Lawsuit Against Community Board 9 and Members of CB9 Bklyn - 2016
Directions on how to read lawsuit
There are two parts to this lawsuit.
First are the actual behaviors that have occurred, starting with harm (Prejudice) done to the Community and proceeding with Violations of Laws. This is from 1 -5 Cause of Actions.
The second part is from 6-12 Cause of Actions, which are the demands that we have. The evidence is not included but can be reviewed at Brooklyn Supreme Court, Index Number is 1835/16. The evidence contains over 200 pieces of affidavits, documents, emails, Borough President documents, photo’s, transcripts of meetings and (video links, some which are imbedded here).
Also at the beginning is called Background, it give some basic information about rezoning and the intention of CB9 and Department of City Planning in our community.
There is also a GO BACK UP TO TOP link that is after each section and can bring you back Table Of Contents.
The Petitioners are Alicia Boyd, Pamela Yard and Janine Nichols.
The defendants are Terry Witherspoon, employee of CB9, Demetrius Lawrence, Chairman of CB9; Michael Librud, Chairman of ULURP and 197a committees; Tim Thomas, board members of CB9 and Warren Berke, chairman of the Economic Committee.
These members have been named because we are asking that they be removed from the board.
The Case was filed on February 17, 2016 and papers were served on the same day. The return date is for sometime in March but will be changed, once a Judge is assigned to the case.
TABLE OF CONTENTS
Background on Rezoning, Studies and Empire Blvd Rezoning
A Hostile Take Over of the CB9 Executive Board
First Cause of Action – Prejudice Done to Community Residents
(Tim Thomas, Warren Berke, Michael Liburd)
Second Cause of Action - Violation of City Charter
Third Cause of Action – Violation of the Open Meeting Law (OML)
Fourth Cause of Action – Violation of FOIL 67
Fifth Cause of Action – Violation of CB9 Bylaws71
Sixth Cause of Action - Declaring Null and Void the Second Letter to (DCP)
Seventh Cause of Action – Removal of CB9 Board Members
Michael Liburd, Tim Thomas, Warren Berke, and Demetrius Lawrence
Eighth Cause of Action - Voiding of CB9 Bylaw Article 8.2 and 8.7c
Ninth Cause of Action – Creation of Fair and Equitable Policy
Tenth Causes of Action - Board Members Training
Eleventh Causes of Action – Declaratory Judgment
Twelfth Cause of Action – Permanent Injunction
CASE LAW (not include on website)
NYC Charter Chapter 70 – City Government in the Community
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
Robert Rules of Order – RulesOnLine.com
NYC Mayor’s Community Affairs – About Community Boards
Background Information
Community Boards
Community Boards empowered by the City Charter are comprised of 50 non-paid appointed members of the community. Half must be recommended by the local City Council person(s) representing the district and half by the Borough President, but all are appointed by the Borough President
According to NYC Mayor’s Community Affairs website2, Community Boards have three primary responsibilities, “Dealing with land use and zoning issues, Assessing the needs of their own neighborhoods” and, “Addressing other community concerns.”They serve as “advocates for their neighborhood”, and, at the community board meetings, “members address items of concern to the community and hear from attendees” and “give community members the opportunity to express their opinions and concerns.” “Board committees do most of the planning and work on the issues that are brought to action at community board meetings” and each community board establishes the committee structure and procedures it feels it will best meet the needs of the district.” “Non-board members may apply to join or work on board committees…” (underline emphasis added)
Brooklyn Community Board 9, here known as CB9, is a public body and governmental agency governed by the City Charter, New York State Open Meetings Law (‘OML’), Freedom of Information Law (FOIL), Robert Rules of Order and the Community Board’s own Bylaws.
Under the aforementioned bodies of law, CB9 must provide time at every meeting to hear from the public conduct a public session at every meeting, establish quorum at both general board meeting and committees to conduct business, select and encourage the participation of non-board members on committees, that have voting power, conduct business in an open meeting, with adequate notification of meetings, publish and provide to the public upon request and for public inspections all legal documents, comprising of decisions, resolutions, recommendations, letters of request, voting records, minutes etc.., according to Open Meetings Law (“OML”) and Freedom of Information Law (“FOIL”) guidelines, and conduct public hearings and submit recommendations to Department of City Planning Commission (“DCP”).
Alleged Grievances of Petitioner
Petitioners allege Borough President Eric Adams, intentionally broke the law of the City Charter by placing 18 new board members on CB9 in June of 2014 to enable a highly politicized Executive Board to take over CB9, whose purpose was and remains to pass a rezoning letter request, hereby known as the “First and Second Letters,” to the Department of City Planning (“DCP”), with the intention of enabling DCP to up-zone the community (increase heights and develop large buildings), against the will of the CB9 community residents.
By violating laws that govern community boards, Respondents have caused great harm to the community residents. Respondents engaged in abuse of police power, requesting the removal and arrest of Petitioners and community residents voicing their concerns and opinions, seeking to silence dissent through intimidation, demonization and verbal abuse of Petitioners and community residents. Respondents refused to allow residents to speak at public meetings and to join committees, refused to provide minutes and other documents and information subject to OML and FOIL, and, with regard to the Second Letter, created documents in violation of CB9 Bylaws and OML.
Petitioners allege that during the year 2014-2016 CB9 ceased to function as a governmental body governed by applicable law, with its primary purpose to listen, advocate for the public and determine the wishes of the community residents in regards to land use, but instead existed as a self-appointed private entity serving unspecified interests and with no accountability or responsibilities to the public.
Petitioners further allege that, in Respondents zeal to support the rezoning request to DCP, Respondents are continuing in these such practices by continuing to harass residents on committees, refusing to disclose memberships of committees, refusing to allow residents to join committees, removing residents from committees without due process, penalizing residents for engaging in their rights at the committee level, by removing them without due process, continuing to make decisions in secret and to operate in violation of FOIL and OML.
Background on Rezoning, Studies and Empire Blvd Rezoning
Definition of Rezoning Study
A rezoning study is a necessarily preliminary step in a process to rezone or change the legal requirements applicable to a piece of land. Studies can be conducted by private individuals, community groups, the Department of City Planning (“DCP”), and Borough Presidents, and may focus on one lot, several lots, a community or the entire city. Sometimes a zoning analysis might preclude a study, but in other cases initiating a study is sufficient to get a rezoning underway.
CB9’s Rezoning Analysis
In the Spring of 2014, DCP, along with Community Board 9 (“CB9”), completed a rezoning analysis wherein most areas of the community were identified for up-zoning, that is, an increase in building heights and development.
As documented in a summary, the analysis called for increased heights in the community ranging from 20% to 192%, (from 2-, 4- and 6-story buildings to 8-, 14-, and 18-story buildings), with special emphasis placed on Empire Blvd, changing it from a low density (1-4 stories) commercial zone to a medium (7-10 stories) to high density (12-20 story) mixed-use residential street. The only area slated to remain the same or be protected was the Prospect Park Lefferts Garden community, which currently enjoys immunity due to its landmark status.
Rezoning Studies
Despite the fact that DCP asserts that a “study” is a harmless exercise in figuring out what would be best for a community, in fact the purpose of the study is to generate a zoning proposal wherein the die is cast for the targeted community. Professor Tom Angotti, Head of Urban Affairs at Hunter College and former DCP planner, has stated the following concerning DCP studies:
“DCP’s zoning proposals (studies), submitted for review under the city’s Uniform Land Use Review Procedure (ULURP), are virtually assured of passage. In the past decade, almost 140 zoning changes were proposed and every one passed, even those that were opposed by community boards. In other words, by the time DCP completes its study and makes a proposal, it is “a done deal.”
Professor Angotti also stated:
“The lack of genuine community engagement in zoning studies and proposals is especially critical in communities of color. At least two separate studies have showed a propensity for the city to upzone (to encourage new development) on blocks where racial minorities reside and downzone (to preserve existing development) on blocks that are predominantly white. The effect of this pattern is typically the displacement of minorities. This pattern is evident in current DCP proposals to rezone in East New York, Jerome Avenue in the Bronx, East Harlem in Manhattan and Flushing in Queens, all communities of color in which opposition to the zoning studies has been intense. In these cases, community organizations and activists see the DCP zoning study as a blueprint for displacement that they will be unable to change once it enters the ULURP process.” (emphasis added)
The Politics of Rezoning Studies
It is the political position of DCP not to conduct rezoning studies of communities unless the community itself asks for one, customarily through the community board. Were it not for this one constraint on the part of DCP, they would have the authority to rezone any community at any time. Such potential for abuse of power would have serious negative impacts for DCP, calling their choices into question, even opening themselves to legal challenges based upon perceived racial patterns that have occurred or would occur. Thus, the need to get a formal “study request” from a community board is essential for a DCP study to begin.
A study request lends DCP protection by allowing it to state that the community and/or residents wanted the rezoning and that DCP is an impartial agency taking action at the community’s request. However, in order for DCP to up-zone a community that does not want to be up-zoned, DCP would need to have a request that is very broad in its terminology, in order to enable them to manipulate it and still be able to say, “This is what the community wanted”.
For example, if a request asks to “develop affordable housing while preserving the existing character of the community,” DCP could increase building sizes by 200% on the main Avenues for “affordable” housing and then select a few blocks in the historic district to be maintained in order to “preserve the existing character” of the community. Such a result may not be what the community had in mind when it made the request, but without very detailed, descriptive and clear guidelines, as were made in the Boreum Hill rezoning request that resulted in downzoning and other protections, DCP’s action would be said to be in line with the broadly stated wishes of the request.
Up-zonings are lucrative to a small few, specifically, developers and owners of large properties. At the same time, up-zonings can be detrimental to, more vulnerable community residents, both tenants and struggling home- and business-owners, for up-zonings cause displacement of tenants and small business owners, overcrowding, creation of unaffordable communities, property damage, and negative environmental impacts such as loss of light and air, increase in crime and pollution, overcrowding of schools and serious dilapidation of existing infrastructure, all of which are conditions that DCP is not required to address within any rezoning study or proposal.
Empire Blvd – C82
With its potential for park and skyline views, Empire Boulevard has been targeted as the crown jewel in a rezoning of CB9. Despite its not being identified for development, by the community residents during the “Listening Forum” conducted on March 17, 2014, Empire was revealed to be the focal point of the DCP rezoning analysis, slated for an almost 200% increase in development by changing it from a C8-2 commercial zone to a mixed use-residential zone. The area in question stretches from Flatbush Ave to Rogers Ave; the length of Flatbush Ave from Empire Blvd. to Lefferts Ave.
Pros and Cons of Empire Blvd Rezoning
Empire Boulevard is ideal for development for many reasons, principally because the lots sizes are big and current buildings are mostly single story. Empire also is adjunct to major public institutions that would encourage increased tourism. The CB9 community itself is divided by race, class and religion, tensions that are being exploited by DCP, pitting one area of the neighborhood against another, as threatened residents seek protection from out-of-scale, “as of right” development in their backyard by agreeing to it in someone else’s. Another plus for developers is historically, low to moderate income residents have less political clout with their elected officials, who in this current political atmosphere are siding with development interests.
Opponents to a zoning change for Empire Boulevard point out the that CB9 is already the densest populated area in borough of Brooklyn, the 2nd most affordable, and over 96% residential. Rezoning Empire for residential use will reduce the district’s already limited commercial space to less than 1% compared to 45% for all other communities in Brooklyn. Thus there isn’t a lot of justification for development politically, unless the community itself is requesting it. However the communities (homeowners who claim Empire Blvd as their backyards) most affected by the rezoning of Empire Blvd to mixed-use continue to mount tremendous resistance to its inclusion in the CB9 study parameters, in keeping with a large and growing number of communities across the city resisting irresponsible overdevelopment.
Conclusion
Given that some 99% of DCP “studies” become law and that throughout the process both community input and the recommendations of CB9 are ultimately advisory, and given that the results of a DCP study can have devastating affects upon all the residents of a community; from displacement of people of color of low-to moderate income, destruction or damage and elimination of and air/light in buildings and homes adjacent and proximate to high-rise towers, to an increase burden on an already strained and overcrowded community, the request itself given to City Planning to do a study should contain as much detailed information, documenting the expressed wishes of the community residents as possible.
It was immediately clear that increased height and density leading to the creation of an unaffordable community and displacement were the very things that the community residents didn’t want, based upon the comments made during the “Listening Session” of March 17, 2014 that DCP conducted ostensibly to inform their recommendations. Their actions since suggest instead that the forum was no more than a formality, a pause in the march toward an up-zoning in service to the development community and defiance of residents’ consistently expressed concerns.
To best ensure that what the community wants is what the community gets it is critical that any request submitted to City Planning be deeply informed by that community and focus on agreed-upon parameters. Without such detail, DCP will, as it has demonstrated time and again, manipulate a broadly worded study request to justify foregone conclusions, leaving community residents to suffer the consequences.
- For the fabrication of a vote of the Transportation committee.
- Lying in his responses to FOIL requests.
- Abusive and unprofessional behavior unbecoming a public official characterized by aggression and emotional outbursts at Community Board 9 meetings which has resulted in a harassment summons and several petitions by aggrieved community residents.
- For the use of profanity towards community residents, members of the board in general and his committee in particular, in person and online, including on official communications regarding CB9 board business.
- For making personal attacks against community residents during public hearings of CB9 board.
- For the use of his personal blog to degrade, berate and verbally assault community residents, especially community activists, and other community board members.
- For inciting and inflaming racial tensions and divisiveness amongst the community by means of insults and racial slurs.
- For his inability to be maintain his composure as befits a government official.
- For formulating procedures without authorization from the CB9 board or Executive Board in violation of CB9 Bylaws Article 8.6, which states that, “This Committee [Executive] shall have the power to adopt its own rules of procedures consistent with the Charter and these Bylaws.”
- For changes to procedures enforced by Respondent Berke to date, which have resulted in the arrest of a resident, a pregnant woman having to stand for two hours in order to observe a meeting, and the prevention of community residents from speaking at the Bylaw committee meetings in violation of CB9 Bylaws Article 9.1 b, which states that, “At each meeting, the Board shall set aside time to hear from the public.”
- Respondent Warren Berke has displayed his use of profanity and other derogatory behavior intended to intimidate members of the community during meetings, resulting in harassment charges being filed against him.
- For his physical assault against a community resident by throwing a stack of papers and hitting Jay Sorid in the face with them.
- For refusing to respond to FOIL requests in his capacity as Chairman of the ad-hoc Bylaws committee and board member, in violation of CB9’s Bylaw Article 9.3, which states that meetings and public hearings of the Board and its committees shall be conducted in accordance with the Open Meetings Law.
- For his abusive and harassing emails sent to Petitioner Alicia Boyd in his official capacity as a board member.
- For his antagonistic behavior towards other members of the community.
- For his purposeful misstatements regarding CB9 Bylaws with the intention to overstate and otherwise misrepresent the powers of the board and board members.
- For participating and encouraging actions that he knew to be in violation of CB9 bylaws.
- For participation, with Respondent Demetrius Lawrence, in the creation of an ad-hoc committee without board consent.
- For presenting himself as Chair of that procedurally non-existent ad-hoc committee.
- For conspiring, with Respondent Demetrius Lawrence, to increase the voting membership of the Executive Board in violation of CB9’s bylaws.
- For attempting to present bylaw changes to the board for approval without them having been created in an open meeting.
- Failing to obey direct orders of the CB9 Board and Executive Committee.
- 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.
- Attempting to appoint members onto the Executive Board in violation of CB9’s election process for board appointments.
- Preventing residents from speaking at open meetings.
- Deterring residents from speaking by placing the public comment period at the end of the meetings.
- 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.
- Attempting to reopen a meeting and take a vote in violation of Parliamentary procedures.
- For summarily instituting policies that dis-empower community residents at the committee level.
- Refusing to acknowledge, process or appoint community residents’ applications to serve on various committees, in particular, the ULURP committee.
- Failing to respond to FOIL requests and declaring them forms of harassment.
- Advising board members not to respond to FOIL requests.
- Allowing board members to use Public Comment Periods as a speaking platform.
- Failing to correct abusive behavior displayed by Board member.
- Participating in the creation of the second letter in violation of OML.
- The Chairman of the Bylaw committee, Warren Berke stated he will only obey FOIL requests if presented with court orders.
- Board members, stating the videotaping of open meetings are a violation of their constitutional rights.
- The Chairman of the Board, Demetrius Lawrence stating he can appoint members onto the Executive Board instead of them being elected as is required by CB9 Bylaws.
- Former Chairman of the Transportation committee, Tim Thomas replying to FOIL requests as “Bullshit” and “legal beagle nonsense”.
- Chairman of the Board, Demetrius Lawrence referring to FOIL requests as forms of harassment.
- Chairman of the Business committee, Warren Berke stating that residents should not be allowed to have any decision making power at the committee level and that the Mayor’s Handbook supersedes CB9’s Bylaws.
- Chairman of the Board Demetrius Lawrence agreeing with the above statement.
- Executive Board Member Jacqueline Welch, stating that she doesn’t want to hear from the community residents because the community board needs to get work done.
- The current Chairs of committees and Chairman of the Board, stating that residents are not allowed in an open meeting, because the meeting is closed to the public.
- Chairman of the housing committee, Carmen Martinez stating that the City Charter states that Chairs of committee must be a part of the Executive Board.
- Chairman of the Board Demetrius Lawrence refusing to allow residents to speak at open meetings.
- Chairman of the ULURP committee, Michael Liburd, stating that in order for work to get done at the committee level, board members must be in the majority despite the fact that only the non-board members have contributed to the ULURP committee’s work.
- Chairman of the Education Committee, Dr Zorina Frederic stating that members of a committee must obey the chair when asked to violate the OML.
- Chairman Demetrius Lawrence stating he wants to discourage people from speaking at the meetings and limit community residents participation on committees.
- By refusing all members of the public who wish to speak to do so regardless of whether they signed up in advance.
- By not providing time at every meeting to hear from the public.
- Failing to produce documents to be voted upon to the public either before or at the time of voting.
- Failing to provide minutes of meetings, its voting records and documents and letters voted upon.
- Employing tactics, pressure and punishments of residents who choose to engage in the videotaping of meetings.
- Deploying police and security to arrest, intervene and chill peaceful, First amendment-protected public attendance and behavior.
- Using abusive language in their communication with the public.
- Failing to publish all adopted resolutions, letter and decisions.
- Failing to tally up all votes by their members and present this information to the public.
- Failing to make all minutes of meetings available within two weeks afterwards.
- Failing to post meeting dates and times according to OML.
- Failing to respond to FOIL requests and the use of abusive language in regards to responding to FOIL requests.
- Refusing to encourage members onto committees especially leaders of community organizations.
- Refusing to place community residents onto ad-hoc committee.
- Creating of ad-hoc committees without advice or consent of CB9 board.
- Increasing the voting membership of the Executive Board.
- Refusal to establish quorum when meeting and voting.
- Placing of members on committees in violation of CB9 bylaws.
- Appointment of chairs onto non-existing committees.
- Creation of documents and anticipated Bylaws in secret.
- Holding meetings in secret.
- Violating own stated policies.
- Refusal to implement the lawful directives of CB9 board and executive board.
- Making decisions behind closed doors.
- Creation of policies without approval of Executive Board or General Board.
- Creation of policies which violate the law and the spirit of the law, the appointment of Executive Board members instead of an election.
- Appointing chairs to ad-hoc committees that don’t exist.
- Posting of commentary which violates the City Charter and CB9 Bylaws.
- The misuse of Titles.
- Overpowering the Executive Board by the appointment of Chairs as voting members
- To continue to dis-empower and limit community residents onto committees.
- The appointing instead of electing of Executive Board members.
- Creating another series of documents, this time bylaws in secret to be presented to the board for approval.
- Creating of procedures, policies and committees without consent or approval from the board and/or Executive Board.
- All of these proposed acts will again force the community to present future litigation to address these clear violations of the law and shows that the violations won’t stop.
- By allowing all members of the public who wish to speak to do so regardless of whether they signed up in advance.
- By providing time at every meeting to hear from the public.
- Producing all documents to be voted upon to the public either before or at the time of voting.
- Providing minutes of meetings, its voting records and documents and letters voted upon.
- Refrain from employing tactics, pressure and punishments of residents who choose to engage in the videotaping of meetings.
- Refrain from deploying police and security to arrest, intervene and chill peaceful, First amendment-protected public attendance and behavior.
- Publish all adopted resolutions, letter and decisions on to CB9’s website.
- Tally up all votes by their members and present this information to the public. Make all minutes of meetings available within two weeks afterwards.
- Post meeting dates and times according to OML.
- Respond to FOIL requests.
- Refrain from the use of abusive language in regards to responding to FOIL requests.
- Refrain from the use of abusive language in their communication with the public.
- Encourage members onto committees especially leaders of community organizations; place community residents onto ad-hoc committees.
- Refrain from creating of ad-hoc committees without advice or consent of CB9 board; refrain from increasing the voting membership of the Executive Board; to establish quorum when meeting and voting.
- Refrain from placing of members on committees in violation of CB9 bylaws; refrain from appointing chairs onto non-existing committees.
- Refrain from the creation of documents and anticipated Bylaws in secret.
- Refrain from holding meetings in secret. R
- Refrain from violating CB9 stated policies.
- Implement the lawful directives of CB9 board and executive board.
- Refrain from making decisions behind closed doors.
- Refrain from the creation of policies without approval of Executive Board or General Board.
- Refrain from the creation of policies which violate the law and the spirit of the law.
- Refrain from appointing of Executive Board members; refrain from posting of commentary which violates the City Charter and CB9 Bylaws.
- Refrain from misusing of Titles of CB9.
A Hostile Take Over of the CB9 Executive Board
In a series of moves both legal and illegal, Respondent Demetrius Lawrence, Chairman of CB9 has attempted to exert absolute control of CB9 via the appointment of Chairs of CB9 committees (forever known as Chairs) onto the Executive Board, without consent of CB9 Board and in violation of CB9’s Bylaws. In the Fall 2015 Respondent Lawrence appointed brand new members of the board to Chairmanships, along with three of the illegally placed board members appointed by Borough President Eric Adams. Four of these Chairs amounted to half the Executive Board of the Crown Heights Community Council, who’s leader is Richard Hurley, a known supporter of Borough President Eric Adams and host of Adams’ Town Hall meeting of August 2014.
Out of 11 Chairs, 4 were new to the board and 7 had less than 2 years board experience. Respondents Tim Thomas and Warren Berke were re-appointed to the board and given chairmanships despite widespread complaints in the community about their unprofessional behavior resulting in pending harassment charges; both are also known for their extreme support for residential development on Empire Blvd. All Chairs were appointed to the 197a committee with the power to generate a rezoning plan for the community; 7 of its 11 members also serve on the ULURP committee handling land use issues.
Three of the Chairs hold two Chairs positions: Respondent Michael Liburd chairs both 197a and ULURP despite his having no experience with or demonstrable knowledge of rezoning and urban planning issues, and despite his one year of service on the CB9 prior to his appointments. Hector Robinson, brand new to the board, now chairs Parks & Recreation as well as the ad hoc Search Committee charged with finding a new District Manager. Robinson is also a board member of CHCC, along with Carmen Martinez who is also an illegally placed appointee to CB9 with one year of service, and who is the Chair of the Housing Committee and an applicant for the position of District Manager. Respondent Demetrius Lawrence’s appointment of Hector Robinson to board Secretary was made in violation of CB9 bylaws requiring all Executive Board appointments to be voted upon by the full Board. Finally, Respondent Warren Berke, Chair of the Economic Development committee, has been single-handedly appointed by Demetrius Lawrence to chair a non-existent ad hoc Bylaws committee; said committee’s mandate expired in June 2015 and has not been re-created by the board as of this writing.
At a CB9 Chairman’s meeting on January 25, 2016, Respondent Demetrius Lawrence summarily added all Chairs, including these highly politicized and inexperienced Chairs to the Executive Board, which by CB9 bylaws is restricted to a membership of 8. At the same meeting, Respondent Lawrence created a new committee, the Community Outreach Communications Committee, appointing Beverly Newsome as Chair, thus bringing the total number of Chairs to 12 and the total number of Executive Board members to 20, not 8. By these illegal actions, Respondent Demetrius Lawrence seeks to assert control of the Executive Board. His 12 appointees outnumber the 8 legal appointees, effectively placing control of the Executive Board in the hands of Respondent Demetrius Lawrence rather than the Community Board.
To further consolidate his power at the committee level, at the same meeting a policy was put into place that only the Chairs will be able to select the community residents placed on committees and not the Chairman of the board, and that community residents may never outnumber board members on any committee. In fact, instead of placing community residents who submitted applications onto two committees – who if selected would outnumber the board members- Respondent Demetrius Lawrence decided to merge these two standing committees, supposedly because of their low membership, without any authorization from the Board.
This new, illegal selection process would ensure that community residents with views opposing those of the chairs would not be allowed to join the committee in tandem with limiting the number of community residents, would ensure absolute power in the hands of all Chairs. And with Respondent Demetrius Lawrence selecting those Chairs without following procedures for selection process contained in CB9’s bylaws, absolute power over all Board decisions would thus redound to him.
First Cause of Action
Prejudice Done to Community Residents
Arrest of Residents
Petitioners allege that Respondents used the police as a tool of intimidation and fear, to suppress and to punish the community residents and to discourage them from attending community board meetings and speaking out about their concerns. Respondents requested police presence and demanded that residents be arrested at general board meetings, ULURP committee meetings and at bylaw committee meetings.
On February 11, 2014 at CB9’s ULURP committee meeting, Petitioners Alicia Boyd and Anne Pruden were arrested while exercising their first amendment right to free speech. Brooklyn Criminal Court subsequently determined their behavior to be “constitutionally protected speech.” (Attached as Exhibit A, documents 1 and 2)( (Yard Aff.)(Nichols Aff.) (Pruden Aff.)
On March 16, 2015, at CB9’s ULURP committee meeting, Petitioner Alicia Boyd was arrested while exercising constitutionally protected right to free speech, which again the courts upheld (Attached as Exhibit A, documents 1 and 2). Petitioner suffered bruises to her wrists and was ruffed up by police. (Boyd Aff.)Rabbi Jacob Goldstein, former Chairman of CB9 (1983-2014) and current board member, was caught on videotape signaling to the police to arrest Alicia Boyd to which they complied (Attached as Exhibit A, photo 1). Ben Edwards, Chairperson of the ULURP committee, stated to the police, “Please remove Ms. Boyd.” (Attached as Exhibit A, transcript 1 ¶56) Tim Thomas, CB9 member stated, “Get them [community residents] out!” (Attached as Exhibit A, transcript 1) These arrests also were later dismissed for the same reasons cited above. (Attached as Exhibit A, documents 1 and 2) (Nichols Aff.)
On May 19, 2015, at CB9’s ULURP committee meeting, Petitioner Alicia Boyd was arrested while objecting to Respondents’ trying to pass a vote while violating the OML, the City Charter and CB9 Bylaws. Pearl Miles, former District Manager of CB9 (1985-2015), accused Alicia Boyd of snatching a piece of paper out of her hand. The case is still pending. (Nichols Aff.) (Steward Aff. )
On May 26, 2015, at CB9’s general board meeting, community resident, Professor Maxine Barnes was arrested and charged with Assault With A Deadly Weapon based upon an allegation by Executive Board member Evelyn Williams, that Maxine Barnes threw paper at her at the ULULP committee meeting on May 19, 2015. Professor Barnes spent a night in jail. The case against her was subsequently dismissed when she produced video evidence to the Brooklyn District Attorney, which exonerated her of all charges (Attached as Exhibit A, Video1 https://www.youtube.com/watch?v=NfIMJ7ax5Zw ). Ironically, this was the same videotape that NYPD referred to before making their arrest, showing again the power being exhibited by Respondents to use the police to suppress the voices of community residents. (Barnes Aff.) (Nichols Aff.) (Pruden Aff.)
Summary Arrest of Residents
Great harm was done to the victims of these arrests, their liberty was taken away, they were imprisoned, forced to spend thousands of dollars on legal fees, their bodies bruised, their reputations tarnished, and trauma suffered by being abused in such a malicious and irresponsible way. All because the very people who are supposed to be representing the interests of the community didn’t want to hear dissenting voices from the community. Respondents wielded the “community board,” a governmental agency, as a weapon wherein Respondents have unlimited power and dissenting community residents are regarded as obstacles to be arrested and imprisoned when their objections to Respondents’ conduct and actions or demands for accountability are voiced.
As was stated above, the videotape that was used to exonerate Maxine Barnes was the very same one that the Police Department used to arrest her! In truth, the videotape shows CB9 board member Evelyn Williams being held back by the Police as she tries to attack Professor Barnes (Attached as Exhibit A, photos 2 and 3; video 2= (https://docs.google.com/file/d/0B5v4hDo26urRQTZYYnNIdWpiMjQ/edit ), thus demonstrating that community board members were not held to the same legal standards as community residents with regard to behavior at the board meetings. (Yard Aff.)
Surrounding of Police
Since September 23, 2014, when the community turned out in record numbers to the CB9 general board meeting to oppose the First Letter, the police have been requested by Respondents to maintain a strong presence, surrounding residents at general meetings, ULURP and Bylaw committee meetings. (Nichols Aff.) (Macken Aff.) (Yard) (Pruden Aff.) (Steward Aff.) . (Barnes Aff.)concerns regarding police presence (Attached as Exhibit L Photo 1)
On March 12, 2015, April 16, 2015 and May 21, 2015, at the 71st Precinct Community Council Meetings, numerous community residents turned out to say that they were fearful of attending CB9 meetings and the police were criminalizing residents for trying to participate in CB9 affairs. Residents made a request for mediation among the CB9 community board, Borough President Eric Adams, and district 9 residents due to increased agitation, hostility and abuse of the power to arrest being employed. Inspector Fitzgibbons of the 71st Precinct refused to entertain the idea of mediating among the parties and maintained his position that his men needed to be present at the meetings in order to maintain peace and order. (Nichols Aff.) (Quarles Aff.)
In response to this abuse of power Community Resident, Lynn Quarles filed a CCRB and Internal Affairs Complaint, (OCD 201594161 and IABCMDCNTRD 2015-16094), that she stated she still hadn’t gotten a response back. (Quarles Aff.)
On May 19, 2015, Inspector Fitzgibbons’ position that police presence was necessary to maintain peace and order proved to be false because his men can be seen on videotape walking out of the room when there was unruly behavior, thus allowing the contentious meeting to proceed. (Attached as Exhibit A, photos 3,4,5) (Id., document 3)
Summary Surrounding of Police
Police behavior on May 19, 2015, made it clear to Petitioners that for the previous eight months the Police were not present to maintain the peace or to prevent any illegal actions occurring but were instead there at the behest of the Respondents to harass, silence and criminalise community residents. The Police’s refusal to close down the meeting down when it became dangerous – as tables were being overturned, people were throwing paper, shoving and yelling – revealed the true intention: to ensure that the Second Letter was passed regardless of community opposition and the present danger to residents and community board members alike.
Illegal Behavior Exhibited by Respondent Tim Thomas
On September 16, 2016 according to the minutes submitted by Respondent Tim Thomas, the transportation committee took no action in regards to DOT presentation, requesting that a two pieces of land on Empire Blvd be converted into Real Estate blocks. (Attached as Exhibit I)
On September 18, 2015 a website blog, “StreetBlog” reported that CB9’s transportation committee had in fact voted 4-0 for the DOT project. (Id., pg7)
On October 26, 2015, at CB9’s general board meeting, Respondent Tim Thomas stated that a vote 4-0 took place in support of DOT Project.(Id.,pg3)
On October 28, Respondent Tim Thomas in response to a FOIL of Petitioner Alicia Boyd, stated that the 4-0 vote was unanimous. “Fred [Baptist], Ed Fanning, Daniel Kristjansson and I voted yes.” (Id.,pg9)
On January 19, 2016 at the CB9 executive Board meeting Karen Fleming, a member of the Transportation committee and community residents presented evidence to the Executive Board concerning the allegations of Respondent Tim Thomas fabricating the vote. She stated that she had attended all of the transportation committee meetings and recalled no vote having taken place. (Id.,pg1)
Respondent Tim Thomas also stated on January 20, 2015 at CB’9 transportation committee, that the reason Karen Fleming didn’t recall the vote because she came in late. However, on January 25, 2016, he changed his story again and stated he didn’t know when the vote was taken. He also stated that now it might have been five votes, which includes a Stanley Greenberg, who wasn’t put onto the transportation committee until after the September meeting, and that Ed Fanning didn’t cast a vote, but just Quest Fanning. (Boyd Aff.)
On January 25, 2015 at CB9’s transportation meeting, Respondent’s Parliamentarian Fred Baptist, who Respondent Tim Thomas stated voted for the DOT recommendations, stated that he did not recall any vote taking place on September 16, 2015. (Id., )
Summary Illegal Behavior by Exhibited by Respondent Tim Thomas
Petitioners allege that Tim Thomas did act in bad faith and violated the law by fabricating a vote to present to the CB’s general board meeting, on October 27, 2015. He did this because there was tremendous opposition from the community regarding this project being proposed by DOT. However, because votes from committees are valid and have a serious impact upon the final decisions made at the general board meetings, and community boards tend to vote in favor of committee recommendations, this fabrication of a vote is a serious issue.
Abusive and Violent Behavior Exhibited by Respondent Warren Berke
On December 2, 2014 Warren Berke aggressively went after a Senior Citizen, Joyce Steward, in the words of Elizabeth Macken a community resident who witnessed his behavior;
“Committee Chair, Warren Burke, became verbally and physically threatening to community resident Joyce Stewart. He got up from his chair screamed at her an inch from her face, all the while forcing his body closer and closer to hers. I was afraid for her and for myself. Joyce Stewart is an elderly woman, barely five feet tall.” (Macken Aff.) (Steward Aff.)
Joyce Steward in her own words spoke about Respondent’s Warren Berke’s behavior.
“On December 2, 2014, I attended a Bylaw committee meeting and I saw a white man, who I later learn was the CB9 Chairman of the Bylaw committee, Warren Berke be disrespectful to a young woman, because she had told him that he was being rude. I had told him to be respectful and he then got rude with me. He got up very close to my face and was threatening me with his body. I felt he was going to attack me and I began to raise my voice and ask him who he thought he was. Where did he come from, what did he ever do in this community.” (Steward Aff.)
At this same meeting Warren Berke had stated that he didn’t care about giving the community reasonable enough time in scheduling the meetings. When Isella Isic, a local attorney who had run for Civil Court Judge in the community stated to him “You should never say that [you don’t care], Warren Berke replied “If you don’t like my management style that is too bad!’ and “This is not a formal community function. What I don’t care about is that someone disagrees with my objectives! Is that Clear!” Joyce Steward in response stated to him, “Have some respect.” Respondent Warren Berke replied. “What are you crazy?” (Attached as transcript 4)
On January 21, 2015 at CB9’s Bylaw Committee, Respondent Warren Berke without authority from the board or any notification to the community decided to enforce a new policy where the community residents would not be able to speak. As a result the community residents complained about this unfair, unjust and violation of the CB9 Bylaws policy, to which the Respondents called the cops on the residents to enforce the new policy. (Macken Aff.) (Steward Aff.)
Also at this meeting, Respondent Warren Berke threw a stack of papers at community resident Jay Sorid and hit him in the face. The community residents cried out in alarm and demanded that Warren Berke apologize for his behavior and stop abusing the community residents. (Macken Aff.) (Steward Aff.)
On June 10, at the 3rd CB9 Bylaw committee meeting, again a new policy was created by Respondent Warren Berke, without any notification to the community or knowledge or consent from the Community Board or Executive board, for the community residents not only were forbidden to speak, but they couldn’t sit down, nor could they obtain any of the documents or bylaws that were being considered for review. When Alicia Boyd objected to this unlawful policy, she was arrested and removed. (Nichols Aff.)
Community Resident Elizabeth Macken was eight months pregnant, and complained of the extreme pain she suffered due to her having “thrombophlebitis” in her legs, because she was forced to stand for the entire meeting! (Macken Aff.)
Summary - Abusive and Violent Behavior Exhibited by Respondent Warren Berke
Petitioners allege that Respondent Warren Berke, did knowingly and willfully engaged in abusive behavior towards residents, both physically and verbally. He performed all of these acts of aggression to deter and prevent community residents from participating in the meetings. He also abused his power of authority by implementing changes in policy without authorization from the Executive Board or Community board, to deter and prevent residents from attending the meeting, having input at the committee meetings and from knowing what types of changes were being proposed to the bylaws of CB9.
Each one of these policy changes resulted is more and more restrictive conditions to which resulted in the arrest of Petitioner Alicia Boyd and physical harm being done to community resident Elizabeth Macken.
Abusive Behavior by Respondents
Beginning in August 2014, Tim Thomas, White male CB9 board member, wrote a series of incendiary entries to his blog, “The Q at Parkside,” wherein he variously referred to community residents opposing the proposed First and Second Letters as “powerless, fearful, marginalized, angry, nutjobs, frauds” and “assholics.” He wished the Petitioner Alicia Boyd, would “ break her jaw, while working on her garden.” He titled one of his blog entries “Not in MY Black Yard!” (Attached as Exhibit M, document 3)
The community objected to this behavior and gathered signatures to two petitions, online and on paper and they were sent to Eric Adams office requesting that his appointment not be renewed. ( Attached Exhibit B, documents,1,2,3) (Boyd Aff.)
On February 11, 2015, at CB9’s ULURP committee, Respondent Tim Thomas was caught on video tape being physically threatening towards Petitioner Alicia Boyd. A Summons for Harassment was lodged against him for his behavior. (Attached Exhibit B, document 4) (Boyd Aff.)
On March 24, 2015, at CB9 General Board meeting, resident Phylicia Sampson was reading from a petition that had been circulated in the community concerning Tim Thomas’s behavior at meetings and his offensive blog entries. The petitions requested that Thomas’s appointment to the Board not be renewed. Thomas later again behaved in a physically threatening manner towards a Black Woman in public. (Boyd Aff.)
Despite these petitions being presented to Borough President Eric Adams, he renewed Tim Thomas’s appointment to CB9.
On December 2, 2015, Respondent Warren Berke had a harassment charged filed against him, Joyce Steward, a senior citizen, for his aggressive behavior toward her, when she objected to his abusive behavior towards residents. (Attached as Exhibit J, transcript 5) (Steward Aff.)
Respondent Warren Berke, in a series of emails dating from January 2015 through November 2015, sent Petitioner harassing and negative statements, among them,, “Heard you had some psych issues” (Attached as Exhibit J document 1,); “Get better at what you are doing”; You’re late to the game” (Id.,); “Its amazing how delusional you are” (Id.,); “I'm disappointed the judge dismissed the charges, but hopefully that won't happen the next time you get arrested.” (Id.,)
On March 16, 2015, at CB9 ULURP meeting, Michael Cetera, White male CB9 board member and former Chair of the ULURP committee, was heard and seen raising his middle finger and giving the “F*ck You” sign to Black female community residents and calling them “cunts.” (Barnes Aff.)
On April 16, 2015, at the 71st Precinct Community Council Meeting, a Black female resident was describing the above abusive behaviors and others acts by White male CB9 board members against Black women residents, when she was admonished by White male CB9 board member Stuart Balberg, Board Secretary, for reporting it. (Attached Exhibit B, document 5, Wilson) (Boyd Aff. )
On October 28, 2015, Petitioner Alicia Boyd sent Tim Thomas, Respondent’s board member and Chair of the Transportation Committee, a FOIL request for a voting record. (Id., document 6)
The next day, October 29, 2015, Respondent’s Board member Tim Thomas replied to the FOIL request with cursing and abusive language. He stated “Screw you Alicia…”, “ I'm sick of your bullshit FOIL nonsense…”, “…stop the legal beagle nonsense” (Attached Exhibit B, document 7), “Talk to your therapist God knows you need one…” (Attached Exhibit B, document 7), “And god knows I wouldn't appoint you, self-described leader of the NIMBY obstructionist uncivil cruel and petty crowd.” (Id., document 7), “You are a discredit to this community…” (Id., document 7), “…cluster-f*ck of Empire/Franklin…” (Id., document 7), and “have you no decency” ((Id., document 7).
That same day, October 29, 2015, Petitioner Alicia Boyd received an email from Respondent Demetrius Lawrence, wherein he described Petitioners’ FOIL Request as “harassment” and directed that she not address board members with any more FOIL requests. (Attached Exhibit B, document 8 ¶38)
On November 17, 2015 at the CB9 Public Hearings on the Text Amendments being proposed by DCP, Respondent Tim Thomas stood up during the public comment period of the presentation and read out loud Petitioner’s Airbnb ad describing her home and other irrelevant information. Respondent Michael Liburd, chairman of the ULURP committee, who was hosting this meeting, refused to stop Tim Thomas tirade and personal attacks made against Petitioner Alicia Boyd and stated that Respondent Tim Thomas had a right to make these personal attacks against her in public. (Boyd Aff.)
On January 26, 2016, at CB9 General Board meeting, Felice Robertson, community resident and member of the transportation committee stood up and stated that Respondent Tim Thomas, called new members of his committee “fucking clowns” at a Transportation committee meeting that he was chairing. Respondent himself stood up later and stated that he had stated fucking but that clowns wasn’t so bad. (Boyd Aff.)
Also at this meeting Petitioner Janine Nichols, stood up and reported the fact that Warren Berke had laughed at her and hung up the phone on her when she called into the general board office to be able to speak on the agenda items. (Nichols Aff.)
Summary - Abusive Behavior by Respondents
Petitioners allege Respondents have engaged in inappropriate behavior toward community residents with regard to the disputed First and Second Letter. The unacceptable behavior includes harassment, insults, cursing, calling of cops, racial slurs and various other abuses intended to deter participation of community residents and demonstrates their confidence that they will not be held accountable for their actions. Petitioners believe these acts of aggression and abuse were committed in order to deter and stop residents from participating in the community board process.
Respondent Demetrius Lawrence’s position that FOIL requests amount to harassment suggests he believes aggressive behavior exhibited by Board members in the form of cursing and abuse are justifiable because community residents are culprits.
Abuse of Power and Unprofessional Behavior of Respondent Michael Liburd Chairman of ULULP Committee
On October 6, 2015, at CB9’s ULURP committee meeting, Respondent Michael Liburd, chairman of the ULURP committee, stated:
“I think sharing responsibilities is going to be very important, as opposed to people just a couple of people doing all of the work. And if that is the case, if people don’t want to work, I’m going to ask them to think about doing something else instead of wasting time their time coming to these meetings. Here are a number [sic] community residents who are non-board members that submitted applications that we [Respondent Demetrius Lawrence and himself] have to make decisions on those people. I want to do it by the next meeting, which is next Tuesday [October 13, 2015] so we can have everyone who is [a] working member of the board roll up their sleeves and know they are a part of it.… I want to make sure we have community residents who are non-board members appointed before I break into committees.” (Attached as Exhibit B, transcript4 )
On October 1, 2015, Petitioner Alicia Boyd sent in her request to be appointed to the ULURP committee to Respondent Michael Liburd (Id., document 6) and on October 2, 2015 she stated to Michael Liburd the reasons why she would make a good candidate for the committee membership. (Id., document 7) (Boyd Aff. )
On October 13, 2015, at CB9’s ULURP committee meeting, Respondent Michael Liburd did not place any community residents on the committee despite his stated commitment to do so at the previous meeting. When asked for an explanation, he stated that he had never made any such commitment. (Attached as Exhibit B, transcript 1) (Steward Aff.)
On October 22, 2015 at CB9’s ULURP committee, Respondent Michael Liburd did place several community residents and board members onto a sub-committee: Alicia Boyd, Suki Cheong, Jay Sorid, Neil Morancey (all community residents) and Hector Robertson, Ed Fanning, and Warren Berke (all board members). The purpose of the sub-committee was to prepare for a presentation by the Department of City Planning (DCP) by reviewing the 517-page proposed text amendment and coming up with a summary to be presented to the community. (ld., transcript 1)
On October 22, 2015, at CB9’s ULURP sub-committee, Petitioner Alicia Boyd was videotaping the committee meeting. Borough President Eric Adams’ Director of Land Use, Richard Bearak, requested that Boyd turn off her camera, because his presentation wasn’t “vetted,” wasn’t “authorized” and was “unofficial.” (Attached Exhibit B, transcript 2). Petitioner Alicia Boyd, responded by saying that the Open Meetings Law allows anyone to videotape. (Id., transcript 2)
Respondent Michael Liburd then spent the next 32 minutes attempting to force Petitioner Alicia Boyd to turn off her camera. He stated, “Ms. Boyd, we’ll ask you one more time are you willing to cut that (video camera) off.” (Id., transcript 2 ) Four times he implored the committee members to support his position; he stated, “I just want to be clear, by a show of hands, who is OK, who’s OK with having the tape off? ”and “Let’s be clear by a show of hands, who’s OK with Richard making his presentation with the tape off?” (Id., transcript 2,)
Respondent Michael Liburd also allowed other members of the committee to berate and harass Petitioner Alicia Boyd while she was exercising her right to videotape the proceedings. Members of the committee variously said to her, “You want to subvert what’s happening here”, “You seem to like to be the center of attention”, “I think it’s time that you need to understand it’s not about you,” (Id., transcript 2) and “You’re making something that is very simple, very difficult” “(Id., transcript 2)
On October 29, 2015, Tim Thomas, Chairman of Transportation committee, sent an email to Respondent Demetrius Lawrence and cc to Respondent Michael Liburd stating, “She [Alicia Boyd] should be removed from Michael’s ULURP sub-committee.” (Attached Exhibit B, document 9)
On November 6, 2015, Respondent Michael Liburd sent Petitioner Alicia Boyd’s document to (DCP) in preparation for the CB9 ULURP committee hearing on November 17, 2015. In the email to DCP he described Boyd’s document as “...a draft of how the committee is responding to the ZQA/MIH.” The document was Petitioner Alicia Boyd’s work in total; no other person submitted work or revisions. (Attached as Exhibit B, document 10)
On November 10, 2015, at the start of the meeting of CB9’s ULURP meeting Respondent Michael Liburd stated to Petitioner Alicia Boyd, “Ms. Boyd, can you please remove yourself from the table, that is for the committee members.” (Attached as Exhibit B, transcript) When Petitioner Alicia Boyd objected to this unfair and punitive treatment and requested to address this issue by placing a motion on the floor, Respondent Liburd responded, “…There is no motion that you can put on the floor…..You can’t, you are not a member.” (Id., transcript 3)
Furthermore, Respondent Liburd refused to allow Petitioner Alicia Boyd to ask any questions of DCP, because the meeting was primarily for members of the committee. After a 3-hour presentation, Respondent Michael Liburd stated that he was going to allow Petitioner Alicia Boyd to ask her question last. (Id., transcript 3) Petitioner Alicia Boyd objected to this treatment (Id., transcript 3) and Respondent Liburd attempted to close the meeting, (Id., transcript 3) to prevent Petitioner from speaking, but was stopped by another community resident, who stated to Respondent Michael Liburd, “You are out of order… for you to vote to adjourn the meeting because you hear something that you don’t want to hear.” (Id., transcript 3) (Steward Aff.)
Summary Abuse of Power and Unprofessional Behavior of Michael Liburd, Chairman of ULULP Committee
Respondent Michael Liburd created a hostile and antagonistic environment encouraging the members of the ULURP committee to be abusive toward Petitioner Alicia Boyd and to characterize her as an obstructionist and troublemaker. He continued to insist that Petitioner Boyd turn off her camera despite the fact that she was exercising her right to videotape under OML, in order to facilitate an unofficial, un-vetted presentation by Borough President Eric Adams’ staff member, Richard Bearak. Respondent Michael Liburd cast Petitioner Boyd as the villain for stopping a presentation that Respondent asserted was paramount to committee efforts (attached as Exhibit B Transcript 3), despite the fact that Richard Bearak insisted he didn’t know what was contained in the presentation. Bearak stated “ I haven’t even looked over [the presentation] with my intern yet.” (Id., transcript 3) (Boyd Aff.)
Petitioners allege that Respondent Michael Liburd’s abrupt request for Petitioner Alicia Boyd to remove herself from the “committee table,” and that she was not a part of the ULURP committee and thus had no rights to ask any questions, were all acts intended to abuse, humiliate and punish her for her refusal to turn off the video camera. When Petitioner Boyd attempted to address this issue by placing a motion on the floor, Respondent Michael Liburd refused to acknowledge it, stating that Boyd was not a member of the committee and thus had no right to enter any motions.
Respondent Liburd further abused his authority and position by not allowing Petitioner Boyd to speak throughout the 3-hour DCP hearing, despite the fact that her work and only her work was used in preparation for the hearing. In fact he stated that her question was going to be the last question of the night. (Boyd Aff.)
Respondent Michael Liburd, in an act of revenge directed at Petitioner Boyd, did not place her on the ULURP committee despite his stating very clearly that the conditions of committee membership were one’s willingness to “roll up one sleeves” and to do work for the committee. In fact, all the other members of the ULURP sub-committee were appointed on the ULURP committee despite not having done any work and he refused Petitioner the opportunity to benefiting from all of her work by preventing her from participating as a committee member in the presentation. (Attached as Exhibit C, Chart 2) (Boyd Aff.)
Refusal to place residents on ULURP and other committees
In January 2015, over 30 people, many of whom were representatives of local interested organizations, submitted applications to be on the ULURP committee and other committees. All of these applications were ignored. (Attached as Exhibit C, Chart 1) (Nichols Aff.) (Yard Aff.) (Steward Aff.)
On February 4 and 11, 2015, at CB9’s ULURP committee, on February 17, 2015 at CB9’S Executive Board committee, and on February 24, 2015 at CB9’s General Board meeting, community residents demanded that their applications to serve on committees be recognized but again their requests were ignored. (Attached as Exhibit C, transcript 1; transcript 2 ; transcript 3)
At the February 11, 2015 meeting, Petitioners Alicia Boyd and Anne Pruden were arrested while demanding that the applications to serve on the ULURP committee be recognized. (Attached as Exhibit C, Chart 1) (Attached as Exhibit A, Documents 1 and 2) (Boyd Aff.) (Pruden Aff.)
In several conversations over the course of Winter and Spring 2015, between Petitioner Alicia Boyd and CB9 Parliamentarian Fred Baptiste, chair of the education committee, Baptiste stated the following concerning instructions given to all chairs regarding placing residents on the committees:
Fred Baptist: There was one meeting that we had in January or February, Dwayne was there, along with Rosemary and everybody else and like okay. In the middle of the meeting, she [Pearl Miles] says no, if a community member wants to be on the committee, she is on the committee, which is the reason why all of a sudden they come back and say you have to put an application in. No no that is bullshit, because you had just finished telling all the chairs, that if someone wants to be on there they are on there. If it is fifty of them guess what you got fifty on the committee.
Alicia Boyd: Right, that was your understanding to be the standing procedure.
Fred: It was (Attached as Exhibit H, transcript)
This concern for membership was also expressed by CB9 member at Kenya Solis at the February 4, 2015 ULURP committee meeting:
“This what I don’t understand you[executive board members and chairman of ULURP committee] knew ahead of time that these people (pointing to the residents) from the community wanted to know about who was on the committee and wanted to know if their applications had been processed, because I sent a request asking…. I as a board member sent a request asking what was the status of these people’s applications I was ignored, so I don’t’ understand what is the sense of sending emails if they are ignored by your own members to avoid this type of situation, when we get here. Something has got to be done, I don’t know if it is an intervention. I don’t know what needs to happen, but we are not functioning as a community board” (Attached as Exhibit H, transcript 2)
According to the evidence by the end of CB9’s 2014-2015 fiscal year, Respondents had only legally placed five community residents on committees; four white people and one Asian, no Black people were legally appointed to any committee in the year 2014-2015, though CB9 is a majority Black neighborhood, Suki Cheong, Elizabeth Mackin, and Jay Sorid were appointed on the ULURP committee (attached as Exhibit E document 5) And Ed Fanning and his son Quest Fanning were appointed on the Transportation Committee (Attached as Exhibit H, document 2)
In the Fall of 2015, 54 residents placed applications to serve on CB9’s committees. Out of the 32 applications to the ULURP committee, only 8 community residents were accepted. Appointments for 22 applications to ten committees didn’t occur until November 2015; the rest were ignored. (Attached as Exhibit C, Chart 2) (Nichols Aff.) (Steward Aff.)
On October 6, 2015, at the newly formed ULURP committee, 14 community board members were placed on the committee and no residents. (Id., Chart 2) (Attached as Exhibit H, transcript 2)
On October 13, 2015 one community resident was placed on the ULURP committee, without submitting an application. This person lives on the same block as Respondent Michael Librud, Chair of the committee. Four community residents were placed on the subcommittee to help do the work of reviewing two text amendments being proposed by City Planning: Petitioner Alicia Boyd, Suki Cheong, Jay Sorid, and Neil Moranci. (Attached as Exhibit B, transcript 1)
On October 22, 2015, at CB9’s ULURP subcommittee, Respondent Michael Liburd attempted to allow Richard Bearak, Borough President Eric Adam’s Director of Land Use, to present, by their own admission, an unauthorized presentation to the committee, and insisted that Petitioner Alicia Boyd turn off her video camera to allow the illegal presentation to happen. She refused, citing her right to videotape all open meetings. (Id., transcript 2)
On November 11, 2015, Respondent Michael Librud, delivered only Petitioner’s Alicia Boyd’s work to the DCP. He described Petitioner Alicia Boyd’s work as “…in preparation for your [DCP] presentation on Tuesday, 11/17, to CB9’s Land use committee, below is a draft of the how the committee is responding to the ZQA/MIH.” (Id., document 1)
On November 17, 2015 at CB9’s DCP Presentation, Michael stated to Petitioner Alicia Boyd that she was not on the ULURP committee and she needed to remove herself from the committee table. Michael Librud refused to discuss Petitioners removal based upon the fact that she was not currently on the committee. (Id., transcript 3)
At that meeting, Respondent Liburd refused to allow Alicia Boyd to ask any questions of DCP. He stated that he was going to allow Boyd to ask her question at the very end of the meeting, though everyone else on the ULURP committee was free to ask questions at any time. The presentation lasted 3 hours. When Petitioner Boyd objected to this unfair treatment, Respondent threatened to close down the meeting until a community resident objected, stating to Respondent Liburd, “You are out of order…for you to vote to adjourn the meeting because you hear something that you don’t want to hear.” (Id., transcript 3)
On November 18, 2015, at a meeting of CB9 board members at the Borough President’s office, Respondent Demetrius Lawrence stated that it is was his intention not to allow there to be more residents on committees than board members. He stated, “I will not allow it, I do not recommend us having more community residents on committees than board members … We are not going to have community residents to outnumber appointed board members.” (Attached as Exhibit C, transcript 4).
On December 3, 2015, at CB9’s Search committee, Petitioner Pamela Yard, enquired about being on the Search committee, but was told membership was only for Board members. (Attached as Exhibit J, transcript 4)(Yard Aff.)
According to the evidence submitted in chart (Attached as Exhibit H, Chart 1) and supported by documents obtained from Respondents CB9, (Attached as Exhibit H doc 3 and Attached as Exhibit C, Chart 2) shows that if Respondents had appointed all of the community residents onto committees for the current year of 2015-2016, in several cases there would be more residents than board members (ULURP and Health and Social services and Youth Services), or an equal amount (Housing), or just one member short of equal (Economic Development).
Instead, where there could be community residents on a committee there are none; Environmental Protection, Public Safety, Youth Services and Search Committee and where the majority would be community residents, they are in the minority; Youth Services, ULURP, Health and Social Services.
The above-cited evidence shows that 7 community representatives have been completely ignored and not allowed to join any committees. (Steward Aff.)
On January 19, 2016 at CB9’s Executive Session, Petitioner Alicia Boyd inquired about the 30 plus applications that had been submitted by local residents that had not been answered or processed by Respondents. (Attached as Exhibit J, transcript 1) Respondent Demetrius Lawrence replied, “..it is at the discretion of the chair of the board or the committee chair to appoint those. What we have to do is appoint non-board members to the committees, we can’t appoint everybody.” He went on to acknowledge that if they didn’t appoint any non board members to the committee, then the community would have an argument. (Id.,)
Petitioner Alicia Boyd also inquired about her application to be appointed to committees and Respondent, Demetrius Lawrence stated that because she had been filing FOIL requests she wasn’t going to be placed on any committees. (Id.,)
On January 25, 2016, at a CB9 Committee Chair meeting, Respondents Warren Berke, and Respondent Demetrius Lawrence discussed the rationale for not allowing residents onto committees. Respondent Warren Berke stated, “You can’t have non-appointed [board members] people being able to make decisions.”(Attached as Exhibit K transcript 1) “They [community residents] can’t be in a decisions making position, (id.,), “Board members have to be in the majority. ” (id.,) Respondent Demetrius agreed, (id.,), and stated “The majority should be board members on the committees.” (id.,)
Respondent Warren Berke gave the rationale for this position by stating to the Chairs of CB9, “The reason being is that you [Chairs] have been appointed to the board by the Borough Hall for a specific reason. Okay there should be a minority voting residents.” (id.,)
Respondent Warren Berke also talked about how this appointment process or limitation on appointments of non-board members on committees was going to be achieved by a set of new bylaw changes that have already been created, and were ready to be presented to the full Board the following day. He stated, “So in the new bylaws that [board members must be a majority] is defined, okay in the old bylaws it is not defined” (id.,), Respondent Demetrius Lawrence replied, “Then we really need to review those new bylaws, so that we can get this approved.” (id.,)
Also at this meeting Respondent Demetrius Lawrence stated to the Chairs of CB9 “Any type of application that comes in for non-board members I’m going to reach out to the chair of the committees to send y’all the applications for your approval and if you want to appoint them you can.” (id.,)
In addition, at this same meeting, instead of Respondents appointing residents whose applications are pending onto committees as members are removed for non-attendance, Respondents instead will choose to just continue to reduce the number of community residents on that committee. (id.,) This policy has resulted in Respondents’ now collapsing committees [Youth and Education] because of low attendance, (id.,) rather than reaching out to the residents who have expressed an interest in serving on those committees. In fact, there are currently three applications pending to serve on Youth Services and two for the Education committee. (Attached as Exhibit H, Chart 1)
Summary Refusal to place residents on ULURP and Other Committees
Petitioner alleges that Respondents have intentionally caused and continue to cause harm to community residents by denying them the opportunity to be appointed on the ULURP and other committees. Community residents have become disheartened by Respondents rejection, causing many who wanted to participate to give up on becoming involved. Community Residents were and are being denied the right and opportunity to have a say in what could happen to their community, their homes and their environment by having their requests to join the ULURP and other committees simply ignored.
In the Case of Respondents Demetrius Lawrence and Michael Liburd, refusal to appoint Alicia Boyd’s on the ULURP committee is seen by Petitions as punitive because her refusal to surrender her right to videotape. In fact, Respondent Demetrius Lawrence own statement, states she is being denied the right to be on committees because she has been submitting FOIL s to CB9!
Petitioners allege the refusal of Respondents to place community residents on the ULURP committee and other committees is intended to dis-empower community residents and prevent them from having an input into decisions at the community level is supported by Respondents own statements. Petitioner believes this is being done, because should the time come to create another Letter, the chairperson would not be able to control the outcome of committee recommendations or votes, because he would not be able to control the non-board members.
Respondent’s Demetrius Lawrence comments on January 19, 2016 at CB9’s executive board meeting shows that Respondents believe that as long as they appoint a few community residents to some committees they have adhered to the law.
Refusal to Place Community Residents on Ad-hoc Committees
On November 18, 2014, Respondents created an ad-hoc Bylaw committee, but they refused to allow any community residents on. . . (Attached as Exhibit K, document 1,)
On January 21, 2014 at CB9’s Bylaw committee, community residents were not allowed to talk because they were told they were not members of the committee. (Macken Aff.) (Steward Aff.)
On June 10, 2014 at CB9’s Bylaw committee, community residents were forced to stand up and watch the committee’s deliberations without being able to sit or speak during the entire proceeding because they were not members of the committee. (Nichols Aff.) (Macken Aff.)
Also at the same meeting Respondent Alicia Boyd was arrested, because she was not a member of the Bylaws committee and was told she could not sit or speak at this meeting. (Nichols Aff.)
On October 27, 2015 at CB9’s General Board meeting, Respondents created an ad-hoc Search Committee to find a new District Manager, during the business session, and appointed all board members to the committee. (Boyd Aff.)
On December 3, 2015, Petitioner Pamela Yard inquired about being able to be on the Search committee and was told by Demetrius Lawrence that this committee was closed to community residents. (Yard Aff.) (Attached as Exhibit L, Transcript 1)
On December 17, 2015 at the Search Committee, Respondents stated that the Search committee only had board members on it because it is an ad hoc committee meaning community residents are not allowed to serve. (Boyd Aff.)
Summary - Refusal to Place Community Residents on Ad-hoc Committees
CB9 Bylaws Article 8.5 states:
“The Board may establish such special committee as it shall deem advisable, or upon the recommendation of a committee, may establish such subcommittees as it shall deem advisable. A special committee or subcommittee, without a specific term of existence, shall be deemed discontinued immediately following the annual Board elections next succeeding its creation.”
The Open Meetings Law pertains to meetings of public bodies, and §102(2)of that statute defines the phrase "public body" to mean:
"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body." OML-AO-o3346
Ad-hoc committees thus fall underneath the pre vue of being subject to OML then they are treated just like a standing committee. The only difference in their standing is that ad-hoc committees have a term limit. There is nothing in the body of law which states that committee membership of ad-hoc committee are for Board members only. Thus ad-hoc committees are subject to the same rules and requirements as standing committee including CB8’s article 8.7 c requiring Respondents to “encourage the participation of non-Board members on committee including representatives of local interested organizations.”
Petitioner allege that Respondents continue to violate CB9 Bylaws by refusing to allow community residents and heads of local organizations onto it ad-hoc committee, dis empowering community residents from the board’s decision-making process and circumventing the law.
Broken Promises Made to Community Residents, and Trust Destroyed
On February 17, 2015 at CB9’s Executive Board meeting, Respondents told the Petitioners and community residents that, “We can’t vote on a final resolution if we don’t present it to the community first to show them the draft [second letter]” and, “We [Executive board] have input, but not only our input, it is the community’s input at the ULURP meeting.” In fact this never happened, the draft [second Letter] was never presented at a CB9 general board meeting for community feedback and residents’ input was never heard with regard to the final Second Letter. (Attached as Exhibit C, transcript 3)
On March 16, 2015, after Alicia Boyd’s arrest, Chairman of ULURP committee, at this time, Ben Edwards, promised those in attendance that there was not going to be a vote on Second Letter at the meeting. Nevertheless, at the end of the meeting, Ben Edwards attempted to take a vote on the Second Letter, but community residents protested his going back on his word, forcing him to adjourn the meeting. However, as people were leaving, Respondent Demetrius Lawrence took it upon himself to reopen the meeting and take a vote. (Attached as Exhibit A, transcript 1) (Attached as Exhibit C document 1) (Barnes Aff.)(Yard Aff.)
On March 23, 2015 at the executive board meeting, Respondent Demetrius Lawrence tried to make the claim that a lawful vote had taken place at the ULURP committee meeting on March 16, 2015, but Petitioner Alicia Boyd was able to show via a video clip of the meeting that Ben Edwards had adjourned the meeting and because Respondent Demetrius Lawrence was not the chair of either the committee or the board at that time, he could not lawfully reopen the meeting and thus the vote he took was unlawful. At the time, member Laurie Imperiali was acting Chairperson of CB9. She saw the video and agreed that no legal vote taken. Thus the Second Letter couldn’t be placed before the general board for a vote. (Boyd Aff.) (Attached as Exhibit C, video 1 https://youtu.be/bljxpnnRGTc?t=2h25s)
Summary - Broken Promises Made to Community Residents, and Trust Destroyed
Petitioners allege that one of the great harms that have befallen the Petitioners and community residents at the hands of the Respondents is constant lying, fabricating of the facts and going against publicly voted directives of CB9, thus leading to the destruction of the public trust. Community board members are treated by the City Charter as public officials and as such are viewed by the public, as having standards that are above the average person. Personal integrity, honesty and following one’s words are a must. However, the public trust has been broken countless of times in regards to the formation, and passing of the first and second letter.
Respondent, Demetrius Refuses to Obey the Lawful Acts of the Board and Executive Chair
On November 24, 2015, Respondent’s CB9 Board voted to send all of the elected officials a letter demanding that they vote no to two text amendments, being proposed by DCP. (Boyd Aff.)
On January 27, 2016, Petitioner Alicia Boyd had been told by Respondents’ office staff, Terry Witherspoon that this letter did not go out and subsequently a FOIL request was submitted by Petitioner for this letter. (Boyd Aff.) (Attached as Exhibit K document 2).
On January 19, 2016, Respondent Demetrius Lawrence was instructed by Executive Board to go to a Transportation committee meeting and table the Empire Blvd vote. (Attached as Exhibit J, Transcript1)
On January 20, 2016 Respondent Demetrius Lawrence instead of tabling the vote as instructed and which was voted upon, actually went against the directed wishes and voted actions of the Executive Board committee and not only didn’t request that the vote be tabled but went ahead and voted for it! (Attached as Exhibit J, Transcript2)
At the same Executive Board meeting, on January 19, 2016, the Executive Board again voted to allow the Empire Study Group do a presentation at the general board meeting on January 26, 2015. (Attached as Exhibit J, Transcript1) This group is comprised tenant groups, block assns, non-profits and for profit organizations, who had worked for over a year and were now going to present their preliminary findings to the general public. (Boyd Aff.)
On January 25, 2015, a day before the presentation word came through the grapevine that Respondent Demetrius Lawrence again went against a voted decision of the executive board and removed the Empire Blvd Study off of the agenda. (Attached as Exhibit J, document1) (Nichols Aff.) (Steward Aff.)
Petitioners believe this was a deliberate attempt to prevent a community based led group from presenting alternatives to Empire Blvd other than the proposed 20 plus story buildings being proposed by DCP.
On January 26, 2016, Respondent Demetrius Lawrence refused to allow a community resident the opportunity to speak based on a new policy, made up on the spot, that residents were now required to sign up to speak ,“15 minutes before the Community Board meeting began.” disregarding the new board policy which allows residents to register to speak during a Public Session. (Attached as Exhibit J, Transcript3) (Steward Aff)
Summary- Respondent, Demetrius Refuses to obey the lawful Acts of the Board and Executive Chair
Petitioner alleges that the Respondent Demetrius Lawrence, Chairman of the CB9 Board, has been refusing to follow the direct orders of the CB9 Board and Executive Boards, by acts intended to circumvent the wishes of community residents and silence their protests Respondent Demetrius Lawrence has demonstrated that he believes he has the right to act in defiance of voted decisions by these entities whenever he sees fit and in his ignorance and/or defiance, displays a complete lack of respect for the authority of these entities as well as a complete misunderstanding of his role and duties as the Chairperson of the Board.
Depriving Community Residents of the Opportunity to Address Issues That Could Cause Harm
In June of 2014, DCP and CB9 completed a rezoning analysis, the first step in creating a rezoning proposal. The analysis showed the potential changes and development under consideration for CB9, including the possibility of buildings rising from the current 3 stories to 20 stories, or increasing from 5% to 195% in buildable space, depending upon the street and avenues targeted. The analysis was not made public. ( Attached as Exhibit C, document 2 and 3)
On May 19, 2015, almost one year after the analysis was completed, Respondents finally uploaded the document on the CB9 website, because Petitioner found out about this document via reading of minutes of CB9 and requested it via a FOIL. (Attached as Exhibit C, document 4) (Boyd Aff.)
Summary - Deprive Community Resident the Opportunity to Address Issues That Could Cause Harm
Petitioner alleges that since the incentive for a builder to destroy and rebuild is based upon an increase of buildable space of 50% or more, almost the entire community was earmarked for a destroy and rebuild model. This would have a tremendous and deleterious impact upon the entire community. Being able to voice concerns about this impact to the community board and demonstrate the risks and harm that are apt to occur when such a development model is employed, is crucial to persuading the members of the board not to pass a rezoning request unless serious constraints were embedded in the request. (Attached as Exhibit C, document 3)
However, the Respondents withheld this very important document for almost a year. Petitioner alleges this was done on purpose so that community residents would not know what was being planned for them and to prevent them the opportunity to organize and object to the rezoning request as it was being presented. In fact it is quite possible that if Petitioner Alicia Boyd had never requested this information via a FOIL that it still would be hidden from the community.(Attached as Exhibit C, document 4)
Second Cause of Action
Violation of the City Charter
Violation of Speaking Time for Community Residents
CB9’s General Board Meeting
At General Board meetings of CB9 on September 23, 2014, October 28, 2014, December 9, 2014, January 27, 2015, February 25, 2015, March 25, 2015, April 28, 2015, and May 26, 2015, there were no times set aside for the “Public Comment Period” during which residents may speak on any issue. (Attached as Exhibit D, documents 1 and 2)
On November 3, 2014 the “public comment period” was scheduled to happen at the end of the general board meeting, but never took place. (Id., document 3)
On June 23, 2015, September 21, 2015 and October 27, 2015, the Public Comment Periods were slated for the end of each meeting. (Attached as Exhibit D, document 4)
On September 16, 2015, at CB9’s Executive Board meeting, Respondent Demetrius Lawrence, Chairman of Community Board 9, stated, “Holding the public session at the end [of the meeting], I think maybe someone will maybe say, ‘Okay you know the meeting, it is already late, so I don’t want to share something.’” (Attached as Exhibit D, transcript 1)
At the same meeting, Respondent Jacqueline Welch, member of the Executive Board of CB9 stated, “…we can’t keep having people standing up, bub, bub, bub. Now we have things to do.” (Id., transcript 1) (Nichols Aff.)
From September 2014 through December 2015 and June 16, 2015 through October 15, 2015, community residents were not allowed to speak because each of these meetings was held in secret, (Attached as Exhibit D, document 1 and 2) . (Barnes Aff.)
At the meetings on January 20, 2015, February 17, 2015, and March 23, 2015 decisions on various agenda items were presented to the board for a vote while public comments were ignored. (Attached as Exhibit D, trans2) (Boyd Aff.)
On March 23, 2015 and April 20, 2015, at the Executive Board meeting, the public was only allowed to make comments at the end of the meeting. Again, all comments were ignored. (Boyd Aff.)
On May 18, 2015, September 16, 2015 and October 15, 2015, community residents were not allowed to speak at all. (Boyd Aff.) (Attached as Exhibit D, chart1)
On January 26, 2016 at the CB9 general board meeting, Respondents voted upon a new policy of conduct the intention of which is to prevent community residents from speaking. The new policy created obstacles such as the requirement to register in advance to speak, limiting the Public Comment Period to only 30 minutes, preventing residents from giving their time to others, and refusing to allow residents to speak if they had not registered to do so.
At the same meeting, Joyce Stewart, a senior citizen, civic leader, and beloved tenant advocate for over four decades in the community, was not allowed to speak during the Public Comment Period. Due to the heavy snow, Ms. Stewart arrived on foot during the Public Comment Period, when she attempted to register to speak. Respondent Demetrius Lawrence told her she couldn’t speak and stated that, “According to the policy that we have adopted anyone wishing to speak on the Public Comment Period, have to speak, have to sign in 15 minutes before the board meeting starts.” (Attached as Exhibit J transcript 3)
CB9’s Bylaw Committee Meetings
On January 21, 2015 and June 10, 2015 (two out of the three Bylaw committee meetings), community residents were not allowed to speak. (Id., chart1) (Nichols Aff.) (Macken Aff.)
On June 10, 2015, at CB9 Bylaw committee, Petitioner Alicia Boyd was arrested for objecting to the fact that community residents once again were not being allowed to speak and citing the law pertaining to this violation. (Nichols Aff.)
CB9’s ULURP Committee Meetings
On February 4, 2015, only two (2) people from each organization were allowed to speak, thus preventing everyone who wanted to speak from being able to do so. Petitioner Alicia Boyd was not allowed to speak until community resident Karen Fleming ceded Ms. Boyd her own remaining time. (Attached Exhibit C transcription 1)
On February 11, 2015, Petitioners Alicia Boyd and Anne Pruden were denied the opportunity to speak by being arrested and removed from the meeting. (Attached Exhibit A document 1 and document 2) (Boyd Aff.) (Pruden Aff.)
On March 16, 2015, a planned vote was to be taken without any public comment. Alicia Boyd objected and was arrested and removed. Community residents protested and then the Chairman of the ULURP committee, Ben Edwards, decided to have a “discussion” with the community. (Attached as Exhibit A, transcript1) (. (Barnes Aff.)
On May 19, 2015, there was no scheduled public comment period. The plan was simply to take a vote on the Second Letter, and no one was allowed to speak or make motions regarding this proposed vote. (Attached Exhibit D Chart1) (Nichols Aff.)
Posting of Contradictory Law To CB9’s Website
In November 2015, Respondents posted the following statement on the home page of the CB9 website, “… a public body does not have to allow the public to speak,” an opinion that remained as a headline on their home page for the entire 2014-2015 session. (Attached Exhibit E, screenshot1)
On December 4, 2015, Petitioner Alicia Boyd, sent a FOIL request citing the City Charter Law Article 2800 h, which states that, “at each meeting the board shall set aside time to hear from the public.” (Attached as Exhibit E, document 1)
On December 4, 2015, Petitioner Alicia Boyd sent a letter to Respondent’s former Chairperson Dwayne Nicholson, with copies to the Respondent’s board members, demanding removal of the above-cited statement from CB9’s website for being in violation of the laws governing CB9 and all community Boards. (Attached as Exhibit E, document 2)
Summary of Violation of Speaking Time for Public
Petitioners allege that Respondents purposely violated the City Charter Chapter 70, section 2800 (i), which reads: “At each public meeting, the board shall set aside time to hear from the public.” Petitioners allege that at CB9 general board and committee meetings, public comment was intentionally suppressed in order to prevent community residents from speaking out against violations occurring at CB9, to prevent the education of residents on issues of importance, to impede conveyance of the thoughts, wishes and concerns of community residents to board members as well as the public, and to hinder residents from reaching out to elected officials and members of the community board for information, advice and assistance.
Petitioners allege that Respondents have seized upon the notion that by providing community residents an opportunity to speak on agenda items only, and then only if they register in advance to do so, satisfies the intention of the law with regard to public comment. (attached as Exhibit E, document 1) Petitioners disagree. According to the Mayor’s website concerning Community board has been declared that two out of the three reasons a Community Board exists is to hear the complaints of residents and allow them to express their thoughts and ideas. Limiting residents to speak only to agenda items, when they have no say in the creation of said agenda, is utterly opposed to the lawful, expressed purpose of the community board. In fact, the imposition of this requirement effectively denies the community its voice in local governance, including any hope of raising new issues, or following up on matters that do not appear on the agenda at hand.
The policy of not allowing community members to speak was initiated at the Bylaw committee, without community input, and at subsequent Executive Board meetings. As a result of these policy changes, the community could not express their concerns regarding the second letter, and because they had not input on the agenda items of the general board meetings, they were further prevented from speaking out about the conduct of their community board. The community was prevented from speaking out and seeking help and assistance from their elected officials nor could they file objections, evidence and knowledge about what was transpiring within the board and the community at large. (attached as Exhibit D, document 1 and 2)
Petitioners also allege that Respondents purposely violated the City Charter by posting a quote to the CB9 website regarding public comment requirements despite knowing that community boards are governed by not only the OML but the City Charter, to which the latter clearly states that Community Boards must provide the public an opportunity to speak at each open meeting. Publication of this quote on their home page was an act intended to mislead the general public into believing that, in demanding to be heard, Petitioners and community residents were violating the law, casting Petitioners and residents as agitators and troublemakers in a sustained effort to discredit them and cement the impression that Respondents were within their rights to not allow a Public Comment Period. Respondents refused to remove this misleading information from CB9’s website even when presented with relevant citation from the City Charter.
Petitioners further allege that Respondents have continued to silence residents by creating rules and regulations that prevent anyone speaking from sharing their unused time. The new policies that limit speaking time, impose sign-up requirements and deny the ability to share one’s minutes are all intended to deter and prevent residents from having a role in local governance.
City Charter Violations of Quorum Requirements
On April 14, 2015, Petitioner Alicia Boyd, in response to a FOIL request, received an updated membership list for the ULURP committee from CB9 District Manager Pearl Miles. Listed were 24 people: 18 Community Board members and 6 residents. Laura Imperiale, former interim acting Chair of CB9, stated in a subsequent FOIL request dated June 1, 2015, that she had added three more members to the ULURP committee in March, 2015: Elizabeth Mackin, Jay Sorid and Suki Cheong. Her action brought the total membership of the committee to 27 members. (Attached as Exhibit E, documents 4, 5, and 6)
On May 19, 2015, at CB9’s ULURP committee, there were there twelve (12) ULURP committee members present, according to Respondents’ voting records. (Id., document 6 )
On November 4, 2015, Petitioner Alicia Boyd submitted a FOIL request seeking the names of all legally appointed members of CB9 committees. This FOIL request was re-submitted on November 30, 2015 and December 7, 2015 via email and on December 14, 2015 and December 22, 2015 at CB9 public meetings and it wasn’t complied with until January 21, 2016. (attached as Exhibit E, documents 4, 5, and 6) (Boyd Aff.)
Summary of City Charter Violations of Quorum Requirement
According to City Charter article §2801. Actions of Community Boards.
“A majority of the appointed members of any community board shall constitute a quorum of such board.” This rule governs both general meetings and committee meetings, as is noted in the Guide to Parliamentary Procedure for NYC community boards wherein Community Board Meeting Procedures (Part 4, page 26) states, “For a board committee a quorum consists of a majority of the total membership of the committee, including public members.”Furthermore it is clear that “quorum” a referred to in City Charter is calculated
based on the entire membership, despite vacancies, etc… The term "quorum" is
defined in §41 of the General Construction Law in effect since 1909, as…
“For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were one of the persons or officers disqualified from acting."
Thus, Respondents did not conduct a legal vote on May 19, 2015, as they claimed in the minutes of that meeting, because they lacked quorum, only 12 out of 27 members being present. In order to have more than half the committee in attendance, there needed to be 14 members present.
Petitioners further allege that Respondents are currently refusing to make public the names of all legally appointed committee members in order prevent the community from knowing when quorum has been achieved or not.
Petitioner believes this information is being withheld out of concern that the Courts may vote in favor of the Petitioner and void the Second Letter. Should that occur, the issue would be returned to the ULURP committee for a new vote that could not be challenged based upon quorum, for there would be no public proof of membership available, only what the Committee Chair declares the membership to be on the day of a vote. Petitioner alleges that the continuing refusal to specify the members of all committees is a malicious and conscious effort on the part of Respondents to circumvent all mechanisms of accountability, interfere with the taking of lawful and legal votes at CB9 committee meetings, and offers further evidence of continuing contempt by Respondents of CB9 for all laws, rules and regulations regarding community board procedures.
City Charter Violations: Respondent Demetrius Lawrence Refusal to Obey the Determinations and Decisions of the Board and Executive Board
On November 24, 2015, Respondent’s CB9 Board voted to send all of the elected officials a letter demanding that they vote no to two text amendments, being proposed by DCP. ((Boyd Aff.)
On January 27, 2016, Petitioner Alicia Boyd had been told by Respondents’ office staff, Terry Witherspoon that this letter did not go out and subsequently a FOIL request was submitted by Petitioner for this letter. (Boyd Aff.) (Attached as Exhibit K document 2)
On January 19, 2016, Respondent Demetrius Lawrence was instructed by Executive Board to go to a Transportation committee meeting and table the Empire Blvd vote. (Attached as Exhibit J, Transcript 1)
On January 20, 2016 Respondent Demetrius Lawrence instead of tabling the vote as instructed and which was voted upon, actually went against the directed wishes and voted actions of the Executive Board committee and not only didn’t request that the vote be tabled but went ahead and voted for it! (Attached as Exhibit J, Transcript2)
At the same Executive Board meeting, on January 19, 2016, the Executive Board again voted to allow the Empire Study Group do a presentation at the general board meeting on January 26, 2015. (Attached as Exhibit J, Transcript1) This group is comprised tenant groups, block assns, non-profits and for profit organizations, who had worked for over a year and were now going to present their preliminary findings to the general public.
On January 25, 2015, a day before the presentation word came through the grapevine that Respondent Demetrius Lawrence again went against a voted decision of the executive board and removed the Empire Blvd Study off of the agenda. (Attached as Exhibit J, document1) Petitioners believe this was a deliberate attempt to prevent a community based led group from presenting alternatives to Empire Blvd other than the proposed 20 plus story buildings being proposed by DCP.
On January 26, 2016, Respondent Demetrius Lawrence refused to allow a community resident the opportunity to speak based on a new policy, made up on the spot, that residents were now required to sign up to speak ,“15 minutes before the Community Board meeting began.” disregarding the new board policy which allows residents to register to speak during a Public Session. (Attached as Exhibit J, Transcript3). (Steward Aff.) (Boyd Aff.)
Summary of City Charter Violations: Respondent Demetrius Lawrence Refusal to obey the determinations and decisions of the Board and Executive Board
The New York City Charter, Article 2801(b) states:
“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.”
Petitioner alleges that the Respondent Demetrius Lawrence, Chairman of the Board has been refusing to adhere to the direct orders of the CB9 board and CB9 Executive Board and thus is direct violation of the law. He believes he has the right to go against voted decisions made by these entities whenever he sees fit. It shows the complete lack of respect for the authority of these entities and his complete misunderstanding of his role and duties as the Chairperson of the Board along with intended acts to circumvent the wishes of the community, CB9’s board and CB9’s Executive Board.
City Charter Violations: Misuse of Title by Respondent Warren Berke
On November 18, 2014 at CB9’s general board meeting, Respondents CB9 passed a resolution creating a special committee called the Bylaws Committee, without a specified term of existence. Warren Berke was appointed Chair of this committee. (Attached as Exhibit K, document 1Pg14)
On June 23, 2015, at CB9’s final general meeting of the fiscal year, a new Executive Board was elected. Five out of the six members were new to the Executive Board.
On January 27, 2016, Respondent Warren Berke sent an email to a government official, New York State Senator Jesse Hamilton, outlining a procedure and policy he sought to implement regarding the upcoming scheduled presentation by the Empire Study Group, a coalition of community resident groups. He signed the email, “Warren Berke, Chair, CB9 Bylaws Committee.” (Attached as Exhibit J, document 5)
Summary City Charter Violation: Misuse of Title By Respondent Warren Berke
Petitioners allege that Respondent Warren Berke violated the City Charter by signing his name and identifying himself as Chair of the Bylaws committee when, in fact, the committee no longer exists. Petitioner further alleges that enhancing his official authority, as Bylaw Chairman, Respondent Berke was attempting to create the impression that he commands official power he does not, and that is, the power to influence and direct CB9’s Board procedures and policies.
According to CB9’s Bylaws, Article 8.5, states “A special committee, or subcommittee, without a specified term of existence, shall be deemed discontinued immediately following the annual Board elections next succeeding its creation.”
Therefore, since the Bylaws committee chaired by Respondent Berke was created in November 2014 without a specific term of existence, said Bylaws Committee was automatically discontinued following the Board elections in June 2015.
Petitioners further allege that Respondent Berke, as Chair of the Bylaws special committee, should have working knowledge of this and all other CB9 Bylaws and thus have been aware that the Bylaws committee no longer exists and neither does his Chairmanship.
City Charter Article 2800 Section F reads:
“The chairperson shall use no title other than chair or chairperson of the community board and the other members shall use no title other than member of the community board or community board member, except that any member who is elected or appointed to an official position on the board, including but not limited to, vice-chairperson, secretary, treasurer, or chair of a committee or subcommittee of the board shall be allowed to use such title when acting in such capacity. (emphasis added)
Thus Warren Berke did knowingly use the title, “Chair, CB9 Bylaws Committee”, when he knew, or reasonably should have known, that by CB9’s existing bylaws the committee had been automatically disbanded following the Board’s annual elections in June, 2015. Petitioners assert that Respondent Berke overstated his official authority in an effort to prevent the Empire Study Group from making a scheduled presentation to the Board and community at the January 2016 general meeting, a matter over which he and his non-existent committee had no jurisdiction over.
Third Cause of Action
Violation of the OPEN Meetings Law “OML”
Violation of OML - Lack of transparency
On February 17, 2015 at CB9’s Executive Board meeting, Petitioner Alicia Boyd addressed the Respondents, CB9’s Executive Board members, and complained about the fact that the Second Letter was being created in violation of the OML. She stated to the Respondents:
“ You [Respondents] are creating a draft [Second Letter], but who created this draft? When was it created? It wasn’t created at the meeting. You want to go back behind closed doors; you want to create a draft for the community, now you want to present it to the community…. The draft should have been created at the ULURP committee!” (Attached as Exhibit C, transcript3 )
In response, Respondent Dwayne Nicholson, then-Chairperson of CB9, stated that five board members had met at CB9’s office, “two weekends ago”, (Id., transcript 3)(February 1, 2015), in secret, and created the Second Letter, thus revealing that the Second Letter was created before the ULURP committee ever met on February 4 and February 11, 2015. However, Respondent Nicholson clearly asserted at CB9’s Executive Board meeting on February 17, 2105, that the Second Letter had been created “from the information that was gathered at the ULURP meetings.” (Attached as Exhibit C transcript)
Respondent Nicholson also insisted that he wasn’t sure who possessed the Second Letter or what it contained, saying, “I haven’t seen the draft either. “(Id., transcript 3) When asked who created the document, Nicholson replied, “I’m not going to necessarily name names, but there were several people” (Id., transcript 3), adding that it would be presented to the general board for a vote on February 24, 2015. (Id., transcript 3)
On February 24, 2015, at CB9’s general board meeting, Respondents passed a resolution to send the Second Letter created on February 1, 2015 back to the ULURP committee, now that it had become known that the document had been created in secret. (Attached as Exhibit F, document 1)
On March 16, 2015, at CB9’s next ULURP committee meeting, the former Chair of CB9’s ULURP committee and current board member, Ben Edwards, stated his intention to hold a vote on the Second Letter at the very beginning of the meeting without any discussion or formal presentation to the community. (Attached Exhibit A transcript 1)
On April 20, 2015 and May 19, 2015, at CB9’s ULURP committee meeting, the Second Letter written in secret by unknown people again appeared on the agenda to be voted upon without public comment or discussion. The Petitioners and community residents still had no idea what was contained in the Letter, who had written it or when, because it still had not been published or opened to public comment. (Yard Aff.)
On May 26, 2015 at CB9’s general board meeting, Respondents CB9 decided not to place the Second Letter on the agenda. (Attached as Exhibit A, document 2) Instead, Respondents presented the Letter during the “Business Session” of the agenda, wherein it is assumed by Respondents that items to be voted upon do not have to be disclosed to the community. The agenda assignment deliberately prevented community residents from knowing that a vote on the Second Letter was taking place; and further, from reviewing, discussing and formulating perspectives about it; and, from having a chance to impart their concerns and ideas regarding the Letter to Respondents, individual CB9 board members, or to influence their voting decisions. It also prevented the Petitioners, community residents and board members from knowing if the Letter being voted upon was even the exact same letter that had been rejected by Respondents on March 24, 2015. (Yard Aff.) (Nichols Aff.)
Five months later, on October 20, 2015, in response to a FOIL request, Respondents’ former District Manager Pearl Miles presented Petitioner Alicia Boyd with a copy of the “passed” Second Letter. This was the first time that Petitioner Alicia Boyd saw the Second Letter. (Attached as Exhibit A, document 3)
Summary Violation of OML - Lack of transparency
Community residents who attended CB9’s ULURP committee meetings on February 4 and 11, 2015 were told that their ideas and concerns were going to inform the creation of a Second Letter. However, in a clear demonstration of bad faith and lack of transparency, said Letter actually had already been written in secret by five unidentified CB9 board members on February 1, 2015, weeks before those ULURP meetings ever took place!
Petitioner asserts that Respondents have intentionally created and relied upon an atmosphere of secrecy in order to prevent community residents from knowing the contents of the Second Letter, how its parameters were determined, how and why decisions were taken regarding its content, who created it and perhaps who stood to benefit from its language. The entire process of the Second Letter’s creation was cloaked in secrecy from its inception through to its “passage” by CB9 by acts consciously intended to circumvent the OML.
In [Orange County Publications v. Council of the City of Newburgh, 60 AD2d 409, 415, affirmed 45 NY2d 947 (1978)], the courts have held the intention of the OML to be as follows….
"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document. Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action. Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue. There would be no need for this law if this was all the Legislature intended. Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern. It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute"
Petitioners allege Respondents have chosen to interpret the OML as pertaining to only the narrow matter of presenting a document for a vote, while the actual identities of the participants involved in the creation of the Second Letter, their reasoning, and all other actions taken by Respondents leading up to the “passage” of the Second Letter have been systematically and deliberately withheld from the community.
Open Meetings Law Article 103 2(e) states:
“Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefore, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed.”
Respondents deliberately failed to make available to the community the text of the proposed Second Letter, in blatant violation of the Open Meetings Law, despite their intention to vote upon it, by presenting it during the “Business Session” of a general board meeting which precludes even the possibility of public comment, intending thereby to both conceal the Letter’s content and prevent the community from expressing its opinions as to its content. In point of fact, Petitioners and community residents had no way of knowing or finding out if in fact the Second Letter was or was not the same one that had been rejected by CB9 on February 24, 2015.
Violation of OML – Meeting in Secret
On February 17, 2015, at CB9’s Executive board meeting, Respondents’ former Chairperson, Dwayne Nicholson, asserted that, “The ULURP committee members and other board members” (Attached as Exhibit C, transcript 3) were the people who created the Second Letter, “two weekends ago” [February 1, 2015] (Id., transcript 3), that there were “five of them” (Id., transcript 3) and that “they came together and wrote up the document.” (Id., transcript 3)
When Petitioner Alicia Boyd asked if Respondents had notified the community of this meeting, Dwayne Nicholson replied, “We don’t have to,” (Id., transcript 3) and when Petitioner Alicia Boyd asked who created the document, he replied, “I’m not going to necessarily name names, but there were several people.” (Id., transcript 3)
Petitioners assert that meeting in secret is a serious violation of the OML and a disturbing pattern exhibited by Respondents in the past that continues into the present.
From September to December 2014 and on June 16, 2015 and November the 16, 2015, meetings of the CB9 Executive Board were held in secret. No notification of any of these meetings was given to the community; thus, no community residents were in attendance. (Attached as Exhibit F, Chart1)
On October 29, 2015, Petitioner Alicia Boyd sent Respondents a letter requesting that the newly established Search Committee follow the OML and provide timely notification of its meetings. (Attached as Exhibit F, document 4)
On November 2, 2015, Respondent Demetrius Lawrence, replied that he was going to notify the CB9’s website programmer as well as the board members of the Search Committee of the meeting schedule, but he never did; no such information has ever appeared on the board’s website. (Attached as Exhibit F, document 5 page 11)
Respondents failed to notify the community of the Search Committee meeting of November 12, 2015, during which the job description, salary potential, and other determinations were made concerning the hiring of a new District Manager. (Attached as Exhibit F, document 6)
In fact, from September 2014 to present, Respondents have failed to properly notify the community of all CB9 meetings, in that they have never given “public notice to the news media one week before”, nor have they ever “conspicuously posted in one or more designated public location the notice of meetings”, despite pending ligation under Article 78 regarding this very issue. (MTOPP v. CB9. Index # 015743/2014)(Attached as Exhibit F, Chart 1)
On January 9, 2016, Respondents CB9 posted the date of the upcoming meeting of the ULURP Committee to the public, three days before the meeting scheduled for January 12, 2016. Petitioners allege this failure to provide timely notice was deliberate and in keeping with Respondents’ continuing attempt to deter community participation or awareness of Respondents’ intention to again approach DCP with a rezoning request. (Attached as Exhibit F, document 7)(Attached as Exhibit C, document 2)
Summary of Violation OML – Meeting in Secret
According to the Open Meeting Law §104. Public notice.
“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.”
By his own statement, Respondents’ former Chairperson Dwayne Nicholson proves that the Second Letter was written in secret, created without notification to the community and presented to the general board for a vote despite the community’s not having seen it or even him knowing its contents!
Furthermore, such secret meetings are not confined to ULURP committee meetings, but any CB9 meeting. Whenever Respondents want to make determinations behind closed doors, they simply don’t inform the community and make decisions in secret.
The decisions at these meetings entail, but are not limited to; the formation of agenda items and procedures created prior to the Executive Board meetings; the Second Letter, with its proposed parameters of the rezoning area was written in secret; and the job requirements and salary range for the District Manager position were made in secret by the Search Committee. All are decisions that will have a profound effect upon community residents, but the community and even some community board members have been kept in the dark about them. It is not known how any of these decisions were made, by whom, whether quorum was established, votes taken, etc.
Former District Manager Pearl Miles, and now Respondent Terry Witherspoon, operate in violation of the OML. They have only placed meeting notifications on Respondents’ website 2 to 6 days before a meeting is scheduled, and they have never given notice to the new media within the required 7 days, nor have they ever conspicuously posted in one or more designated public areas the notification.
This pattern of insufficient notification has rendered a large majority of the community residents unable to attend or to even know when the meetings were going to be held. Many CB9 residents do not have access to computers or are unlikely to check CB9’s website on a daily basis. Even the monthly Community Board general meetings have not been posted on the website and elsewhere in the timely fashion required by the OML. (attached as Exhibit F, screenshots 1 and 2) (Boyd Aff.)
Violation of OML - Lack of Minutes and Resolutions/Letters Published
Passing of Second Letter at ULURP Committee
On May 19, 2015, a vote was taken at an uproarious ULURP committee meeting regarding the Second Letter to DCP requesting a rezoning. (Attached as Exhibit F, document 9)
On May 20, 2015, the Chairman of the ULURP committee, Ben Edwards, submitted the minutes of that meeting to Respondents CB9. (Id., document 9)
Sometime after August 24, 2015, Respondents posted the minutes to the May 19 ULURP meeting to CB9’s website, a full 90 days after Ben Edwards submitted it to Respondents. However, the posted minutes did not contain the Second Letter voted upon. (Attached as Exhibit F, screenshot 3)
Passing of the Second Letter at the General Board Meeting
On May 26, 2015, at the CB9 general board meeting, the Second Letter was “passed” during the Business session. Said Letter was never presented to the community for review, despite the Respondents knowing it was going to be voted upon. (Yard Aff.) (Nichols Aff.)
On October 27, 2015, at CB9’s general board meeting, the minutes of the general board meeting of May 26, 2015 were passed (150 days late!) but the minutes did not contain the Second Letter that was “passed.” (Boyd Aff.) (Attached as Exhibit F, document 10, pg5)
On December 16, 2015, Petitioner Alicia Boyd sent a FOIL request to Respondents asking that the minutes of the May 26, 2015 general meeting, during which the Second Letter was voted upon, be placed on the CB9 website. Despite the CB9 board passing the minutes on October 26, 2015, said minutes to date still have not been officially published to the community as required by law. (Attached as Exhibit F, document 11)
Summary Violation of OML - Lack of Minutes and Resolutions Published
Open Meeting Law §106. Minutes, states:
“Minutes must be taken, which should contain, all motions, proposals, resolutions and any items voted upon. They should be made available to the public, within two weeks from the date of a regular meeting and one week of an executive session.” And Section 103 e (e), “Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefore, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed … If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting…”
Respondents have violated the Open Meeting Law by not presenting the minutes, voting records and the Second Letter voted on at ULURP committee meeting of May 19, 2015 and at the general board meeting of May 26, 2015. Also, the Second Letter voted upon was never presented to the community at either the May 19, 2015 ULURP committee meeting or the general board meeting on May 26, 2015, as required by law. Petitioners allege that Respondents’ continuing refusal to make the Second Letter public is ample evidence of a deliberate and sustained attempt to circumvent the law, to prevent transparency and accountability by disguising how individual board members are voting, all in order to prevent the community from being aware of plans being laid that will have profound effects upon them and, further, to deter the community from objecting to or filing grievances through the courts or other governmental agencies in regard to decisions Respondents have made in secret.
Fourth Cause of Action
Violation of FOIL Requests
On December 9, 2014, during the Business session of CB9’s General Board meeting, Respondent’s then-Chairperson Dwayne Nicholson stated that a procedure had been created regarding the formation of the second letter.
On December 10, 2014, Petitioner Alicia Boyd requested to find out, via FOIL, how, who, when and where such a procedure had been created regarding the formation of the second letter, because CB9’s bylaws, Article 8.6, state, “This [Executive] committee shall have the power to adopt its own rules or procedures…” Petitioner’s FOIL request was never answered. (Attached Exhibit G, document 1)
On January 17, 2015, Respondent Warren Berke refused to respond to a FOIL request, which was asking for a copy of the Board members desires for changes to the Bylaws. He stated that he didn’t have time, and he never responded. (Attached as Exhibit J, document 1)
In February 2015, CB9’s then-District Manager, Pearl Miles, produced a document entitled “Ground Rules” for the upcoming ULURP committee meetings. It specified limitations on the number of speakers, how much time, etc…
On February 3, 2015, and again on February 9, 2015, Petitioner Alicia Boyd sent Respondent’s then-Chairperson Dwayne Nicholson a FOIL request for these “Ground Rules,” noting, again, that the formation of rules must occur during an open meeting of the Executive Committee. This FOIL request also was never answered. (Attached Exhibit G, document 2)
On June 29, 2016, Respondent Warren Berke refused to respond to Petitioner Alicia Boyd’s FOIL request asking for copies of documents pertaining to the proposed changes to the Bylaws that was only distributed to Board members and not to residents present at a CB9 Bylaw committee meeting held on June 10, 2015. (Attached as Exhibit M, document 1) (Macken Aff.)
On October 27, 2015, Respondent CB9 presented the minutes of May 26, 2015 for the first time, a full 5 months after the meeting, and passed them. However, the minutes did not contain the Second Letter passed on May 26, 2015. (Boyd Aff.)
On December 16, 2015, Petitioner submitted a FOIL request for the minutes of the general meeting of CB9 on May 26, 2015, the Second Letter passed at that meeting and the voting record. Respondent had failed to publish any of these documents on their website, despite almost two months having elapsed since the minutes were voted upon (October 27, 2015), and eight (8) months since the general meeting occurred. This FOIL request also was never answered. (Attached Exhibit G, document 4)
It is not only with regard to the Second Letter that FOIL requests have gone unanswered by Respondents. From Fall 2014 to the present, Respondents have failed to answer numerous FOIL requests, either in whole or in part (attached as Exhibit E, document 7), sometimes using very abusive language such as, “Screw you”, and referring to FOIL requests as , “bullshit FOIL,” “legal beagle nonsense” (Attached as Exhibit B, documents 7) and as harassment against board members. (Attached as Exhibit B, documents 8)
Summary - Violation of FOIL Request
Freedom of Information Law (FOIL) is one of the primary ways by which a community is empowered to review Community Board actions in order to determine whether the laws that govern the board are being followed, and providing the community a means of oversight of board operations and decisions. The City Charter Article 107.1 has established only one ruling body to oversee Community Boards, the courts via an Article 78. “Any aggrieved person shall have standing to enforce the provisions of this article against the public body by the commencement of a proceeding pursuant to article seventy-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief.”
This then lends the community the obligation and responsibility to police itself unless and until intervention by the courts may be obtained. However, intervention via the courts needs to be pursued formally, according to rules of evidence and procedure. Thus, having access to internal documents through FOIL is critical to a community’s ability to make assessments of the lawfulness of the community board’s behavior and actions, and essential to any determination by the community of a need for intervention.
Because Community Boards have been empowered by the City Charter Article 70 (d) to make recommendations concerning “land use”, “public services”, “capital projects”, “development and plans for growth” and to seek assistance from governmental agencies in delivering services and support for requests made by community boards, it is imperative that the community be kept involved and informed, and have access to all information and requests concerning and informing Board actions and decisions on these issues.
FOIL Article 87.3. “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…”
Furthermore, 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 challenging documents, especially with respect to the Second Letter requesting the Department of City Planning to commence a re-zoning study. Because the Second Letter was not presented to the community on May 26, 2015, before the vote was taken during the Business Session, the community had no information upon which to form an opinion or upon which to decide whether to pursue a legal cause of action.
At the same that these FOIL requests were being denied, there was and remains litigation pending concerning FOIL and CB9. Thus, Respondents were aware, or should have been aware, of what FOIL requests are and their legal obligation to abide by them.
Petitioner Alicia Boyd sent several emails to Respondents detailing the FOIL requests and FOIL requirements. That these FOIL requests were described by Respondents as a form of “harassment” of Respondents, and characterized by Respondents as “bullshit” and other words to that effect, demonstrates the severity of Respondents’ contempt for, and non-compliance with, FOIL law. Respondents fail to acknowledge or understand FOIL as an enforceable body of law applicable to all board members as well as board employees.
Fifth Cause of Action
Violation of CB9 Bylaws
Violation of Speaking Time for Community Residents
CB9’s General Board Meeting
At General Board meetings of CB9 on September 23, 2014, October 28, 2014, December 9, 2014, January 27, 2015, February 25, 2015, March 25, 2015, April 28, 2015, and May 26, 2015, there were no times set aside for the “Public Comment Period” during which residents may speak on any issue. (Attached as Exhibit D, documents 1 and 2)
On September 16, 2015, at CB9’s Executive Board meeting, Respondent Demetrius Lawrence, Chairman of Community Board 9, stated, “Holding the public session at the end [of the meeting], I think maybe someone will maybe say, ‘Okay you know the meeting, it is already late, so I don’t want to share something.’” (Attached as Exhibit D, transcript 1)
At the same meeting, Respondent Jacqueline Welch, member of the Executive Board of CB9 stated, “…we can’t keep having people standing up, bub, bub, bub. Now we have things to do.” (Id., transcript 1) (Nichols Aff.)
From September 2014 through December 2015 and June 16, 2015 through October 15, 2015, community residents were not allowed to speak because each of these meetings was held in secret, (Attached as Exhibit D, document 1 and 2) . (Barnes Aff.)
At the meetings on January 20, 2015, February 17, 2015, and March 23, 2015 decisions on various agenda items were presented to the board for a vote while public comments were ignored. (Attached as Exhibit D, trans2) (Boyd Aff.)
On March 23, 2015 and April 20, 2015, at the Executive Board meetings, the public was only allowed to make comments at the end of the meeting. Again, all comments were ignored. (Boyd Aff. )
On May 18, 2015, September 16, 2015 and October 15, 2015, community residents were not allowed to speak at all. (Boyd Aff.) (Attached as Exhibit D, chart 1)
On January 26, 2016 at the CB9 general board meeting, Respondents voted upon a new policy of conduct the intention of which is to prevent community residents from speaking. The new policy created obstacles such as the requirement to register in advance to speak, limiting the Public Comment Period to 30 minutes, preventing residents from giving their time to others, and refusing to allow residents to speak if they had not registered to do so.
At the same meeting, Joyce Stewart, a senior citizen, civic leader, and beloved tenant advocate for over four decades in the community, was not allowed to speak during the Public Comment Period. Due to the heavy snow, Ms. Stewart arrived on foot during the Public Comment Period, when she attempted to register to speak. Respondent Demetrius Lawrence told her she couldn’t speak and stated that, “According to the policy that we have adopted anyone wishing to speak on the Public Comment Period, have to speak, have to sign in 15 minutes before the board meeting starts.” (Attached as Exhibit J transcript 3)
CB9’s Bylaw Committee Meetings
On January 21, 2015 and June 10, 2015 (two out of the three Bylaw committee meetings), community residents were not allowed to speak. (Id., chart1) (Nichols Aff) (Macken Aff.)
On June 10, 2015, at CB9 Bylaw committee, Petitioner Alicia Boyd was arrested for objecting to the fact that community residents once again were not being allowed to speak and citing the law pertaining to this violation. (Nichols Aff.)
CB9’s ULURP Committee Meetings
On February 4, 2015, only two (2) people from each organization were allowed to speak, thus preventing everyone who wanted to speak from being able to do so. Petitioner Alicia Boyd was not allowed to speak until community resident Karen Fleming ceded Ms. Boyd her own remaining time. (Attached Exhibit C transcription 1)
On February 11, 2015, Petitioners Alicia Boyd and Anne Pruden were denied the opportunity to speak by being arrested and removed from the meeting. (Attached Exhibit A document 1 and document 2(Boyd Aff.) (Pruden Aff.)
On March 16, 2015, a planned vote was to be taken without any public comment. Alicia Boyd objected and was arrested and removed. Community residents protested and then the Chairman of the ULURP committee, Ben Edwards, decided to have a “discussion” with the community. (Attached as Exhibit A, transcript1) (Barnes Aff.)
On May 19, 2015, there was no scheduled public comment period. The plan was simply to take a vote on the Second Letter, and no one was allowed to speak or make motions regarding this proposed vote. (Attached Exhibit D Chart1) (Nichols Aff.)
Posting of Contradictory Law To CB9’s Website.
In November 2015, Respondents posted the following statement on the home page of the CB9 website, “… a public body does not have to allow the public to speak,” an opinion that remained as a headline on their home page for the entire 2014-2015 session. (Attached Exhibit E, screenshot1)
On December 4, 2015, Petitioner Alicia Boyd, sent a FOIL request citing the City Charter Law Article 2800 h, which states that, “at each meeting the board shall set aside time to hear from the public.” (Attached as Exhibit E, document 1)
On December 4, 2015, Petitioner Alicia Boyd sent a letter to Respondent’s former Chairperson Dwayne Nicholson, with copies to the Respondent’s board members, demanding removal of the above-cited statement from CB9’s website for being in violation of the laws governing CB9 and all community boards. (Attached as Exhibit E, document 2)
Summary of CB9 Violation - Violation of Speaking Time for Community Residents
Petitioners allege that Respondents purposely violated the Community Board 9 Bylaws Article 9, which reads: “At each meeting, the Board shall set aside time to hear from the public.” Petitioners allege that at CB9 general board and committee meetings, public comment was intentionally suppressed in order to prevent community residents from speaking out against violations occurring at CB9, to prevent the education of residents on issues of importance, to impede conveyance of the thoughts, wishes and concerns of community residents to board members as well as the public, and to hinder residents from reaching out to elected officials and members of the community board for information, advice and assistance.
Petitioners allege Respondents have seized upon the notion that by providing community residents an opportunity to speak on agenda items only, and then only if they register in advance to do so, satisfies the intention of the law with regard to public comment. (attached as Exhibit E, document 1) Petitioners disagree. According to the Mayor’s website concerning Community board has been declared that two out of the three reasons a Community Board exists is to hear the complaints of residents and allow them to express their thoughts and ideas. Limiting residents to speak only to agenda items, when they have no say in the creation of said agenda, is utterly opposed to the lawful, expressed purpose of the community board. In fact, the imposition of this requirement effectively denies the community its voice in local governance, including any hope of raising new issues, or following up on matters that do not appear on the agenda at hand.
The policy of not allowing community members to speak was initiated at the Bylaw committee, without community input, and at subsequent Executive Board meetings. As a result of these policy changes, the community could not express their concerns regarding the second letter, and because they had not input on the agenda items of the general board meetings, they were further prevented from speaking out about the conduct of their community board. The community was prevented from speaking out and seeking help and assistance from their elected officials nor could they file objections, evidence and knowledge about what was transpiring within the board and the community at large. (attached as Exhibit D, document 1 and 2)
Petitioner also alleges that Respondents purposely violated their own bylaws by posting a quote to the CB9 website regarding public comment requirements despite knowing that community boards are governed by OML, City Charter and the CB9, in which the latter two clearly state that Community Boards must provide the public an opportunity to speak at every open meeting. Publication of this quote on their home page was intended to mislead the general public into believing that, in demanding to be heard, Petitioners and community residents were violating the law, casting Petitioners and residents as agitators and troublemakers in a sustained effort to discredit them and cement the impression that Respondents were within their rights to not allow a Public Comment Period. Respondents refused to remove this misleading information from CB9’s website even when presented with the relevant citation from the City Charter.
Petitioners further allege that Respondents have continued to silence residents by creating rules and regulations that prevent anyone speaking from sharing their unused time. The new policies that limit speaking time, impose sign-up requirements and deny the ability to share one’s minutes are all intended to deter and prevent residents from having a role in local governance.
CB9’s Bylaws - Refusal to Place Community Residents on ULURP and Other Committees.
In January 2015, over 30 people, many of whom were representatives of local interested organizations, submitted applications to be on the ULURP committee and other committees. All of these applications were ignored. (Attached as Exhibit C, Chart 1) (Nichols Aff.) (Yard Aff.) (Steward Aff.)
On February 4 and 11, 2015, at CB9’s ULURP committee, on February 17, 2015 at CB9’S Executive Board committee, and on February 24, 2015 at CB9’s General Board meeting, community residents demanded that their applications to serve on committees be recognized but again their requests were ignored. (Attached as Exhibit C, transcript 1; transcript 2 ; transcript 3 )
At the February 11, 2015 meeting, Petitioners Alicia Boyd and Anne Pruden were arrested because they were demanding that these applications for the ULURP committee be recognized. (Attached as Exhibit C, Chart1) (Attached as Exhibit A, Documents 1 and 2). (Pruden Aff.) (Boyd Aff.)
In several conversations over the course of Winter and Spring 2015, between Petitioner Alicia Boyd and CB9 Parliamentarian Fred Baptiste, chair of the education committee, Baptiste stated the following concerning instructions given to all chairs regarding placing residents on the committees:
“Fred Baptist: There was one meeting that we had in January or February, Dwayne was there, along with Rosemary and everybody else and like okay. In the middle of the meeting, she [Pearl Miles] says no, if a community member wants to be on the committee, she is on the committee, which is the reason why all of a sudden they come back and say you have to put an application in. No no that is bullshit, because you had just finished telling all the chairs, that if someone wants to be on there they are on there. If it is fifty of them guess what you got fifty on the committee.
Alicia Boyd: Right, that was your understanding to be the standing procedure.
Fred: It was (Attached as Exhibit H, transcript1)
This concern for membership was also expressed by CB9 member at Kenya Solis,at the February 4, 2015 ULURP committee meeting:
“This what I don’t understand you[executive board members and chairman of ULURP committee] knew ahead of time that these people (pointing to the residents) from the community wanted to know about who was on the committee and wanted to know if their applications had been processed, because I sent a request asking…. I as a board member sent a request asking what was the status of these people’s applications I was ignored, so I don’t’ understand what is the sense of sending emails if they are ignored by your own members to avoid this type of situation, when we get here. Something has got to be done, I don’t know if it is an intervention. I don’t know what needs to happen, but we are not functioning as a community board” (Attached as Exhibit H, transcript 2)
According to the evidence, by the end of CB9’s 2014-2015 fiscal year, Respondents had only legally placed five community residents onto committees: four white people and one Asian. NO Black people were legally appointed to any committee in the year 2014-2015, though CB9 is a majority Black neighborhood. Suki Cheong, Elizabeth Mackin, and Jay Sorid were appointed to the ULURP committee (attached as Exhibit E document 5), and Ed Fanning and his son, Quest Fanning, were appointed to the Transportation Committee (Attached as Exhibit H, document 2)
In Fall 2015, 50 residents placed applications to serve on CB9 committees; only 22 applications were accepted. Of the 32 applications to the ULURP committee, only 6 were accepted. Appointments for 22 applications to 10 committees didn’t occur until November 2015; the rest were ignored. (Attached as Exhibit C, Chart 2) (Nichols Aff.) (Steward Aff.)
On October 6, 2015 at CB9’s newly formed ULURP committee, 14 community board members were placed on the committee and no residents. (Id., Chart 2) (Attached as Exhibit H, transcript 2)
On October 13, 2015 at CB9’s ULURP committee, one community resident was placed on the ULURP committee without a submitting an application! This person also happens to live on Respondent Michael Liburd’s block. Four community residents were placed on the subcommittee to help do the work of reviewing two text amendments being proposed by City Planning: Petitioner Alicia Boyd, Suki Cheong, Jay Sorid, and Neil Moranci. (Attached as Exhibit B, transcript 1)
On October 22, 2015, at CB9’s ULURP subcommittee, Respondent Michael Liburd attempted to allow Richard Berak, Borough President Eric Adam’s Director of Land Use, to present, by their own admission, an unauthorized presentation to the committee, and insisted that Petitioner Alicia Boyd turn off her video camera to allow the illegal presentation to happen. She refused, citing her right to videotape all open meetings. (Id., transcript 2)
On November 11, 2015, Respondent Michael Liburd delivered only Petitioner Alicia Boyd’s work to the DCP. He described Petitioner Alicia Boyd’s work as “…in preparation for your [DCP’s] presentation on Tuesday, 11/17, to CB9’s Land Use committee. Below is a draft of the how the committee is responding to the ZQA/MIH.” (Id., document 1)(emphasis added)
On November 17, 2015 at CB9’s DCP Presentation, Respondent Liburd stated to Petitioner Alicia Boyd that she was not on the ULURP committee and needed to remove herself from the committee table. Liburd refused to discuss Petitioner’s removal based upon the fact that she was not currently on the committee. (Id., transcript 3)
At that meeting, Respondent Liburd refused to allow Alicia Boyd to ask any questions of DCP. He stated that he was going to allow Boyd to ask her question at the very end of the meeting, though everyone else on the ULURP committee was free to ask questions at any time. The presentation lasted 3 hours. When Petitioner Boyd objected to this unfair treatment, Respondent threatened to close down the meeting until a community resident objected, stating to Respondent Liburd, “You are out of order…for you to vote to adjourn the meeting because you hear something that you don’t want to hear.” (Id., transcript 3)
On November 18, 2015, at a CB9 meeting with board members at the Borough President’s office, Respondent Demetrius Lawrence stated that it was his intention not to allow more residents on committees than board members. He stated, “I will not allow it. I do not recommend us having more community residents on committees than board members…We are not going to have community residents to outnumber appointed board members.” (Attached as Exhibit C, transcript 4)
On December 3, 2015, at CB9’s Search committee, Petitioner Pamela Yard, enquired about being on the Search committee, and told membership was only for Board members. (Attached as Exhibit J, transcript 4) (Yard Aff.)
The evidence submitted in chart (Attached as Exhibit H, Chart 1) and supported by documents obtained from Respondents CB9, (Attached as Exhibit C, Chart 2) shows that if Respondents had appointed all of the community resident onto committees during the year 2015-2016, in several cases there would be more residents than board members (ULURP, Health and Social Services, Youth Services), an equal number (Housing), or just one member short of equal (Economic Development).
Instead, where there could be community residents on a committee there are none (Environmental Protection, Public Safety, Youth Services, Search Committee) and where the majority would be community residents, they are in the minority (Youth Services, ULURP, Health and Social Services).
Above-cited evidence also shows that 7 community representatives have been ignored altogether and not allowed to serve on any committee. (Steward Aff.)
On January 19, 2016 at CB9’s Executive Session, Petitioner Alicia Boyd inquired about the 30 plus applications that had been submitted by local residents that had not been answered or processed by Respondents. (Attached as Exhibit J, transcript 1) Respondent Demetrius Lawrence replied, “It is at the discretion of the chair of the board or the committee chair to appoint those. What we have to do is appoint non-board members to the committees, we can’t appoint everybody.” He went on to acknowledge that if they didn’t appoint any non-board members to committees, then the community would have an argument. (Id.,)
Petitioner Alicia Boyd also inquired about her applications to be appointed to committees. Respondent replied that because she had been filing FOIL requests she wasn’t going to be placed on any committees. (Id.)
On January 25, 2016, at a CB9 Committee Chair meeting, Respondents Warren Berke and Respondent Demetrius Lawrence discussed the rationale for not allowing residents onto committees. Respondent Berke stated, “You can’t have non-appointed people being able to make decisions.”(Attached as Exhibit K transcript 1) “They can’t be in a decisions-making position,” (id.,), “Board members have to be in the majority.” (id.,) Respondent Demetrius agreed, (id.,), stated, “The majority should be board members on the committees.” (id.,)
Respondent Warren Berke gave the rationale for this position by stating to the Chairs of CB9, “The reason being is that you [the Chairs] have been appointed to the board by the Borough Hall for a specific reason. Okay, there should be a minority voting residents.” (id.)
Respondent Warren Berke also talked about how this appointment process or limitation on appointments of non-board members on committees was going to be achieved by a set of new bylaw changes that have already been created, and were ready to be presented to the full board the following day. He stated, “So, in the new bylaws that [board members must be a majority] is defined, okay in the old bylaws it is not defined.” (id.,) Respondent Demetrius Lawrence replied that, “Then we really need to review those new bylaws, so that we can get this approved.” (id.,)
Also at this meeting, Respondent Lawrence stated to the Chairs of CB9, “Any type of application that comes in for non-board members, I’m going to reach out to the chair of the committees to send y’all the applications for your approval and if you want to appoint them you can.” (id.,)
In addition, at this same meeting, instead of Respondents appointing residents whose applications are pending onto committees as members are removed for non-attendance, Respondents instead will choose to just continue to reduce the number of community residents on that committee. (id.,)
This policy has resulted in Respondents’ now collapsing committees [Youth and Education] because of low attendance, (id.,) rather than reaching out to the residents who have expressed an interest in serving on those committees. In fact, there are currently three applications pending to serve on Youth Services and two for the Education committee. (Attached as Exhibit H, Chart 1)
Summary – CB9’s Bylaws - Refusal to Place Community Residents on ULURP and Other Committees
Community Board 9 Bylaws article 8(c): “Committees shall encourage the participation of non-Board members on committees including representatives of local interested organizations.” Respondents violated these bylaws by refusing to place non-board members on its committees, and ignoring the applications of representatives of local interested organizations.
CB9 bylaws article 8.2: “Each standing committee shall consist of a committee chairperson, such other appointed members as volunteer and are appointed by the Chairperson of the Board.” Because the Chairperson is the only one who appoints members to the committees and the chairs, he/she can control the outcome of decisions based upon the position of the chairs and the board members.
This control of the voices on committees and voting power is further established by CB9 Bylaw article 8.7 which states that, “Non-Board members shall be appointed to a committee by the Board of the Chairman/woman and/or the committee chairman/woman.
Petitioners assert, however, that Respondents are manipulating the current Bylaws to circumvent the spirit and intention of the law. Whereas the Bylaws talk about the encouragement of participation by non-board members on committees, meaning the spirit of the law is to include all voices and to ensure that, through proper representation, board members act as advocates for community residents. The requirement of the Chairman/woman or committee Chairs is to make appointments of non-board members to committees, not, as Respondents are currently doing, to interpret this law so as to allow them to limit, control and deter the non-board voices and the power of the community.
Petitioners’ position is proven by the testimony of Fred Baptiste, Respondents’ own Parliamentarian, quoted earlier, because the new rules regarding applications for membership weren’t adopted until the number of community residents applying to join the ULURP committee outnumbered the board members on that committee. Up until that time, placement of non-board members on committees was automatic and without question. Petitioners allege that the requirement to submit applications, and to ignore such applications without so much as an acknowledgement of receipt, was and remains intended to prevent the voices of community residents from being heard. Again, only three people were chosen from over 30 applications.
Additionally Respondents’ own words demonstrate Respondents’ intention to limit the number of people on a committee, in order that community residents not be able to “make decisions” or be in a “decisions-making position.” Petitioners assert there is a conscious effort by Respondents to violate their own Bylaws by not encouraging community residents to serve on committees, by abusing the power of the Board Chair and Committee Chairs who may appoint members onto committees.
In an act intended to further limit the voices and input of the community residents, and to ensure that Chairs are able to wield absolute power at the committee level, Respondent Lawrence is now only going to allow residents onto committees that committee Chairpersons approve of. Not only would this method of appointing residents deter residents from speaking out, it would prevent alternative viewpoints not in line with the Chairperson’s ideology or political position from being expressed.
Thus, if Respondents are allowed to violate article 8c of CB9’s Bylaws and not encouraged the appointment of community residents, Respondents are able to wield absolute power over the committee process. This is further exacerbated by the fact that CB9’s general board normally votes in favor of committee recommendations. Community residents would have no power or influence over what is transpiring within their community in violation of the intention of CB9’s Bylaws, which were written to encourage, not discourage, community participation. In fact, it violates the whole intention of the City Charter, which is to grant community residents the opportunity to have a voice on issues pertaining to their health and welfare at the community level of government.
CB9’s Bylaws - Refusal to Place Community Residents on Ad-hoc Committees
On November 18, 2014, Respondents created an ad-hoc Bylaws committee, but they refused to allow any community residents to serve on it. (Attached as Exhibit K, document 1)
On January 21, 2014 at CB9’s Bylaw committee, community residents were not allowed to talk because they were told they were not members of the committee. (Macken Aff. ) (Steward Aff.)
On June 10, 2014 at CB9’s Bylaw committee, community residents were forced to stand up and watch the committee’s deliberations without being able to sit or speak during the entire proceeding because they were not members of the committee. (Nichols Aff.) (Macken Aff.)
Also at the same meeting, Respondent Alicia Boyd was arrested, because she objected to being told she could not sit or speak because she was not a member of the Bylaws committee. ((Nichols Aff.)
On October 27, 2015 at CB9’s General Board meeting, during the business session, Respondents created an ad-hoc Search Committee to find a new District Manager, and appointed all board members to the committee.
On December 3, 2015, Petitioner, Pamela Yard inquired about being placed on the Search committee and was told by Respondent Lawrence that this committee was closed to community residents. (Yard Aff.) (Attached as Exhibit J, Transcript 4)
On December 17, 2015 of the Search Committee, Respondent Demetrius Lawrence stated that the Search committee had only board members because it is an ad-hoc committee, meaning community residents are not allowed to serve.
Summary - CB9’s Bylaws - Refusal to Place Community Residents on Ad-hoc Committees
CB9 Bylaws Article 8.5 states:
“The Board may establish such special committee as it shall deem advisable, or upon the recommendation of a committee, may establish such subcommittees as it shall deem advisable. A special committee or subcommittee, without a specific term of existence, shall be deemed discontinued immediately following the annual Board elections next succeeding its creation.”
The Open Meetings Law pertains to meetings of public bodies, and §102(2)
of that statute defines the phrase "public body" to mean:
“...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body." OML-AO-o3346
Ad-hoc committees thus are subject to the OML just like standing committees. The only difference is that ad-hoc committees are term limited. There is nothing in the body of law stating that committee membership of ad-hoc committee is for Board members only. Thus ad-hoc committees are subject to the same rules and requirements as standing committees including CB9’s article 8.7 c requiring Respondents to “encourage the participation of non-Board members on committee including representatives of local interested organizations.”
Petitioners allege that Respondents continue to violate CB9 Bylaws by refusing to allow community residents and heads of local interested organizations onto ad-hoc committees, dis empowering community residents from the board’s decision-making process and circumventing the law.
CB9 Bylaws - Illegally Placed board members and non-board members on ULURP committee.
In January 2015, former District Pearl Miles placed one person on the ULURP committee, and former CB9 member Michael Cetera and Petitioner Jacob Goldstein placed 7 people on that committee during the year of 2014-2015, despite their being board members and not committee chairs. (Attached as Exhibit E, document 3)
On March 16, 2015 at CB9’s ULURP committee meeting, Petitioner Alicia Boyd was arrested for objecting to the committee make-up. CB9’s Parliamentarian, Fred Baptiste tried to address the issue of membership on the ULURP committee by placing a motion on the floor. He stated, “I think we should establish the credentials of those in the meeting first. Once that’s been decided and settled, then we can actually move forward and conduct business. Because it makes no sense for us to consider a motion if the motion is improper and we can’t move forward if there is not a proper [quorum?] established. (Attached as Exhibit A, transcript 1)
Despite the objections of the board’s Parliamentarian, the Chair of the ULURP committee, Ben Edwards, ignored the need to establish the legality of the committee and never addressed it. (Id., transcript 1)
Summary – CB9 Bylaws - Illegally Placed board members and non-board members on ULURP committee.
CB9’s Bylaws article 8.7(c):
“Non-Board members shall be appointed to a committee by the Board Chairman/woman and/or the committee chairman/woman.” And Article 8.2: “Each standing committee shall consist of a committee chairperson, such other appointed members as volunteer and as appointed by the Chairperson of the Board. Non-board members shall be appointed to committees by the Chairperson of the Board and/or the committee chairperson.”
Petitioner alleges that is clear from the evidence that Respondents placed both board members and community residents on the ULURP committee in violation of the CB9 bylaws.
Petitioner alleges that these appointments were done to ensure that people who would vote for the second letter were placed on the committee.
CB9’s Bylaws - Violation of the OML: Meeting in Secret
On February 17, 2015, at CB9’s Executive board meeting, Respondents’ former Chairperson, Dwayne Nicholson, asserted that, “The ULURP committee members and other board members” (Attached as Exhibit C, transcript 3) were the people who created the Second Letter, “two weekends ago” [February 1, 2015] (Id., transcript 3), that there were “five of them” (Id., transcript 3) and that “they came together and wrote up the document.” (Id., transcript 3)
When Petitioner Alicia Boyd asked if Respondents had notified the community of this meeting, Dwayne Nicholson replied, “We don’t have to,” (Id., transcript 3) and when Petitioner Alicia Boyd asked who created the document, he replied, “I’m not going to necessarily name names, but there were several people.” (Id., transcript 3)
Petitioners assert that meeting in secret is a serious violation of the OML and a disturbing pattern exhibited by Respondents in the past that continues into the present.
From September to December 2014 and on June 16, 2015 and November the 16, 2015, meetings of the CB9 Executive Board were held in secret. No notification of any of these meetings was given to the community; thus, no community residents were in attendance. (Attached as Exhibit F, Chart1)
On October 29, 2015, Petitioner Alicia Boyd sent Respondents a letter requesting that the newly established Search Committee follow the OML and provide timely notification of its meetings. (Attached as Exhibit F, document 4)
On November 2, 2015, Respondent Demetrius Lawrence, replied that he was going to notify the CB9’s website programmer as well as the board members of the Search Committee of the meeting schedule, but he never did; no such information has ever appeared on the board’s website. (Attached as Exhibit F, document 5 page 11)
Respondents failed to notify the community of the Search Committee meeting of November 12, 2015, during which the job description, salary potential, and other determinations were made concerning the hiring of a new District Manager. (Attached as Exhibit F, document 6)
In fact, from September 2014 to present, Respondents have failed to properly notify the community of all CB9 meetings, in that they have never given “public notice to the news media one week before”, nor have they ever “conspicuously posted in one or more designated public location the notice of meetings”, despite pending ligation under Article 78 regarding this very issue. (MTOPP v. CB9. Index # 015743/2014)(Attached as Exhibit F, Chart 1)
On January 9, 2016, Respondents CB9 posted the date of the upcoming meeting of the ULURP Committee to the public, three days before the meeting scheduled for January 12, 2016. Petitioners allege this failure to provide timely notice was deliberate and in keeping with Respondents’ continuing attempt to deter community participation or awareness of Respondents’ intention to again approach DCP with a rezoning request. (Attached as Exhibit F, document 7 and 8)
Summary CB9’s Bylaws - Violation of the OML: Meeting in Secret
Petitioner alleges that Respondents CB9, have violated CB9’s Bylaws, Article 9.3, in regards to the scheduling and conducting of business in an open meeting format for it states: “Meetings and public hearings of the Board and committee meetings shall be conducted in accordance with the Open Meetings Law.”
According to the Open Meeting Law §104. Public notice. 1.
“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.”
By his own statement, Respondents’ former Chairperson Dwayne Nicholson proves that the Second Letter was written in secret, created without notification to the community and presented to the general board for a vote despite the community’s not having seen it or even Nicholson knowing its contents!
Furthermore, such secret meetings are not confined to ULURP committee meetings, but any CB9 meeting. Whenever Respondents want to make determinations behind closed doors, they simply don’t inform the community and make decisions in secret.
The decisions at these meetings entail, but are not limited to; the formation of agenda items and procedures created prior to Executive Board meetings; The Second Letter, with its proposed parameters of the rezoning area was written in secret; the job requirements and salary range for the District Manager position were made in secret by the Search Committee. All are decisions that will have a profound effect upon community residents, but the community and even some community board members have been kept in the dark about them. It is not known how any of these decisions were made, by whom, whether quorum was established, votes taken, etc.
Former District Manager Pearl Miles, and now Respondent Terry Witherspoon, operate in violation of the OML. They have only placed meeting notifications on Respondents’ website 2 to 6 days before a meeting is scheduled and they have never given notice to the new media within the required 7 days, nor have they ever conspicuously posted in one or more designated public areas the notification.
This pattern of insufficient notification has rendered a large majority of the community residents unable to attend or to even know when the meetings were going to be held. Many CB9 residents do not have access to computers or are unlikely to check CB9’s website on a daily basis. Even the monthly Community Board general meetings have not been posted on the website and elsewhere in the timely fashion required by the OML. (attached as Exhibit F, screenshots 1 and 2) (Boyd Aff.)
Violation of CB9’s Bylaws pertaining to OML
Lack of Minutes and Resolutions/Letters Published
(Passing of Second Letter at ULURP Committee)
On May 19, 2015, a vote was taken at an uproarious ULURP committee regarding the Second Letter to DCP requesting a rezoning. (Attached as Exhibit F, document 9)
On May 20, 2015, the Chairman of the ULURP committee, Ben Edwards, submitted the minutes of that meeting to Respondents CB9. (Id., document 9)
Sometime after August 24, 2015, Respondents posted the minutes to the May 19 ULURP meeting to CB9’s website, a full 90 days after Ben Edwards submitted it to Respondents. However, the posted minutes did not contain the Second Letter voted upon. (Attached as Exhibit F, screenshot 3)
Passing of the Second Letter at the General Board Meeting
On May 26, 2015, at the CB9 general board meeting, the Second Letter was “passed” during the Business session. Said Letter was never presented to the community for review, despite the Respondents knowing it was going to be voted upon. (Yard Aff.) (Nichols Aff.)
On October 27, 2015, at CB9’s general board meeting, the minutes of the general board meeting of May 26, 2015 were passed (150 days late!) but the minutes did not contain the Second Letter that was “passed.”(Boyd Aff. ) (Attached as Exhibit F, document 10, pg.5)
On December 16, 2015, Petitioner Alicia Boyd sent a FOIL request to Respondents asking that the minutes of the May 26, 2015 general meeting, during which the Second Letter was voted upon, be placed on the CB9 website. Despite the CB9 board passing the minutes on October 26, 2015, said minutes to date still have not been officially published to the community as required by law. (Attached as Exhibit F, document 11)
Summary - Violation of CB9’s Bylaws pertaining to OML
Lack of Minutes, Resolution/Letters Published
CB9’s bylaws Article 9.4 (c) states: “All voting shall be in person and shall be conducted and recorded in accordance with the Open Meetings Law.”
The Open Meeting Law §106. Minutes, states:
“Minutes must be taken, which should contain, all motions, proposals, resolutions and any items voted upon. They should be made available to the public, within two weeks from the date of a regular meeting and one week of an executive session.” And Section 103 e (e), “Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefore, to the extent practicable as determined by the agency or the department, prior to or at the meeting during which the records will be discussed … If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting…”
Respondents have violated the Open Meeting Law by not presenting the minutes, voting records and the Second Letter voted on at ULURP committee meeting of May 19, 2015 and at the general board meeting of May 26, 2015. Also, the Second Letter voted upon was never presented to the community at either the May 19, 2015 ULURP committee meeting or the general board meeting on May 26, 2015, as required by law. Petitioners allege that Respondents’ continuing refusal to make the Second Letter public is ample evidence of a deliberate and sustained attempt to circumvent the law, to prevent transparency and accountability by disguising how individual board members are voting, all in order to prevent the community from being aware of plans being laid that will have profound effects upon them and, further, to deter the community from objecting to or filing grievances through the courts or other governmental agencies in regard to decisions Respondents have made in secret.
Violation of CB9’s Bylaws: FOIL Requests
On December 9, 2014, during the Business session of CB9’s General Board meeting, Respondent’s then-Chairperson Dwayne Nicholson stated that a procedure had been created regarding the formation of the second letter..
On December 10, 2014, Petitioner Alicia Boyd requested to find out, via FOIL, how, who, when and where such a procedure had been created regarding the formation of the second letter, because CB9’s bylaws, Article 8.6, state, “This [Executive] committee shall have the power to adopt its own rules or procedures…” Petitioner’s FOIL request was never answered. (Attached Exhibit G, document 1)
On January 17, 2015, Respondent Warren Berke refused to respond to a FOIL request, which was asking for a copy of the Board members desires for changes to the Bylaws. He stated that he didn’t have time, and he never responded. (Attached as Exhibit J, document 1)
In February 2015, CB9’s then-District Manager, Pearl Miles, produced a document entitled “Ground Rules” for the upcoming ULURP committee meetings. It specified limitations on the number of speakers, how much time, etc…
On February 3, 2015, and again on February 9, 2015, Petitioner Alicia Boyd sent Respondent’s then-Chairperson Dwayne Nicholson a FOIL request for these “Ground Rules,” noting, again, that the formation of rules must occur during an open meeting of the Executive Committee. This FOIL request also was never answered. (Attached Exhibit G, document 2)
On June 29, 2016, Respondent Warren Berke refused to respond to Petitioner Alicia Boyd’s FOIL request asking for copies of documents pertaining to the proposed changes to the Bylaws that was only distributed to Board members and not to residents present at a CB9 Bylaw committee meeting held on June 10, 2015. (Attached as Exhibit J, doc 1) ((Macken Aff.)
On October 27, 2015, Respondent CB9 presented the minutes of May 26, 2015 for the first time, a full 5 months after the meeting. However, the minutes did not contain the second letter passed on May 26, 2015. (Boyd Aff.)
On December 16, 2015, Petitioner submitted a FOIL request for the minutes of the general meeting of CB9 on May 26, 2015, the second letter passed at that meeting and the voting record. Respondent had failed to publish any of these documents on their website, despite almost two months having elapsed since the minutes were voted upon (October 27, 2015), and eight (8) months since the general meeting occurred. This FOIL request also was never answered. (Attached Exhibit G, document 4)
It is not only with regard to the second letter that FOIL requests have gone unanswered by Respondents. From Fall 2014 to the present, Respondents have failed to answer numerous FOIL requests, either in whole or in part (attached as Exhibit E, document 7), sometimes using very abusive language such as, “Screw you”, and referring to FOIL requests as , “bullshit FOIL,” “legal beagle nonsense” (Attached as Exhibit B, documents) and as harassment against board members. (Attached as Exhibit B, documents 8)
Summary Violation of CB9’s Bylaws: FOIL Requests
CB9 Bylaws article 9.4(c): “All voting shall be in person and shall be conducted and recorded in accordance with the Open Meetings Law and the Freedom of Information Law.”
FOIL Article 87.3. “Each agency shall maintain: (a) a record of the final vote of each member in every agency proceedings in which the members votes; Article 89 General provisions relating to access to records, section 3 (a)
Furthermore article 87.3 (b) states “Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial.”
Petitioner alleges that Respondents have knowingly violated its own Bylaws by violating the FOIL law, all in an attempt to prevent the community from observing, reviewing and challenging documents, especially in response to the Second Letter requesting that City Planning commence a study. Because the letter was not presented to the community on May 26, 2015, before it was voted upon during the Business session, the community had no information about exactly what the letter stated etc.. or upon which to base a decision about whether a legal course of action should be pursued.
CB9 Bylaws article 9.3 states, “Meetings and Public Hearings of the Board and committee meetings shall be conducted in accordance with the Open meetings Law” and the Open Meeting Law contains the provision of FOIL.
FOIL Article 87.3 (a) states the conditions pertaining to a FOIL response, including time frames, denial, if reasonable, and response time. Petitioners allege that Respondents Warren Berke’s claim that he doesn’t have enough time, or that he needs a court order to fulfill the FOIL requests is simultaneously unreasonable, and an violation of the law intended to prevent community residents from knowing the intention of the board members with regard to the changing of the bylaws.
Violation of CB9’s Bylaws: Increasing of Executive Board Members
On January 25, 2016, at CB9’s Chairman meeting, Respondent Demetrius Lawrence decided to create an ad-hoc committee that merges the Executive Board with the Chairs of CB9, with the Chairs having voting power. (Attached as Exhibit K, transcript 1) this action was taken based upon the assertion of board member Carmen Martinez, that the Mayor’s 2015 handbook and the City Charter stated that, “the chairs of the committee are to be part of the executive committee” (Id.,), and, according to Respondent Warren Berke that this handbook supersedes CB9’s Bylaws (Id.,) Carmen Martinez, a questionable authority at best, has previously been removed from her position as a senior staffer in the NYC Comptroller’s Office for stealing 14 years of service. (Attached as Exhibit M, document 1)
Summary Violation of CB9’s Bylaws: Increasing Executive Board Members
CB9’s Bylaw Article 6.1 (a) states:
“The officers of the Board shall be: Chairman, First Vice-Chairperson, Second Vice Chairperson, Executive Secretary, Treasurer, Members at Large. (b) Each officer shall be elected from the appointed members of the Board and shall served for a one year term commencing on July first and until a qualified successor is elected. A qualified successor shall be a member of the board who has served at least one full year on the board and is incompliance with Article V Section 5.4.”
Also, CB9’s Bylaws Article 8.2 states, “The committee chairpersons shall be appointed members, shall be appointed annually by the Chairperson of the Board and shall serve at the pleasure of the Chairperson of the Board.”
First, if Respondent Demetrius Lawrence is permitted to add all the Chairs to the Executive Board with endowed voting power, the Executive Board will be in the control of the Chairman of the board and not the Board, for the 12 Chairs outnumbers the 8 Executive Board members. Second, the Chairs would become beholden to Respondent Demetrius Lawrence the Chairman rather than the general board, because he is the sole person who appoints them.
This action would cause a major shift in the power structure of the board and eliminate all possibility of checks and balances, leaving the general board completely powerless, and all power consolidated in the hands of the Chairman and his Chairs.
Violation of CB9’s Bylaws Appointment of Executive Board Members
On January 25, 2016, at CB9’s Chairman meeting, Respondent Demetrius Lawrence stated that he had the power to appoint the Secretary to the board instead of having to go through the election process. (Attached as Exhibit K Transcript1)
Summary of Violation of CB9’s Bylaws Appointment of Executive Board Members
CB9’s Bylaw Article 6.1 (b) states:
“Each officer shall be elected from the appointed members of the board…a qualified successor shall be a member of the board who has served at least one full year on the board. 6.2 (b) The election of an officer shall be by a majority vote of the members present and by signed paper ballot. 6.3 Upon the death, resignation, termination of Board membership or removal of any officer the vacancy created shall be filled by the Board. The election to fill such a vacancy in office shall take place no later than the second regular meeting following the creation of the vacancy. The election procedure shall be the same as that set forth in 6.2 of this Article.”
Petitioners allege that it is Respondent Lawrence’s intention to “appoint” a person to the Board Secretary position, following the current Secretary’s resignation, rather than follow the bylaw requiring an election to take place. Again, Petitioners assert that this action is taken because Respondent Lawrence seeks to control the appointment of board members and circumvent the authority of CB9 Board.
Violation of CB9’s Bylaws the Elimination of Committees
On January 25, 2016, at CB9’s Chairman’s meeting, Respondent Lawrence stated that it is acceptable to combine two standing committees, Youth and Education, without having to seek approval of the board. (Id.,)
Summary Violation of CB9’s Bylaws the Elimination of Committees
CB9’s Bylaws Article 8.1 state “The following standing committees shall be established: (a) Education and Library Committee and (i) Youth Services Committee.”
Petitioners allege that Respondent Lawrence’s position that these two committees may be collapsed into one without notification or consent from the board violates CB9 bylaws shows a lack of respect, understanding or any intention to be bound by the CB9 bylaws.
Violation of CB9’s Bylaws Creation of Ad-hoc Committees
On January 25, 2016, at CB9’s Chairman’s meeting, Respondent Lawrence created three ad-hoc committees; Community Outreach/Community Committee, (ld., the Executive Chair committee (Id., ) and recognized Respondent Warren Berke as Chair of a non-existent Bylaw Committee (Id., )
Summary of Violation of CB9’s Bylaws Creation of Ad-hoc Committees
CB9’s Bylaws Article 8.2 state, “The Chairperson shall designate additional Committees as may be necessary with the advice and consent of the Board.”
Petitioners allege that Respondent Demetrius Lawrence did not seek any advice or consent from the board concerning these three committees. These committees have not been presented to the board for a vote or even a discussion of their purpose, duration and intention. In fact, Respondent’s actions, including his appointments of Chairs, speak to the fact that he regards the committees’ creation as a foregone conclusion.
Sixth Cause of Action
Declaring Null and Void the Second Letter To Department of City Planning
Paragraphs 1 through 379 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’ Second Letter voted upon on May 26, 2015, requesting that the Department of City Planning conduct a re-zoning study of Community Board 9 in Brooklyn.
The courts have cited, variously; the establishment of bad faith; acts intended to violate or evade the law; prejudice toward the public; violation of OML; intent to minimize public awareness of political actions and decisions; patterns of violations of law; denial of the public’s right to speak; discouraging attendance at public meetings; depriving people of opportunity to address matters that could cause them harm; lack of quorum; and failure to provide proper notification, all as grounds upon which to void the actions of governmental agencies.
Bad Faith
The courts have refused to void actions of public bodies when there is an absence of bad faith (Aurgher v. Purcell, 109 Misc.2d 531, 440 NYS2d 480, affirmed 87 AD2d 888, 449 NYS2d 527 (2nd Dept. 1982). Thus, the presence of bad faith is grounds for voiding actions of a public body.
The definition of “bad faith,” according to the Legal Dictionary of the online Free Dictionary, is “the fraudulent deception of another person; the intentional or malicious refusal to perform some duty or contractual obligation” and “when the rights of someone else are intentionally or maliciously infringed upon.” (http://legal-dictionary.thefreedictionary.com/Bad+Faith)
Petitioners allege that Respondents did knowingly engage in fraudulent behavior by the following actions: deliberately posting information to their official website regarding public speaking in order to mislead the community into believing they were following the law; placing members on the ULURP committee in violation of CB9 Bylaws; presenting the second letter as having derived from the input of community residents when, in fact, it was written before Respondents ever met with community residents; refusal to disclose the actual authors of the second letter, in violation of the OML; and stating in the minutes of the ULURP meeting of May 19, 2015 that the meeting was called to order, quorum established and a lawful vote taken.
Petitioners allege that Respondents intentionally and maliciously refused to perform their duties as a governing body by the following actions: not allowing community residents to serve on committees as required by CB9 Bylaws; not publishing the minutes of the meetings and documents relevant to the second letter as required by the OML; refusing to allow community residents to speak at open meetings, in violation of the City Charter and CB9 Bylaws; refusing to provide sufficient, sometimes any, advance notice of meetings to the community, as required by the OML; and refusing to produce procedural decisions, attendance records, documents and minutes pertaining to the ULURP meetings in accordance with FOIL.
Petitioners allege Respondents infringed upon the rights of community residents by failing to place residents on committees, and in particular the ULURP committee, in violation of CB9’s bylaws; failing to enable community residents to observe and otherwise become aware of decisions being made by a public body in violation of the OML; infringing upon the right of community residents to engage in their First Amendment rights by refusing to allow them to speak and/or having them arrested; and infringing upon community residents’ right to participate in meetings without intimidation, fear or harassment by community board members and the police.
Intentional Acts to Violate/Evade the Law
When violations of the Open Meetings Law are found to be “unintentional” or when there is a lack of evidence to determine that an agency “attempted to evade the law,” the courts have refused to void the actions of government agencies. By inference, the presence of intentional behavior to violate the law and clear evidence of such intentions does provide grounds to void government actions. (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).
Petitioners allege that Respondents intended to violate and evade the law, for they were both aware of the law and a court case was pending regarding some of these same violations. Respondents have refused to post timely notice of ULURP meetings according to OML; failed to conduct meetings according to CB9 bylaws; failed to allow community residents to serve on committees in violation of CB9 bylaws; failed to allow residents to speak at meetings in violation of City Charter and CB9 bylaws; failed to publish the minutes of meetings, voting records and items voted upon as required by OML; failed to abide by FOIL requirements; failed to present documents to the community concerning a vote by the Board by consigning the Second Letter to the Business Session in order to justify not notifying the community about the vote and to prevent any discussion or input concerning the second letter. In addition, Respondents made statements of their intention not to abide by FOIL requirements; deterred residents from exercising their First Amendment rights, and took a vote without quorum, in violation of the City Charter and the Parliamentary Procedures required by City Charter.
Prejudice Done to Community Residents
The courts have refused to void actions of public bodies when “prejudice to the public” has not occurred. (Wilson v. Board of Harborfields Central School District, 65 AD3d 1158, 225 NYS2d 207 (2nd Dept. 2009) (Emphasis added). Thus, the presence of prejudice toward the public is grounds for voiding an action. Petitioners allege that great harm and prejudice has been done to the public based upon the following occurrences: arrests of community residents; surrounding of residents by the police with intent to intimidate, harass and instill fear in the public and to silence protest; abusive behavior by Respondents, in the form of physical verbal and online abuse in the form of emails; refusal to place residents who had submitted applications to serve on the ULURP committee and by breaking promises and engendering lack of trust.
Persistent Pattern of Violations
The courts have refused to void actions of public bodies when there is no finding of a “persistent pattern of violations” (Reese v. Daines, 62 AD3d 1254, 877 NYS2d 801 (4th Dept. 2009), and when an agency has not “repeatedly violated the OML.” 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 (1995) Thus, the presence of persistent patterns of violations of OML and other laws are grounds for the voiding decisions.
Petitioners allege that Respondents have shown a clear and consistent pattern of violating the OML, FOIL, City Charter, CB9 Bylaws and Robert’s Rules of Order, by the following actions: Violation of OML: Meeting and creating documents in secret, producing documents specifically for a vote, failure to publish minutes and resolutions. Violation of FOIL: Failure to publish records of final votes and resolutions, to provide access to records, and to response to FOIL requests. Violation of City Charter: failure to allow time for public comments at open meetings and failure to establish quorum. Violation of CB9 Bylaws: Failure to provide time for public comment at open meetings; refusal to place community residents on ULURP and other committees and the Illegal placement of members on ULURP committee. Violations of Robert’s Rules of Order: failure to call meetings to order, establish quorum and placing motions on the floor without them being seconded.
Denied the Ability to Speak at Open Meetings
The courts have refused to void actions of agencies when there was no evidence that the agency “denied anyone who wished to speak an opportunity to do so” or that the agency “intentionally or knowingly discouraged anyone from attending.” (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009).
Petitioners assert that there is more than ample evidence, including Respondents’ own comments revealing their intention to discourage people from speaking, their persistent failure to provide required notification of meetings, reliance upon the police to silence voices of protest, refusal to allow residents to speak at meetings, limiting the time of the Public Comment period or consigning the Public Comment period to the latter end of meetings, after many have had to leave, and placing a police officer at the end of the line to prevent residents from joining the line and speaking.
Petitioners allege that Respondents also intentionally created conditions intended to deter residents from attending meetings by the following acts: insistence upon heavy police presence at ULURP and general meetings; refusal to accept applications from community residents to serve on CB9’s committees; refusal to properly notify community residents of meetings in accordance with OML; arresting residents at meetings thereby creating fear in the community that they might receive the same treatment, and disrespectful and abusive behavior of board members towards residents.
Discouraged People from Attending Meetings
The courts have refused to void actions of courts when there was no evidence that an agency “intentionally or knowingly discouraged anyone from attending.” (Windsor Owners Corp. V. City Council of City of N.Y., 23 Misc.3d 490, 878 NYS2d 545 (2009)
Petitioner alleges that there is ample evidence that Respondents intentionally and knowingly discouraged community residents from attending CB9 meetings by the request for heavy police presence; by the refusal to allow residents to speak at meetings, especially to issues which could cause them harm, by the refusal to accept applications of residents to serve on committees; by the refusal to give required notification of meetings; by the arrest of community residents; and abusive behavior by board members towards community residents. Petitioner states all these acts continue to discourage participation in the process.
In the case of Previdi v. Hirsch, 138 Misc.2d 436, 524 NYS2d 643 (1988), the courts found that when an agency’s violations of the OML were "calculated to minimize public awareness of a sensitive political decision," their action was declared void. In White v. Kimball, Mayor, City of Jamestown, Supreme Court, Chautaugua County, January 27, 1997, held that the “issue should have been discussed in public.” Also, in Weatherwax v. Town of Stony Point, 97 AD2d 840, 468 NYS2d 914 (2nd Dept. 1983) actions of an agency were overturned because Petitioner was not made aware of the “policy decision” and thus was “deprived of the opportunity” to act on the policy decision, thus resulting in “direct harm.”
Petitioners allege that Respondent intentionally and knowingly violated OML by withholding information and refusing to have open, public discussion regarding the Second Letter in order to prevent community awareness or input into its creation despite the great harm that could be done by the Second Letter to residents, their community and their properties. Respondents withheld the zoning analysis from the community for almost a year, a document that revealed with great clarity the types of changes being pursued by DCP. Moreover, Respondents refused to allow community residents to speak about rezoning at ULURP and general meetings; had community residents arrested for speaking out in opposition of the second letter; refused to publish the meeting minutes and text of the second letter to keep the community in the dark about its contents. In fact, Respondents did not present the second letter to the community for review either before a vote was taken or after that vote was taken.
Lack of Quorum and Failure to Provide Proper Notification of Meetings
Actions of governmental agencies were voided by the courts when violations of the Open Meeting Law occurred: lack of members present for vote (Town of Eastchester v. NYS Board of Real Property Services, 23 AD3d 484, 808 NYS2d 90 (2nd Dept. 2005); lack of quorum for a vote (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). In Van DeLoo v. City of Schenectady, Supreme Court, Schenectady County, September 6, 2002, Court considered “multiple violations and procedural concerns” as the basis for annulling a Board’s determination. In White v. Battaglia, 79 AD2d 880, 434 NYS2d 537 (4th Dept. 1980), appeal denied 53 NY2d 603, 439 NYS2d 1027 (1981), the court invalidated the “board’s actions due to failure to comply with notice requirement under §99 of the Law.”
Petitioners allege that Respondents have repeatedly engaged in violations of the OML with regard to required notification of meetings and the establishment of quorum before commencement of business and before taking a vote.
ULURP Committee Membership Invalid
Petitioners allege that any decision coming out of the CB9 ULURP committee should be rendered invalid because the membership of the ULURP committee was invalid. Paragraphs 45 – 52 in Fifth Cause of Action/CB9 Bylaws, show that Respondents placed members on the ULURP committee in violation of CB9 bylaws. And when Petitioner Alicia Boyd, Respondents’ own Parliamentarian, CB9 board member Fred Baptiste, and community residents insisted that this issue be resolved before moving forward with any vote or decision, Respondents simply refused to consider their objections.
Summary - Sixth Cause of Action
Voiding of the Letter to Department of City Planning
Petitioners allege that throughout the process of creating a letter to City Planning requesting a rezoning, Respondents exhibited the following behaviors: bad faith, intentional acts to violate or evade the law, caused prejudice toward the public, violations of OML with the intention to minimize public awareness of sensitive political decisions; patterns of violations of various laws, denial of people’s opportunity to speak in open meetings; discourage participation and deprive community residents of chances to address issues which could cause harm; failed to establish quorum or provide required advance notice of meetings. All these actions are grounds upon which to void the letter that was submitted by Respondents to DCP requesting a rezoning study of the community.
Seventh Cause of Action
Removal of CB9 Board Members
Paragraphs 1 though 379, are repeated as though 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, demanding that Respondent Michael Liburd, Tim Thomas, Demetrius Lawrence and Warren Berke be removed from Brooklyn Community Board 9.
Removal of Respondent Michael Liburd from CB9
Placed on the Board illegally
In June 2014, Respondent Michael Liburd was placed on Brooklyn Community Board 9 by Borough President Eric Adams. During the course of FOIL requests and an article 78 proceedings commenced by Petitioner Alicia Boyd against Borough President Eric Adams, evidence has come to light showing that Borough President Adams, with intention and in bad faith, violated the City Charter when he placed Michael Liburd onto CB9.
According to the City Charter, in any given year City Council members can recommend thirteen (13) people for board membership and the Borough President, twelve (12). The Borough President appoints all members of the community board but only half may be from his or her own recommendations. (Attached as Exhibit A)
In June 2014, 18 new board members were placed on the CB9 board, compared to an average of 6 for the other 17 community boards in Brooklyn. Acting in concert, these new board members were able to remove the Chair, Vice Chair, Second Vice Chair, Secretary and Treasurer and construct an almost entirely new executive board.
In response to Petitioner Boyd’s FOIL request, former District Manager of CB9, Pearl Miles, produced public records showing that 7 of the newly-appointed board members were recommended by the three City Council people who collectively represent the CB9 district. In particular, Councilman Mathieu Eugene was supposed to have recommended Michael Liburd for appointment for the 2014-2016 term. (Attached as Exhibit K, document 4).
On November 20, 2015, as a result of an article 78 filed against Borough President Eric Adams, documents were produced by his office revealing that, in fact, only one of the seven people appointed were recommended by City Council members and, further, that Councilman Mathieu Eugene did not recommend anyone for service on the community board in the 2014-2015 term. (Attached as Exhibit L, document 2 and 3).
Demonstration of Conscious Decision to Violate the Law and Acts of Bad Faith
Other evidence shows that Borough President Adams knew he was breaking the law by placing Michael Liburd onto the board, because former CB9 District Manager, Pearl Miles, produced a falsified list of recommendations by City Council members on Borough President Adams’ official letterhead. Petitioners assert that the Borough President knew he wasn’t, by law, allowed to make all of the recommendations for appointments, and so elected to fabricate a list of Councilmember’s recommendations to hide this fact.
To further hide his unlawful behavior, On December 3, 2015, at the New York State Supreme Court, Borough President Adams refused to produce the above-referenced official document during the Article 78 proceeding (still pending as of this filing), claiming that all documents pertaining to the CB9 appointments had been provided to the courts, but neglecting to provide the supposedly official record of Councilmember’s recommendations sent by his office to the CB9 office. (Boyd Aff. ¶25)
Shedding further light onto Borough President Adams’ conscious decision to violate the law and fabricate documents pertaining to official appointments of public officials, in November 2015, in response to the article 78, Borough President Adams produced a previously redacted letter dated May 5, 2015, which revealed that he ignored the expressed wishes of Councilwoman Darlene Mealy when she had specifically stated that she was, “requesting that the [two] available seats on Community Board 9 remain unfilled.” (Attached as Exhibit L, document 3)
However, according to the Borough President’s letter to CB9 district manager Pearl Miles, referenced above, Councilwoman Darlene Mealy supposedly recommended two people to fill those slots. (Attached as Exhibit K, document 4)
Conduct Unbecoming A Public Representative- Michael Liburd
Petitioners also assert that, not only was Respondent Michael Liburd illegally appointed to the CB9 board, but he has abused his power and authority as Chair of the ULURP committee. Respondent Liburd initiated and encouraged members of the board and community residents to engage in an attempt to coerce Petitioner Alicia Boyd to give up her rights under the OML. Then, in an act of revenge and punishment for Petitioner Alicia Boyd’s refusal to give up her rights, Respondent Liburd embarrassed Petitioner Alicia Boyd by removing her from the ULURP Committee and refused to allow her to participate during a presentation to the committee based on her work and only her work.
To further harass and humiliate Petitioner Alicia Boyd, Respondent Michael Liburd allowed Respondent Tim Thomas to perform personal attacks against her in a public hearing and instead of stopping Tim Thomas’ behavior actually stated that it was lawful for him to do so.
Respondent Michael Liburd also broke the trust of the community by continuing to lie about his intentions, motives and course of actions that he was taking at the meetings and subcommittee, in regards to his selection process onto the ULULP committee and the actions that were suppose to take place at the committee meetings.
Summary: Removal of Respondent Michael Liburd from CB9
The evidence clearly shows that Borough President Eric Adams violated the City Charter and placed Michael Liburd on the CB9 board, for the 2014-2016 year and in an attempt to hide this fact, he fabricated and falsified a legal document.
The courts have refused to void actions of public bodies when there is an absence of bad faith (Aurgher v. Purcell, 109 Misc.2d 531, 440 NYS2d 480, affirmed 87 AD2d 888, 449 NYS2d 527 (2nd Dept. 1982), thus the presence of bad faith is grounds for voiding actions of a public body. Thus there is strong precedent to null and void actions and decisions by Elected Officials who engage in unlawful acts in bad faith.
Furthermore, Article 5 of CB9 Bylaws 5.5 (a) state that an appointed member may be removed from the Board for cause…” Petitioners allege that Respondent Liburd’s actions toward Petitioner Boyd constituted an abuse of discretion and power by refusing to allow her to ask questions during the DCP presentations, or to allow her to serve on the ULURP committee, and by attempting to coerce members of that committee to violate the OML. Petitioners allege all are valid causes for Respondent Liburd’s removal.
According to Guide on Parliamentary Procedure for NYC Community Boards, part of the role of Chairperson is to be “fair, yet firm”, “never engage in debate or take sides without first relinquishing the chair” and “prevent the abuse of parliamentary procedure” (pg.7) , which would include board members refraining “from using inflammatory language or making personal attacks.” (pg. 8)
In the case with Petitioner Alicia Boyd not only did Michael Librud encourage the members of the committee to engage in personal attacks and did nothing to stop it both at the subcommittee meeting on October 22, 2015 and the Text amendment hearing on November 17, 2015, but he engaged in and contributed to the debate of demanding that a member of the committee give up her rights according to the OML, to enable an unauthorized presentation to take place.
Great harm has befallen the community as this type of behavior exhibited by Chair then sets the standards of engagement, relationships between the community board members and community residents and it becomes the standard on how public discourse and committee work happens.
Also great harm has been done to Petitioner Alicia Boyd, in being attacked, embarrassed and punished for her refusal to violate the OML. Respondent’s behavior is unacceptable and if he is allowed to continue on as a member of the community board his behavior will set the precedent for more abusive behavior to come.
Community residents should not be threatened or punished for engaging in the open meetings law, board members should not be allowed to make personal attacks against a resident because they don’t like the resident’s position within the community and Chairs should never engage in the violation of the law or encourage such violations within the membership of the group. These are all valid and good cause reasons for the removal of Michael Librud.
Removal of Respondent Tim Thomas
Petitioners are requesting that Tim Thomas be removed from his position as Community Board member for the following reasons:
Summary: Removal of Respondent Tim Thomas
Community Board members are public officials who are appointed to serve as representatives of their community. The courts and the community have viewed their standards of conduct to be above the common person. The duty of a community board member is, first and foremost, to represent the people of his or her community in a professional manner that dictates decorum, poise, honesty, accountability, neutrality and integrity. Without such standards, public trust in the officials and institutions charged with representing them is sundered, and inevitably destroyed.
It has long been clear that Respondent Tim Thomas is not capable of meeting these standards while performing his duties as a community representative despite being re-appointed by Borough President. Thus Petitioners request a final Judgment for his removal from CB9 for ongoing behavior unbecoming a public official and community board member.
Article 5 of CB9 Bylaws 5.5 (a) state that “an appointed member may be removed from the Board for cause.” Petitioners allege that good cause has been demonstrated for the removal of Respondent Tim Thomas removal from CB9.
Removal of Warren Berke
Petitioners are requesting that Warren Berke be removed from CB9 for the following reasons:
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Summary: Removal of Respondent Warren Berke
Article 5 of CB9 Bylaws 5.5 (a) state that an appointed member “may be removed from the Board for cause.” Petitioners allege that Respondent Warren Berke, who was appointed to chair the ad-hoc Bylaws committee of fiscal year 2014-2015 and thus has, or should have, at least working knowledge of CB9’s Bylaws, yet he is the one who continuously changed policies regarding conduct at open meetings, without consent or knowledge of the board, changes that resulted, among other harms, in the arrest of Petitioner Alicia Boyd; who stated in writing that he wasn’t going to obey FOIL requests and did not respond to them; who claimed that a Mayor’s Pamphlet was a body of law that superseded CB9 Bylaws; who refused to allow residents to speak or even sit at a Bylaws committee meeting; who is plotting to take over the Executive Board and stated that the Chairs have been appointed by Borough Hall “for a specific reason” and as a result the community residents shall not “be in a decision making position” on committees and who has openly acknowledged that Bylaws have been created in secret, nevertheless intends to present them to the full board for review and approval.
All the above not only demonstrates that Respondent Berke has intentionally acted in bad faith, since, as Chair of the ad-hoc Bylaws committee of 2014-2015, he is familiar with the bylaws of CB9, but that his actions have caused irrevocable harm to residents, with arrests, and to the board, as the community and the wider public have come to view the CB9 board as dysfunctional, out of control and without credibility.
Respondent Berke has also intentionally misled the rest of the board, in his official capacity as the Chair of the Bylaws committee: presenting himself as an expert and knowing his positions and opinions to be viewed as informed and lawful, thus allowing him to steer other members of the board into corruption via unintentional violation of CB9 bylaws.
Petitioners allege Respondent Berke’s continued presence on the board is detrimental as his behaviors and opinions serve as models to newer members of the board who may come to share his view of community residents as obstacles to get around, rather than people they are required to listen to and represent, and engendering an attitude toward the rules governing the board as constantly subject to change according to the individual goals of CB9 board members, without any accountability toward the public.
Removal of Respondent Demetrius Lawrence Chairman of CB9
Petitioners are requesting that Demetrius Lawrence be removed from CB9 Board for the following reasons:
Summary: Removal of Demetrius Lawrence as Chairman of the Board
Community Board Chairs hold a lot of power and are appointed; to steer and guide the community board members to fulfill their duties in accordance with the law, which requires that they act as advocates for the community; to provide a safe place where residents may come and, without inhibition, air their ideas and concerns; to ensure that board members represent community ideas and concerns when formulating policies and procedures; to ensure that requests from governmental agencies and advice on public projects that affect the community are known to that community. Chairs should be well versed in Parliamentary procedures and all of the law governing CB9, especially the bylaws. He/she should seek council and guidance from the Board and always defer to the Executive Board and general board when making decisions and carrying out orders and directives of the Board. It is abundantly clear that Respondent Lawrence has fulfilled none of these requirements; indeed, in too many cases, he has acted in willful opposition to the concerns and protests of the community, the people whose interests he has been appointed to represent. He has openly went against the stated and voted wishes of the Executive Board, has conspired to actually over throw the Executive Board, with his handpicked Chairs, a serious violation of the City Charter and has continuously violated the trust of the community and board members.
Article 5 of CB9 Bylaws 5.5 (a) state that “an appointed member may be removed from the Board for cause.” Petitioners allege that good cause has been demonstrated for the removal of Respondent Demetrius Lawrence.
Eighth Cause of Action
Voiding CB9 Bylaw Article 8.2 and 8.7c, 2nd sentences: Appointment Process
Paragraphs 1 through 379 are repeated as though more fully alleged herein.
Petitioners have exhausted all administrative remedies and made no prior request to this or any Court for the instant relief.
By reason of the foregoing, Petitioners are entitled to Judgment Pursuant to article 78, to null and Void Article 8.2, 2nd sentence, which states, “Non-Board members shall be appointed to committee by the Chairman of the Board and/or the committee chairperson.” And Article 8.7 (c) 2nd sentence, which states, “Non-Board members shall be appointed to a committee by the Board Chairman/woman and/or the committee chairman/woman.”
Rationale for Voiding of Article
The courts always look, not only at the specific wording of a law, but to its intention and spirit. As the Mayor’s website has stated, the purpose of a Community Board is to provide residents a way to have input into decisions directly concerning to them, including land use, a forum wherein their ideas, regardless of how popular or unpopular, may be freely expressed and a place to air complaints to get city services. Community board members are to be advocates for the people they represent. The City Charter regards community boards as the fundamental building block of the city’s democracy; board members are charged not only with hearing and assessing the will of the community but seeing that its will is done.
The majority of the work at a community board, however, takes place at the committee level, in groups organized to attend to specific issues, wherein board members and non-members alike convene as equal partners to discuss issues and find resolutions that best serve the interests of the community, and then to recommend those solutions to the general board for enactment. That is why community residents are given the same power as community board members at the committee level, to foster a thoroughly democratic process at its most basic level!
CB9, however, currently has two contradictory bylaws. Article 8.7c states that CB9, “shall encourage the participation of non board members on committees, including representatives of local interested organizations,” language Petitioners believe is in keeping with the mandate expressed in the City Charter, expressive of the spirit of the law and its intention to achieve the goal of full community participation. Bylaw 8.2 and 8.7 c 2nd sentences, however, which regulates the process of appointments to committees, states that, “Non-board members shall be appointed to committees by the Chairperson of the Board and/or the committee chairperson.”
It is Petitioners’ belief that it was not the intention of CB9’s Bylaws to have contradictory laws of governance, but ones that complement each other, first to encourage residents’ participation, and then to create a process to serve that goal. In fact, according to CB9’s own Parliamentarian, Fred Baptiste, it was a long standing procedure at CB9 to allow anyone onto any committee who showed up at a meeting!
However, in light of the recent events that have surrounded CB9 and Respondents behavior to go against the wishes of the community in regards to issues surrounding land use and other serious concerns being presented, and not to hear the desires of its constituency and thus violate the intention of the law, Respondents have now enacted the process of putting residents onto committees, as a means in which to circumvent and violate its own bylaws and to violate the spirit of the intention of Community Boards.
Petitioners allege that, in breach of the spirit and intent of the law, Respondents are using Article 8.2 and 8.7c 2nd sentences, to refuse to allow residents onto committees and thus control their membership. Respondents have ignored dozens of applications to serve submitted by community residents without so much as acknowledgement of receipt; refused to discuss or explain its rationale for its selection process except to state their intention is to limit the number of non-board members on committees to fewer than that of board members; to exclude residents from participation from all ad-hoc committees and creating the possibility for committees to be formed with the sole intention of thwarting the will of the community at large. Thus, rather than encourage community participation, Respondents are interpreting the text of the Bylaw 8.2 and 8.7c 2nd sentences, for self-serving political purposes, with blatant disregard for its spirit and intent, its long-standing practice, and in defiance of the mandate for all community boards to empower residents clearly expressed in the City Charter.
Respondents’ self-serving, weaponized interpretation of Bylaw 8.2 and 8.7c, 2nd sentences, has resulted in the establishment of a dictatorship instead of a democracy. Respondents long have demonstrated their intention to quash and silence dissent and to hide their motives. They have created, in secret, at least one document with the potential to fundamentally destabilize the entire community, to displace its residents in favor of wealthier ones, and they are stacking the membership of committees to ensure that the wishes of the few may be counted upon to outweigh the wishes of the many.
Additionally, under Respondents’ current interpretation of Bylaw 8.2 and 8.7c, 2nd sentences, the community is left with no way to counterbalance the power of the board Chairs and the Chair of CB9. If the Chairman of the board doesn’t like a chair then he/she may be removed. If a chairperson of a committee doesn’t like a community resident, he/she is never placed onto a committee, given any power, including the right to place motions on the floor for discussion. Committee members are chosen by “litmus test,” according to their positions on various matters and how they may be counted upon to vote without any checks or balances available to aggrieved community residents. If an ad-hoc committee is created and Respondent refuses to allow community residents to serve, then only the ideas and goals of board members will be taken into consideration, while community has no voice in the process.
Thus, Petitioners are requesting that, to serve the spirit of the law and curb Respondents’ violation of its intention that has dis empowered community residents at the committee level, that the courts void CB9 Bylaw 8.2 and 8.7c, 2nd sentences.
Ninth Cause of Action
Amend Bylaw 8.2 and 8.7c, 2nd sentences to create of a Fair and Equitable Policy to Appoint Community Residents onto Committees
Petitioners have exhausted all administrative remedies and made no prior request to this or any Court for the instant relief.
By reason of the foregoing, Petitioners are entitled to Judgment Pursuant to article 78, directing Respondents to create a policy for the placement of non-board members onto committees that is fair and equitable to provides all community residents the opportunity to be a part of both standing committees and ad-hoc committees.
Rationale
The committee level is where residents and board members come together to discover, strategize and otherwise work to address issues prevailing in the community. Empowered residents will freely contribute their time, energy, ideas and effort in a spirit of mutual respect and cooperation in the interest of seeing work accomplished and goals of the community-informed board achieved. Respondent CB9, by encouraging committee membership with an unlimited number of community residents, will be enabled to be more effective advocates, by tapping into the wealth of knowledge, experience and resources community residents bring to the table.
In the spirit of mutual trust and respect, community residents have the same voting power as Board members at the committee level. The equitable distribution of voting power at the committee level provides residents with their only, thus critical, check and balance and is the compelling reason that the number serving on a committee not be limited or in any way prevented from exceeding that of board members. Indeed, a large number of applicants to any committee must be seen as a measure of the importance of that committee’s work to residents and their interest in having a voice in that committee’s recommendation(s) to the full board.
No one wants to work hard on a project and then be left out of the final decision-making process. Such treatment discourages participation, leads to alienation and hostility, and undermines the stable structure that is created through cooperation between board members and community residents, which is a Community Board.
CB9 Bylaws demand that CB9 encourage participation of community residents onto committees, and at the same time provides a process for that to be accomplished - the appointment of community residents by the Chairs of the committees and Chairman/woman of the board. However, Petitioners allege the spirit and intent of the law to include all community voices is being circumvented by CB9’s appointment process allowing Respondents to engage in endeavors to limit, deter and control the voices of community residents at the community board level.
Petitioners allege that Respondents are now using their power to appoint members onto committees to circumvent the law by; not allowing any residents to serve on ad-hoc committees; limiting the amount of residents allowed to serve on any committee to a number less than that of board members; ignoring the applications to serve; allowing only Chairs to choose who is “appropriate” to serve and “stacking the deck” in committees, most notably the Land Use committees ULURP and 197a; and appointing all Chairs to the 197a plan. Respondents themselves have stated these actions have been taken to ensure that community residents have “no decisions making power.”
Respondents’ actions taken to limit the participation of community residents in both standing and ad-hoc committees threatens to rend the very fabric of CB9. Standing committees are being eliminated, for instance, lest appointing all residents who applied to serve result in residents outnumbering board members.
Eventually, as residents are made to feel unwelcome by various means of deliberate estrangement, their input regarded as obstructive and adversarial, and having been stripped of voting power at the committee level, the only check or balance available to them, resident participation will weaken even to the absurd point that only board members serve on committees. Thus would CB9 become a community board without any meaningful connection to the community it is charged to serve.
Petitioners state this is not the intention of the law when Community Boards were created. Without a policy in place that enables all members of the community the opportunity to join, without limit, both standing committees and ad-hoc ones, the purpose of community boards to provide residents a say in their local government, cannot be realized.
The very fabric of our democracy is based upon Freedom of Speech and the courts continue to reinforce their support for the full expression of all voices, regardless of perspective, as the hallmark of a democratic society. With Respondents seizing sole power to determine which residents may serve on committees and how many, democracy at the most basic, local level of our governmental system is lost.
CB8’s process makes clear the conditions for appointment to a committee; allows all interested residents the opportunity to serve, without limiting their number, provided they demonstrate a commitment to service over the course of three meetings. At CB8, residents’ pathway to committee service rests not in the hands of Board members, but in their own, once they have proved their ability to sustain a commitment to service. This is as it should be.
Tenth Cause of Action
Board Members To Be Trained by Committee On Open Government
Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for the instant relief.
By reason of the foregoing, Petitioners are entitled to injunctive relief, directing Respondents, entire staff, and entire CB9 membership, to undergo training sessions conducted by the staff on the Committee on Open Government on the Open Meetings Law and Freedom of Information Law along with other forms of training in regards to Parliamentary Procedure and CB9 Bylaws.
Rational for Injunctive Relief
Public Officers Law Article 7, of the Open Meetings Law, Section 107.1 Enforcement states:
“Any aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventh-eight of the civil practice law and rules, and/or an action for declaratory judgment and injunctive relief. In any such action or proceeding, if a court determines that a public body failed to comply with this article, the court shall have the power, in its discretion, upon good cause shown to declare that the public body violated this article and/or declare the action take in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with this article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in training session concerning the obligations imposed by this article conducted by the staff on the committee on open government.”
Community board members are not chosen for their experience or knowledge concerning the running of a community board, they are simply chosen for having an interest that can be documented by either residency, job affiliation or other means of connection to the community. These are non-paid positions, with very little training. For the most part, having a regular, steady and experienced Executive Board has enabled community boards to incorporate new board members and to educate them as to how community boards function. With CB9, however, this is not the case. In the last three years there have been three completely different Executive Boards, with five out the six officers completely new to the Executive Board. Currently 9 out of the 12 Chairs of CB9 have less than 2 years experience on the board, with 3 being brand new to the board. Almost 2/3 of the board have less than 2 years experience.
This has created a highly inexperience board, who clearly has not had the type of training required to run a board according to the laws that govern it. This is proven by the various comments the current Executive Board and chairs of CB9 have stated, which are listed below:
These statements reflect the inner thinking and concepts that board members have about the various laws to which a community board and themselves are govern by. It is clear based upon these comments made by Respondents that whatever training they have had has not been enough for them to function within the guidelines of the law. The fact that OML suggests that courts provide training in these laws, shows the commonsense fact that not everyone may know the law, but how important it is that they do, to ensure the prevailing concepts of transparency and accountability are established and maintained, which is why these laws exist.
Petitioners have shown good cause to support their demand for this Injunctive relief and further states that without proper training of the board, it is clear that Respondents will continue in their behavior, until such time that they are fully educated and are shown exactly what they can and cannot do. This training should be in all of the laws that govern CB9, including Parliamentary Procedure, Robert Rules of order and CB9’s own bylaws.
Eleventh Cause of Action
Declaratory Judgment
Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for the instant relief.
By reason of the foregoing, Petitioners demand declaratory judgment stating that Respondents violated the Open Meeting Law, New York City Charter, CB9 Bklyn Bylaws, the Guide to Parliamentary Procedures for New York City Community Boards and the First Amendment.
Petitioners believe it is imperative that the court make these declaratory judgment against Respondents to enable the other reliefs sought affective as well as send a clear message to Respondents that their behavior and conduct is not lawful. This is very important, because a year of the behavior that has been exhibited in this case has been performed while a court case was pending in the courts. The fact that, in Petitioner’s opinion, the courts erred in not making a declaratory judgment, has allowed Respondents to continue to perceive their behavior as valid, lawful and without any consequences. This complete disregard for the law has continued unchecked to the point that it is now the intention of the Chairs to just take over the Executive Board, with the Chairman at the head.
Petitioners fears that without immediate intervention of the courts, by making very clear declaratory judgments against Respondents for their willful intention to completed disregard the courts as a governing body and the laws as a lawful enforceable body of law, Respondents will not cease until the their activities will become so vagrant and abusive that a complete overhaul of this board will be necessary. The fact that their behavior is now verging on conspiracy to defraud the public and to over throw a legal body of the Community board shows how behavior gone uncheck can just gets worse and not better.
Twelfth Cause of Action
Permanent Injunction
Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for the instant relief.
Petitioners are asking for a permanent Injunction against Respondents for three basic reasons; past and current consistent patterns of violations, during a pending lawsuit which demonstrates Bad Faith on behalf of Respondent and a complete disregard for the courts and law; the stated intentions of Respondents to engage in further violations of the law in the future; and the implication of Respondents that they can act with impunity right in front of the public with no regards for consequences of their actions or accountability.
Pass Consistent Patterns of Violations
Petitioners have documented a consistent pattern of violations performed by Respondents over the course of one and half years, during which one year happened while an article 78 was pending in the courts, from November 2015 – November 2015. Respondents’ behavior clearly depicts severe acts of bad faith, a total disregard for the courts as a body to be answered to and a complete disregard for the law.
Stated Intentions to Violate the Law in the Future
Respondents have made it very clear what their intentions are for the future in their discussion that were videotaped on January 25, 2016.
Acts of impunity and lack of accountability
Respondents have shown that they perceive their actions without consequences or accountability to the public. The mere fact that on January 25, 2016, they made stated claims of their intention to violate the law, while a video camera was recording their comments, shows clearly they feel they can proceed with the continuation of violations of the law. And in light of the fact that no governmental agency or court of law has reprimanded them or intervened on the public’s behalf despite countless, letters, lawsuits, petitions, demonstrations, it stands to reason that Respondents feel they are right, acting within the law and can proceed with impunity. Petitioners allege that Respondents believe that they have been placed on the board as Respondent Warren Berke stated to act on behalf of Borough President Eric Adams to accomplish one thing and that is the absolute dis empowerment of the community in the affairs of Community Board 9.
Support for Permanent Injunction
Petitioners believe, which is supported by the evidence presented in this lawsuit, that without a permanent injunction the series of violations, abuse of power will continue, and harm caused community residents, will continue until a complete breakdown of the community board will result; with rogue board members doing as they feel, when they feel without constraints; the continuation of harm befalling community residents who will be forced to be subjected to all forms of abusive behavior and arrests; and the filing of more and more lawsuits to correct the wrongs which will continue to be displayed by Respondents.
By reason of the foregoing, Petitioners demand a permanent injunction requiring Respondents to comply with the Open Meeting Law, New York City Charter, CB9 Bklyn Bylaws, the Guide to Parliamentary Procedures for New York City Community Boards and the First Amendment.
Awarding Attorney fees and legal expenses.
A Meritorious Lawsuit
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 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.”