Sexual Harassment & Election Retaliation: The Town of Monroe Has It All
A behind the scenes look at my attempts to secure, via FOIL, the human resources complaints filed against Town of Monroe Highway Superintendent, James "Pat" Patterson.
(Pictured Above: Town of Monroe Supervisor, Tony Cardone, 2024 State Senate Candidate, Dorey Houle, and Town of Monroe Highway Superintendent, James “Pat” Patterson)
I mentioned earlier today that I was working on a couple of stories. One of which involves the Town of Monroe’s use and abuse of the New York State Freedom of Information Laws.
So, below, I’m going to give you a look at what’s going on behind the scenes.
In short, I am attempting to obtain a copy of Town of Monroe Highway Superintendent, James “Pat” Patterson’s sexual harassment complaint.
Mr. Patterson has been accused of sexual harassment, and Supervisor Tony Cardone and 2024 State Senate Candidate, Dorey Houle, are alleged to have assisted Mr. Patterson in covering it up.
This specific sequences of events led to Mr. William Brown Jr. seeking office and running against Mr. Patterson.
After he lost, Supervisor Tony Cardone utilized the IBEW contract negotiations, violating New York State law, to single out William Brown Jr. as part of a campaign of election retaliation.
The Town, thus far, has not cooperated with my FOIL requests. So, I called in the big guns. This is a bit of a long one, so strap yourself in (or smoke a really big bowl like I’m about to after I hit publish.)
We will be back tomorrow with news from this week’s Town of Monroe and Village of Monroe Board meetings.
Oh and, for like the ten of you who keep writing to me about 49 Mountain Lodge Road, I promise to have an update on that tomorrow as well.
Wednesday, May 8th, 2024
Town of Monroe Town Hall
1465 Orange Turnpike, Monroe, NY 10950
Dear Valerie and Brian,
I am following-up on a FOIL request I submitted to the Town of Monroe that your office has again failed to respond to properly.
Your office was in receipt of a FOIL request on April 24th, 2024 concerning the items listed below. This request was confirmed and received by Councilwoman Maureen Richardson. On that same day, your office was requested by the Councilwoman to process this FOIL in an appropriate (re: legal) manner of notifying me within five days that the office is in receipt of the FOIL. This did not happen.
You were also asked to reach out to the New York State Committee On Open Government for an advisory opinion concerning the 90 Day Blanket FOIL Response that the Town Clerk, Mrs. Bitzer.
A policy that was implemented earlier in the month without providing much of a reason beyond stating she was “inundated with FOIL requests” (32 in total) and declined to deputize someone to assist her in processing these requests. The Clerk also did not disclose that she was leaving for vacation not long after the Town Board meeting where the Blanket 90 Day Policy was implemented.
In a press request, submitted after the Clerk’s announcement of the 90 Day Policy, Mrs. Bitzer was asked to comment on the following for the public:
-Can you clarify how many FOIL requests are currently awaiting reply? You stated 32. Can you explain how replying to these 32 requests is a "full time job"?
-You stated that being down an employee and the Town's tax season did not, in any way, impact how your office responds to FOIL.
So I'd like to ask, what exactly changed in your office between April 1st and April 15th's Town Board meetings that resulted in this new policy?
You mentioned some of the FOIL requests are repetitive, and so I have to ask: If you organize all the information to comply with one request, and you get another request that is asking for the same information, wouldn't it simply be a matter of sending the information you've already gathered.
-So then, can you clarify how repetitive requests for similar information already gathered by your office creates additional work?
During last night's meeting, you stated you are now informing FOIL requesters that they have 90 days to wait until they receive a reply.
This policy was only implemented after documents were requested concerning Lake Sapphire and whether or not the Supervisor disclosed his ownership of a residence there.
Both Mr. Cardone and Mr. Nugent stated the 90 day window is at your discretion and now the town boards,
-Did Mr. Cardone induce or in any other way suggest this new time frame after requests concerning disclosure of his home at Lake Sapphire were made?
During last night's discussion, it sounds like the Clerk's office spends a lot of time acting as a "greeter" for the Town of Monroe, which is understandably time consuming.
-Wouldn't there then be a better solution of relocating the Clerk's office within the building so that your office can work on what it needs to without this time consuming distraction?
Have you requested such a relocation to the Town Supervisor?
You were asked last night by Councilwoman Richardson if you could deputize someone to assist in the FOIL responses. Your response was, "It's my office and Barbara is who helps me with this."
That is not an acceptable answer.
-As the Clerk, are you empowered to deputize someone to assist with these apparently onerous FOIL requests? Yes or no.
You then stated "I don't need to subject the taxpayers to having to pay for another person. My office can handle it."
-If your office can handle it, then why are you extending the request window to FOIL to 90 days?
-You requested that Town residents use the online FOIL request system; however, this system has a character limit, and does not allow for the necessary legal language, as recommended by the NYC ACLU, that should be included in all FOIL Requests. Therefore, the online portal can prevent residents unfamiliar with the FOIL law from getting the information they are requesting in a timely manner.
-Does the Town of Monroe prefer the use of this online portal because of these character restrictions?
-Finally, you stated Town residents should “do some homework first” via the website and board docs before making their request.
However, this is misleading. As FOIL requests can often be made for documents that are not accessible online. For example, the Supervisor's financial disclosure forms and the Supervisor's WTBQ invoices.
-Can you clarify this request for people to "do some homework first"?
-Finally, the Town Board has repeatedly failed to come up with an internal FOIL policy of its own, resulting in the Town Supervisor refusing to share documents and records involving Lake Sapphire (for example) with Councilwoman Richardson.
As the FOIL Records Officer, can you clarify what is the internal FOIL policy for the town concerning sharing records internally between elected officials?
This policy change received no objection from Mr. Nugent. In a follow-up email to Mr. Nugent seeking comment, I said:
As you know, the New York State, and Federal, FOIL law require municipalities a maximum of 20 days to respond and process requests with one exception.
If the SPECIFIC FOIL request is considered time consuming, then the municipality must provide a written explanation that states the reason the request will take longer, and provide an estimate of when the FOIL will be fulfilled.
I have now spoken to multiple municipalities, all larger than Monroe. In the words of one clerk I spoke with at a much larger municipality in New York State, the 90 day window to respond to FOILs by the Town of Monroe was described as "extreme."
In the words of at least one spokesperson for the NYS Committee on Open Government, they stated that Mrs. Valerie Bitzer's new policy of 90 days for all requests is not consistent with the Town's commitment under the law.
In your capacity as Town attorney, did you advise Mrs. Bitzer that her new policy would be breaking the law and open the Town to yet another lawsuit that it would lose?
Mr. Nugent, you did not reply to these questions. Lucky for you, I did follow-up with COOG, and this is what they said. I have put certain sections in bold for emphasis.
Good Morning Mr. Mendelson,
The Committee on Open Government is authorized to provide advice and legal opinions regarding the Freedom of Information Law (FOIL) and Open Meetings Law (OML). The Committee is not authorized to provide advice regarding the federal Freedom of Information Act, nor are we authorized to determine whether certain actions taken by agencies or public bodies are in violation of state or federal law.
As we have already advised through the provision of a guidance document, the Freedom of Information Law (FOIL) provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3)(a) of the Law states in part that:
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 acknowledgement 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.… 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.
As we also previously advised, regulations promulgated by the Committee on Open Government state that “in determining a reasonable time for granting or denying a request under the circumstances of a request, agency personnel shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on an agency’s ability to grant access to records promptly and within a reasonable time.” (21 NYCRR 1401.5(d)).
Section 84 of FOIL, the “Legislative declaration,” clearly indicates the intent of that statute and provides in part that “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” Based on that direction, it has been consistently advised that there may be no supportable or valid reason for delaying disclosure of records that are clearly public and readily retrievable.
Aside from the direction given in the Legislative declaration, when an agency needs more than five business days from the receipt of a request, § 89(3)(a) requires that the agency acknowledge the receipt of the request in writing within that time that includes “a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…”
In the rare instance in which “circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of 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.”
In our view, it is unlikely that every request received by the Town meets the criteria set forth in regulation for requiring 90 days to respond. Rather, it is likely that many requests are for records that are clearly public and readily accessibly and could be produced in either five or 20 business days. In our opinion, an acknowledgment letter sent by the Town to every FOIL request it receives stating that it requires 90 days to respond is inconsistent with its obligations under the statute.
Sincerely,
Kristin O’Neill
Deputy Director and Counsel
Pronouns: she/her/hers
So, let’s try this one more time.
As you know now, agencies, such as the Town of Monroe, must reply within 5 days upon receipt of a request to either grant the request, deny the request in writing, or provide written acknowledgement of receipt of the request and a statement of the approximate date when such requests will be granted or denied under the NY Pub. Off. Law. § 89(3).
On April 25th, I received an email from Mrs. Bitzer that was one word: Received. No further information on when the requested documents would be produced and sent upon request. Today is May 8th. Five business days have passed since this email was received with no further information provided.
If an agency fails to acknowledge the written request for a record within five days or fails to give an approximate date which is reasonable under the circumstances as to when the agency's decision to grant or deny access to the record will be made, then this non-compliance shall constitute a denial under Public Officers Law § 89(4)
Therefore, consider this email a formal appeal being made to the chief executive of the governing body, Mr. Cardone, and to you, Mr. Nugent, as FOIL officer, under N.Y. Pub. Off. Law § 89(4)(a) to have the requested documents provided or for the request to be denied, or granted with an approximate date when such requests will be granted or denied under NY Pub. Off. Law. § 89(3).
Under the law, Mr. Cardone, you are required to immediately forward a copy of this appeal and the ensuing determination thereon to the Committee on Open Government, N.Y. Pub. Off. Law § 89(4)(a). For your convenience, I have copied them on this email as well.
You have ten business days from the receipt of this email to respond to this appeal. Failure to do so within the next ten days constitutes a denial of access which entitles me to bring an Article 78 Proceeding against you in New York State Supreme Court.
I have included with this email the previous FOIL request, its full language is as follows:
Re: Freedom of Information Law Request
Dear Valerie,
The Monroe Gazette (“Gazette”) submits this request for records pursuant to the New York Freedom of Information Law, N.Y. Pub. Off. Law § 85, et seq., for access to and copies of the records collected by Monroe Town Supervisor, Tony Cardone (“the Supervisor”) and the following: Monroe Highway Superintendent, James “Pat” Patterson, Councilwoman Dorey Houle, and Monroe Town Attorney, Brian Nugent (herein collectively referred to as “the parties”) on their professional and personal devices (phones, tablets, ect.) and professional and personal email addresses regarding the requests as described below involving town business. As mentioned by the Department of State in a December 2013 notice, “Business related emails, therefore, whether they are sent via a private email account or an agency email account, are “records,” the contents of which would determine rights of access under FOIL”
Due to character limitations on the Town of Monroe FOIL form, this letter is sent to you as both an email and .pdf. Please write back and confirm receipt.
Please also note that, according to the New York State Committee on Open Government, you have 5 days to respond to this email, not 90.
1. All emails, text messages, and other communications sent from “the parties” and “the Supervisor” on personal and professional devices, as defined above that include information about:
(a) Discussions between the parties (Cardone, Houle, Patterson, Nugent) concerning Human Resources complaints filed with the Town of Monroe against James Patterson between the dates of 1/1/22-1/1/24
(b) Copy of Human Resources complaints filed against Mr. James Patterson with the Town of Monroe between 1/1/22-1/1/24
To the extent that records are available in electronic format (ideally in a .pdf), we request that they be provided in that format. If any records are unavailable within five business days of receipt of the request, and responsive records exist, we seek a description of such records and a timeline of when access to the records will be provided.
I am also making you aware, in advance, that there is an exemption to the intra-agency communications rule that the Town of Monroe has frequently cited with similar FOIL Requests. Intra-agency communications are NOT somehow prohibited from being shared. The Town can CHOOSE not to share them, and must explain why. In multiple instances, when asked to provide this rationale, the Town has simply not responded to emails. In this explanation, the Town must ALSO share why they feel the requested documents are NOT in the public interest.
In this specific instance with Mr. James “Pat” Patterson, he was credibly accused of sexual harassment, this harassment prompted Bill Brown Jr. to run against him in an election, and after Mr. Brown Jr lost, Supervisor Tony Cardone used contract negotiations with the IBEW to retaliate specifically against Mr. Brown Jr. A charge Mr. Cardone denies, but his denials were not supported or backed up by any of the IBEW representatives I spoke with while reporting on that story. The public has the right to know that a potential office predator was re-elected to a critical position in the Town of Monroe given the nature of the recent historic flooding events (as documented on CNN) that the Town Highway Department is responsible for managing. The Town also has a right to know if these claims of sexual harassment were covered up by Supervisor Cardone as part of an effort to protect the electoral chances of 2024 State Senate Candidate, Dorey Houle, who is expected ot be in a tight race with State Senator Skoufis this Fall.
If you determine that certain parts of this request may be more easily produced than others, we are amenable to discussing a production schedule for records that will take longer to produce. Please furnish records to: B.J. Mendelson, The Monroe Gazette, bjmendelson@duck.com. Please do not hesitate to contact me at that email address if you have any questions about this request.
Please write back to confirm receipt of this email, lest we see each other in court in the not too distant future.
Thank you for your prompt attention to this matter.
Respectfully, B.J. Mendelson
Editor,
The Monroe Gazette
PO BOX 452
88 St. Rt 17M
Harriman, NY, 10926
P.S. Mr. Nugent, I believe you have been advised, more than once, to seek the opinion of the New York State Attorney General’s Office on this and related FOIL matters. Seeking such a request is well within the purview of the recognized municipal attorney. Given the Town of Monroe’s frequent bending and manipulation of New York State’s FOIL laws, an advisory opinion from the Attorney General’s office may go a long way to cleaning things up here.
In the likely event you have not made such a request, I’d like you to include the entirety of this letter as part of your submission for an opinion, as well as the following points concerning the Town of Monroe’s frequent abuse of this law.
Supervisor Tony Cardone’s use of FOIL for Councilwoman Richardson’s personal cell and email which was not made as a formal internal request.
Unlike every other taxpayer in the Town of Monroe, moments after Mr. Cardone’s personal, informal FOIL request was submitted, the Town Clerk’s office acted on it immediately.
You were asked by Councilwoman Richardson to provide an advisory opinion concerning whether or not internal communications of the nature requested by Mr. Cardone was permissible under FOIL. You told her to send everything requested to the Town Clerk to decide. Councilwoman Richardson informed you that Mr. Cardone had listed the wrong phone number for the Mr. Brown Jr. and did not list the appropriate phone number for her cell phone. The nature of this blanket request would then encompass all emails and texts ever sent by and between these two parties from the beginning of time would need to be provided to the Clerk. Similar broad requests were made by The Monroe Gazette. Can you clarify why Councilwoman Richardson was required to turn over all of these records despite the inaccurate and wide parameters when similar large requests were rejected by this media organization?
Councilwoman Richardson was told by numerous municipalities and their employees, including COOG, that she did not have to comply with this request. There are exemptions to FOIL such as unwarranted invasion of privacy that would embarrass and harm the reputation of the person in question. Given that these emails and texts were sent to William Brown Jr, a man that was verifiably and factually singled out for election retaliation during an IBEW contract negotiation by Supervisor Cardone, Councilwoman Richardson’s request to deny this specific request was permissible. Mr. Brown Jr was a victim of Mr. Cardone, and could be exposed to further harm with this request submitted by Mr. Cardone for Mrs. Richardson’s records.
For at least three consecutive meetings, Supervisor Cardone wasted taxpayer time and money by bringing up repeatedly this specific FOIL request while the Clerk sat there and announced a 90 Day Blanket FOIL policy for all Monroe residents. Councilwoman Richardson then stated that you would not take no for an answer and then undertook a campaign of sustained harassment against her.
P.P.S. During an April 2024 Town of Monroe Board meeting, Mr. Cardone insinuated that the email between Mr. Brown Jr. and other IBEW parties could open the Town up to a PERB complaint. As it turns out, in this specific situation, the only person who can file a PERB request is Mr. William Brown Jr, according to PERB Executive Director, Sandra Koslow.
This is specifically because of Mr. Cardone utilizing the IBEW contract negotiation window to retaliate against Mr. Brown Jr. I can’t speak for whether or not Mr. Brown Jr. will file such a request, but I can tell you that Mr. Cardone’s continued lies at the dais will be called out and corrected in the most public manner possible at every conceivable opportunity, whether he likes it or not.