“What is the problem with that?” asked Southampton Town Supervisor Anna Throne-Holst to council members Nancy Graboski, Jim Malone and Chris Nuzzi. Without answering the question, the trio gathered their papers and abruptly walked out of a work session on Thursday, July 22.
What topic had the supervisor broached to elicit such a response from her colleagues? The town’s pending litigation against the Metropolitan Transportation Authority (MTA) over the new “payroll” tax.
Councilman Nuzzi had reportedly requested attorney Jeltje DeJong of the Smithtown-based law firm Devitt Spellman Barrett, which is representing the town in these proceedings, to brief the board on the current status of the case. Whether this discussion should have been held in public session or in executive session was at the heart of Thursday’s debate.
Supervisor Throne-Holst argued the public deserved an update of the highly visible case. While councilman Malone countered that board members could accidentally disclose legal strategy during the discussion, noting the board should use an “abundance of caution.”
Town attorney Michael Sordi added that the town board was allowed to reveal what has transpired up to this point in the case, the nature of the town’s complaint and the amount of town monies that have already been exhausted for this matter. According to the New York State Committee on Open Government the board is allowed to privately discuss issues “regarding proposed, pending or current litigation.”
Councilman Malone called a vote to go into executive session, which supervisor Throne-Holst responded to by asking for a simple update on the case without the board members posing additional questions.
“I think there is a motion on the floor,” councilwoman Graboski said. “Are you going to call a vote?”
“No I’m not. I would like to propose that we get a simple status update,” supervisor Throne-Holst responded, at which point the three council members stood up from their seats.
“You know this is really interfering with transparency,” supervisor Throne-Holst remarked to their backs as Graboski, Malone and Nuzzi marched out. “This is a case that is of public interest. To not have a public discussion on where we are and the status of this is really unconscionable.”
With councilwoman Bridget Fleming remaining, supervisor Throne-Holst requested DeJong give a brief presentation on the status of the case.
“I don’t feel comfortable doing that in light of that fact that members of the board have just left and they are talking about going into executive session,” DeJong said. “I have to tell you I have never briefed any board on pending litigation in open session. Never. In my opinion every board member has to waive their [attorney client] privilege in order to do that.”
Fleming and Sordi pressed DeJong. They pointed out that they were not asking her to discuss confidential elements of the case but rather details already available for public consumption, such as when the complaint was filed, when the defendants were served, if they answered the complaint and what the next step for the case may be.
DeJong refused to consider Sordi’s last request and tersely responded to his other questions.
“For the record, I do not feel comfortable doing this,” DeJong started. “The complaint was filed in May. We served the defendants on July 7 and the MTA on July 12. It is up to the defendants to answer [the complaint] or bring a motion.”
The defendants include New York State Assembly speaker Sheldon Silver, New York State Senator Malcolm Smith, Governor David Paterson, the state’s Department of Taxation and Finance and state comptroller Thomas DiNapoli. The town’s complaint was jointly filed with the town of Southold.
The MTA “payroll” tax has been a subject of public outcry since it was enacted this year. The tax levies $3.40 on employers, including businesses, schools and municipalities, for every $1,000 of payroll, and was concocted to defray the Authority’s $400 million deficit. Critics of the tax point out that despite receiving very limited train service from the MTA, East End employers pay the same tax rate as those in New York City and outer boroughs who have access to the MTA’s extensive subway and bus system.