by David Flint
A large crowd turned out for the Stephentown Town Board meeting on Monday evening after hearing the news that Neil Gardner, having been convicted on Friday of 24 felony counts, had now been relieved of his duties as Highway Superintendent. Town Supervisor Tom Sherman said that the Town Board had been advised by counsel that as of last Friday the Town had no Highway Superintendent.
Councilman Larry Eckhardt said that when the judge rendered his verdict Gardner was automatically relieved of his duties, and he was subsequently asked to turn in his keys and the Town pick-up truck. Gardner, he said, had the right to appeal his conviction, but in the meantime he stands convicted and could not continue in his public position.
Stephentown has seen some loud and raucous meetings on other occasions when local issues have drawn such a large crowd. This crowd seemed subdued – even stunned perhaps – while still trying to come to grips with the fact that Gardner was convicted.
Judge Robert Jacon delivered the verdict in Rensselaer County Court at midday on Friday, October 17, reading each of 12 felony counts of Criminal Possession of a Forged Instrument and 12 counts of Offering a False Instrument for Filing, pronouncing Gardner guilty on each count. On the final misdemeanor count of Operating a Mine Without a Permit, Jacon pronounced him not guilty. Sentencing was set for December 4. In the meantime Gardner was released on his own recognizance but may not leave the County unless he applies for permission.
Gardner’s attorney, Thomas Spargo, said afterward that he was disappointed with the verdict, pointing out that Gardner had “gained nothing personally by any of his actions. He secured the load slips only at the request of other public officials, and he acted at their direction.” He indicated that they would probably have to appeal but would wait to see what sentence is imposed.
On the previous day, the third and final day of testimony, Gardner’s attorney, Spargo, had called three witnesses – Carl Clemente, an owner and manager of Troy Sand & Gravel, Town Supervisor Tom Sherman and Town Building Inspector/Code Enforcement Officer Dean Herrick. Clemente acknowledged that the load slips in evidence were TS&G load slips but had never been processed by his company. He noted that they did not indicate where any gravel had come from. He testified, too, that TS&G often takes gravel from construction sites that are exempt from needing a mining permit.
Sherman testified that he had known all along that Gardner was taking gravel and sand from the property of Tony Cormier because Gardner informed the Board of that fact at a budget meeting. He subsequently visited the site with Gardner because he wanted to view the screening operation. He recalled auditing and approving vouchers for materials that he had no doubt were taken from the Cormier site. He also recalled the executive session at which he said that then Town Supervisor Mike Angley told Gardner “with force” to sign a voucher that would authorize payment of one half of Freeman’s bill.
Dean Herrick testified that he had informed Gardner prior to 2005 that he had issued several building permits for the Cormier property. Also, in response to a query from Gardner whether he could excavate gravel from a site that had a building permit, Herrick had responded that he could excavate within 120 feet of a residence. Herrick said he was not aware of any law requiring him as Code Enforcement Officer or anyone else to notify DEC about gravel extracted under these conditions. He said he was aware that the Cormier site was residential but the excavation he witnessed at the Cormier site he did not consider to constitute mining.
In the end it appeared that Judge Jacon believed there was sufficient doubt about whether Gardner knew that the Cormier site was an illegal mine and not exempt from having a mining permit. After all, the Code Enforcement Officer and the Town Board members, with the exception of Mike Angley, acknowledged knowing where the gravel was coming from. But there was no escaping the fact that the load slips were fraudulent documents and Jacon apparently found it not plausible that Gardner was unaware of what he was receiving and passing on from Russ Freeman. While there may have been no attempt to deceive the Town Board – Gardner got the load slips only on direction from the Board – the documents were still fraudulent.
After a 20-minute executive session at this week’s Town Board meeting, the Board passed two resolutions. The first establishes a new position of Deputy Highway Superintendent, with salary to be determined. The second was to set a special meeting for Wednesday, October 29, at 7:30 pm, at which time an appointment will be made to the new position. Sherman said the Board’s intention is to appoint someone from within the Department. Councilman Eckhardt added that the Board is concerned about not having a Superintendent with winter coming on and that they believe it is in the best interest of the Town to appoint one of the four employees currently serving in the Department. The details are not worked out yet but the Deputy will probably head the Department for the remainder of this year and through the next calendar year. In November 2009 an election will be held for a Highway Superintendent to take office in January 2010.
Several people spoke up in support of Gardner. Councilman Mark Prescott responded, “It’s not something we wanted to do. It’s out of our control.”
Tony Cormier wanted to know, “Will the Town pay my bill now?” Sherman replied that the Board would have to consult with the Attorney General’s Office on that.