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Government Waste

Who Does Lancaster’s Town Attorney Work For?
By Gary S. Howell
Sep 6, 2006, 19:19
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On August 31, 2006, Lancaster Town Attorney Richard J. Sherwood wrote a letter to the Town Board. The purpose of the letter was to inform the board of the Notice of Appeal filed by taxpayers in Howell, et al. vs. Giza, and Town Board Members.

The lawsuit was filed under General Municipal Law ss 51, against Supervisor Giza, and Board Members Montour, Ruffino, and Stempniak. The plaintiffs, Dan Beutler, Jeff Davis, Hank Gull, Don Symer, and I, contend that the defendants wasted taxpayer funds on a study of options for a new police headquarters. The study was commissioned after the town purchased 3949 Walden Avenue with the clear intent to use it for a new police department.

If the suit is successful, the town officials will be held personally liable for the waste of taxpayer dollars. They will have to refund the cost of the study to government coffers.

The town’s insurance company refused to pay for the Board member’s defense. However, the defendants are legally using taxpayer dollars to defend themselves.

Despite rumors to the contrary, the plaintiffs are not backed by anyone and pay for their legal expenses.

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Mr. Sherwood’s letter is more of a political document than an informational one. Some of the comments made in the letter raise questions as to who he works for.

In the third paragraph, Sherwood writes:

”Obviously this action on the part of the plaintiffs will result in even more taxpayer money being spent in defending the appeal.”

The Town Attorney doesn’t mention that if the defendants acted openly, no taxpayer money would have been spent at all.

Sherwood goes on to say that the Town did the study at the request of the Village. That statement is true. But he fails to mention that the town did not tell the village that they had already entered into a binding contract to purchase 3949 Walden for a police headquarters.

Rather than waste taxpayer dollars on a study the town clearly had no intention of heeding, the Town should have told the Village they’d already bought a building and there was no need to do the study.

Mr. Sherwood also said:

”The determination reached in the comparative study was that it was least expensive to purchase and renovate the Walden Avenue building.”

Based on flaws in the study, it’s questionable whether the Walden Avenue site is the least expensive solution. Information pointing out the flaws in the study is included in court documents.

Mr. Sherwood further states:

”There was notice (public notice of the binding contract & bond issue) in two forms. First, there was a discussion at a Town board meeting on April 7, 2003. In fact, Gary Howell, one of the plaintiffs, asked Supervisor Giza about the purchase. This dialogue is contained on a tape of the Board meeting made by Henry Gull”

The abovementioned conversation is not on the April 7, 2003 tape.

The conversation Sherwood refers to took place on May 19th, 2003, after the town signed the contract, performed the environmental review, and approved the bond; meeting all contingencies in the contract.

In his sworn affidavit, Mr. Montour, the only lawyer on the Town Board, said: “Once the contingencies are satisfied it is a binding contract. People may interpret contingencies as being an option until those contingencies are satisfied.

On May 19th, when he was asked if the contract was binding, Sherwood said, “No”.

Based on Mr. Montour’s testimony, as of May 19th, the contract was binding.

In the same paragraph, Sherwood writes:

“Curiously, during the discovery portion process of the lawsuit, when the plaintiffs had to turn over copies of tapes Mr. Gull made of all Board meetings, the tape of this April 7, 2003 meeting was not included. An order was thereafter obtained from Justice Burns directing the plaintiffs to surrender the original tape of this meeting to the Town for review. Plaintiffs complied.”

According to Hank Gull, the April 7, 2003 tape was one of the first tapes he handed over. Mr. Gull produced a copy of the April 7 tape before Justice Burn’s order was issued.

What’s curious is; the town tape-records all its meetings. Yet, when asked, they said they didn’t have a tape of that meeting.

Sherwood further stated:

“This resolution (the bond resolution) was subject to the statutory permissive referendum period of 30 days. Anyone who felt aggrieved was free to gather signatures of Town residents to cause a referendum on the borrowing. No petition was submitted to the town clerk.”

According to the sworn testimony of Henry Gull, Sherwood told a different story when asked about a referendum in 2003:

” THE WITNESS (Hank Gull): It was -- it was before, as far as I know, because I -- at that point I wasn't certain whether they actually had purchased the building. But the talk was in those previous meetings, the 7th and the 28th and the 12th, that I was pretty certain that they were, that they had already bought the building. So I asked them why not a -- a public referendum as to proceed? And the answer I got from the town attorney was, It's not -- it can't be done. Not that it was too late or too early, it just was not in the law to do. You don't have to have a public referendum for a bond issue, is what he said. He actually added too that, you’ll have to change the legislation.”

It’s interesting that when taxpayers asked if a referendum was allowed, Sherwood said no, but in his letter to the board he said the bond resolution was subject to a referendum.

After the joint Town and Village Boards meeting, I discussed a petition drive with several members of the community. The general consensus was to hold off because, based on comments made by the Town board, we were all under the impression that they were not going to take any further action until the study was done and the results were discussed with the village.

The Town never held a joint meeting with the Village to discuss the results of the study.

Sherwood further states:

”The action has no merit.”

That is not a statement of fact, it is simply his opinion. The taxpayers disagree.

Sherwood also states:

”The lawsuit was reported in the Buffalo News prior to Election Day.”

An extensive search of the Buffalo News archives disproves this statement. The first article reporting the suit appeared in the News on November 11, 2003, seven days after the election.

The final sentence in Sherwood’s letter is leads on to wonder. It states:

”One has to question whose interest the plaintiffs really represent because it certainly doesn’t appear to be the taxpayers”

As taxpayers, the plaintiffs are dismayed at the innuendos and rumors perpetrated by Supervisor Giza and reinforced by comments like this.

Lancaster town officials have repeatedly twisted the facts and spread false rumors about this case. They refuse to respond to the hard facts surrounding the issue.

Elected and appointed officials are supposed to work for the taxpayers. After all, taxpayers pay their salaries. Mr. Sherwood’s letter raises the question; “Who does he really work for?”

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