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Cape Vincent meeting with attorney under scrutiny for Open Meetings violation

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CAPE VINCENT – Before a public hearing Monday about the Cape Vincent Wind Farm proposal, the Town Council held a private meeting, seeking advice from an attorney, that appears to be a violation of the state Open Meetings Law.

The matter was reported to the Times by Dennis W. Pearson, who ran unsuccessfully as a Democrat for an open seat on the Town Council in the November election. Mr. Pearson, who was alerted by multiple residents by telephone about the meeting, drove to the town office on Route 12E and observed about 15 cars in the parking lot about 4 p.m. He walked in and found all four board members, including Supervisor Urban C. Hirschey, meeting with Paul J. Curtin, an attorney representing the town in the Article X proceeding held by the state Public Service Commission on the Cape Vincent Wind Farm. There were about five or six other people in the room, according to Mr. Pearson.

“There were a variety of others that weren’t members of staff or associated with government,” he said, adding that Councilman John L. Byrne told him to leave immediately. “They threw me out and claimed the meeting was an attorney-client privilege. The reason I’m upset about this is the town has caught them more than once hosting private meetings with a quorum.”

Later that evening, the board and the attorney attended the public hearing at Cape Vincent Elementary School along with more than 100 town residents; BP Wind Energy still hasn’t sold the Cape Vincent wind project to another developer, which it had hoped to do by 2014.

Though municipalities have the right to hold closed-door meetings to seek advice from an attorney, they cannot legally do so if other members of the public are present, according to Robert J. Freeman, executive director of the state’s Committee on Open Government. The Open Meetings Law refers to extra members of the public as “strangers” who do not represent the client.

“As soon as you have someone else in the room, it’s not attorney-client privilege anymore,” Mr. Freeman said. “If there were other people present, the gathering should have been proceeded with notice and been open to the public. It should be a public meeting in which anyone should have the right to be present.”

Mr. Byrne said that he was not aware the board’s meeting Monday could be a violation of Open Meetings Law. He declined to say what was discussed.

“Our attorney was the one who had us get together, and he said it was protected under attorney-client privilege,” he said. “We followed the instructions of our attorney, and to the best of my knowledge we are abiding by all open meeting laws.”

Mr. Freeman, who was informed by Mr. Pearson about the matter, said the Town Council should be particularly sensitive to the Open Meetings Law because of the controversial nature of the proposed 124-turbine project.

“I understand that wind farms represent a matter of controversy in Cape Vincent, but the fact that something is controversial is not a basis for closing a meeting or one of the grounds for entry into executive session,” he said.

Lawsuits may be filed against municipalities that violate the Open Meetings Law, Mr. Freeman said, but the time and money involved often make doing so impracticable. By informing the public of such violations, however, residents often are spurred to hold local governments more accountable for their actions, he said.

To that point, Mr. Freeman quoted a famous line made by the late Supreme Court Justice Louis D. Brandeis about 100 years ago.

“He said sunlight is the best disinfectant,” Mr. Freeman said. “Either good things start happening, or bad things stop, when you tell the world what’s going on. Hopefully this will raise some consciousness and sensitivity, encouraging board members to take a second look at the Open Meetings Law.”

A call made Saturday to Mr. Hirschey was not returned.

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