The Ontario County Board of Supervisors held its first public meeting since allegations of sexual harassment and other wrongdoings surfaced within the Ontario County Sheriff’s Office. Originally intended to be mostly in executive session it was modified to include a public portion, as numerous resolutions were being considered.
Among them were resolutions to form a committee to investigate Sheriff Kevin Henderson and the Ontario County Sheriff’s Department, and to form a committee to consider forming a separate department for the Ontario County 911 emergency dispatch center.
The Board voted to enter Executive Session almost immediately after convening. The motion to go into Executive Session was for “discussions on the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation.” This type of Executive Session was permitted by New York Public Officers Law, Article 7, §150(1)(f).
The Board’s motion to enter Executive Session was a direct quote from the law and did not provide any details regarding what would be discussed. Paul Wolf, Esq., President of the New York Coalition For Open Government says, “The reason stated for the executive session does not comply with the Open Meetings Law. The reason stated simply parrots one part of the Open Meetings Law when more specificity is required.” Wolf said that residents should be given enough information that they do not have to guess about the purpose of the Executive Session. Wolf felt that the Board should have identified in its motion which specific purpose the Board was entering Executive Session.
Although the Board never stated why, other than the recitation of §105(1)(f), they entered Executive Session, given the two resolutions on the Board’s agenda, and Board Chairman Jack Marren’s (Victor) recent call for Henderson to resign, it appeared that at least part of the Executive Session could have involved the Board’s concerns with Henderson’s performance as Sheriff.
If the Board discussed the possible discipline of Henderson during the Executive Session, the session may have been partially or totally improper. In a press release issued September 7, 2021, Henderson stated that he was asked to resign “under threat of retaliation”. Fingerlakes1.com reached out to both Henderson and Marren to find out what “retaliation” was threatened. Neither had responded to our request for comment. However, the typical retaliation when an employee refuses to resign is dismissal.
However, in this case, Henderson is an elected official. Peter R. Kehoe, Executive Director of the New York County Sheriff’s Association says that Sheriffs do not answer to County Boards of Supervisors. Kehoe also said that a Sheriff “is an independently elected officer in the executive branch.” Kehoe believed that County Boards of Supervisors did not have any authority to discipline or terminate a Sheriff. Rather he stated the only way a Sheriff could be removed from office was through an election, by the Governor, or through a criminal conviction.
Stephen Acquario, Executive Director of the New York State Association of Counties agreed that “Sheriff is a Constitutional Officer…” Kehoe said that a Sheriff is a “powerful position”. He agreed, that despite the County’s potential liability for a Sheriff’s actions, that a Board of Supervisors cannot discipline or remove a Sheriff from office. He said that only the Governor or criminal charges can remove a Sheriff from office. Acquario also pointed out that no Sheriff has been removed from office in New York State in over 100 years.
However, Acquario pointed out that a Board of Supervisors does have several roles in overseeing a Sheriff’s work. He stated that a Board is a co-employer with the Sheriff for labor relations negotiations, that the County controls the Sheriff’s salary and benefits, and that the Board controls the Sheriff Department’s budget. Acquario said that the Board of Supervisors can use its investigative authority, including subpoena power, to investigate a Sheriff’s conduct. However, Acquario noted that a “Sheriff probably does not have to comply with the Board of Supervisors.”
The New York State Committee on Open Government oversees and provides advice on the Open Meeting Law. Kristin O’Neill, Assistant Director of the Committee on Open Government provided a copy of Committee Advisory Opinion OML-AO-4059. OML-AO-4059 stated that if a government body does not have the authority to discipline, suspend, dismiss, or remove an individual, then it cannot use §105(1)(f) to hold an Executive Session for that purpose. Acquario felt that despite the Ontario County Board of Supervisor’s lack of authority to discipline, suspend, dismiss, or remove Henderson, the Board might have been entitled to use an Executive Session to discuss the issue under provisions that permit such closed meetings for law enforcement investigations or pending litigation.
Wolf pointed out that Board could have elected to question Henderson about their concerns in an open meeting. Wolf cited as an example where the Erie County Legislature in a March 2021 open meeting questioned Sheriff Timothy B. Howard regarding their concerns with how he disciplined deputies.
Despite the Board not identifying the specific purpose of the Executive Session, and despite that it was unclear if the session was legal under the Open Meetings Law, the Board met in Executive Session for nearly two and a half hours.
Once the Board came out of Executive Session, it took well under two minutes to approve two resolutions. The Board did not read the resolutions, nor did it really identify what resolutions it was considering. Because there were two resolutions attached to the revised agenda, it appears that the Board passed those resolutions. Both resolutions were brought by the Board’s Public Safety Committee.
The first resolution was titled “Investigation Committee Powers and Appointments Pursuant to County Law §209. This resolution revealed that the County had received “numerous compliance complaints in late 2020…” about the Sheriff’s department. The resolution also revealed that the Board retained outside counsel, who hired an independent investigator, to investigate the complaints.
The Resolution also read “WHEREAS, A detailed and thorough independent investigation was conducted, and based upon corroboration by Sheriff’s Office employees and other evidence, it was concluded that acts of wrongdoing by the Sheriff and certain members of his administration did occur…”
The resolution also stated that, despite the independent investigation, several important questions remained unanswered because Henderson did not participate in the investigation.
The Resolution sought to appoint a special “Investigative Committee” of the Board to investigate the “…conduct and performance of the Ontario County Sheriff and certain members of his administration…” The resolution appointed Supervisors Todd D. Campbell (West Bloomfield), Peter V. Ingalsbe (Farmington), Daniel Q. Marshall (South Bristol), Kristine A. Singer (Canadice), and Dominick T. Vedora (Geneva) to the Committee. Campbell was appointed committee Chair.
The second Resolution approved by the Board was entitled “Establish an Emergency Communication Task Force”. The Resolution stated that the County was “committed to a culture of transparency, accountability, and responsiveness in the provision of public safety services”. The Resolution also said that the County “…works to ensure that its employees work in a safe environment where they are valued, treated with respect, and appreciated”. The Resolution went on to say that “The management of 911 communications in Ontario County may be better served if such services were not connected to the Office of the Sheriff…”
The Resolution directed the County Administrator to establish a task force to address the management of the 911 communications division and to consider establishing a separate 911 Communications Department. The task force must include a representative of the Cities of Canandaigua and Geneva police, fire departments, and ambulance services, a representative from each of the County’s fire districts, and a representative of the Ontario County Sheriff’s Office.
Todd covers local government in the Finger Lakes. He has a JD degree the Lincoln Law School of Sacramento. Send tips to [email protected].