine if a fair and just process had been conducted in the selection process as well as to ensure that respondent Martinez would be a part of the final selection without any objections.

Furthermore, respondent Lawrence appointed all 7 members of the search committee in secret and by not allowing other board members to attend the meetings, it assured that these handpicked chosen few would be able to deliver respondent Martinez as the top candidate of choice.

 

Fourth Cause of Action

The Abuse and Violation of Executive Session of the Open Meetings Law

  1. Public Officers Law, Article 7 section 105 Conduct of executive session state

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: a. 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.


Petitioners are alleging that respondent Lawrence has repeated abused and violated the Open Meetings Law provision of conducting public business in executive session, by conducting all business related to the hiring of personnel in complete secret, despite the business being performed and discussed no being  a part of the exemption category.  There are search committees meetings, executive board committee meetings and general board meetings, where respondents went into executive session but did not discuss any aspect of the exemption rule, but conducted business that should have been done in the open.  This was to keep the community completely in the dark concerning all of the decisions that were made leading up to the selection and election of respondent Martinez.

 

It also hid all of the allegations of improper conduct, procedures and process raised by various members of the board in regards to the selection process and assured respondent Lawrence that respondent Martinez would be chosen, because there were no outside eyes reviewing this entire process.

Fifth Cause of Action

Voting in Secret

According to Corporation Counsel Opinion No. 9-91, all community board votes including the election of officers must be conducted by open ballot, where each Board member’s vote is recorded and made public.

 

Petitioners allege that Respondents have been engaging in secret ballot voting for the voting of the Executive Board officers, the search committee results and the voting of the District Manager by the general board. This to  keep the community in the dark and to quell the fears of the board members who are concern that there will be repercussions for how they vote.

Sixth Cause of Action

Refusal to Post the Ad in Newspaper for District Manager

 

According to CB9 Bylaws Article 11.1 (b) Public notice of the availability of the position of district manager shall be made in the local news media, by notification of the community organizations and by other appropriate means.  Such notice shall provide sufficient opportunity for interested persons to apply.

 

Respondents refused to place an ad in the paper for the District Manager position.  There were several meetings, when the general public was allowed to be a part of the 1st search committee’s process, where respondents promised that an ad would be placed in the local papers, but this never occurred.

 

Petitioner allege this posting of the ad was not done, so that full range of potential candidates could not apply and thus not pose more of challenge to place respondent Martinez as the District Manager.

Seventh Cause of Action

Refusal to Give Notice of Meetings

Public Officers Law, Article 7 (105) “Conduct of executive Sessions”, states, that 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.  Article §104. “Public notice” describes the conditions to which an open meeting must be conducted:

 

Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting. 2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto. 3. The public notice provided for by this section shall not be construed to require publication as a legal notice. 4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations. 5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body's internet website.

 

All of the Election committee meetings and all of the 2nd search committee meetings were conducting in complete secret and no notification was given to anyone about these meeting.  Not even when respondent’s own board members inquired about getting notification of these meetings, were they told about them.

Eight Cause of Action

The Null and Voiding of the 1st Search Committee results.

 

Petitioners allege that respondent Lawrence organized to null and void  the 1st search committee results because respondent Martinez was not chosen as one of the final three candidates to be presented to the Community Board.  This action was done in violation of the Open Meetings Law because it was carried out in an Executive session, which does not cover voiding of procedural issues.

On April 20, 2016, without any prior notification to the community, respondent Lawrence took the entire community board into “executive session” and conducted public business in private; to null and void the 1st Search Committee’s work.  In fact, during the executive session the board elected not to disclose the information of the 1st committee candidates resumes to the board members, despite that being the rationale for going into the executive session. 

Ninth Cause of Action

 The Appropriation of Public Moneys within an Executive Session

According to Public Officers Law, Article 7 (105) section 1. states in an executive session “..that no action by formal vote shall be taken to appropriate public moneys. (emphasis added)

 

On July 18, 2016, at respondent CB9 Executive Committee meeting went into Executive session and voted to make to make a recommendation to pay respondent Martinez $120,000 to the board.  The $120,000 suggest salary, was not based upon any prior experience or education of Carmen Martinez, but was based purely on the fact that instead of hiring four people they could hire three people and thus pay Carmen this salary.

 

Additionally not only is the appropriation of public moneys not allowed to be voted upon in an executive session but the voting of a salary is not one of the exemption categories which allows public bodies to be enter into executive session.  Furthermore there was never any discussion or disclosure regarding Ms. Martinez professional or academic history.

 

On July 28 , 2016 Respondents sent around an agenda, to have a special meeting of the general board with the intention to again enter into an executive session to appropriate public moneys by voting on the proposed salary of $120,000 for Respondent.  The agenda states “Executive Session (Discussion and vote for District Manager’s Salary)” (Attached as Exhibit Q)

Tenth Cause of Action

Misappropriation of Public Funds

Petitioners allege that the recommendation of $120,000 for the salary of respondent Martinez is a misappropriation of funds. If respondent Martinez were to get $120,000 she would be the  third highest paid District Manager in Brooklyn, just behind Gerald Esposito, from Community Board 1, who has 39 years of experience and Dorothy Turano from Community Board 18, who has 25 years of experience.

 

 Not only does Ms. Martinez have a criminal record of stealing 14 years of time and other things, to which she was removed from her position, but by respondent Martinez own words she only has 3 months of volunteer work as an office worker at a Community Board office.  Clearly just these two conditions alone would not warrant Ms. Martinez the right to be demanding or getting top salary for a newly appointed position. 

 

The salary range of Community Board District Managers are $59,000 to $138,000, where the top two salary have person’s working satisfactory for over 25 years.  Once taken into consideration unsatisfactory behavior of respondent’s employment history, and her lack of experience working in a District office it is clear that respondent should be offered so much money.

 

Petitioners make the claim that the Executive Board is misappropriating funds because they did not consider respondent Martinez’s employment or educational background but based it their ability to pay respondent Martinez one of the highest paid salaries for a District Manager in New York City.   They are also not appropriating the funds correctly where they could be hiring four staff instead of just three. 

 

Petitioners allege that respondents are only offering respondent Martinez the top salary because she is a close friend of Borough President Eric Adams and if she didn’t have this connection, the Executive Board would have recommended a fairer and more reasonable salary.

 

Also it is clear that respondents were attempting not to even have the board members make the salary determination but were going to do it behind closed doors, until petitioner Boyd stood up in a open general meeting and disclosed the lies that the board members had stated during the executive board committee meeting that the city is the ones who decide the salary and not the board.

Eleventh Cause of Action

Other Violations

There are also other violations that have occurred in connection to the entire process of hiring a District Manager.  (1) None of the minutes to executive sessions have been submitted to the public within the required time frame and some not at all; (2) no proper notification of intended executive sessions was given to the public including the required agenda; (3) executive sessions were not conducted as a part of open meeting; (4) after the end of the executive sessions the public was not informed as to the decisions made in the executive session; (5)and there was a lack of a voting procedure done in determining the final three candidates of the 2nd Committee.

Twelfth Cause of Action

Declaring Null and Void CB9’s Decision to Hire Carmen Martinez as District Manger.

Paragraphs 1 through 100 are repeated as more fully alleged herein.

Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.

By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, declaring Null and Void Respondents vote to hire Carmen Martinez done on June 28, 2016.

 

Voiding of 2nd Search Committee’s final three recommendations

The courts should void the decision of the general board because the search committee final three recommendations were created by the 2nd search committee engaging in unlawful behavior and have violated the law by the following acts; (1) not allowing Community Board members to attend the 2nd search committee meetings; (2) not notifying either the community residents or the board members of the meetings; (3) not conducting the meetings as an open meeting; (4) not engaging in lawful voting practices, which are the only form of voting allowed to make final determination and decision in committees; (5) and not producing the minutes of the “executive session” within the required time frames.

 

The courts have cited, variously; the establishment of bad faith; acts intended to violate or evade the law; violation of OML; intent to minimize public awareness of political actions and decisions; patterns of violations of law; discouraging attendance at public meetings; lack of quorum; and failure to provide proper notification, all as grounds upon which to void the actions of governmental agencies.

What is crystal clear is that respondent Lawrence knew the Open Meetings Law and entering into executive session, which includes; (1) notification of public of the intention of performing an executive session, (2) the need to have  the executive session apart of an open meeting;(3)the requirement to present the findings and decisions at the end of the meeting to the public; (4) the need to have quorum to enter into an executive session; (5) conducting an open vote, (6) allowing all board members to attend the executive session; (7) discussing only the topic of the agenda during the executive session; because when he positioned the CB9 board to fire former District Manager Pearl Miles on October 27, 2015, he adhered to all of these rules and regulations.  His subsequent behavior thus showed his deliberate acts to circumvent, violate and evade the law and to the lead the other board members and the entire board to do the same.

 

 The courts have upheld that Civil service hiring is void if significant requirements are not followed i.e.

(Mark v. Department of Civil Service, 91 Misc. 2d 523 (Supreme Court Kings County 1977))  “It is in the interests of justice to maintain the status quo rather than make permanent appointments which may not be recalled, even if it is ultimately determined that they were made in error ( Matter of Wolff v Hodson, 285 NY 197; (Matter of Canarelli v New York State Dept. of Civ. Serv., 44 AD2d 645). Indeed, the Department of Motor Vehicles has requested that the Department of Civil Service not take any action to make appointments prior to a final determination on the merits of petitioner's allegations.

(McCluskey v. County of Suffolk, 9 Misc. 3d 1106(A) (Supreme Court Suffolk County 2005 Plaintiff claims that the college did not comply with Civil Service Law § 35 [i] which governs the process used for establishing qualifications for full-time faculty positions. Plaintiff contends that the college did not follow the criteria set forth in the statute for establishing the qualifications for a position, and further, failed to properly file the qualifications with the Civil Service Commission and with the commission or officer to which the certification is made.

 

Ensley v. New York City Dep't of Personnel, 173 Misc. 2d 1035 (Supreme Court NY County 2007) Respondents are directed to cease making provisional appointments for the Caseworker positions, terminate all provisional appointments made on or after May 10, 1996 and replace them with candidates from the Merged List, and to make all further appointments for the Caseworker title from the Merged List until its exhaustion.

Thirteen Cause of Action

Requesting an In Camera Inspection

Granting a request for an In Camera inspection of Ms. Witherspoon employment history from April 2015 to present.

Paragraphs 1 through 109 are repeated as more fully alleged herein.

Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.

By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, allowing for an in Camera inspection of Ms. Witherspoon’s employment of 2016.

 

Petitioner Thomas, as a board member is entitled to all pertinent information regarding the staff members that are under her jurisdiction.  According to the New York City Charter Chapter 7 article 2800 section g states

Each community board may employ such other assistants as it may require within budgeted appropriations for such purposes or funds contributed for such purpose. Any funds appropriated by the city to enable the community boards to conduct their duties and responsibilities pursuant to this chapter shall be allocated directly to each board subject to the terms and conditions of such appropriations. The basic budget appropriation for the personal service and other than personal service needs of each community board.

 

 As Ms. Witherspoon is/was employed as a Community Assistant to CB9, as a member of CB9, petitioner Thomas has the authority to vote in the hiring and firing of personnel, she also has the right to have access to determine if personnel have been treated fairly, is currently working somewhere else and is actually on medical leave as it has been reported by the respondents. 

 

However, to protect Ms. Witherspoon’s privacy but at the same ascertain the truth regarding the serious accusations that have been made in this petition, Petitioner Thomas, should have access to these records via an in Camera inspection.   Also this inspection would shed light on serious accusations that are being made against respondents, in particular the removal of Ms. Witherspoon and the leaving of the District Office completely without staff, despite having a $200,000 budget for personnel.

It could show that respondents have either acted unlawfully and negligently or were just faced with a difficult situation, not of their own doing.

Fourteen Cause of Action

Seek a Subpoena for the Records, Emails , Tape Recordings and Minutes of Community Board.

Paragraphs 1 through 117 are repeated as more fully alleged herein.

Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.

 

By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, granting a subpoena for the records, emails , tape recordings and minutes of Community Board for the entire year between September 2016 and the present. This includes correspondence and emails  between board members, the district office, Borough President Eric Adams office, Corporation Counsel etc...

Petitioner Thomas is seeking this request as a board member of CB9 who should have access to all documents pertaining to the running of the Community board including all correspondence, emails etc. pertaining to the selection and salary appointment of a District Manager.

 

Petitioners are also making these requests for documents under C.P.L.R. Section 408 provide “Leave of court shall be required for disclosure” in summary proceedings. Leave must be granted under C.P.L.R. Section 408 where (1) the moving party has asserted facts to establish a cause of action; (2) a need arises to determine information directly related to the cause of action; (3) the requested disclosure is tailored to clarify the disputed facts; (4) no prejudice will result from granting disclosure; or (5) any prejudice can be alleviated by a court; and (6) the court can structure disclosure so that the litigants' rights are protected. Courtney House, LLC v Starzecpyzel, 27 Misc. 3d 1239A (Civil Court N.Y. Cty 2010); New York Univ. v Farkas, 121 Misc 2d 643, 468 N.Y.S.2d 808 (Civ Ct, NY County 1983).

 

There are a number of accusations that have been made in this petition and in order to verify and prove them the required documents of CB9 should be provided.  Additionally under the FOIL law, these documents should already be made available to the public and other board members, but given the history of non-compliance of respondents to FOIL, (which has been fully documented within Boyd vs Community Board 9 index #1835) petitioners are requesting court intervention.

According the Freedom of Information Law Article 78 section 2.

 

Each agency shall, in accordance with its published rules, make available for public inspection and copying all records  Section 88 section 2 (a) states bills and amendments thereto, fiscal notes, introducers' bill memoranda, resolutions and amendments thereto, and index records;(b) messages received from the governor or the other house of the legislature, and home rule messages;(c) legislative notification of the proposed adoption of rules by an agency;(d) transcripts or minutes, if prepared, and journal records of public sessions including meetings of committees and subcommittees and public hearings, with the records of attendance of members thereat and records of any votes taken; (e) internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law; (f) administrative staff manuals and instructions to staff that affect members of the public; (g) final reports and formal opinions submitted to the legislature; (h) final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the legislature;(i) any other files, records, papers or documents required by law to be made available for public inspection and copying.

 

Fifteen Cause of Action

 Granting a Request for a Lawful Procedure and Process to be Determined, Planned and Carried Out for the Selection, Hiring and the Appointing of a Salary for a District Manager of Community Board 9.

Paragraphs 1 through 123 are repeated as more fully alleged herein.

Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.

 

By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, request for a  lawful procedure and process to be determined, planned and carried out for the selection process, hiring and the appointing of a salary for a District Manager of Community Board 9.

Due to the serious violations that have occurred and continue to occur, it is imperative that the court intercede on behalf of the community and board members.  It is clear by the actions of respondents Lawrence and Frederick, that following the guidelines of law is not within their capabilities and thus a procedure and process needs to be created, overseen of the Court to ensure that the law is followed and community board members and community residents are not harmed by the choices by the hiring of the District Manager.

 

The current state of fear, lies, and illegal behavior has left this board in shambles, with a runaway Chairperson who picks and chooses when he will obey the law and when he will not.  This has left this Community board crippled, with no support staff employed to help board members with their duties and responsibilities, despite having $200,000 budget at the District Office.   It has also left the board members themselves very vulnerable as to how to perform and has placed them in jeopardy of having their work overturned based upon the whim of respondent Lawrence.  A complete lack of trust has not been displayed, where nothing that respondent Lawrence says can be trusted.  Nor are any of his actions to be considered lawful, despite him stating they are.

Sixteen Cause of Action 

 Declaring null and void CB9’s voting of Officers to the board done on June 28, 2016 and new Election for Officers take place.

Paragraphs 1 through 128 are repeated as more fully alleged herein.

Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.

 

By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, request for the election performed on June 28, 2016 of the CB9 be null and void and a new Election for officers take place, because the entire election process was performed in secret.  There were no notifications of any meeting, where decisions were made and the vote itself done in via secret ballot.

 

 On April 20, 2016 an ad-hoc election committee had been formed to determine the officers of the new board.  However, there was not noticed given to the community or to the board members concerning these committee meetings.  No minutes to these meetings were created or distributed to the board or to the community at large.

 

According to CB9’s bylaws, Article 6.2 it states that the nomination committee shall elect its chairperson.  However because these meetings were not held in public and no record has been produced, it cannot be determined who appointed the chairperson and how this occurred.

On June 28, 2016, during the voting process of the officers of the board, petitioner Boyd cited the law stating that an open ballot process must be done and cited the law contained within the Parliamentary procedure.  She stated on page 26 of guide to parliamentary procedures for NYC Community Board page 26, it states that “All community Board votes, including the election of officers, must be conducted by open ballot.  Elections may be conducted by using signed paper ballots, by roll call or by any other means by which each board members vote is recorded and can be made public.  (Corporation Counsel Opinion No. 9-91)”

 

However, what respondents did was hand out an ballot, had the members vote on it, but they refused to disclose the members vote.  Thus the election was done via a secret ballot process.

 

Because it is clear that the entire process of the election of Officers was done in violation of the law which states clearly that all business of the community boards must be done within the public eye and there are no exceptions to this rule governing the process of the election of officers of the board, that the election should be voided.  Also Executive boards are very important for they govern the board thus making sure a fair and equitable process was created allowing all board members and community residents to view and participate in this process is imperative.  Maintaining an open government at it fundamental level, is imperative if a democratic system is to exist with our society.

 

Awarding of Attorney Fees

 Petitioner asserts that this is a meritorious lawsuit, which will allow the community the opportunity to review and gain information concerning decisions being made by CB9 and CB9 members.   Also in light of the evidence produced so far, this article 78 allows the detection of unlawful behavior performed by public officials, to which the courts have stated is a right of the public “to know”.  This lawsuit is also requesting corrective measures to decisions and behaviors that have caused harm to community residents and community board members by the illegal behavior of Respondents. As well as seeking judgments to ensure that the future will contain a more accountable agency body to the public. However, the community that Petitioner is representing is a moderate income community, with the average income at $40,000 and thus resources for such lawsuits are limited.  The awarding of attorney fees and legal fees, will continue to allow the residents of CB9 to appeal to the courts for the enforcement of the law. In Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994), reversed on other grounds 87 NY2d 124, 637 NYS2d 961, the courts made the determination "it is very often the possibility of recovering costs and attorneys' fees that gives private citizens like plaintiffs the impetus they need to bring meritorious lawsuits to enforce the Open Meetings”.