The Amended Petition For the Removal of Carmen Martinez
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
In the Matter of The Application of
ALICIA BOYD and LORRAINE THOMAS
CARMAN MARTINEZ, in her official capacity as AMENDED PETITION
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 FEDERICK, in her official capacity as First Vice Chair of
Community Board 9,
BROOKLYN COMMUNITY BOARD 9,
for a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
Petitioners ALICIA BOYD and LORRAINE THOMAS, acting as Prose, as and for their Amended Article 78, Petition herein, states as follows:
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
Venue is proper based upon Petitioners and Respondents doing Business in Kings County.
The Court has jurisdiction under Section 7801 of the Civil Practice Law and Rules to review administrative decisions of Respondents.
First Cause of Action - The Illegal Removal of Personnel and No Office Staff at CB9
Second Cause of Action - Tampering with Voting Records
Third Cause of Action – Violation of OML - Refusal to allow CB9’s Board Members and Community Residents to attend 2nd Search Committee and Nomination Committee meetings.
Fourth Cause of Action – Violation of OML – The Abuse and Violation of the Executive Session
The Fifth Cause of Action – Violation of OML - The Appropriation of Public Moneys
Sixth Cause of Action – Violation of OML and FOIL - Voting in Secret
Seventh Cause of Action – Violation of FOIL - Refusal to Respond to FOIL Requests
Eight Cause of Action – Violation of OML - No Notice of Committee Meetings
Ninth Cause of Action - Violation of CB9 Bylaws – No Posting of Ad in Newspaper
Tenth Cause of Action – Violation of CB9 Bylaws – Appointment of the Chairperson of Nomination Committee
Eleventh Cause of Action - The Voiding of the 1st Search Committee by Respondents.
Twelfth Cause of Action - Misappropriation and Mis-Management of Public Funds
Thirteenth Cause of Action – Refusal to Obey Court Order
Fourteenth Cause of Action – Violations of OML, FOIL and CB9 Bylaws - Other Violations
WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to Article 78 of the Civil Practice Law and Rules:
On the First Through Fourteen Causes of Action, declaring null and void CB9’s decision to hire Carmen Martinez as District Manager and prohibit her from working or volunteering at CB9 office, grant the request for an “In Camera” inspection of Ms. Witherspoon employment history and Carmen Martinez sealed Conflict Of Interest records; seek a subpoena for an “In Camera” interview with Ms. Witherspoon; seek a subpoena for the records of the respondent CB9, granting a request for a 3rd Search Committee to conduct 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, declaring null and void the election of officers to the CB9 and a new election for Officers of CB9 take place, granting a request to remove Chairman Demetrius Lawrence from CB9 board based upon new evidence, granting a request to order respondents to create a schedule of all Standing and Ad-hoc committees of CB9, ordering Sanctions of Ten Millions dollars against CB9 and Award money to a non-profit, and the awarding of Attorney and legal fees.
Fifteenth Cause of Action – Declaring null and void CB9’s decision to hire respondent Carmen Martinez as District Manager of CB9.
Sixteenth Cause of Action- Requesting an “In Camera” Inspection and Interview of Ms. Witherspoon
Seventeenth Cause of Action- Seek a subpoena for CB9’s records.
Eighteenth Cause of Action - Granting a request for a 3rd Search Committee to create 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 CB9.
Nineteenth Cause of Action – Declaring null and void CB9’s voting of Officers to the board done on June 28, 2016 and new Election take place.
Twentieth Cause of Action – Removal of Respondent Demetrius Lawrence, based upon new evidence.
Twenty-First Cause of Action – The scheduling of Standing and Ad-hoc committees.
Twenty-Second Cause of Action – Sanctions of Ten Million dollars Against Respondent and Awarding Money to non-profit.
Awarding of Attorney and Legal Fees.
GRANTING such other and further relief as the Court may deem just and proper.
- TABLE OF CONTENTS
Statement of Facts
First Cause of Action – The Illegal Removal of Personnel
Second Cause of Action – Violation of OML - Tampering with Voting Records
Third Cause of Action – Violation of OML - Refusal to Allow CB9’s board members to attend and be informed of 2nd Search Committee meetings
Fourth Cause of Action – Violation of OML - The Abuse and Violation of Executive Session
Fifth Cause of Action - Violation of OML - The Appropriation of Public Moneys
Sixth Cause of Action – Violation of OML- Voting in Secret
Seventh Cause of Action - Violation of FOIL – Refusal To Respond to FOIL Requests
Eighth Cause of Action - Violations of OML - No Notice of Committee Meetings
Ninth Cause of Action - Violation of CB9 Bylaws - No Posting of Ad
Tenth Cause of Action - Violation of CB9 Bylaws – Chairperson of Nomination Committee
Eleventh Cause of Action – The Voiding of the 1st Search Committee Results
Twelfth Cause of Action - Misappropriation of Public Funds
Thirteen Cause of Action - Refusal to Obey Court Order
Fourteenth Cause of Action - Violations of OML, FOIL and CB9 Bylaws - Other Violations
Fifteenth Cause of Action - Null and Void CB9’s Decision to Hire Carmen Martinez as District Manger and to prohibit Carmen Martinez from volunteering or working at CB9 Office
Sixteenth Cause of Action - Requesting an In Camera Inspection and Interview
Seventeenth Cause of Action - Seek a Subpoena for CB9’s Records
Eighteenth Cause of Action – The Creation of Law abiding 3rd Search Committee Nineteenth 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
Twentieth Cause of Action - Removal of Chairman Demetrius Lawrence
Twenty-First Cause of Action - The scheduling of Standing and Ad-hoc committees
Twenty-Second Cause of Action – Sanctions Against CB9 &Awarding Money to Non-profit
Awarding of Attorney Fees
New York City Charter Article NYC Charter Chapter 70
Public Officers Law Article 7 – Open Meeting Law
Public Officers Law Article 6 – Freedom of Information Law
By-Laws of Community Board 9 – Borough Of Brooklyn
Guide to Parliamentary Procedures for NYC Community Board – Part 4
- Petitioner 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 “CB9”; because respondents’ actions impact petitioner and the group that she represents; because petitioner Boyd and her members have attended all pertinent meetings of respondents, have requested and been disallowed to be present and observe the actions of respondents during open meetings, have been prevented from receiving information regarding CB9, 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 and the election of officers for CB9’s Board.
- Petitioner Lorraine Thomas has standing because she is a legally appointed board member of CB9, who has 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 and Nomination Committee; (3) to receive information and notification of these meetings; (4) to review the resumes of potential candidates for District Manager; (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 meetings 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.
This petition is brought by a member of CB9, who is appointed in accordance with the New York City Charter Chapter 70 section 2800 (a) and a community resident and who is the head of a community based organization, with members from Community District 9. Petitioners seek to void the vote hiring respondent Carmen Martinez “Martinez” as District Manager of CB9 and the election of the officers of CB9 in June 2016; seek to establish a 3rd Search Committee which contains lawful procedures for the selection, hiring and salary of the District Manager; seek to prevent respondent Martinez from volunteering at Community Board 9 office; seek the null and void of the elections of officers and a new election to be done; seek an In Camera review of the work history of Community Assistant Ms. Witherspoon and Carmen Martinez sealed Conflict Of Interest records; seek a subpoena for an In Camera interview with Ms. Witherspoon; seek the removal of respondent Chairman Demetrius Lawrence “Lawrence” from CB9; seek an order directing respondents to schedule all standing and ad-hoc committees at the beginning of the year or when they are formed; seek monetary sanctions in the amount of Ten Million dollars, against respondents to be given to a non-profit of Petitioners choosing 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, perform the public duties of working with the community in processing community resident complaints , and represent the community at various official meetings and in official correspondence. This dispute principally concerns the events which have occurred from October 27, 2015 to August 10, 2016 at Search Committee, Executive Board, Nomination Committee and General Board meetings, regarding the topic of selecting, hiring and determining the salary of a District Manager and the election of officers for CB9 board.
Petitioners allege that an illegal conspiracy to place long time friend and political ally of Brooklyn Borough President Eric Adams and who’s Cousin is Eric Adams Secretary, Carmen Martinez as District Manager, and offer her the highest paying salaries for a NYC District Manager, because she was unemployed after 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 CB9 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 CB9 going to 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 violation of the Open Meetings Law “OML”; (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 President Eric Adams and preventing the community residents from knowing how board members have voted; (7) voting records have been tampered with to hide the actions of the Search Committee; (8) non-voting methods have been employed to determine the final three candidates; (9) qualified candidates have been removed from the selection process to ensure respondent Martinez would be selected as District Manager; (10) appropriation of public moneys have been voted upon and planned in executive session, in violation of the OML; (11)no notifications of meetings have occurred to prevent residents and board members from attending meetings in violation of the OML; (12) and minutes of meetings have been changed, amended and withheld from both board members and community residents.
A Nomination Committee was created to conduct the public business of the selection of candidates for officers of CB9 for the year July 1, 2016 – June 30, 2017. This committee conducted all of its operations, discussions and business in violation of the OML by the following: (1)the public was not notified of the meetings; (2) the minutes were not produced; (3) board members were denied the right to place their names on the ballot;(4)Board members and the general public were denied the right to attend these meetings; (5) the Chairman of the board appointed the chairperson of the Nominating Committee in violation of CB9 Bylaws; (6)and the final vote of candidates was done via secret paper ballot.
Statement of Facts
The hiring of a District Manager is governed by CB9’s bylaws, the City Charter, the Open Meetings Law “OML”, the Freedom of Information Law “ FOIL” and Parliamentary Procedures of Robert Rules of Order. Under the OML, 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 adhere 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 a particularity subject matter 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; (7) and 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 Manager 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.
CB9 Bylaws Article 6.2 (a) states, the Nomination Committee shall elects its chairperson and shall present one or more candidates for each office to be filled at the May meeting.
On June 16, 2014, Respondent Martinez was relieved of her duties as a top aide at the NYC Comptroller’s Office, after the Conflicts of Interest Board determined she abused the use of her City position to obtain privilege, stolen City time over 14 years and used an excessive amount of City resources for her personal business. In the same month respondent Martinez was illegally placed on CB9 in violation of the City Charter by her long time “friend”, Brooklyn Borough President Eric Adams “Adams”. (The illegal placement is fully documented in Boyd Vs Community Board index #1835) (Martinez record is Attached as Exhibit A)
October 24, 2015, at CB9 General Board meeting, in an Executive Session Pearl Miles, District Manager for CB9 was removed from a position she held for 30 years. Respondent Lawrence, during the open meeting portion, 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.(Aff. 2 and 3)
The firing of District Manager Pearl Miles left CB9 with only one staff running the District Office, respondent CB9’s Ms. Witherspoon, who had been employed for over two years as a Community Assistant.
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 Martinez as the new District Manager, due to the unlawfulness of such behavior. She also cited the OML 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 of the District Manager. The community and other board members were not present and were not made aware of this meeting. (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 1st Search 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 E)
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 of them within 7 days and be provided an agenda for these meetings. (Attached as Exhibit F 16, 294, 412, 414, 417, and 526-532)
On January 25, 2016, at CB9’s Executive Committee meeting, respondent Lawrence, in violation of CB9’s Bylaws placed all the 12 chairs of committees onto the Executive Board, with voting power, without knowledge or consent from the CB9 members, bringing the amount from 7 members to 19 members. (Attached as Exhibit G )
On March 22, 2016 at respondent CB9’s General Board meeting, the community was informed that the 1st Search Committee had selected three candidates, but was not told who they were. However, later it was learned that the final three candidates were Beryl Nyack, Leroy P. Branch and Agninshalah Collins. Respondent Martinez only received one vote out of five and thus was not selected. (Attached as Exhibit H
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 1st Search Committee 13 meetings had not had quorum, despite him attending most of them and never complaining. (Aff. 4 and 5)
On March 22, 2016, petitioner Lorraine Thomas “Thomas” sent a letter to Corporation Council regarding illegal conduct that she was seeing being done by respondent Lawrence and CB9 board members. This included not adhering to the “letter of the Law”, the placing of non-officers with voting power on the executive board, conducting board business in violation of the OML, and being prevented from attending meetings of the board. (Attached as Exhibit V)
In an email Respondent’s CB9’s former Chairman of the 1st Search Committee, Hector Robertson “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 page 3, )
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 respondent 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. (Aff. 6)
On April 1, 2016, respondent Dr. Zorina J. Frederick “Frederick” stated in an email to the board that she was “appalled” at whoever had given petitioner Boyd the minutes to the Search Committee that this person 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’s board, leaving the CB9 office without any personnel and respondent Martinez was then allowed to fill in her position as a “volunteer”. (Aff. 8)
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. Petitioner Boyd requested the justification for going into executive session and respondent Lawrence stated “personnel matters” (Aff. 10 and 12 and 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) voted yes to declaring the1st Search Committee results null and void; (3) and voted yes to allowing respondent Lawrence to handpick the 2nd Search Committee in secret, with the chairman of the committee to be decided at a later date. (Ibid ) (Aff. 2-6)
April 20, 2016, at CB9’s General Board meeting, a new ad-hoc Nomination Committee was formed to determine the candidates for office of the new Executive Board. (Aff. )
On April 29, 2016, petitioner 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 Freeman of the New York State Committee on Open Government “COG” 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 chairperson of respondent CB9’s Nomination Committee, Augustine Blackwell “Blackwell”, had stated that Nomination Committee 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 the dates these meetings occurred nor have any minutes been produced. Also there was a board member who wanted to place his name on the ballot but respondent’s chairperson Blackwell, of the Nomination Committee refused. (Aff. 14)
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 three candidates have been chosen, Christopher Durosinmi, Beryl Nyack and respondent Martinez who was ranked number one. However no voting process was conducted recorded or produced. Instead respondent Frederick stated that a process of elimination had transpired, but gave no further explanation or evidence as to how this process had occurred. Also it was noted two of the 1st Search Committee’s final candidates, Leroy P. Branch and Agninshalah Collins, were missing from the 2nd Search Committee results. (Attached as Exhibit N, Attached as Exhibit R and Attached as Exhibit H)
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 Executive Committee into executive session for “personnel matters”, despite not having quorum to do so; there are 7 Officers of the board and only 3 members, respondent Lawrence, Jacqueline Welch and Denise Mann, were present. 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 ) (Aff. 16 and 17)
At this meeting, respondent CB9 member, Ada Terry “Terry”, 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 that was the job of New York City. (ibid 129-136) (Aff. 18)
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. (Aff. 19)
Respondent took the general board into an executive session where 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. Respondent Frederick also stated that a secret ballot was going be conducted for the voting of the District Manager, 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 recorded. The 2nd Search Committee’s final three candidates included only one person from the original three candidates selected by the 1st Search Committee. Both Leroy P. Branch, (who had received 5 out of 5 votes) was not there and Agninshala Collins (who received 3 out of 5 votes) was not included. There was a request by a CB9 board member to determine respondent’s Martinez salary, but respondent Lawrence refused and tabled the discussion. (Aff. ) (Attached as Exhibit H)
On June 28, 2016 at CB9’s General Board meeting, respondents conducted a closed paper ballot process in voting for the Officers of CB9 Board, despite petitioner Boyd reading the letter of the law regarding the requirements for community boards to conduct open ballot voting. (Aff. 20)
On July 18, 2016, respondent Lawrence took the executive board into executive session for “personnel matters”, in which it is believed that no work history regarding respondent Martinez was disclosed or discussed and voted to pay respondent Martinez $120,000. This would make her the 3rd highest paid District Manager in Brooklyn, just behind Gerald Esposito, from Community Board 1, who has 38 years of experience as a District Manager and Dorothy Turano from Community Board 18, who has 25 years of experience as a District Manager. 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 salary the board would only be able to hire three people instead of four. (Aff. 21) (Attached as Exhibit P)
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. It was also stated that respondent Martinez needed to resign from her position as a board member and she agreed. (Aff. 23)
Respondents sent around the agenda for Tuesday, August 2, 2016 of a special General Board meeting to enter into an executive session to “vote for the District Manager’s salary”. (Attached as Exhibit Q)
On August 2, 2016 at a Special General Board meeting, respondent CB9 board members went into executive session and took a formal vote to appropriate public moneys in the form of a salary for respondent Martinez. When petitioner Boyd and other members of the community, requested to be informed as to what was voted upon, respondents refused to give the answer. Petitioner Boyd then reminded them that respondents CB9 board was going to court the following day and the respondent CB9 board members just laughed, making a comment about the courts inability to do anything. (Aff. 24)
On August 3, 2016 at respondent CB9 training meeting, respondent Martinez provided the board members with free food and drink. This was construed by the public as part of the payoff the board members would be receiving for choosing respondent Martinez as District Manager.
Also on this day, respondent Martinez and the board were served with papers, in which a stay of the hiring of respondent Martinez was granted by the Courts. (Aff. 26)
On August 5, 10, 11, and 12, 2016, respondent Martinez sent around emails to the community with her name on the email, representing the CB9, in an official capacity. (Attached as Exhibit W.1)
On August 10, 2016, respondent Martinez continued to perform duties as the District Manager; she sent around an email to the board members stating that the training session on the OML, was going to be closed to the public; she organized this training of the board; she ordered food for the board members; and she continued to be addressed both by the presenters of the workshops and board members as the District Manager. She also called the police, acting as District Manager and requesting their presence as a form of intimidation against the petitioner Boyd and other members of the public who attended the training session. (Aff. 27 and 28)
Also during this training session, after Bob Freeman, from the New York State Committee on Open Government, stated that the training meeting was open to the public and could be filed. However, when he left the meeting, respondent Lawrence and Frederick requested that all non-board members leave the training meeting, stating the meeting was closed to the public. Petitioner Boyd stated that she wasn’t going to leave and Karen Fleming simply stayed seated. (Aff. 29)
First Cause of Action
The Illegal Removal of Personnel and No Office Staff For CB9
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 District 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 work at the District Office. (Aff. 8,9, and 15)
Petitioners allege Ms. Witherspoon’s removal, was for three things:(1) to punish Ms. Witherspoon at the request of respondent Frederick because Ms. Witherspoon provided petitioner Boyd with the minutes of the 1st Search Committee meeting which contained the names of the three candidates that had been chosen. Respondents didn’t want the community to be aware of the final three candidates for it would be clear the reason for the request to null and void the 1st Search Committee’s work and because respondent Martinez had not been chosen as one of the final 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 residents and certain board members would be kept in the dark concerning the Search Committee dealings, decisions, and procedures.
The removal of Ms. Witherspoon has left the Community Board office without any paid staff for the past five months, despite the allocation of $200,000 a year given to hire at least 4 staff members. This has all but crippled CB9’s functioning in that: (1) minutes have not been posted to the website; (2) complaints have not been registered by the public; (3) notices have not been given out; (4)the financial reports have not been completed and submitted to the public for inspection; (5) notices that are due to applicants applying for the District Manager has not been sent; (6) ads for District Manager have not been placed; (7)emails have not been updated and sent; (8) FOIL requests have not been complied with; (9) the financial records have not been given to the public or board members ;(10) and a host of other duties and responsibilities that 4 full time employed staff would perform at a Community Board District Office.
Second Cause of Action
Tampering with Voting Records of Search Committee
According to FOIL Article 87 section 3 (a) “Each agency shall maintain: a record of the final vote of each member in every agency proceeding in which the member votes”, Article 88 (a) states each agency shall maintain and make available for public inspection and copying “a record of votes of each member in every session and every committee and subcommittee meeting in which the member votes” and Article 89 (8) states “Any person who, with intent to prevent public inspection of a record pursuant to this article, willfully conceals or destroys any such record shall be guilty of a violation.”
Petitioners allege respondent Frederick has tampered with the voting records of the 2nd Search Committee. Respondent has stated on an official FOIL request that no voting records were conducted via the 2nd Search Committee, despite her stating on June 20, 2016 during an executive committee meeting several times that a secret ballot had been conducted, “We actually cast a ballot, a secret ballot, and, uh, we ranked them, the 3 candidates” and, “What we did, OK, it’s a secret ballot.” (Attached as Exhibit R, Attached as Exhibit O5 & 28)
Respondent Frederick is refusing to give these voting records, to prevent the community from being aware of exactly how the ranking of respondent Martinez as number one was created and who voted for it. It was also stated by respondent CB9’s board member that the ranking of respondent Martinez made no sense, was “foolish” and would cause “embarrassment” to the Board. (ibid
Third Cause of Action
Violation of OML - Refusal to Allow Board Members and Public to Attend the 2nd Search Committee Meetings and the Nomination Committee.
Public Offices Law Article 7 section 103 (a) states; “Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section one hundred five of this article.”
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.”(emphasis added)
Petitioners are making the allegation that respondents violated the OML during the 2nd Search Committee meetings and Nomination Committee by not allowing the public and their own members to be able to attend the Search Committee and Nomination Committee meetings. And in the case of executive sessions respondents refused to allow their own board members to attend.
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 three 2nd Search Committee meetings, where the procedures, resumes and interviews were conducted. Petitioners allege 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 and so that applicants more qualified than respondent Martinez could be eliminated, to ensure that respondent Martinez would be a part of the final selection without any objections. (Aff. 12)
Furthermore, respondent Lawrence appointed all 7 members of the Search Committee in secret. 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.
There was never any notice of any meetings of the Nomination Committee, so by default this meeting prevented all other board members and the public from attending. (Aff. 14)
Fourth Cause of Action
The Abuse and Violation of Executive Session of the OML
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 allege that respondent Lawrence has repeatedly abused and violated the OML provision of conducting business in executive session, by conducting all business related to the hiring of respondent Martinez, and the selection of candidates for officers for the board in executive session, despite the fact that the business being performed and discussed was not a part of the exemption categories.
The meetings are 1st Search Committees meetings (November 12, 2016, January 14, 2016, February 2, 3, 8, 9, 18, and March 3 and 7, 2016); the 2nd Search Committee meetings (May 4,11 and 31, of 2016); the Executive Board committee meetings (June 20, 2016 and July 19, 2016); the General Board meetings (April 20, 2016, June 28, 2016 and August 2, 2016); and all of the Nomination Committee meetings (which are currently unknown) where respondent CB9’s members either went into executive session but did not discuss any aspect of the exemption rule, and/or conducted business that should have been done in the open. This was to keep the community and CB9’s board members completely in the dark concerning all of the decisions that were made leading up to the selection and hiring of respondent Martinez and the selection of candidates for the officers for the board.
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 of District Manager; allowed the 2nd committee to eliminate strong candidates that posed a threat to respondent Martinez’s bid for appointment; and assured respondent Lawrence that respondent Martinez would be chosen, because there were no outside eyes reviewing this entire process.
The courts have made it very clear regarding the necessary requirements of a governing body to enter into executive session.
“...the public body must identify the subject matter to be discussed (See, Public Officers Law § 105 ), and it is apparent that this must be accomplished with some degree of particularity, i.e., merely reciting the statutory language is insufficient (see, Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304-305). Additionally, the topics discussed during the executive session must remain within the exceptions enumerated in the statute (see generally, Matter of Plattsburgh Publ. Co., Div. of Ottaway Newspapers v City of Plattsburgh, 185 AD2d §18), and these exceptions, in turn, ‘must be narrowly scrutinized, lest the article’s clear mandate be thwarted by thinly veiled references to the areas delineated thereunder” (Weatherwax v Town of Stony Point, 97 AD2d 840, 841, quoting Daily Gazette Co. v Town Bd., Town of Cobleskill, supra, at 304; see, Matter of Orange County Publs., Div. of Ottaway Newspapers v County of Orange, 120 AD2d 596, lv dismissed 68 NY 2d 807).
Petitioners allege that respondent Lawrence took the broad language of “personnel matter” and continued to use this phase to justify keeping all business related to the hiring of respondent Martinez secret and he instructed the board members to do the same. At CB9 meetings held on April 20, 2016, June 20, and 28, 2016 and July 18, 2016, respondent Lawrence stated the rational for going into executive session was “personnel issues”. (Aff. Boyd)
The New York State Committee On Open Government “COG”, in opinion AO-18788 and AO-05237, has stated that
“…although it is used frequently, the term “personnel” appears nowhere in the Open Meetings Law. Although one of the grounds for entry into executive session often relates to personnel matters, from our perspective, the term is frequently cited in a manner that is misleading or causes unnecessary confusion.” “In short, the characterization of an issue as a “personnel issue” is inadequate, for it fails to enable the public or even members of the Board to know whether subject at hand may properly be considered during an executive session.”
COG is a body charged by statute with the duty to render advisory opinions on FOIL and the OML. Although COG advisory opinions are not conclusive on the law or binding on the City and other public entities, these opinions have been entitled to have great weight. Gannett Co. v. James, 108 Misc. 2d 862 (Sup. Ct., Monroe Co. 1981), aff'd, 86 A.D.2d 744 (4th Dept. 1982).
Petitioners believe that respondents refusal to allow anyone to know about the Nomination Committee meetings was because the respondent CB9’s board members made the claim that this committee was entitled to conduct its work in secret under the executive session. COG, wrote the following opinion based upon an inquiry by Community Board 8 in Bronx NYC, who wanted to conduct their election process in secret.
“In view of the amendments to the definition of "public body", we believe that any entity consisting of two or more members of a public body, such as a committee, a subcommittee or "similar body" consisting of 3 members of the Board of Trustees, would fall within the requirements of the OML when such an entity discusses or conducts public business collectively as a body [see Syracuse United Neighbors v. City of Syracuse, 80 AD2d 984, 437 NYS2d 466, (4th Dept. 1981), appeal dismissed 55 NY2d 995, 449 NYS2d 201 (1982)].”
“ Lastly, as you know, the OML is based on a presumption of openness. Meetings of public bodies must be conducted open to the public, unless there is a basis for entry into executive session. From my perspective, the only ground for entry into executive session pertinent to the duties of the Committee is §105(1)(f), which permits a public body to do so to discuss: “…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…”Consideration of members of a Community Board to serve in a leadership position would not, in my opinion involve a matter leading to appointment, employment or promotion.”
Thus it was COG’s position that the Community Board 8 in the Bronx could not conduct the process, procedure and selection of candidates for election in secret for it violated the OML and FOIL laws of New York State. (Attached as exhibit U)
Petitioners believe respondents used the excuse of conducting all of its business in secret for the selection of the officers to ensure that other candidates would not be able to put their name on the ballot. Petitioners also allege that the Chairperson of the Nomination Committee was chosen by respondent Lawrence, in direct violation of CB9 Bylaws 6.1 (a), which states “the Nomination Committee shall elect its chairperson”. This was to ensure that loyalty was established for respondent Lawrence and any opposition may be squashed via the chairperson, who he selected. This was supported by the fact that on May 24, 2016, there was a debate about members wanting to put their names on the ballot and the chairperson of the Nomination Committee, Blackwell, refusing to do so. (Aff. 14)
Fifth 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).
According to an online dictionary “thefreedictionary.com” the legal definition of “appropriation” is allocation, allowance, apportionment, budget, budgeting, concession, designation of use, dispensatio, distribution, setting apart. Additionally, it defines “public money” as “the payment of money by a government for some service it offers. A major example of government spending is payment of salaries for military personnel.” (financialdictionary.thefreedictionary.com/Public+money) (emphasis added)
Petitioners allege that on July 18, 2016, at respondent CB9 Executive Committee meeting, respondents went into executive session and voted to make a recommendation to pay respondent Martinez $120,000 to the board. The $120,000 suggested salary, was not based upon any prior experience or education of respondent Martinez, but was based purely on the fact that instead of hiring four people they could hire three people and thus pay respondent Martinez this salary. (Aff. 21)
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 8 exemption categories which allows public bodies to enter into executive session. (see above at 63) Furthermore there was never any discussion or disclosure regarding Ms. Martinez professional or academic history during the aforementioned meeting. (Ibid)
On July 28, 2016 Respondents sent around an agenda, to have a special meeting of the respondent CB9’s 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)
On August 2, 2016, respondents went into the executive session and came out with a vote to appropriate public money in a form of a salary for respondent Martinez but refused to disclose the amount to the public, nor did they provide this information via minutes as of August 15, 2016 in violation of the OML which states that minutes to executive session must be given to the public 7 days after the meeting. (Aff. Boyd 24)
Sixth Cause of Action
Voting in Secret
According to Corporation Counsel Opinion No. 9-91, all community board votes including the election of officers and issues related to personnel matters, must be conducted by open ballot, where each Board member’s vote is recorded and made public.
“To prohibit a public body from acting on a personnel matter by secret ballot. Smithsonian v. Ilion Housing Authority, 130 A.D.2d 965 (4t Dept. 1987), aff'd, 72 N.Y.2d 1034 (1988) (vote to dismiss housing authority executive director by secret ballot violated FOIL and OML). when action is taken by a formal vote at open or  executive sessions, the FOIL and OML both require open voting and a record of the manner in which each member voted (Public Officers Law § 87(3)(a); § 106(1), (2)).In view of the fact that this office has previously determined that community boards are subject to FOIL and the OML (Opinions of the Corporation Counsel nos. 33-84, dated October 1, 1984; and 39-82, dated December 10, 1982, the vote of each member for the selection of board officers must be recorded and made available to members of the public. (emphasis added)
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 Respondent CB9’s board. This is to keep the community in the dark and to quell the fears of the board members who were concerned that there will be repercussions for how they voted.
On June 28, 2016, at the CB9 General Board meeting, the respondents voted via secret ballot during an executive session. The community residents were not allowed to attend. (Aff. 2, 13 and 14)
In Perez v. City Univ. of NY, 840 NE2d 572 (NY App. 2005) set the precedent that “Secret” ballots, paper or otherwise, are a violation of New York’s FOIL (“FOIL). In Perez case students were denied entrance to meetings in which voting was done by secret ballot.
On June 28, 2016 during the voting of the election of officers, when respondent’s chairperson of the Nomination Committee, Blackwell, attempted to disclose the names of the members of the board and their votes, CB9’s board members shouted No! Don’t give it to them/her! [the community residents] So this information was not disclosed, nor were the minutes given to the community within 7 days, which should contain the voting record. (Aff. Boyd 20)
Respondents themselves stated numerous of times that they were conducting a secret ballot voting process or had conducted one; on June 20, 2016 (Attached as Exhibit 0 5 and 28); and on June 28, 2016. (Aff. 13 and 14)
Seventh Cause of Action
Violation of FOIL Requests
Despite respondent Lawrence actions being under judicial court review, he has persisted in his pattern of not responding to FOIL that was documented in Boyd vs Community Board 9 Index #1835/16. The new FOIL requests not reported in the above case are(1)voting records for the election of officers (July 22, 2016); (2) voting records of 2nd Search Committee (July 11, 2016); (3) the names of the three candidates chosen by the 2nd Search Committee (June 22, 2016); (4) a list of the new board members appointed to CB9; (5) a request for the financial records of community board 9 (May 5, 2016); and (6) a request for a letter that was presented to DOT from CB9 for the approval of the Empire Blvd project. (Attached as Exhibit T and T.1)
5 out of the 6 of these FOIL’s were completely ignored and never responded to, showing clearly that respondent Lawrence doesn’t believe he has to obey the law and provide the community residents with information that should be made public either at the time the situation took place, i.e. voting, or via the minutes.
Furthermore, FOIL Article 87.3. states “Each agency shall maintain: (a) a record of the final vote of each member in every agency proceedings in which the members vote.” Article 89 General provisions relating to access to records, section 3 (a), states:
“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section….If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part…”
Article 87.3 (b) states that, “Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial.”
Petitioners allege that Respondents have knowingly violated the FOIL law in a continuous attempt to prevent the community from observing, reviewing and knowing about the selection process of the hiring of the District Manager and the financial conditions of respondent CB9.
Eighth Cause of Action
No Notice of 1st and 2nd Search Committees and Nomination Committee 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.” (emphasis added) 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. (emphasis added)
Hiring of District Manager
Respondent Lawrence from the beginning engaged in hiding and keeping secret all information regarding the hiring of a District Manager, especially the meetings. On November 3, 2015, respondent Lawrence, told Ms. Witherspoon “I will email Kevon [programmer charged with posting meetings on website] to have this [search committee meeting Nov. 12, 2015] on our website”, despite Ms. Witherspoon doing this for all other meetings. Respondent Lawrence never told Kevin and the meeting was never posted on the website and the community residents and board members never were informed. (Attached as Exhibit S page 11)
This was done in spite of the fact that petitioner Boyd had sent to respondent Lawrence a request and copies of the law regarding his responsibilities to allow all meeting of the Search Committee to adhere to the OML including proper notification to the community. (Attached as Exhibit E).
The following are all of the other known Search Committee meetings that were conducted where no notification to the community or board members was done; the 1st Search Committee (January 14, 2016, February 2, 3, 8, 9, 18, and March 3 and 7); the 2nd Search Committee meetings (May 4,11 and 31, of 2016). Not even when respondent CB9’s own board member, petitioner Thomas inquired about getting notification of these meetings, was she told. (Aff. 9 and 10)
All of the Nomination Committee meetings were conducted in complete secret and no notification was given to anyone about these meetings. (Aff. 14)
Ninth 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 (December 17, 2015, Exhibit E3); (January 7, 2016, and Aff. Boyd 31); (January 21, 2016, Exhibit F 16, 284, 414, 417, 412 and Aff. Henry 4), when the general public was allowed to be a part of the 1st Search Committee’s process, where respondent CB9 members and respondent Lawrence, 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 the full range of potential candidates could not apply and thus not pose more of a challenge to place respondent Martinez as the District Manager.
Tenth Cause of Action
Violation of CB9 Bylaws – Chairperson of Nomination Committee
CB9 Bylaws section 6.2 (a) states “The Nomination Committee shall elect its chairperson.”
Petitioners allege that this law was violated because it is believed that respondent Lawrence selected the chairperson of the Nomination Committee, Augustine Blackwell “Blackwell”. This was done to ensure that respondent Lawrence and his favorites would be selected and other board members interested in running would be prevented from doing so.
This assumption was supported because on May 24, 2016, at CB9’s General Board meeting, respondent CB9’s board member Blackwell stated that during a Nomination Committee meeting (which was done in secret) she refused to place a board member on the ballot who wanted to be on it. (Aff. )
Eleventh Cause of Action
The Null and Voiding of the 1st Search Committee results by Respondents.
- The OML §105, states 8 conditions for going into executive session:
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.
On April 20, 2016, respondent Lawrence took the entire community board into “executive session” for “personnel matters”, and conducted public business in private which was 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 category of exemption for going into the executive session. This was done so the board members themselves wouldn’t be able to assess the qualifications of the proposed candidates. (Aff. Thomas 3)
Petitioners further 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 allegation was supported by respondent CB9’s own board member Robertson, the chairman of the 1st Search Committee. (Attached as Exhibit J page 3, 7)
Twelfth 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 38 years of experience as a District Manager and Dorothy Turano from Community Board 18, who has 25 years of experience as a District Manager. (Attached as Exhibit P)
Not only does Ms. Martinez have a criminal record of stealing 14 years of City time and other things, to which she was removed from her position, but by respondent Martinez’s 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. (Attached as Exhibit A)
Petitioners also 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 purely on 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.
Respondents have refused to submit to review of their financial budget to the community, and thus Petitioners are alleging that money is being misspent and mismanaged. Their own members have been seeking a disclosure of their financial records, no financial reports have been given to the community, FOIL requests for the financial documents have been ignored, there are reports that the rent on the office has not been paid, reports of staff members obtaining moneys for work not performed, such as the case with Ms. Witherspoon, that money maybe being spent by respondents for materials, supplies, food and entertainment, without full disclosure to the board and that specific board members may have been using this money for personal items. (Attached as Exhibit I.2 2 and 3)
During the entire calendar year from July 1, 2015 to June 30, 2016, respondents have not produced one document or statement regarding the financial records of CB9. On May 5, 2016 petitioner Boyd presented a FOIL request to respondent Lawrence and CB9’s Treasurer Simone Bennett “Bennett” to review the financial records of respondent CB9. This request was not answered and a 2nd request was submitted on May 26, 2016. Respondent Lawrence on May 26, 2016, stated that the information will be provided “soon”, but no date was given. Thus on July 1, 2016 a 3rd request was submitted to both respondent Lawrence and Bennett, for this information and again it was not answered. (Attached as Exhibit T.1, pages 2 and 3)
Thirteen Cause of Action
Refusal to Obey Court Order
On August 2, 2016, respondents CB9 and Martinez were served with papers stating that a stay had been granted, stopping CB9 from hiring Martinez as the District Manager. However, on August 5, 10 and 11, 2016 Ms. Martinez still continued to act officially as the District Manager, by circulating information via emails and attaching her name within the body of the email in an official capacity. (Attached as Exhibit W.1)
On August 5, 2016, respondent Lawrence stated in an interview with a reporter from “DNA” info, that the court challenge, “will not affect the hiring of a District Manager” and respondent Martinez will be “formally offered the job soon”. (Attached as Exhibit W.2)
On August 10, 2016, at an open meeting, Ms. Martinez continued to allow herself to be referred to as the District Manager, she conducted a training of the board as the District Manager and she also called the cops to be present at the meeting on August 10, 2016. She also stated in an email to the board members her intention to prevent community residents from attending the meeting. This clearly shows that Ms. Martinez is still working for the CB9 in an official capacity, despite a court order staying her hiring. (ibid)
This clearly shows on the part of respondents a complete disrespect and disobedience for the courts orders, not only is respondent still acting as the District Manger, but respondent Lawrence has already predicted the court’s course of action, despite a stay being granted.
Fourteenth Cause of Action
As has been alleged and stated in paragraphs 1 through 111, 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 in violation of OML 106; (2) executive sessions were not conducted as a part of open meeting in violation of OML 105 (1); (3) after the end of the executive sessions the public was not informed as to the decisions made in the executive session nor was these decisions presented via the minutes FOIL § 87(3)(a); (4)there was a lack of a voting procedure done in determining the final three candidates of the 2nd Committee in violations of the City Charter article 2800 b; (5) there was an inaccurate tallying of the votes for the hiring of respondent Martinez as District Manager, done on June 28, 2016, where 39 board members were present and only 37 votes were accounted for, which is violation of the law according to the Guide on Parliamentary Procedure for New York City Community Board Page 26, 3, line 2 and 3, which states that all votes of members must vote and “no member may be marked ‘present, but not voting’”; (6) and qualified candidates were eliminated from the election process to ensure that respondent Martinez would not have any competition.
Fifteenth Cause of Action
Declaring Null and Void CB9’s Decision to Hire Carmen Martinez as District Manger and to Prohibit Carmen Martinez from volunteering or working at CB9 Office.
Paragraphs 1 through 111 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 and to prohibit respondent Martinez from “volunteering” or working at CB9 office.
Illegal actions of the 2nd Search Committee’s final three recommendations
The courts should void the decision of the general board because the 2nd Search Committee final three recommendations were created in violation of 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 a lawful voting practice, which are the only forms allowed to make final determination and decision in committees; (5) not producing the minutes of the “executive session” within the required time frames; (6) and conducting voting via secret ballots.
According to respondent Frederick, the 2nd Search Committee, which ranked respondent Martinez as the number one candidate of choice, this committee did not conduct a voting process to make its final recommendations. (Attached as Exhibit R) According to New York City Charter Article 2801 (b)
Whenever any act is authorized to be done or any determination or decision made by any community board, the act, determination or decision of the majority of the members present entitled to vote during the presence of a quorum, shall be held to be the act, determination or decision of such board. (Emphasis added)
Without a lawful vote deriving from the 2nd Search Committee, the three choices should not have been presented to the General Board meeting for a vote.
Secret Ballot Voting
In both the 2nd Search Committee on May 31, 2016 in which respondent Martinez was ranked number one and was presented as one of the final three candidates and respondent CB9’s General Board meeting on June 28, 2016, where the board voted to hire respondent Martinez, secret ballots were conducted; however, the courts have upheld the position that formal votes taken regarding personnel matters may not be conducted via secret ballot. Smithsonian v. Ilion Housing Authority, 130 A.D.2d 965 (4t Dept. 1987), aff'd, 72 N.Y.2d 1034 (1988) (vote to dismiss housing authority executive director by secret ballot violated FOIL and OML).
According to the OML, when action is taken by a formal vote at open or  executive sessions, the FOIL and OML both require open voting and a record of the manner in which each member voted (Public Officers Law § 87(3)(a); § 106(1), (2)). (emphasis added)
The Incorrect Tally of Votes
According to the Guide on Parliamentary Procedure for NYC Community Boards,
“When a vote is taken, all Board members who are present and entitled to vote must either vote or abstain. No member may be marked "present but not voting." Absentee ballots, proxies and telephone votes are not permitted.”
However, on June 28, 2016 the total vote count for the selection of District Manager was 37 votes, but there were present 39 members. This means this vote violated the law, allowing two votes not to be accounted for.
The Elimination of Qualified Candidates
Petitioners allege that the 2nd Search Committee deliberately and maliciously removed qualified candidates, from the selection process to ensure that respondent Martinez would be selected. Both Leroy P. Branch (who received 5 out of 5 votes) and Agninshalah Collins (3 out of 5) were completely removed from the final selection. The strongest candidate of the 1st Search Committee, Leroy P. Branch, according to his profile on Linkedin, had 15 years of experience working as an Assistant District Manager, for Community Board 6 in Brooklyn.
In a discussion with petitioner Boyd, Mr. Robinson, the former chairman of the 1st Search committee, stated that Mr. Branch was considered the number one choice, not only because of his excellent track record as an Assistant District Manager, the various recommendations and positive comments that were expressed about his performance at his job, his number of years as a District Manager for a board that functions exceptionally well, but more importantly he was seen as a person who could lead this board in the direction of compliance with the law as well as create relationships within the community, to assess the needs of and advocate for the community, and give guidance and the board members in representing these needs in a lawful manner. (Aff. Boyd)
Because there was no open process and no detailed information about how the 2nd committee came up with their selection and ranking process, no one knows how this exceptionally qualified candidate was eliminated and on what grounds. What we do know was that he didn’t make the final three and a less qualified person, respondent Martinez, did.
The courts have cited, variously; (1) the establishment of bad faith(Aurgher v. Purcell, 109 Misc.2d 531, 440 NYS2d 480, affirmed 87 AD2d 888, 449 NYS2d 527 (2nd Dept. 1982); (2) acts intended to violate or evade the 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)); (3) prejudice done to the public (Wilson v. Board of Harborfields Central School District, 65 AD3d 1158, 225 NYS2d 207 (2nd Dept. 2009)); (4) violation of OML (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994)); (5) intent to minimize public awareness of political actions and decisions ( Previdi v. Hirsch, 138 Misc.2d 436, 524 NYS2d 643 (1988)); (6) patterns of violations of law (Reese v. Daines, 62 AD3d 1254, 877 NYS2d 801 (4th Dept. 2009)); (7) discouraging attendance at public meetings (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009));(8) issues that should have been discussed in public (White v. Kimball, Mayor, City of Jamestown, Supreme Court, Chautaugua County, January 27, 1997;(9) members deprived of opportunity to act on decisions Weatherwax v. Town of Stony Point, 97 AD2d 840, 468 NYS2d 914 (2nd Dept. 1983): (10) 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)); (11) multiple violations and procedural concerns (Van DeLoo v. City of Schenectady, Supreme Court, Schenectady County, September 6, 2002); (12) failure to provide proper notification (White v. Battaglia, 79 AD2d 880, 434 NYS2d 537 (4th Dept. 1980)); (13) and denied the right to speak at open meetings (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009)) are all as grounds upon which to void the actions of governmental agencies.
What is crystal clear is that respondent Lawrence knew the OML concerning the entering into executive session, which includes; (1) notification to the public regarding all meetings (2) the need to have the executive session apart of an open meeting;(3)the requirement to present the findings and decisions of the meeting to the public; (4) the need to have quorum to enter into an executive session; (5) the need to conduct an open vote;(6) the need to allow all board members to attend the executive session; (7) the need to discuss only the exempted category during the executive session; because when he lead 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. (Aff. 2)
The courts have upheld that Civil service hiring is void if significant requirements are not followed i.e.
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.
In 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.
In conclusion it is clear that various acts of violations of the law were conducted, all to hide the proceedings, selection and voting process of a public employee by a public agency. The various laws governing public bodies have been created to prevent such occurrences from happening, where public bodies who are obligated to be transparent in their deliberations and actions, actually conduct public business in secret. Thus in light of these gross violations the decisions of CB9’s board to hire respondent Martinez should be overturned.
Prohibit Respondent Martinez from “Volunteering” or Working at CB9 office.
Petitioners are requesting that Respondent Martinez be prevented from volunteering or working at the CB9 office, while the search for a new District Manager is conducted (if granted by the court) for the following reason; (1) Respondent has demonstrated in the past and currently her willingness to engage in improper behavior and violations of the law; (2) her working at the CB9 office was a scheme that included illegal behaviors; (3)if it is determined that Ms. Witherspoon was removed from her position to make way for respondent Martinez to take over her position then all acts performed as a result of this unlawful removal should be voided and not allow to continue; (4) it will continue to give respondent Martinez an unfair advantage over other applicants applying for the job; (5) it is possible that respondent Martinez could interfere with the 3rd search committee (if granted by the courts); (6) and respondents Martinez and Lawrence complete disrespect for the Court’s order.
Respondent Martinez’s Continued Display of Unlawful Behavior
In the court case Boyd vs Community Board 9 index 1835/16, ( 24-29 and 470 bullet point 10) evidence was produced concerning a hostile takeover of the executive board by CB9’s Chairs, on January 24, 2016, in direct violation of respondent CB9’s Bylaws by respondent Martinez and respondent Lawrence. (Attached as exhibit Y 76).
However, this unlawful behavior continues to be demonstrated by respondent Martinez and it is not only related to her job as a board member, but as an official representative of the board. Despite the “Stay” of hiring respondent Martinez granted on August 3, 2016, she sent around an email (August 10, 2016) with her signature on the official letter, to the board members stating that a training on the OML was going to be closed to the public. Not only was this policy position against the law, but it is believed that she also called the police and had them present all throughout the meeting, to intimidate and harass community residents, in attendance. (Aff. ) (Attached as Exhibit W.1, page 1)
This type of behavior will continue to wedge a division between the community residents and community board members, which has been heavily documented in Boyd Vs Community Board 9 index #1835 and The Movement To Protect the People vs Pearl Miles index # 15743/14.
A Scheme to Place Respondent Martinez in District Office
Petitioners allege that there has been a concerted effort and scheme to place respondent Martinez as the District Manager due to her political connections and friendship with Borough President Eric Adams. This scheme first began with the illegal appointment of respondent Martinez onto CB9. (This was documented in Boyd vs Community Board 9 Index #1835/16). This was to enable her to create relationships within the board and to gain recognition and allies for her bid for District Manager.
Respondent CB9 own board members and staff have spoken about this pressure to place respondent Martinez as the District Manager. Respondent CB9 member Robertson stated that respondent Lawrence stated that to him that “he [respondent Lawrence] was under orders from “outside sources” to make sure specific individuals made it on to the short list of selected candidates to be presented to the full board.” This was supported by comments that Ms. Witherspoon stated to petitioner Boyd, right before her unauthorized removal from the District Office, of her confusion and anxiety over “higher ups” forcing the board to place respondent Martinez as the District Manager and the board members themselves expressed “fear of repercussion from Borough Hall if they did not vote for the candidate Borough Hall wanted.” (Attached as Exhibit I.2 2, Aff. Boyd 6, and Aff. Thomas 14 and 15)
Petitioners further allege that this scheme was further implemented, by the removal of Ms. Witherspoon from her official capacity as Office Assistant and to place respondent Martinez as the “unofficial” and now official District Manager, giving respondent the much needed experience she lacked as a candidate for the position.
Voiding all Actions of the Scheme to Place Respondent Martinez in the District Managers position
If the allegations of petitioners are substantiated, (the removal of Ms. Witherspoon) the scheme to get Ms. Martinez to act as a “District Manager”, should not be further supported, encouraged or enforced. Respondents must be held accountable for their behavior and the plans that they have employed should be overturned and discarded. The community lost a capable and well liked office personnel, Ms. Witherspoon, possibly illegally and it left the board with no personnel running the CB9 office, despite a $200,000 budget for staff. This type of behavior should be punished and any actions derived out of it should be null and void, to send the clear message that the breaking of the law will not be tolerated.
Un-fair Advantage for Respondent Martinez
Petitioners believe respondent Martinez “volunteering” and working as the District Manager, or any official capacity of CB9 has and will continue to give her an undue advantage not afforded any other potential candidate and has already influenced the idea of respondent being the District Manager.
Interference of 3rd Search Committee
Petitioners have already documented that manipulation of governmental records, removal of personnel, tampering of voting records, refusing to disclose public information, holding their deliberations, discussions, decisions meetings in secret, voting in secret, declaring a committee’s work null and void, high jacking of the executive board, and the elimination of viable candidates conducted by respondents all to support respondent Martinez bid for District Manager. With this type of unscrupulous behavior being displayed by respondents, which respondent Martinez has been a part of, there are no assurances that respondent Martinez will not also engage in the tampering or interference of documents coming into the District Office in regards to the 3rd Search committee (if granted by the courts), especially since she will have unlimited access to all documents, emails, communication etc., coming into the District Office.
Respondent Martinez’s Complete Disregard for the Court’s Order
On August 3, 2016, the Courts signed a temporary restraining order to stay the hiring of respondent Martinez as District Manager. Despite this order, respondent Martinez has continued to “officially” represent the CB9, clearly showing disrespect of the courts and its jurisdiction over her position in regards to CB9.
On August 5, 10, 11 and 12 respondent sent out official emails to the general public in which she signed her name above the official signature of CB9. She also organized training of the respondent CB9’s board on August 10, 2016, and during the course of the training session, continued to allow herself to be addressed as District Manager by the trainers, the board members and other people present. It is believed that she even called the police in her official capacity as District Manager and requested that they be present at the training meeting. (Attached as Exhibit W.1) (Aff. Boyd
This behavior will and has continued to influence the perception of her right to be the District Manager and the total powerless of the courts to curb her behavior or the actions of respondent CB9’s board members.
Sixteenth Cause of Action
Requesting an In Camera Inspection and Interview
Paragraphs 1 through 141 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 request for an In Camera inspection of Ms. Witherspoon employment history from April 2015 to present, for a subpoena to be granted for Ms. Witherspoon to be interviewed by the Court and an “In Camera” inspection of the sealed records of respondent Martinez’s, conflict of Interest charges.
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 time ascertain the truth regarding the serious accusations that have been made in this petition, Petitioners should have access to these records via an In Camera inspection.
The In Camera interview of Ms. Witherspoon will allow the Courts to gain a clearer understanding of the pressure that Ms. Witherspoon was under by “higher ups” and how she was forced to be removed from her job because she refused to “lie” for the respondents and to violate the law.
Both the In Camera interview and documents would shed light on the 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, to give respondent Martinez experience and influence over the District Manager’s position.
Petitioners are requesting an In Camera inspection of the sealed records of Ms. Martinez conflict of interest case because according to the published report, Ms. Martinez was suppose to have been stealing 14 years of time from her job by helping out her block association B&W Sterling St Block Assn. In respondent’s Martinez Disposition page 2 f, she states:
“From September 2000 through March 2014, I used an excessive amount of time when I was required to be performing work for the Comptrollers’ Office as well as an excessive amount of the technology resources assigned to me by the Comptrollers Office, including my City Computer and e-mail account, to engage in activities related to my work for various non-for-profit organization, most significantly the Block Association [B&W Sterling St. Block Assn] (emphasis added),
However it is a known fact that respondent Martinez did not participate in the B&W Sterling St. Block Assn until the year 2012, and this does not cover the 14 years of time. Additionally there was an article in the New York Post, which shows that Ms. Martinez was in fact working for former disgraced boss Clarence Norman’s activities when she was suppose to be working at her job. This means that there were other activities other than conducting work for non-profits in relation to the stealing of time. This also indicates that respondent Martinez lied about her activities, which are grounds to waiver the confidentiality of her disposition. On page 4, 2, section e. she states
“I agree that any material misstatement of the facts of this matter, including of the Disposition, by me or by my attorney or agent shall, at the discretion of the Board, be deemed a waiver of confidentiality of this matter.” (Aff. 25) (Attached as Exhibit W)
Also the respondent’s Martinez conflict of interest summation speaks about “other things” that Ms. Martinez did that warranted her to be removed from her job. The District Manager is an unsupervised job, where the person doing the job has a lot of latitude and control of what happens, both financially and technically. It would be important for the board members to assess if any of the findings included issues that are related to the anticipated job performance of a District Manager, such as the misappropriation of funds, did she work on other political campaigns etc…
Seventeenth - Cause of Action
Seek a Subpoena for the Records, Emails, Tape Recordings and Minutes of Community Board.
Paragraphs 1 through 151 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 CB9 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, NYC City Planning and NYC personnel department.
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 and the removal or sick leave of Ms. Witherspoon from the District office.
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, The Movement To Protect The People Index 15743/16 and within this amended petition) petitioners are requesting court intervention.
According the FOIL 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.
Eighteenth - Cause of Action
Granting a Request for a 3rd Search Committee that will Create 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 157 are repeated as more fully alleged herein.
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, granting a request for a 3rd Search Committee that will create 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.
At this point it would seem impossible that a just and fair search for a District Manager may be possible. The level of corruption, lies, schemes and violations have been displayed to get respondent Martinez into the District Manager’s seat is unprecedented. With 31 out of the 50 board members now comprised of Borough President Eric Adams appointments, which makes CB9 the only community board in Brooklyn now completely in Borough President Eric Adam’s control; with the clear fear and anxiety the board members now have at “keeping” their appointments by going along with respondent Martinez as the District Manager and giving her top salary; with the lengths board members are willing to engage in, such as derailing an entire committee’s process, breaking countless laws including tampering of legal votes, closed meetings, and the deliberate crumbling and creation of dysfunction at the CB9 office, it would appear to be an impossible task to find a District Manager who will actually serve the needs of the community and the board members. (Attached as Exhibit Z)
However, the District Manager position is a very important position. This person sets the tone of the office, will help to direct and supervise the staff that is hired, will be in constant communication with board members and community residents in regards to the function of the board, will represent the board and the community during official meetings, give advice and counsel to board members and residents on procedures, and the laws that govern community boards, handle the budget of the board, order supplies, and maintain the office and take complaints of residents and process them.
The primary job of a District Manager is to assess the needs of the community and to convey these needs to the board members and other governmental agencies. This job is too important for a fair, equitable, informative and lawful process not to be conducted to choose the best possible person to run this board.
The community and board members have the right to hire a person with integrity, honesty, who has a good solid work ethic, has demonstrated her/his ability to work with the public and other agencies, has the skills, education and experience necessary to do their job, can be relied upon to follow the law, be able to work independently and be depended upon to do that work in an honest and forthright and unbiased manner. This person should have a solid history of working with the community, not just political entities, because it is the community residents that a District Manager is serving, communicating with and assessing the needs of and not the political entities that already have a major influence upon the board.
Thus the creation of a 3rd committee should be one of fairness, inclusivity, openness, transparency and one that follows the law and is comprised of both community residents and board members. This will help to allow the Search Committee to find three strong viable candidates to be presented for consideration to the board. However, it is clear that strict guidelines and procedures will have to be implemented and supervision by the Courts would be a necessary element to ensure the process is done lawfully and is abiding by any agreements made between the parties (if the courts grant the request for a 3rd Search Committee)
Rational for a Committee Comprised of Board Members and Residents.
The 3rd committee should be comprised of both community residents and board members for the following reasons (1) respondents have already demonstrated their complete inability to function lawfully; (2) the 2nd committee eliminated perfectly good strong candidates; (3)the District Manger is a public position, who’s primary job is to assess the needs of the community; (4)the power to choose a District Manager still resides completely in the hands of CB9 board members; (5) and adding residents will help to balance out biased and politically pressured board members .
1. The board has already demonstrated that they are not capable of conducting a lawful and comprehensive search for the District Manager position. In fact despite there being a concern, by respondent CB9’s board members, for the lawfulness of the 1st Search Committee process, (which was the reason given for the overturning of the 1st committee’s findings) the 2nd Search Committee was worse than the 1st Search Committee. The 1st Search Committee at least opened several of the meetings to the public, no board members were denied the right to attend the meetings; the committee gained their members via an open process; had a voting record that showed clearly how the final three candidates were chosen and who voted for them; had chosen 7 candidates to interview; worked over a period of five months; and conducted 13 meetings. Whereas the 2nd Search Committee completed their work in 3 meetings within one month; had no record of voting; only interviewed 3 candidates; closed the meeting to their own board members; and selected the candidates via a secret ballot or with a non-voting procedure.
2. The 2nd Search Committee also eliminated perfectly good candidates to ensure that respondent Martinez would shine. Out of the three candidates that were selected by the 1st Search Committee, only one made the selection of the 2nd Search Committee. The number one choice of the 1st Search Committee completely was eliminated. This person’s name was Leroy P. Branch and there was never any explanation of what happen to this candidate.(Attached as Exhibit H)
3. It is clear that a District Manager is not just a private position, but one that is public and affects not just the board members but the general public and as such both board members and residents should be a part of the selection process. This is how other public agencies operate, such as the Department of Education, where all groups in the community are a part of the entire selection process.
4. Despite the 3rd Search Committee making the three recommendations to the board members, respondent CB9’s board members will still have total control over who they appoint. Thus the creation of a fair and equitable 3rd Search Committee that includes community residents will not reduce respondent CB9’s power to make the final decision.
5. Adding community residents to the search process will allow for members to be more objective and who have less political pressure to please the Borough President because their positions are not in jeopardy and they have no allegiance to any political entity, (as long as they are not employees or work for any political or governmental agency).
As a result petitioners are requesting that following parameters be ordered for the creation of the 3rd Search Committee.
(1)There should be 9 people for the 3rd Search Committee 7 members that are randomly chosen via an open process, (names placed in a clear container) during the General Board meeting. 4 should be board members who have not participated in either the 1st or 2nd Search Committee to ensure that fresh eyes are seeing the process. The other 3 members should be community residents who have attended at least 3 meeting of the general board within last year’s meetings (Sept 2015- June 2016) and do not work for any governmental agency or political entity, either currently or in the past. This will ensure residents are not just sent to the meeting to put their names in the “hat” to influence the committee. Petitioners should be a part of the 3rd committee, to ensure that the laws are being followed, that a fair and equitable process is being maintained and because they have initiated and filed this lawsuit.
(2) The Chairperson/Vice Chair and Secretary should all be appointed by the committee members and not the Chairman of the Board, to ensure that no undue influence has been created by the respondents. The Chairperson should be a board member and the Vice-Chair should be a community resident.
(3) A staff member shall be hired to help with the work of the 3rd Search Committee and shall come directly under the jurisdiction of the Chairperson and Vice Chairperson of the3rd Search Committee and not the chairman of the board, or any other board members to ensure that pressure is not placed on him/her.
(4)Right before the final three candidates are chosen an “In Camera” interview with the Judge should be done with the Chair, Vice Chair, petitioners and staff member to ensure that political pressure was not placed upon them and that the law was adhered by during the process. This planned judicial review should deter political or “higher ups” from placing undue pressure and influence on the 3rd Search Committee and encourage all members of CB9 to abide by the law.
(5) All meetings should be scheduled at the beginning of the process and should take into account the standing committees and ad-hoc committee schedules, and religious holidays when determining their schedule. Meetings should occur at least twice a month on a regular basis, such as on the 2nd and 4 Tuesday of the month, to ensure attendance to conduct the meeting and maximize public participation. All meetings of the Search Committee should be open to the public and when the committee goes into executive session all members of the committee shall be allowed to enter including the staff person hired to support the committee in their work.
(6)Before the 3rd Search Committee begins its work they should be trained by the Committee on Open Government, the rules on Parliamentary Procedure and the New York City Employment agency concerning the hiring of civil service workers. This will ensure that the rules, guidelines and laws are explained to the members and that resources are available to the members, as they conduct their business.
The Need for Court Supervision
The current state of fear, lies, and illegal behavior has left CB9 in shambles, with a runaway Chairperson who picks and chooses when he will obey the law and when he will not. This has left CB9 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 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.
However, if the board members were aware that the courts were reviewing their actions and as such the law must be followed, this will help to empower them to act in a lawful manner, knowing that unlawful conduct will not be tolerated by the courts and intervention will be forthcoming if it does. This will also help to protect them and empower them to truly act on behalf of the community.
Nineteenth 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 179 are repeated as more fully alleged herein.
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, granting a request for the election performed on June 28, 2016 of the CB9, for officers of respondent CB9 board for the year July 2016-June 2017, be null and void and a new Election for officers take place, because the entire election process was performed in secret in violation of the Open Meetings Law and CB9’s Bylaws, which governs NYC Community Boards. There were no notifications of any meetings, where decisions were made and the vote itself was done via secret ballot.
On April 20, 2016 an ad-hoc Nomination Committee had been formed to determine the officers of the new board. However, there was no 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. (Aff. Boyd14)
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. She stated on page 26 of The Guide to Parliamentary Procedures for NYC Community Board, 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)”
Corporation Counsel in their own opinions have stated that the election of officers must be conducted via open ballot, because
“The choice of officers has a significant impact upon every community and application of FOIL and the OML to board elections allows the public to know how board members vote in making that choice.” There was even a recommendation from Corporation Counsel for “community boards to discontinue the practice of using secret ballots in the election of officers where it may exist. “ (Corporation Counsel Opinion No. 9-91)
However, what respondents did was hand out a ballot paper, had the members vote on it, but they refused to disclose the members vote. When petitioner Boyd requested that members’ votes be stated in public the members of the board yelled out NO! Don’t give it to them/her!! Thus the Chairperson of the Nomination Committee Blackwell, complied with their request and did not disclose the voting record of each member of the committee. Thus the election was done via a secret ballot process. (Aff. Boyd 20)
It has already been noted within this petition that New York State Committee on Open Government “COG” opinion OML-AO-5409, has stated that the election of officers to community boards may not be done in secret. This was further supported in Lewis v. O’Connor, Supreme Court, Lewis County, January 21, 1997 (standing committees of the county hospital, made up entirely of members of the hospital’s board of managers, with no power to take final action nor bind the board of managers, are public bodies subject to the OML): “To keep their deliberations and decisions secret from the public would be violative of the letter and spirit of the legislative declaration as stated in the Public Officers Law.” Lewis, pp 4-5.; Bogulski v. Erie County Medical Center, Supreme Court, Erie County, January 13, 1998 (subcommittee of county hospital’s board of managers required to comply with OML); Glens Falls Newspapers, Inc. v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 601 NYS2d 29 (3d Dept 1993) (committee of the county board of supervisors required to comply with OML).
The courts have also ruled that;(1) acts intended to violate or evade the 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)); (2) violation of OML (Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994)); (3) intent to minimize public awareness of political actions and decisions ( Previdi v. Hirsch, 138 Misc.2d 436, 524 NYS2d 643 (1988)); (4) patterns of violations of law (Reese v. Daines, 62 AD3d 1254, 877 NYS2d 801 (4th Dept. 2009)); (5) discouraging attendance at public meetings (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009));(6) issues that should have been discussed in public (White v. Kimball, Mayor, City of Jamestown, Supreme Court, Chautaugua County, January 27, 1997;(7) members deprived of opportunity to act on decisions Weatherwax v. Town of Stony Point, 97 AD2d 840, 468 NYS2d 914 (2nd Dept. 1983) are all grounds upon which to void the actions of governmental agencies. Thus Petitioners believe there is enough evidence to show that an unlawful process of the selection and voting of the officers of the CB9 board has occurred to grant the request stated above.
Twentieth Cause of Action
Removal of respondent Demetrius Lawrence
Paragraphs 1 through 189 are repeated as more fully alleged herein.
Petitioners have exhausted all administrative remedies and have not made a prior request to this court for this instant relief based upon the evidence provided in this lawsuit. There is however relief sought in case Boyd vs Community Board 9 Index #1835/16, which is under the same Court’s review as this current petition, requesting the removal of respondent from CB9 based upon other allegations and evidence
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, of the removal of respondent Demetrius Lawrence from CB9.
A Chairperson of a community board holds an important role within the community board itself. He/she act as an advisor, oversee and set the tone for how conduct and interactions between board members and the community shall proceed. A Chairperson should be knowledgeable, impartial, follow the letter of the law and create a democratic process where all voices and concerns are heard both from board members and community residents.
However that has not been the case regarding CB9. Respondent Lawrence has violated almost every law that exists governing community boards; from lack of quorums, to secret voting, to overthrowing the executive board. The following are a few of his gross injustices and behaviors documented in this petition.
(1) The wrongful removal of Ms. Witherspoon leaving the Community Board office without any staff; (2) misappropriation of funds in not hiring a replacement for Ms. Witherspoon; (3) repeatedly lying to the community and the board about Ms. Witherspoon’s employment status and giving the false impression that Ms. Witherspoon was coming back; (4) the intentional misuse of OML to engage in secrecy in all aspect of the hiring of a District Manager; (5) encouraging and leading all board members especially the new ones in engaging in violations of the law including voting in secret, no disclosure of meetings etc.; (6) organizing the voiding of the 1st Search Committee’s work, because he didn’t get the results he wanted; (7) creating a culture of favoritism, lying, inner conflict and fear amongst the board members; (9) violating CB9’s own Bylaws by appointing the Chair of the Nomination Committee ; (10) refusing to submit and disclose the financial records of CB9; (11) engaging in an unlawful scheme to get respondent Martinez to become District Manager; (12) and refusing to comply with FOIL requests.
In Boyd vs Community Board Index #1835/16, 436, another set of his illegal and unprofessional behaviors have been documented, which is cited here to show his pattern of behavior. (1)Failing to obey direct orders of the CB9 Board and Executive Committee; (2)formulating a conscious plan to usurp the power of the CB9 Executive Board by declaring that the Chairs of Committees have voting powers on the Executive Board; (3)attempting to appoint members onto the Executive Board in violation of CB9’s election process for board appointments; (4)preventing residents from speaking at open meetings; (5)deterring residents from speaking by placing the public comment period at the end of the meetings; (6)changing stated board policies without consent from, variously, the full board or Executive Board, resulting in residents not being able to speak in open meetings, a denial of lawful rights; (7)attempting to reopen a meeting and take a vote in violation of Parliamentary procedures; (8) instituting policies that dis-empowers community residents at the committee level; (9) refusing to acknowledge, process or appoint community residents’ applications to serve on various committees, in particular, the ULURP committee; (10)failing to respond to FOIL requests and declaring them forms of harassment; (11) advising board members not to respond to FOIL requests; (12) allowing board members to use Public Comment Periods as a speaking platform; (13)failing to correct abusive behavior displayed by Board member ;(14) and participating in the creation of the 2nd letter, requesting a rezoning study from the New York Department of City Planning, in violation of OML.
All of the aforementioned behavior has occurred during his one year as Chairperson of the Board and clearly shows his inability to govern this board to be a functioning body that is responsive, transparent, fair and accountable to the public. This is a runaway board, which even after being served with papers and told they were going to court, laughed about the court being able to stop them from their dealings. This is the condition that respondent Lawrence has created, a board that not only functions as a private entity, but who feels there are no repercussions or consequences to their behavior, despite their behavior and decisions affecting over 200,000 people that they are representing.
Twenty-First Cause of Action
The scheduling of standing and ad-hoc committees
Paragraphs 1 through 197 are repeated as more fully alleged herein.
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, granting the request to direct respondents to create regularly scheduled standing committees and ad-hoc committees at the beginning of the year or when they are created.
OML Article 7 section 104 states
that a meeting scheduled at least one week prior thereto shall be given the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meetings. 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. (emphasis added)
Petitioners have alleged that respondents have repeatedly used the short notice of scheduling meetings or a complete lack of notice, as a way to deter and minimize public participation.
While it is true that public meetings scheduled within 7 days must be announced 3 days before the actual meeting according to the OML, however, the judicial interpretation of the OML suggests that the propriety of scheduling a meeting less than a week in advance is dependent upon the actual need to do so. As stated in Previdi v. Hirsch:
"Whether abbreviated notice is 'practicable' or 'reasonable' in a given case depends on the necessity for same. Here, respondents virtually concede a lack of urgency: They deny petitioner's characterization of the session as an 'emergency' and maintain nothing of substance was transacted at the meeting except to discuss the status of litigation and to authorize, pro forma, their insurance carrier's involvement in negotiations. It is manifest then that the executive session could easily have been scheduled for another date with only minimum delay. In that event respondents could even have provided the more extensive notice required by POL §104(1). Only respondent's choice in scheduling prevented this result”.
Further, absent an emergency or urgency, the Court in Previdi suggested that it would be unreasonable to conduct meetings on short notice, unless there is some necessity to do so.
It is clear that all standing committees as well as ad-hoc committee are not created out of an emergency or a necessity to do so and thus there should be ample enough time to schedule these meetings.
Thus the relief requested is for respondents to create a schedule at the beginning of the year of all standard committee meetings for the entire year, i.e. the second Tuesdays of every month, is a reasonable one. Also when an ad-hoc committee is created that they too shall create a schedule at its beginning of all anticipated meetings; that they take into account the existing calendars of committee meetings and create meetings that do not coincide with other meetings to ensure maximum participation both from committee members and residents. This would ensure that the spirit of the law is adhered to and that everyone who wants to attend several committee meetings will not be denied the right to do so.
Twenty-Second- Cause of Action
Sanctions against Respondent in the amount of 10,000 million dollars and Awarding of this Money to a Non-Profit of Petitioners’ choice.
Paragraphs 1 through 206 are repeated as more fully alleged herein.
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78, granting the request for sanctions against Respondent CB9 in the amount of Ten Million dollars and awarding of this money to a non-profit of Petitioners’ Choice.
The Community at this point has had to file four lawsuits within the last two years to try to address the wrongful acts and lack of compliance with the laws that govern CB9. Despite these lawsuits respondents have continue to act in bad faith, with a complete disregard for the various laws. This level of disrespect for the law and the Court’s jurisdiction over their behavior and with respondents openly laughing about these cases being heard in the Courts it is clear that respondents do not feel they will be held accountable for their actions.
At this point in time, there have been no repercussions, consequences or correction of their behavior by any governmental body, City Agency or the Courts. Even when Respondent’s own member, petitioner Thomas sought out Corporation Counsel for support and advice concerning the conduct of the respondents this request fell on deaf ears. In fact the only concern it seemed that Corporation Counsel “Ms. McMahon” expressed was the filing of further lawsuits and not the correction of behavior of her clients.
It is clear that sanctioning of any moneys from one agency to be given to another will not incentivize the City to do any corrective measures, because taking from one coffer and giving to another of the same municipality amounts to a zero effect.
Thus Petitioners are requesting not only sanctions be placed against CB9 for their continued disregard for the law, repeated acts of bad faith, violations of the law and complete refusal to even acknowledge that the law exists, but that this money be given to a non-profit of Petitioners choosing.
These sanctions will motivate the City to intervene and assist CB9 and other community boards to function in a more lawful manner, because there are consequences connected to their behavior. It will also alleviate the need of community residents and board members from having to file lawsuits in the courts, taking up valuable resources and time of the courts.
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”.
According to Article 7 section 107 (2) of the OML
“in any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall awards costs and reasonable attorney’s fees to the successful petitioner.”
Petitioners have shown clearly on several occasions in Search Committees, General Board meetings, and Executive Committees that respondents conducted formal votes regarding discussions and motions that did not fall under the exemption categories of conducting these vote in executive session.