Sunday, September 9, 2012

An Interesting Development

There's been an ongoing kerfuffle about Chief Ellis Richardson's contract, the crux of which is Richardson's desire to have the City continue to pay in full for his health insurance after he retires. In the latest development, it seems that his current contract, which was put into place in 2005, has been judged to be invalid by city attorney Carl Whitbeck, because it was signed by Cappy Pierro, then Police Commissioner and also mayor's aide and now an alderman from the Fifth Ward, but it was not signed by the mayor or approved by the Common Council. Tom Casey has the story in today's Register-Star: "City attorney: Chief's contract invalid." 


  1. A new comment by "Baffledinhudson" following the same Register Star story deserves our attention:

    "Another interesting fact that just came my way is that the attorney given the opinion Mr. Whitbeck is also an Assistant District Attorney under Paul Czajka isn't their a big conflict going on over the way HPD is handling cases with the DA's Office? and isn't this a huge conflict? "

    I haven't worked out the exact conflict yet, but maybe someone else will give it a shot.

    My default assumption about Hudson is that conflicts of interest abound. But where Mr. Scalera is involved, conflicts of interest are evidently his way of doing business.

    Did Mayor Scalera knowingly leave Chief Ellis's contract unsigned? If so, then what was the angle?

    Wasn't it the mayor's duty to submit the contract to the council?

    Who was the mayor's legal advisor in 2005? Was it Mr. Whitbeck? Was it already Ms. Roberts? Someone else? (Of course I refer to §C9-1.)

    Was the incompletion of the Ellis contract merely an oversight, or was it the usual arrangement between the mayor and his cronies? To understand how this could have happened, follow the same sequence in another case.

    In what may be a parallel example, I'd recommend a review of the history of Guy Falkenheimer's leasing of much of the city-owned portion of the riverfront for his two businesses, "The Spirit of Hudson" and "Hudson-Athens Watertaxi."

    Initially, "The Spirit lease" transpired solely between the mayor and the business-owner, and required a mere $150 a year in rent for the first 5 years.

    But whether privately arranged in the mayor's office or endorsed by the entire council, that lease was entirely illegal. The presence of "The Spirit of Hudson" at the city-owned dock was in violation of the Public Trust Doctrine, an arrangement which properly required an act of "alienation" from the state legislature. That permission was never sought and never granted.

    In the end the Common Council foolishly handed this private business operator a legitimate lease last November, along with a taylor-made zoning amendment and a new enforcement role as city "Harbormaster."

    (These ongoing issues richly deserve the public's attention, not least because significant aspects of Harbormaster Falkenheimer's operation are still illegal under state law and even within the terms of his own lease! Furthermore, to whom shall we report the Harbormaster's damage to our publicly-owned dock? To him? No conflict of interest there!)

    So when it comes to Mayor Scalera's other oddly-handled contracts, was it the eventual and automatic compliance of the Common Council which he and his cronies would count on gaining in the end?

    "Baffledinhudson" had one other suggestion in the newspaper's comment thread which I wholly endorse:

    "[T]he common council should launch an investigation into the signing of [Ellis's] contract and who knew what when and why ..."

    If Mr. Scalera is simply sitting out a term or two before he can regain the Office of the Mayor (as is his custom), then this is precisely the time to be scrutinizing his former conduct while in office.

  2. unheimlich: You ask, "Who was the mayor's legal advisor in 2005? Was it Mr. Whitbeck? Was it already Ms. Roberts? Someone else?" As the comment you quote makes clear, the city attorney in 2005 is now the city judge--Jack Connor.

  3. Gossips, I wouldn't normally accept the word of an unknown commenter at the Register Star no matter how "clear" his claim. But I do trust that you know/remember this information independently.

    Among other things not evident to those who weren't witnesses, the circumstances around the purchase of the city's floating docks are difficult to parse.

    I recall that the money for the poorly designed floats intended for kayak and canoe use came in a grant from the state.

    But the river-facing floats used by Falkenheimer were installed at the same time, and are identical to the floating docks meant for kayakers.

    Without having to rely on anonymous comments at the Register Star, is there any way of finding out whether the floats which Falkenheimer uses for his businesses - including those floats he uses over and above the space alloted in his lease! - were paid for with the grant money intended for the kayak floats?

    1. If memory serves, unheimlich, the floating docks in the former ferry slips were paid for with a grant secured in 2009. I don't recall the granting entity. It was, I think, a fund created for river projects during the Quadricentennial. The money for the extension to the city dock came from a different source--a member item from Steve Saland, as I recall.

  4. Thanks for the information, Gossips.

    For anyone curious about Falkenheimer's lease - which does not offer our public park as a site for his advertising signage; that says nothing about his use of city property for a shack; and which limits his use of dock space to less than what he's now taking - the lease appears in the Common Council's Minutes for 9/20/11 around page 165:;/content/Minutes/View/350:field=documents;/content/Documents/File/819.pdf

  5. I should add that the legality of the use of the city dock for private purposes is not sufficiently dealt with in the wording of the lease itself.

    Whether or not that vagueness was an intentional feature of The Spirit of Hudson lease, the Public Trust Doctrine is violated every day at the Henry Hudson Waterfront Park.

    Other than having fellow residents take some small interest in the matter - basically, by not wishing to be further exploited by Hudson's intractable cronyism - I really don't know what it will take to get the aldermen to notice.

    For politicians and public alike, the following link to a publication by the New York State Office of Parks, Recreation and Historic Preservation is all you'll need to know on the subject.

    "Handbook on the Alienation and Conversion of Municipal Parkland in New York."

  6. With Gossip's help, I've located the reference in the Register Star identifying the grantor for the city's newest docks:

    "The docks and the kayak launch were paid for in large part by  $250,000 in state funding secured by State Sen. Stephen Saland [in February 2009]."

    When a state grant was used for the development of Falkenheimer's docks, certain restrictions may have applied which would automatically require an act of alienation from the state legislature for the property to be leased. 

    The maiden voyage of The Spirit was in July 2003. An informal search of the Common Council Minutes since January 2002 turns up no original lease for Falkenheimer's operation (although a June 2006 acknowledgement of a then existing lease with Falkenheimer arose in relation to his liquor license: apparently he resented the proposal that the city sell beer on Flag Day as that might compete with sales of alcohol from his boat.)

    If it can be demonstrated that Falkenheimer's original lease was as illegal as Chief Ellis's contract appears to have been, then last September's issuance of The Spirit of Hudson lease by the Common Council may have been illegal due to restrictions imposed by the fact that state money paid for the docks Falkenheimer uses (/abuses).

    Does anyone believe for a minute that these issues have ever been considered until now?

    Folks, are we ever going to clean up this stink hole known as Hudson? I realize that this would probably require some sense of community (horror of horrors!) but c'mon, a little help here ...

  7. Falkenheimer's lease under "17, Additional Duties of Tenant," states that "Tenant shall place a sign on the park property providing information as to how it can be contacted to perform these [dockmaster] duties, and include the phone number of President Guy Faulkenheimer."

    However, no sign at the waterfront park specifies that a "dockmaster" exists, nor what the dockmaster's name might be. (Ditto "Harbormaster," an appointment which followed the lease by two months).

    The phone number to buy boat tickets is plastered everywhere.

    Again, Falkenheimer's entire operation is likely illegal, which will require some public attention. Can we at least have a public conversation about this. When you bring these things into the light of day and the public shows that it doesn't give a damn, then what message does that send to crooked types?

    (Sorry for the crummy sentence construction earlier.)

  8. As threatened, today I carried out my FOIL search on the leasing of the city-owned dock at the Henry Hudson Waterfront Park.

    Although the Common Council "shall have exclusive power to lease to property belonging to the City" [sic] (§C12-23), the only lease agreement ever authorized by the Common Council for "The Spirit of the Hudson" began running in June 2011.

    So even though "The Spirit of the Hudson" has operated from our waterfront since 2003, before June 2011 there was only a bogus lease signed by Mayor Scalera alone.

    But even the fake lease expired in May 2008, which means that during the summers of 2008, 2009 and 2010 there was no lease at all, not even an illegitimate one! (That should give anyone pause who ever believed Roberts' alleged worries about liability issues at Furgary.)

    The Falkenheimer story makes a very interesting parallel with the Ellis contract. I hope that people can see that, although I'm not so sure.

  9. So does that mean ,for 2008,2009 and 2010.,That there was total liability on the citizens of Hudson for the Spirit to dock here and do buissiness?,like they are saying about Furgary's liability is on the citizens of Hudson.Which is the same thing they said, to demo ccClub.?What kind of insurances does Spirit of Hudson have to carry ,to dock and do buissiness here,even with thier current June 2011 lease?

  10. Between the 2003 lease - which was likely seen only by Mayor Scalera and his tenant Falkenheimer - and last year's lease authorized by the Common Council, very little has changed in the wording from the earlier document:

    "18. Tenant shall maintain a $1,000,000 insurance policy and name the City as an additional insured on the policy."

    It's possible - even probable - that Falkenheimer voluntarily maintained his insurance during those years when there was no lease. He surely continued his rent payments of $150/year. Why wouldn't he?

    (The Furgarians had worked out a similar liability package, but the city dismissed them as "squatters." In a sense, I suppose that Falkenheimer was perceived as somehow "grandfathered" at the waterfront park, whereas the Furgarians who had been at North Dock for 80+ years were not.)

    Now that we know that Falkenheimer never had a lease before last year, it seems very like Chief Ellis not having had a contract. But the shift in circumstances over the leasing deal may have more serious implications for the city.

    The true legacy of our former mayor is looking to be more and more problematic all the time.

    As a postscript, we finally know that the state OGS deemed everyone as squatters in North Bay who claimed to own land, or "evidenced deeds" in A.G. Cuomo's formulation. The judgement against the Furgarians was a judgement against the proprietors, their heirs, and anyone who traded in those original deeds, INCLUDING THE CITY. If all the deeds were bogus, then all were "squatters" in North Bay. (To contradict Cuomo, the city never even "evidenced" a deed for the land beneath Furgary; it was all a bluff.)

    But you'd never have concluded any of this listening to the mayor and our less somnambulant legislators. To be fair, probably none of them really understood the case, but merely satisfied themselves by quoting the wrongheaded Cuomo.

    It's all so ugly and stupid.

    Thanks for asking though.

  11. I meant to say, Chief Ellis Richardson.

    I met the chief only once, and I am sorry for his predicament which may not end well for him.

    I am not sorry for Mr. Falkenheimer's predicament. If he refuses to meet his lease obligations even when the lease is authentic, then it's high time that he and his enablers in City Hall - past and present - be challenged.

    As this story of corruption unfolds (in a comment thread for the time being), notice which politicians sided with the public early on, and which ones only followed when the wind was right.

  12. FOIL requests have been submitted to the state, and so the waiting begins.

    (FOIL requests to the city were immediately honored by our excellent clerk.)

    I must give a plug to Senator Saland whose office has been quite helpful on this issue, along with several state offices and their respective legal staffs.

    At some point it might be helpful if fellow residents took an interest too. It never hurts to ask your alderman, "what's all this about?"

  13. To stick with the waterfront, the EDAP grant which was secured by Sen. Saland in 2009 was for $250,000. The money was to be used to "expand dock facilities" and to "construct concession facilities."

    An additional $38,000 grant went for the floating kayak docks, with $12,800 more pitched in by the city from its general fund.

    Our official Newspaper of Record reported on that here:

    The total so far is $300,800.

    But what "concession facility" was intended in the EDAP grant? Where did that money go? Is there a time restriction on its use?

    The city bathrooms at the waterfront park were a different deal, procured through Congress and including city and HDC funds to the tune of $400,000!

    The Register Star reported on that here:

    There may be a perfectly reasonable explanation as to how this money was, or is meant to be, spent. I am more focused on the restrictions that came with the funding, while I'm sure that somebody else will want to delve into the whereabouts of the money. (Goodness, you couldn't think that I meant the public! I was thinking more of the agency that administered the grant).

  14. and when The Spirit is docked - the Harbormaster becomes bartender at the waterfront park - many hats down there