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    1 of 2

    Laus and tedc:

    I wish you all the luck in getting records from Pickup and the City of Rye.

    The City of Rye has shown in the past that they will do anything and everything to conceal records that are damaging to them even if it means breaking the law.

    When the City of Rye received the highly critical 2009 audit, they already knew about the problems at Rye Golf Club given the call for a criminal investigation by the Rye cops in 2009 with regard to the Rye Golf Club, specifically City Clerk/Rye Golf Club Records Access Officer, illegally withholding records and then lying about it.

    Police Commissioner Connors did not do a criminal investigation into false sworn affidavits even though his own cops were asking for a criminal investigation.

    Here is a letter from 2009 to Connors:


    April 14, 2009

    Police Commissioner William Connors
    City of Rye Police Department
    21 McCullough Place
    Rye, N.Y. 10580

    Dear Commissioner Connors:

    On May 6, 2008, the Rye Police Association submitted this E-Mail FOIL request:


    From: t@mac.com
    Subject: E-Mail FOIL Request Re: Facility fees paid 1/1/07 thru 5/6/08
    Date: May 6, 2008 12:01:40 PM EDT
    To: syandrasevich@ryegolfclub.com, dnodarse@ryeny.gov, clerk@ryeny.gov
    Cc: t@mac.com, c@aol.com


    REQUEST FOR RECORDS BY E-MAIL
    FOIL REQUEST_

    Dear Records Access Officer of the Rye Golf Club:

    (1) Please email the following records if possible:
    All records of any event held by or on behalf of former City of Rye Clerk Sue Morison as well as all facility fees paid for any event held at or on behalf of former City of Rye Clerk Sue Morison through May 6, 2008.
    (2) Please advise me of the appropriate time during normal business hours for inspecting the following records prior to obtaining copies:
    All records of any event held by or on behalf of former City of Rye Clerk Sue Morison as well as all facility fees paid for any event held at or on behalf of former City of Rye Clerk Sue Morison through May 6, 2008.
    (3) Please inform me of the cost of providing paper copies of the following records:
    All records of any event held by or on behalf of former City of Rye Clerk Sue Morison as well as all facility fees paid for any event held at or on behalf of former City of Rye Clerk Sue Morison through May 6, 2008.

    (4) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

    (5) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

    (6) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

    If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: (914).

    If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.

    Name: Rye Police Association
    Address: P.O. Box 246 Rye, N.Y. 10580
    E-mail address: p@aol.com

    2 of 2


    On June 6, 2008, City of Rye Clerk Dawn Nodarse responded:

    From: dnodarse@ryeny.gov
    Subject: RE: E-Mail FOIL Request Re: Facility fees paid 1/1/07 thru 5/6/08
    Date: June 6, 2008 4:34:58 PM EDT
    To: t@mac.com, syandrasevich@ryegolfclub.com, clerk@ryeny.gov
    Cc: c@aol.com


    I have been informed by the Golf Club that after a diligent search of their records, there are no documents that are responsively to your request.

    Dawn F. Nodarse

    On June 7, 2008, the Rye Police Association appealed City Clerk Nodarses response to the Rye City Council.

    On June 18, 2008 the Rye City Council denied our appeal. The Rye City Council denied the appeal based on the basis that no public documents exist. This was in contrast to what City Clerk Nodarse has written in her denial.

    On June 20, 2008, City Manager Shew wrote to the Rye Police Association citing yet a third reason for the denial of our FOIL request. Shew wrote that our appeal was denied based on Public Officers Law 87(2)(g).


    Public Officers Law 87(2)(g) states the following:

    2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

    (g) are inter-agency or intra-agency materials which are not:
    i. statistical or factual tabulations or data;

    ii. instructions to staff that affect the public;

    iii. final agency policy or determinations; or

    iv. external audits, including but not limited to audits performed by the comptroller and the federal government.


    Up until this point Nodarse and the Rye City Council had not cited this as the reason for the denials.


    On July 21, 2008, the Rye Police Association filed an Article 78 for the denial of our appeal.

    On Aiugust 12, 2008, Rye City Manager Shew, Rye City Clerk Nodarse and Rye Golf Club Manager all signed sworn affidavits in opposition to our verified petition.


    In her affidavit City of Rye Clerk Nodarse wrote that on June 6, 2008, she communicated to Mr. C that she was informed by the Rye Golf Club that after a diligent search of their records, there were no documents responsive to the aforementioned FOIL request.

    City of Rye Clerk is the Records Access Officer for the Rye Golf Club. She had first hand knowledge that records did in fact exist both in her office as well as at the Rye Golf Club.

    On November 17, 2008, the Rye Police Association learned that not only did records exist for this event, City Clerk Nodarse created them and shared them with the Rye Golf Club. In addition, City Clerk Nodarse received an invoice from the Rye Golf Club for this event.

    City of Rye Clerk Nodarse intentionally lying about records not existing in our view is a violation of the public trust as well as her oath of office, misconduct and a violation of the NYS Public Officers Law.

    In our view Rye City Clerk lied on a sworn affidavit and that this is a violation of Penal Law Article 210.35: Making an apparently sworn false statement in the second degree.


    210.35 Making an apparently sworn false statement in the second
    degree.
    A person is guilty of making an apparently sworn false statement in
    the second degree when (a) he subscribes a written instrument knowing
    that it contains a statement which is in fact false and which he does
    not believe to be true, and (b) he intends or believes that such
    instrument will be uttered or delivered with a jurat affixed thereto,
    and (c) such instrument is uttered or delivered with a jurat affixed
    thereto.
    Making an apparently sworn false statement in the second degree is a
    class A misdemeanor.


    The fact that Rye City Clerk Nodarse’s sworn affidavit was used in opposition of a verified petition in a Supreme Court action, Index No. 15962/08 we believe elevates the offense to violation of Article 210.40 of the Penal Law making an apparently sworn false statement in the first degree.


    210.40 Making an apparently sworn false statement in the first degree.
    A person is guilty of making an apparently sworn false statement in
    the first degree when he commits the crime of making an apparently sworn
    false statement in the second degree, and when (a) the written
    instrument involved is one for which an oath is required by law, and (b)
    the false statement contained therein is made with intent to mislead a
    public servant in the performance of his official functions, and (c)
    such false statement is material to the action, proceeding or matter
    involved.
    Making an apparently sworn false statement in the first degree is a
    class E felony.


    The fact that Rye City Clerk’s sworn affidavit was sworn to by Nodarse under penalty of Perjury, we believe constitutes a violation of article 210.05 of the Penal Law Perjury in the third degree.

    210.05 Perjury in the third degree.
    A person is guilty of perjury in the third degree when he swears
    falsely.
    Perjury in the third degree is a class A misdemeanor.


    195.00 Official misconduct.
    A public servant is guilty of official misconduct when, with intent to
    obtain a benefit or deprive another person of a benefit:
    1. He commits an act relating to his office but constituting an
    unauthorized exercise of his official functions, knowing that such act
    is unauthorized; or
    2. He knowingly refrains from performing a duty which is imposed upon
    him by law or is clearly inherent in the nature of his office.
    Official misconduct is a class A misdemeanor.

    We are enclosing relevant documents we believe will prove what we are alleging in this document. We ask that the Rye Police Department conduct an investigation into these allegations. We stand ready to cooperate and assist with this investigation.

    We ask that we be provided with the results of this investigation as well as all results of any other agency that may be involved in this investigation. We ask that all correspondence be directed to Rye Police Association; P.O. Box 246; Rye, N.Y. 10580.


    Thank you.

    Very truly yours,

    Rye Police Association

    No matter how hard they pretend otherwise Rye City Council Members hold SUPERVISORY not ADVISORY positions. They are THE public fiduciaries, not Corporation Counsel, not City Manager, not City Clerk. Long running violations of NYS law on FOILs remain unaddressed. Two sitting council members are officers of the courts of this same state. They are required to SUPERVISE in accordance with said laws. Mr. Sack has been pretty clear on this issue. What says Mrs. Brett?

    "I've also copied four members of the city council on the situation, as it is their job to ensure the city manager carries out his duties lawfully."

    What, and now City Council is going to "start" holding Pickup accountable???????????????????????

    AND YET SOMEHOW MR. SCOTT PICKUP IS STILL EMPLOYED HERE IN RYE?????????????????????????????

    Mr. Z:
    I reposted the email to LD, it should open ok for you now. I also sent it through the ole back channel directly to you. Sorry for the inconvenience.

    To answer your questions. I was never given a page count although I requested one. The estimate I received was for 2-3 hours for redacting documents which dealt with two FOIL requests, for a total of 4-6hrs time at $65/hr.

    As far as challenging the fee, the first thing I've done is make the city aware of the law and provide them with evidence of the fact they are mis-applying the law.

    I've also copied four members of the city council on the situation, as it is their job to ensure the city manager carries out his duties lawfully.

    I am hoping the city will do the right thing–as in obey the law. That is why after two days I posted the information to make it public.

    I can appeal within an allotted time to the city attorney Kristen Wilson, who is the appeals officer; and who is cc'd in the clerk's initial response to my FOIL and, therefore, all subsequent emails; and who is paid "to respond to Freedom of Information ("FOIL") requests," for the City of Rye according to her $100,000 retainer with the city.

    It is a violation of law, 21 NYCRR 1401.7(b), for a records access officer to also be an appeals officer, for obvious reasons.

    As to your last question, again your instincts regarding a court action are simpatico with mine.

    Unfortunately, considering everything that has happened at RGC and how events have unfolded over the last few months, I think it speaks to an ever-widening credibility gap where the current chief administrative officer of the city is concerned.

    The auditor's spoke specifically about deficiencies in the bidding process for staffing in the club's restaurant, catering hall and kitchen, and in the catering operations (among other things) in their 2009 report.

    As a golf club member, that report was hard to read... knowing that the problems we've seen come to light today were red-flagged three years ago.

    For anyone who cares to become more familiar with the auditor's 2009 report:
    http://www.lausdeo10580.com/lausdeo10580/2013/01/auditors-warned-of-deficiencies-in-inventory-bidding-and-cash-flow-controls-at-rye-golf-club.html

    Bob,

    I don't have insider information. Again, read the blog. Sixth paragraph: "We emailed the city in this regard". Read the email chain. You're wrong.

    Curious Tom - I am unable to find the $65/hour fee, just a total charge. I am also unable to find anywhere in the post where a review as opposed to a copy of the documents was requested. Great that you have inside information, but how about treating those of us outside your circle a little more politely?

    LausDeo - Thank you for providing all of the background to your FOIL request. It is much more informative than a purely inflammatory headline (or snarky comment).

    When I attempt to open the link included in your post , I am taken to a zip file, but can only find XML, no readable document. Can you help with this?

    Furthering your point about the law not permitting charges for redacting of documents, recovery of costs associated with FOILS was discussed in a city council meeting during budget season. To address the delays in responding to FOIL requests, I’d asked why the City couldn’t bring on an additional staff just to get the FOIL requests out of the way and recover the incremental cost through user fees. Someone at the dais made clear that that was not permitted by law so I’m a little surprised to see this come up now.

    Setting aside my technical issue, were you given an actual page count of documentation or just the $400 proposed charge?

    So, beyond your blog posts which I find useful, what are you doing to challenge the proposed fee? Is it time to seek redress in the courts? Or would that permit the City to further delay delivery of the requested documents by stating that they could take no action pending resolution of litigation?

    Laus:

    Caveat Emptor.

    Back when Pickup was the assistant to Opie Shew, Commerce Bank determined that these two committed fraud when they charged an organization for redacting documents, the majority of which did not need any redacting.

    Of the 10% of the documents that needed redacting, Pickup didn't even do this right. Pickup released the S.S. numbers of numerous City of Rye employees with the documents he was supposed to redact but was probably too dumb to know how to do it.

    What did Connors do about what Commerce Bank said was a fraud committed by Shew and Pickup? Nothing.

    Why do you think they keep Connors around with the 211 waiver collar around his neck? To control everything he does and perhaps more importantly, doesn't do.

    Why do you think Pickup wanted to have Connors investigate RGC?

    Mr. Zahm:
    You are absolutely correct about the 25 cents charge per copy. And as per your instincts, I asked the clerk the very same question you asked, how many documents are responsive to the requests? I also inquired as to how the city arrived at the $65/hr rate they were attempting to charge.


    FOIL law says an agency can only charge "an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record." $65/hr would equal about $135,000/yr.


    Those questions were sent to the clerk, city comptroller, city mngr and city atty two days ago... still haven't heard back.


    However, all of that is a mute point, the city is not attempting to charge for making copies, which is standard procedure.


    As per an email I received from the clerk (linked in the original post on LD), the city is charging for "the cost for REDACTING the documents."


    According to Robert J. Freeman, the Executive Director of New York State's Committee on Open Gov't (COOG), who was contacted in this regard, FOIL Law establishes that an agency CANNOT charge a fee for redacting information from documents.


    Also, please note the advisory opinions Mr. Freeman shared with us, and that we shared with the city:


    FOIL-AO-18423
    "A careful reading of FOIL, §87(1)(b), indicates that the fee for photocopies up to 9 by 14 inches is limited to 25 cents per photocopy (unless a different fee is prescribed by statute; a statute, according to the courts is an act of the State Legislature or Congress), regardless of the time needed to locate, retrieve, review, REDACT or delete."

    FOIL-AO-18127
    "Based on the language of the statute, it is clear that the only fee that may be charged when a request involves photocopies of paper records up to nine by fourteen inches is a maximum of twenty five cents per photocopy; no additional fee may be charged for employee time, for search, redactions, etc."

    FOIL-AO-17953
    "If your request involves photocopies from which deletions/redactions would be made, I do not believe that the quoted provision would apply; rather, the agency would be limited to charging a maximum of twenty-five cents per photocopy, and no fee for employee time could be assessed."

    Bob,

    You are misinformed as usual. Please read the lausdeo10580.com post again and get back to me.

    The City is charging Mr. Sculti $65 per hour. This is impossible. NYS Law states that the hourly salary to reproduce a record should be equivalent to that of the lowest paid employee who can complete the task. Do the math. Surely Mr. Pickup isn't the only person in the City qualified to redact information.

    Further, the City cannot charge to redact info. It says it in the Open Meetings Law. There's an advisory opinion out on this. Again, read LausDeo10580.com (including the sourced documents).

    I also don't believe Mr. Sculti asked for copies of documents. He only asked to review them.

    Are you sure you didn't let Mayor French borrow your username and password?

    The comments to this entry are closed.