Berlin Board Celebrates Halloween

by Kieron Kramer
On the eleventh day of the eleventh month the Berlin Town Board held its regular meeting, but aside from the minute of silence that began the meeting in honor of the veterans who have served this country, the meeting resembled the holiday which took place eleven days prior, Halloween, more than it did Veterans Day. It was downright spooky.
Does everyone remember the movie when the evil shape in a white mask keeps on coming no matter what you do. Shoot him with a twelve gauge, stab him in the eye with an ice pick or throw gasoline on him and light him up, it doesn’t matter. Just when you think you’re safe he pops up again and the victim lets out a blood curdling scream before running off. Well that’s what the purchase of the Berlin Lumber property for a municipal center has resembled over the last seventeen months – a kind of fantasy horror film. By the way, any similarity between Michael, the spirit in the white mask, and any individual or point of view in the debate on Berlin Lumber is purely coincidental.
So, at the regular Town Board meeting on Thursday, November 11, the issues around the Berlin Lumber purchase were discussed again because the sellers rejected the offer that had been hammered out at the Special Meeting on October 20 and because a petition calling for another referendum was presented at that meeting and was rejected by the Town Supervisor on advice of the Town Attorney and folks wanted to know why.
The petition for another referendum was presented at the Special Meeting by Tim Giumarra. It had the requisite number of signatures but did not mention a specific amount to be authorized. As Town Supervisor Rob Jaeger and Town Attorney Don Tate reiterated Thursday, for this reason it was rejected because the referendum was simply asking for a revote of what had already been passed. The question Giumarra asked was, “Hadn’t this already happened?” He was referring to the fact that the first referendum on the purchase, with an asking price of $569,000, held on December 14, 2009, was defeated, but then another referendum was held on July 19. When the Board accepted the petition for the July referendum Board Member Richard von Schilgen objected to this second vote for the very same reason that Giumarra’s petition was rejected – he saw it as another vote on the same issue. The obvious answer which came from the audience in the Town Hall Thursday was that the second vote was not on the same question because the asking price had been reduced by $69,500, an important fact which may account for the majority vote to approve the purchase.
When the petition for the second referendum was accepted at the May meeting, Tate had said that the question could be voted on as many times as the public requested by petition that it be voted on. Now, von Schilgen and Giumarra asked why not a third vote on the same issue. What Tate should have said in May was that if the authorization was defeated, it could be voted on again. The logic seems to be that because this is a permissive referendum to approve an expenditure from a Capital Reserve fund and not just any old referendum, approval can be asked for over and over until permission is given, but once the voters approve the expenditure for a project it cannot be rescinded through the same mechanism. Von Schilgen believes, after talking to someone at the Association of Towns, that this is a gray area in the law. Tate, after talking to someone at the Association of Towns, formed the legal opinion that the petition presented by Giumarra should not be acted upon.
The most efficient mechanism to undo the results of the July vote is if the Town Board votes not to make the expenditure. Whether a permissive referendum is binding on the Board may be another gray area in the law. Is approving an expenditure the same thing as requiring that the expenditure be made? Both Board Member Carl Greene and von Schilgen have expressed the view that Board members can exercise their own judgement as trustees to safeguard the Town’s fiscal position, although at this meeting Greene said, “I feel bound by the vote despite my personal opinion.”
All this came up when the Board voted to accept the minutes of the last regular meeting, the Special Meeting and the two workshops held in the meantime. At the Board workshop on October 28 Jaeger reported to the Board that the sellers had rejected the Town’s offer for Berlin Lumber. The offer had included a $10,000 buy back to cover the cost of the Town’s environmental and engineering studies; the result of this would have been, essentially, a reduction in the selling price, a price from which Berlin Lumber will not budge. The buy back was removed from the offer, and the offer was presented to the Board by Jaeger at the November 4 workshop.
Here’s where it gets spooky. Jaeger, in his minutes of the November 4 workshop said the Board decided to resubmit the offer, now without the buy back. Board Members Sheila Hewitt, James Saunders and von Schilgen maintained strongly that no vote had been taken. “No way was there  a vote,” said Saunders. Greene said he had discussed his position on the issue, which is to move forward in spite of his reservations because of popular sentiment and because the contingencies in the offer protect the Town, but that no vote had actually been taken. Highway Superintendent Jim Winn who was at the workshop thought a vote had been taken. Supervisor Jaeger said that he had asked for objections from the Board to resubmitting the offer, and he had taken the Board’s silence as agreement to resubmit. This just proves that what is said and what is heard are sometimes two different things, and what is not said and what is not heard are definitely two different things. Because four Board members said the vote had not been taken, Jaeger corrected the minutes of the November 4 workshop to reflect that.
Later in the meeting, the Board voted three to two make the offer, with the necessary adjustments to the engineering consultant’s phase one environmental study and property conditions assessment due date and to the closing date, which is now tentatively set for the end of February. These dates will allow the Board to review the consultant’s report before deciding to go ahead. If the Board deems not to go ahead based on the engineer’s report, the offer can be withdrawn and the deposit returned.
The Board also voted three to zero with two abstentions to accept the Laberge Group’s proposal as consultants to carry out the phase one environmental study for $1,925 and to perform the property conditions assessment for $7,600. The authorization to hire Laberge is contingent on a more detailed description of the scope of work, and it is hoped that a representative from Laberge will attend the next workshop, scheduled for November 18 because Thanksgiving is the following Thursday, to answer Board members’ questions about their proposal.
Roll call votes were recorded on both these resolutions. Jaeger, Hewitt and Greene voted in favor of both. Von Schilgen and Saunders voted against resubmitting the offer and both abstained in the vote to hire Laberge. Jaeger asked for a roll call vote on the Laberge issue because von Schilgen did not participate in the voice vote. Jaeger has been positive all along about this project. Greene and Hewitt clearly want the process to continue because it will provide them with the facts with which they can make a rationale decision about the project. Saunders and von Schilgen seem dead set against the project, and even though von Schilgen acts to obstruct it at every opportunity he said at one point, “I’m still indecisive.”
Then there was the attack on the Town Attorney, Don Tate. “This has been a sensitive and controversial time, and I’m sorry not to see your presence at the Special Meeting and workshops. Your immediate legal opinion would have made me more comfortable,” von Schilgen said to Tate. Never mind that when Tate had given his “immediate legal opinion” earlier in this meeting von Schilgen repudiated it. And never mind that von Schilgen missed the public hearing on the dog licensing law that he had to vote on later in the evening. Kent Goodermote took up von Schilgen’s lead during the public comments at the end of the meeting, telling Tate, “I think you ought to look for a new job.”
2011 Budget Passes
The vote to accept the 2011 budget was also a 3 to 2 roll call vote with von Schilgen and Saunders voting no. When the Town and Fire District Budgets are combined the total tax levy increase will be 1.8%. There seemed to be only one sticking point among Board members and that was the inclusion of $19,000 on the installment purchase line of the Highway appropriations. This line is in anticipation of the purchase of a new tandem dump truck which will replace an older truck. Board Member Saunders became almost apoplectic upon seeing this budget line, and Board Member Carl Greene said he thought the money was to be kept in reserve and not necessarily used for a purchase. As they were about to argue about buying  a new truck, Greene reminded everyone that this was a budget vote and that the vote to buy the truck or not would come next year.
The pattern of voting at Thursday’s meeting, where the vote to continue the process barely passes and the critical vote is put off until next year, indicates that the final vote to purchase Berlin Lumber is anything but assured. So during the Board’s review of the purchase in February an evil spirit may show up again and chase everyone around with a rusty corkscrew. If you’d like go to see Halloween III it opens in theaters on October 31, 2011.
Coincidentally, Tammy Osterhout reported that the Berlin Halloween party for the kids was successful even though the 200 pound pumpkin couldn’t be given safe haven afterwards. And at the end of the meeting Board Member Sheila Hewitt said, “It was nice to see the Town so clean after Halloween and that the kids in town were so respectful of people’s property. Tons of kids were out, and it was nice to see.” …and the little children shall lead them.
Due to space considerations, the details of the budget and the other business taken up at the Berlin Town Board meeting last week will be published in our next issue.