by David Flint
Trial began Tuesday morning in Rensselaer County Court for Stephentown Highway Superintendent Neil Gardner who was indicted in February on charges of operating an illegal mine and possessing and filing fraudulent documents. It is alleged that Gardner took sand and gravel for the Town from the property of Anthony Cormier in North Stephentown knowing that the mine had no permit. He also faces felony charges that he passed on from the Russ Freeman company load slips that falsely purported to come from the Troy Sand & Gravel company in what could be construed as an attempt to deceive the Town Board into believing that the source of the material was a licensed mine. Gardner waived his right to a jury trial. He is represented by attorney Thomas Spargo from East Berne.
After introducing her case against Gardner before Judge Robert Jacon, Assistant Attorney General Nancy Snyder called as witnesses three officials from the Department of Environmental Conservation (DEC), Doug Griswold from the Stephentown Highway Department, Town Clerk Patricia Gallup, former Town Supervisor Mike Angley, former Councilman and Deputy Town Supervisor Owen Cassavaugh and an accountant from Troy Sand & Gravel
Christopher McKelvey and Allan Hewitt from DEC’s Division of Mineral Resources testified about responding on September 19, 2005, to a complaint from Chuckleberry Park regarding a possible illegal mine at the Cormier property. They said they found an area of about two acres had been mined, and there was a stockpile of prepared material they estimated to be 2,500 cubic yards. DEC regulations require a mining permit if over 750 yards of material is displaced within one calendar year, unless an exemption is granted for construction or agricultural purposes. McKelvey and Hewitt said that no topsoil had been saved as would be the case for an agricultural use, there was no evidence of preparations for any construction activity and there was no permit posted. Moreover, no permit had been applied for nor had there been any request submitted for a mine permit exemption for construction or agriculture purposes.
Responding to questions from Snyder, Hewitt recalled two other occasions when he had to close down an unpermitted mining operation in Stephentown, one on a property belonging to Gardner on East Road in the late 1980s and another on the Ralph Thomas property in North Stephentown in the early 1990s.
Doug Griswold testified that the Highway Department had been taking gravel from the Cormier site for two to three years before it was shut down. During that time he said that this was the sole source for Town gravel. The Highway Department used a Town loader and Town trucks along with screening equipment that belonged to Russ Freeman. Griswold confirmed that there was no topsoil set aside. This was in contrast to a previous operation on land owned by Alden Goodermote where a mining exemption had been obtained for agricultural purposes.
Town Clerk Patricia Gallup testified about receiving and processing the mining vouchers and load slips. On questioning from Spargo, she acknowledged that the load slips with the name Troy Sand & Gravel on them were not time/date stamped and did not have Gardner’s name on them or any authentication that he had approved them or had anything to do with their production.
Former Town Supervisor Mike Angley related how he had received a call from Code Enforcement Officer Dean Herrick on September 19, 2005, informing him that Town trucks had been stopped from hauling material out of an unpermitted site. Angley said he had thought that the material the Town was receiving at the time was coming from Troy Sand & Gravel. Bills were being paid to Russ Freeman, and Angley said he knew that Freeman got many tons of material from TS&G. Until Herrick’s call, he said that he had not known anything about material being taken from the Cormier property. He recalled how after the Town got into trouble with DEC for taking gravel from the unpermitted Thomas pit, the Board had initiated a policy requiring certification for gravel or sand that it came from a permitted mine. But after Gardner complained that TS&G was becoming irritated at having to fill out these certifications, adherence to the policy lapsed. But because of “inconsistencies” surrounding the billing from Freeman for Cormier’s material, the Town Board demanded that load slips be submitted that would indicate where the gravel came from.
Spargo pressed Angley as to whether he was aware of the use of Town trucks and loader over a period of several years at the Cormier mine. Angley reiterated that he was not aware of it and had had no discussions with other Board members about it prior to DEC’s crackdown.
Angley said that on the advice of counsel he had held up payment to Freeman for the gravel taken from the Cormier site, despite the fact that Cormier kept coming to Board meetings demanding his money. He acknowledged that the Board later authorized payment of one half of the $30,715, an amount which they considered to be for use of the screening equipment only and not for the gravel or sand.
Judge Jacon asked if Angley had been aware that the Thomas pit had no permit. Angley said he was not aware until informed by DEC. Jacon asked whether subsequent to the Thomas pit shutdown did the Town Board ever inquire as to where the gravel was coming from. Angley said that the Board didn’t care as long as it came from a permitted mine and they didn’t question the price as long as it was cheaper than the county bid price.
Owen Cassavaugh was questioned about the Board meeting in November 2005 that he chaired as Deputy Town Supervisor and at which the Board first decided, on advice of counsel, to withhold payment of Freeman’s bill. Snyder also played a tape recording that had been made at that meeting
The final witness of the day was DEC Investigator Kathleen M. Jacoby who testified about her questioning of Gardner regarding the load slips supposedly from Troy Sand & Gravel.
The Defense Case
On Wednesday Spargo called as witnesses Anthony Cormier, Fran Manning whose property adjoins the Cormier property, Councilman Larry Eckhardt and former Councilman Craig Chittenden. Both Eckhardt and Chittenden testified that they were well aware that Gardner was hauling sand and gravel from the Cormier site. Chittenden, who has property adjoining the site, said he was concerned about making sure the property line was observed and he discussed this with Gardner. Chittenden also said that he was aware that the bills from Freeman were for Cormier’s gravel and sand and that this arrangement was going on for at least two years. During the period 2004 to 2005 he did not believe that these materials came from anywhere else. He was sure it never came from Troy Sand & Gravel.
Following Chittenden’s testimony, Spargo then called Neil Gardner to the stand. Gardner testified that he is barely able to read and write. He had never read what was on the load slips that were provided by Russ Freeman. He had never asked for load slips and did not ask for these load slips until directed to do so by Owen Cassavaugh after the Board meeting in November 2005, and he had not even seen them until a subsequent meeting when he was directed to re-sign the voucher to which they were attached which would authorize payment of one half of Freeman’s bill. Gardner said he had asked Freeman for the load slips because the Board would not pay the bill otherwise. Freeman, who was very ill at the time and didn’t want to talk, said he didn’t have load slips but he thought there might be some from Bonded Cement and he would see what he could do. Gardner acknowledges replying something like “Whatever” because, “I didn’t care what they were.” He said Freeman left them in his truck a few days later. They were in an envelope which Gardner said he did not open but just slipped it under the Town Clerk’s door, which is the manner he usually delivers documents to that office. Gardner confirmed, when shown the load slips in the witness stand, that they were not time/date stamped. He said that every other document he ever delivered to the Town Clerk was always time/date stamped. He also denied that the handwriting on the load slips was his.
Gardner said he had informed the Town Board at a budget meeting in late 2003 that there was gravel to be had at Cormier’s place and he would probably be getting it from there. He recalled speaking with Mike Angley about it, and later discussed it periodically with Craig Chittenden and Larry Eckhardt. When the operation there was started up, he said Tom Sherman went with him at one point to see how the screening worked.
In response to questioning, Gardner recalled how the Highway Department had hauled many thousands of yards of gravel from the Thomas pit over a period of ten years. He understood this to have been exempted from a mining permit for construction purposes and eventually 13 homes were built there, the gravel having been hauled out of the foundations. This was all arranged by Meg Morris who was on the Board at the time, and it was OK until it turned out that Ralph Thomas had not kept up his building permits and DEC stepped in to close down the mine. Gardner said he believed the Cormier site fell under the same exemption and he had checked with the Code Enforcement Office to ensure that there were in fact building permits. He said he did not feel it was his responsibility to ask DEC for a mining exemption because it was not his property.
In contrast to what Angley said he believed, Gardner said it was not common practice for the Town to buy materials from Troy Sand & Gravel. He said that only seldom did they buy from that company and usually only special materials.
Asked whether he ever tried to mislead anyone about the source of the gravel, Gardner responded, “No.” Asked whether he at any time told anyone that it came from any other place, he repeated, “No.”
Spargo was expected to continue with three witnesses for the defense on Thursday: Town Supervisor and former Councilman Tom Sherman, Code Enforcement Officer Dean Herrick and Carl Clemente from Troy Sand & Gravel. At the conclusion of the trial, Jacon will have 60 days to deliver his verdict.