In this week's New Paltz Times, and via email on May 20, the letter below was sent to all outgoing and incoming Village Board Members. We received only one response, from Trustee Feldman, indicating that he had no awareness of the Kimbiz rendezvous until reading about it here at Legislative Barbie last week.
We also received a "response" from Mayor Dungan at last night's Village Board meeting, indicating that he was unaware of the situation until the May 11 Village Board meeting that Kimbiz didn't attend. Mayor Dungan suggested that even Kimbiz did not know about this until the very last minute, but we have found evidence that suggests otherwise. Each of the sitting Trustees have issues with telling the truth (one need look no further than Mayor Dungan's claim in this week's New Paltz Times that Kimbiz received over 900 votes to see that), so the lack of response followed by a response that doesn't fit with all of the other information should definitely be met with a certain level of skepticism.
We are writing in reference to Trustee Kimbiz' announcement of his extended absence from the Village Board. We are seeking answers to the following questions, and appreciate your consideration and prompt response.
1. When did Trustee Kimbiz apply to the Americorps program and when was he notified of his acceptance? There were rumors about his "leaving the board" as early as March, so it seems likely that some of this information was available well before the community was informed.
2. Who did Trustee Kimbiz notify of his intentions and in what forum? Were the current or incoming Trustees made aware of this situation and, if so, when?
3. What was the response to Trustee Kimbiz' notification? Was he granted any official or unofficial leave of absence from the Board? If so, on what basis was this decision made and who made it? Was the Village's Attorney consulted about Trustee Kimbiz' plans?
4. What is the justification for this extended absence, instead of a simple resignation? In addition to at least six meetings Trustee Kimbiz will be missing in June, July and August, Trustee Kimbiz will also be missing both May meetings, for a total of at least eight missed meetings. This only accounts for regularly scheduled meeting, and does not include the likely possibility of also missing special meetings. This is compounded by any missed committee liaison assignments; these committees will either be neglected entirely for more than a quarter of the year, or that work will be spread among the four remaining officials, which seems unfair and irresponsible. Missing four months of duties, especially during a time of transition, seems unjust and inappropriate.
Given all of the above, and the further fact that Trustee Kimbiz has not been a regular attendee at his committee assignments over the course of the last year, vacating his office would appear to be the course of action that would best serve the public interest. He would certainly be eligible to run in a special election in May of next year if he wished to resume his public service.
Pete Healey - email@example.com - 845-399-3288
Brittany Turner - firstname.lastname@example.org - 916-384-6735
While Kimbiz has announced that he will be continuing to respond to Village business via email, it's been 5 days since he received the email and we still have no response. Perhaps he's only responding to what/who he wants to respond to. No idea. Regardless, we've also been able to uncover some inconsistencies and identify some new options with ways to proceed.
Some of the information disclosed at this point just doesn't add up. For example, Kimbiz allegedly called incoming Mayor West from the airport on his way to Nevada. However, according to Facebook, Kimbiz appears to have driven out to his new job.
I spoke with Americorps directly, to get some more information about the specific program and Kimbiz' relationship to it. According to them, after looking up his record in their database:
- Kimbiz has only applied for two programs: the 2011 Summer Veterans Green Corps in Nevada, which runs from May 16 through August 11 (applications accepted January 10 through April 24), and the Americorps Northwest Service Academy, which runs from mid-May through the end of October, in the Pacific Northwest (including California).
- According to their database and records, Kimbiz has not been officially selected for either program. His application to the Summer Veterans Green Corps has been submitted, but no action has been taken. His application to the Northwest Service Academy is "under review." They explained that it is virtually impossible for an individual to be currently serving in an Americorps program without this being reflected in the record, as it is updated at each phase of the process.
- Kimbiz may not be working for Americorps at all. The individual I spoke to was adamant in his assertion that it is simply impossible for an individual to be working for Americorps without the application status, candidate acceptance, and/or placement being reflected in the database. None of this information appears in the Kimbiz record.
- Despite the dozens of similar programs available in New York, Kimbiz chose to apply for only two programs that are clear across the country.
- Kimbiz lied about the start/end dates of the Nevada program. While his past communications with others have described the program as June through August, the program began in May, and his absence at the last two Village Board meetings would be consistent with that timeline. Given this, it is impossible to identify his return date with any certainty, and his inability to respond to inquiries provides no additional information.
- The original rumors regarding Kimbiz' departure suggested he and girlfriend/Village Clerk Amanda Erickson would be moving to California. These rumors are supported by the other program that he applied for, which instead of being a summer-only program, extends through the fall, keeping Kimbiz out of New Paltz for at least six months. By applying, Kimbiz was prepared and willing to abandon his post for six months, rather than the four (or three, according to him) that he is currently skipping.
- Assuming Kimbiz is actually where he says he is and that Americorps is having an error with their database, he will be missing at least six additional regularly scheduled Village Board meetings, and has an additional two absences in May. These absences do not include special meetings, of which there are already two scheduled (May 31 and June 1), as well as his liaison obligations and other responsibilities, which he has never regularly participated in even while present in New Paltz.
Despite the assertions of the outgoing and incoming Boards that nothing can be done, I've identified at least three existing legal options that can be taking against Kimbiz by either Board and/or residents of the Village of New Paltz.
- Article 78. The NYS Civil Practice Law allows for proceedings under Article 78, which basically compels a public officer or governing body to follow the obligations as outlined by law. These include actions related to arbitrary, capricious, and unreasonable conduct by these entities and individuals. Initiating an Article 78 proceeding, if decided favorably, would compel Kimbiz to return to New Paltz in order to fulfill the obligations of his position. This action may be initiated by either the Village, a sitting Board Member, or a Village resident.
- Official Misconduct. Section 195 of the NYS Penal Law discusses the crime of Official Misconduct, which is two-fold. A public officer may intentionally act illegally or, as is particularly relevant in this case, "knowingly refrai[n] from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office." It seems like attendance at meetings, and therefore the ability to represent the voters and make decisions on village business, would certainly fall under this expectation. A criminal act, Official Misconduct should be initiated by the Village of New Paltz, and is classified as a Class A Misdemeanor, which would result in a criminal record, possible fines up to $1,000, and a possible maximum jail term of 1 year. For comparison, other Class A misdemeanors include certain types of assault, stalking, sexual abuse, unlawful imprisonment, identity theft, arson, and criminal possession of controlled substances and weapons. This is no joke.
- Application to Declare Vacancy. The third, and perhaps most preferable option, is outlined under Section 36 of the Public Officers Law, which discusses the procedure of removing a local public official through an application to the court on the basis of "any misconduct, maladministration, malfeasance or malversation in office." Under Section 30 of this law, it outlines the criteria for vacancy, including item G, "the judgment of a court, declaring . . . . that his office is forfeited or vacant." This action certainly could've been commenced against Trustee Gallucci with her 56% attendance, Trustee Osborn with her 35% attendance, and arguably Feldman to his refusal to formally resign from the Board in 2011, but they are no longer in office. As of May 11, Kimbiz has had a 79% attendance rate of Village Board meetings (Committee Liaison activities are near 0%), and with his absence expected for at least nine additional meetings beginning yesterday, May 25, his numbers will closely resemble the other two no-shows by the end of summer. There is precedent for removal on the basis of absence, as outlined in Williams v. Travis, where Fire Commissioner Travis was removed from office due to his significant absence from meetings and lack of participation. If the seat were declared vacant by the court, the Mayor would be permitted to appoint a new Trustee to the vacant seat, with a special election held for a replacement in May 2012. This action may be initiated by ANY Village resident.
While both the outgoing and incoming Village Boards have suggested that they cannot take any action in this matter, the law shows otherwise. Their failure to hold their colleagues to this standard is not a matter of inability, but rather unwillingness to remove Kimbiz from office. If neither Board is prepared to take action on the matter, Pete Healey and I are fully prepared to initiate an application to vacate this seat under the Public Officers Law. If you are interested in joining the application as a petitioner to remove Kimbiz from office, please feel free to contact us for additional information.
UPDATE, 5/27/11: Via text message last night, Jason West stated, "Interesting blog post. Once in office i will ask our attorney specifically about the options you laid out. Was not aware of those options, nor was the attorney i spoke to apparently. Didnt realize you wanted a response from incoming board members - must have read email too fast."