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Raid-related legal bills spark debate

Executive session approved, but not without opposition

by DAVID L. SHAW/dshaw@fltimes.com
Thursday, June 11, 2009 12:37 PM CDT

WATERLOO — The decision to talk about a $91,363 legal bill in closed-door session sparked debate at Tuesday’s Seneca County Board of Supervisors meeting.

The Indian Affairs Committee took no action on the unexpected bill after coming into open session.

Submitted by the Harris Beach law firm of Rochester, the bill was for work related to the Nov. 25, 2008, raid at the Cayuga Indian Nation’s LakeSide Trading convenience store in Seneca Falls.

Harris Beach billed the county after the state apparently refused to pay, despite its long-standing agreement to cover Seneca and Cayuga counties’ costs in Indian-related matters, said County Attorney Frank Fisher.

Fisher proposed the executive session, saying that discussions about the bill could involve litigation. If the discussion was just about the bill, he acknowledged, it would not be an executive session topic.
The Rev. David Mihalyi, whose church is in Waterloo, objected to the closed-door session. He said details of the bill itself, the services provided and the amount of the bill are public documents and should be discussed in public.

He said he would consider filing a complaint with the state’s Open Government Committee.

“Even if talk of the options involve litigation, the meeting should be open and closed only for that purpose,” he said.

Committee member Edward Barto, R-Fayette, said he agreed that the meeting should be open if the discussion is about the bill.
 “The bill is not the issue,” Fisher replied. “In discussing options with the Cayuga County attorney, there are many details in the bill that reveal our legal strategy. This could involve current and potential litigation.”

Fisher said that if the session was not closed, he would be inclined to give a written report to the committee. He said that report would fall under attorney-client privilege and would not be available to the public.

Talk then turned to why the state would not pay the bill. District Attorney Richard Swinehart said the issues raised by the Nov. 25  raid and seizure of untaxed cigarettes — mainly whether the Cayuga Nation has a qualified reservation — are the same key issues in the land claim. The state should therefore pay the bill, he said.

Others asked why the state’s refusal to pay the bill was not brought to the county’s attention earlier and discussed with Harris Beach.

Committee chairman David Dresser, D-Ovid, said he would like to talk to Harris Beach officials before making a decision on what to do.

Board chairman LaVerne Lafler, R-Seneca Falls, suggested they contact state lawmakers and ask them to get answers.

The vote to go into executive session was 4-1, with Barto opposed.

After the closed-door session, Barto agreed that the discussion involved litigation and was legitimate.

“Otherwise, I would have walked out,’’ he said.

Later, the committee and the full board both approved a motion opposing the Cayuga Nation’s application to put 129 of its 895 acres of land in the two counties into tax-exempt federal trust.

The motion lists some 15 reasons why the application should be denied and calls upon the Bureau of Indian Affairs to do so.

Supervisors also urged county residents to attend the 6 p.m. June 17 BIA-run public hearing at the New York Chiropractic College in Seneca Falls and speak out against the application.

Reached this morning, Robert J. Freeman, executive director of the state Committee on Open Government, said if the discussion of options for dealing with the bill actually did involve revealing litigation strategies and possible future litigation, the executive session would be justified.