Days before this year's Erie County Legislature took one of the toughest votes of its young life, the Democratic majority met secretly with party Chairman Leonard R. Lenihan in Ellicott Square, where the party maintains its headquarters.
State Assembly Democrats had ordered county lawmakers meeting that day to share $30 million more in sales tax income with cities, towns and villages, blowing a hole in the county's 2007 budget forecast. Among the business: The Legislature chairwoman announced a compromise from Albany.
The demand that Erie County surrender more of its sales tax money threatened to halt government operations in early February. The impact may still be felt next year, in the form of a tax increase. Clearly, the matter was a public concern.
So was that secret session in Ellicott Square legal under New York's Open Meetings Law?
Yes. And some Legislature Democrats say they are free to meet in similar fashion in the future, either with Lenihan or just among themselves, even with a quorum present.
And even if "legal" does not always mean "proper."
"Although it may be 'legal' to conduct closed political caucuses, I think that aspect of the law represents the worst of public policy," said Robert J. Freeman, who after 30 years as executive director of New York's Committee on Open Government is considered the state's foremost expert on its sunshine laws.
Others agree with him.
"Our objective is an informed citizenry," said Marian Deutschman, president of the approximately 400-member League of Women Voters of Buffalo-Niagara. "And if you make most of your decisions in a closed-door session, by the time the public sees the information, it is essentially resolved. The public then can't really get access to the issues and the give-and-take of the issues."
Years ago, any quorum of a public body discussing public business had to be open to the public. Then in 1985 the State Legislature was threatened with lawsuits to open its political caucuses, so legislators changed the law to ensure they could go behind closed doors to haggle over base political concerns and their effect on the issues of the day -- as lawmakers in a handful of other states could do.
The loophole later was narrowed for legislative bodies made up entirely of one party, the case with Buffalo's Common Council at times over the years. The Buffalo News sued in 1992 to force the Council, all Democrats, to open its discussions about how to close a budget deficit, and the court agreed the exemption for political caucuses did not apply when legislative bodies made up entirely of one party discuss public business.
This year, four of every five Erie County legislators are Democrats, enough to swing any vote, override any veto, approve any tax increase, pass any law.
"The 12 can do anything except take action during a legally held, closed, so-called political caucus. Even when they are discussing critical matters of public business," Freeman said.
"Again, that may be legal. But in my opinion, simply wrong," he said.
Last year's Democratic majority rarely resorted to the closed-door caucus. But there were just eight Democrats then. So if one stayed out of the room, they avoided a quorum and the sunshine of the Open Meetings Law.
The last Legislature did not have a spotless record. In the now-famous events of Dec. 8, 2004, Democrats and Republicans crept down a back stairway of Old County Hall to evade reporters waiting for them to approve a new county budget before a midnight deadline. Ten of the 15 lawmakers, Republicans and Democrats, wanted to privately haggle over patronage with the county executive.
Lawmakers also met privately in February 2005 to discuss how to mend a broken budget, and again in March of 2005 for a similar purpose. Neither could be considered a political caucus because members of both parties attended.
Then and now, legislators said they need time outside the public eye to speak frankly among themselves and to avoid the embarrassment of unguarded candor going out over the airwaves or being read by the public.
"It is important that we get together in a comfortable setting where we feel we can talk freely," Lancaster Democrat Kathy Konst said. "It needs to be non-threatening. And being exposed on all sides to people observing may stifle the process of brainstorming."
Of course, critics argue, that attitude flies in the face of representative government and rule of and by the people. As President Bush and others repeat, democracy can be messy.
The Democrats say that so far when meeting in private, they have focused mainly on internal concerns: staff assignments, how to attract co-sponsors for resolutions and how the staff should deliver information to the group. But there is a wish to discuss the work of the Charter Revision Commission in secret, to get a sense of where the Democrats stand on ideas such as establishing a county manager's office and whether to send the ideas to voters in November.
At least one Democrat recognizes that all the equivocating doesn't change the intent of the state law. Last year's Legislature chairman, Buffalo Democrat George A. Holt Jr., said he has not attended the closed-door caucuses out of concern for the law.
"I know the importance of staying away from them. I have learned from experience," Holt said. "We can communicate by phone and through our regular caucus meetings prior to the session."
Those work sessions remain open to the public and are generally watched by administration officials and union leaders. At times, Republicans have attended, too.
>Tax dollars at stake
Private discussions can, and often do, affect tax dollars. Even before the full Legislature took its oath this year, Democrats decided in private that they would again fill the post of "chief of staff" and pay the new employee about $78,000 a year. They also had seen the need to add $100,000 to their budget. Both matters attracted little discussion during the public session in which those decisions were formalized.
"For people to deny that political parties don't participate with political officials is a little absurd," Lenihan said, noting that the few caucuses he attended this year were necessitated by the newness of the Democratic majority. Eight of its 12 were not in office last year, and they are working out the kinks, he said.
"I think that when members say 'political caucuses,' we discuss by and large political issues as opposed to policy issues," Lenihan said.
"There are some aspects to doing business that are not the government's business, that a committee of 12 people has to be able to conduct in private," said West Seneca Democrat Cynthia Locklear.
Lawmakers have the ability to recognize when their discussions stray into policy matters or debates that should be conducted openly, she said.
"They can recognize it, but we don't have an opportunity to judge that," said Deutschman, of the League of Women Voters. "The Freedom of Information Act, the Open Meetings Law, all those things are intended to provide access. As a business you certainly need some time to plan strategy. But this is the people's business. And the people should have as much access as possible to public information."
The sales-tax matter had become a problem for the Democratic Party, not to mention the taxpayers.
Assembly Democrats insisted that the Democrat-controlled Legislature share more of the income, especially with the Democratic administration in Buffalo City Hall. At one point, Republican County Executive Joel A. Giambra shined a light on the Democrats, saying he had no choice but to be a bystander until they worked through the problem.
Against this backdrop, Lenihan met with the Democratic county lawmakers in Ellicott Square. There are differing versions of his role that day. Lenihan says the purpose of the session did not involve the sales-tax matter, but it did come up later, and he believes he had left the gathering by then.
Majority Leader Maria R. Whyte said Lenihan convened the meeting, after talking with State Assembly Majority Leader Paul A. Tokasz, the Cheektowaga Democrat demanding Erie County share more sales-tax income. But Whyte said Lenihan never advised county lawmakers on what to do or how to vote.
County Legislature Chairwoman Lynn M. Marinelli of the Town of Tonawanda also said Lenihan had left by the time she announced the Tokasz compromise: The State Assembly would let Erie County share $12.5 million in sales tax proceeds in 2007, not the $30 million first demanded. That offer was formally approved days later.
Marinelli is not driving the closed-door caucuses. She said she has urged new members to ask their questions and raise internal issues in committee meetings, which are open to the public. But Whyte said Marinelli has been willing to attend the caucuses and indicated she would attend a recent session Whyte scheduled for March 7.
At least nine Democrats headed to the gathering, but seven remained after word spread that a Buffalo News reporter wanted to observe. They were: Locklear, Whyte, Konst, Robert B. Reynolds Jr. of Hamburg, Michele M. Iannello of Kenmore, Daniel M. Kozub of Lackawanna and Thomas J. Mazur of Cheektowaga.
Just before the meeting, Whyte said the lawmakers were within their rights to meet privately, but from another angle, she did attempt to address the Open Meetings Law.
She had baked two sets of treats. The first lawmakers to arrive would meet over coffee cake. If an eighth lawmaker arrived, creating a quorum, a small group would break off into a second room, to go through the same agenda over brownies. Whyte would later compare notes to try and divine the consensus.
Freeman said he wondered if that tactic was a "silly waste of energy."
"Even though the appearance isn't favorable," he said, "it's an avoidance of looking even worse."