Code Enforcement Officer Ignoring FOIL request

[gr8smile1966]

Rural Upstate NY

sorry so long... wanted to make sure I included pertinent info!

Last fall, I requested information from the Village Code Enforcement (in accordance with Village Code) pertaining to a complaint I had filed against my neighbor. The Code Officer had determined that the violations I had complained about had been fixed. I asked him verbally at the time of the determination to send me a copy of his "official" determination (the one he is supposed to put in his records). He never responded. I put the request in writing on two other occasions, and verbally through the village clerk and the code officer several times. The last letter I wrote I copied to the Mayor and the Village atty. Still no response, even with follow up phone calls/office visits. During these attempts to obtain information, the Village clerk kind of offered information that the code officer doesn't have an organized filing system (more like non-existent), so any request for public inspection of his records is a joke. Unfortunately, being a small town, he gets away with this.

After becoming frustrated having to fight to get this information, I let the issue die down over the winter.

Recently, I had the opportunity to talk to the Mayor about this, and within a day I received a letter from the code enforcer. Here is what he had to say:

This is the exact wording of the Code officer's letter:

"I was recently reminded, by the office staff that you felt that you were still waiting for some letter from me about you interaction with your uphill neighbor.

My record shows that you complained to me last year about the degraded retaining wall holding your neighbors parking area. I subsequently talked with your neighbor in her house and told her that she was responsible per state code to maintain that wall in good condition. She asked if she could demo the wall. I said yes to the demo. She did the demo and shortly thereafter you asked for a permit for a fence, which I granted and you then built the fence.

As far as I am concerned, that's it, problem over with."

Now, as far as I am concerned, the problem is far from over, and I want this guy's arrogant, stupid head served to me on a platter!!

Village Code spells out his responsibilities-- to enforce the codes (hence the job title ), to maintain records, and to provide for the public inspection of these records.

His letter states that he has a record. His letter also doesn't address all of the issues in my initial complaint. I don't know for a fact that no records exist, but he continues to avoid my requests for the info.

I have a right to this information. What do I do to get this guy to give me his "record" to inspect???? What can I do if he continues to evade me????? What can I do if in fact he finally admits that he hasn't been maintaining records??

I plan on writing another letter (CRRR) to the Code officer to restate my request more firmly. I also plan on warning him of my intention to file a complaint with the State Atty General and attend a public village meeting to tell my story, maybe inviting the media. Do you think that this is a logical next step? What might be a logical next step?

What kind of lawyer does one look for if I wanted to pursue this in a court, and do I have any kind of case????? I feel like my rights have been violated. What kind of situation is this?? Can you really not fight city hall??

Doesn't the government (even at the local level) have a responsibility to deal with me, even if they don't want to... I am not making an outrageous request. I am asking the guy to do his job!!

Thanks for any insight/advice.

gr8smile

 

[CdwJava]

Contrary to popular belief, there is NO legal obligation for law enforcement, code enforcement or any other enforcement arm of the government to actually do that job. Certainly they do not have to do it to YOUR satisfaction.

You may disagree with the way that the CE officer did his job, and you may even disagree with his evaluation of the problem. But, unless or until someone above him tells him to go back and do something else, it sounds like the issue is done.

Depending on state law you may not have a right to all the investigative file. In my state you wouldn't, so I can only presume the same is true in your state ... but I may be wrong. What, exactly, do you hopew to find in this record?

And, of course, you can make a complaint at city council and to the press, but whether that will accomplish anything is iffy. It might get someone to look at the problem. But, if all that can be done has been done, then it won't get you very far.

What else do you want? The CE says that you complained about the retaining wall ... the wall is now gone. Exactly what is it you want to have done about your neighbor?

- Carl

 

[gr8smile1966]

Carl:

I appreciate your response.

"Contrary to popular belief, there is NO legal obligation for law enforcement, code enforcement or any other enforcement arm of the government to actually do that job. Certainly they do not have to do it to YOUR satisfaction."

I understand that I can't force him to do his job (which is a shame, because essentially I pay him with my tax dollars).

Village Code does have a FOIL- like section, and it states that the records have to be made available for public inspection upon request in during normal business hours or within 5 days if request is made in writing. I have requested this information both ways several times. Isn't refusing my requests breaking the law???

Village Code also stipulates that the Code Enforcement Officer is to maintain records.

What protection do I have as a citizen of this Village to ensure that my rights are being upheld? (the right to inspect the documents)

I thought I lived in a democratic society. A government for the people by the people. Equal protection under the law. A system of checks and balances. A little ideal, perhaps??

Are you telling me that it really is a dictatorship and this guy can get away with not providing the documents I'm asking for???? Surely there must be something that can be done if the rules are spelled out and he's not following them.... since when are government employees above the law????

"What else do you want? The CE says that you complained about the retaining wall ... the wall is now gone. Exactly what is it you want to have done about your neighbor?"

The wall wasn't the only issue. It was the only issue that was "remedied." I complained about a couple of issues, which he claimed to have cited her for, but nothing has been done. Whether or not the problems were solved to my satisfaction isn't the issue. The fact that he won't provide me the records and is ignoring my request is what concerns me.

The reason I want the records is because I am collecting all documentation in regards to the retaining wall because the neighbor only removed part of the wall and left jagged concrete on my property and her driveway is now not supported by anything. If the ground gives way, it may end up taking her garage down (and cause damage to my property) The job was not a complete job. The wall was/is encroaching on my property. I may have to go to court about the wall. I want the documentation that the wall was in violation of code, and I want the documentation that the wall is now up to code. I don't think it is, and I just want it in writing that it is. If you note in his letter, he doesn't admit or deny that the wall is or isn't in compliance with the code. He also doesn't mention any of the other issues I had addressed with him.

I can't believe that an agency of the government doesn't have to do their prescribed job if they don't want to, and there is nothing that I can do about it....

Why have laws if they are only enforced when the enforcers want them to be.... just doesn't seem right, fair or legal to me...... but then I'm not a lawyer or judge...

 

[CdwJava]

I understand that I can't force him to do his job (which is a shame, because essentially I pay him with my tax dollars).

True - to a point. But his job may not be what you think it is. He does not have to resolve matters to your satisfaction. If he fulfills his job requirements to his supervisors' satisfaction then he IS doing his job.

Very often we (the police) get calls that the reporting party "KNOWS" is acrime ... it turns out to be nothing, so we don't do anything. The person who called demands to know what came of their call and gets upset that no arrest was made or that no report was even generated. While he thinks we did not do our job, the fact is that we did our job ... it just wasn't to his liking.

Obviously, I don't know if this CE person did even a minimal job on your complaint. But, it IS possible that they did what the job and the law requires.

Village Code does have a FOIL- like section, and it states that the records have to be made available for public inspection upon request in during normal business hours or within 5 days if request is made in writing. I have requested this information both ways several times. Isn't refusing my requests breaking the law???

Not necessarily. It depends on what this code says they must release. Investigative files and details of complaints may not be subject to disclosure. You would have to consult with a public records law attorney on this issue ... if it is worth a couple thousand dollars to you.

Village Code also stipulates that the Code Enforcement Officer is to maintain records.

The question then becomes, WHAT constitutes a record? Your original complaint and his letter back to you is "a record". If that's all there is, then that is all there is. It may not be a good investigation, but it may be all the records he has.

What protection do I have as a citizen of this Village to ensure that my rights are being upheld? (the right to inspect the documents)

The courts.

I thought I lived in a democratic society. A government for the people by the people. Equal protection under the law. A system of checks and balances. A little ideal, perhaps??

These equal protections tend to be enforced by the courts and similar enforcement agencies.

Are you telling me that it really is a dictatorship and this guy can get away with not providing the documents I'm asking for????

Of course not. But you have to understand that the records you want to see may either not exist, or, do not have to be produced.

In most states investigative files of potentially criminal allegations are not subject to disclosure as public documents. This record (if one esists) may be covered under that. if so, you may only have a right to the initial complaint and the general resolution (arrest, fine, dismissal, closure, etc.).

The wall wasn't the only issue. It was the only issue that was "remedied." I complained about a couple of issues, which he claimed to have cited her for, but nothing has been done.

If the person was cited, how do you know nothing has been done? Perhaps they paid the fine and offered to correct the issue ... IF the complaint was a correctable one.

I can't believe that an agency of the government doesn't have to do their prescribed job if they don't want to, and there is nothing that I can do about it....

As I said, your version of what the CE person's job is may not be what he actually is required or expected to do. And if no records exist regarding what you seek, then you can't expect to receive them.

If they are concealing records that they know or reasonably should know are subject topublic disclosure, then you may have a case. It may well be time to hire an attorney.


- Carl