The News, Briefly	"Newco" hides public documents, gets sued by Buck Quigley

Obstructionists-R-Us

As a June 30 deadline approaches, a new court case has been filed in State Supreme Court, possibly affecting the ongoing consolidation talks between Kaleida and ECMC. Described by attorney Peter A. Reese as “a last-ditch attempt to force the people who are planning the future of our healthcare in Western New York in secret to comply with the NYS Public Officers Law,” the show-cause order includes the signatures of four petitioners (including, in the interest of full disclosure, Michael T. Quigley, a.k.a. me).

I came to join the lawsuit as a result of my experiences as a reporter trying to learn about a complicated story, the outcome of which will affect the nature of healthcare in the area for generations. On April 25, I emailed a Freedom of Information Law request to two different email addresses for Robert Gioia, chairman of the board for Western New York Health System, Inc., as well as other board members including David Zebro and Judge James McLeod. Since Western New York Health System doesn’t have a Web site, you have to try to send such a request to individuals on the board any way you can.

I was seeking a complete copy of the minutes of all board meetings of the trustees appointed by New York State Department of Health Commissioner Richard F. Daines and the board of the Western New York Health System, Inc. (WNYHS, a.k.a. Newco), dating back to January 1, 2007. I also asked for a complete and detailed list of Newco’s financial receipts and expenditures, dating back to January 1, 2007.

I even copied the general mailbox of Strategic Investments & Holdings, Inc., the holding company located in the Cyclorama Building that “acquires and grows successful companies in partnership with operating management,” and lists, among its principals, Robert Gioia and David Zebro.

One investment that company would like to forget was documented in the New York Times on October 3, 2007. Topps Meat Company had been a successful small family business in New Jersey for 50 years until Strategic Investments took over. Within a couple of years, the new management had tweaked the business to the point that last summer, at least 40 people across the country were sickened with E. coli, some requiring hospitalization. According to the Times, “In the case of Topps, the government has determined that the company reduced its testing of ground beef and neglected other safety measures in the months before the recall.” What was the result? Topps could not recover from what was then the second-largest beef recall in history, and a 50-year-old business closed.

What was the comment from Gioia and Zebro, who were by this time sitting on the board of WNYHS? Again, according to the New York Times: “The owner of Topps, Strategic Investments & Holdings of Buffalo, declined to be interviewed for this report, nor would the firm respond in detail to written questions.”

On April 29, I received an email from attorney Robert Wild of Great Neck, New York, informing me that his client (WNYHS, a.k.a. Newco), “is a New York not-for-profit corporation and is neither a state, municipal nor public entity as defined by General Construction Law Section 66. Further, Western New York (sic) does not perform a governmental or proprietary function for New York State or for any municipality (see also General Construction Law Section 66).” Wild went on to say: “Western New York (sic) is not subject to the Freedom of Information Law.”

I replied, citing an opinion from Robert Freeman, executive director of the state’s Committee on Open Government, that “WNYHS remains a ‘public body’ required to comply with the Open Meetings Law, despite its status as a not-for-profit corporation.”

Wild replied that they were familiar with the opinion but respectfully disagreed with it. No information would be shared. I sent an email appealing their decision.

Meanwhile, I’d almost forgotten that I’d included ECMC among the places I’d sent FOIL requests. Because they’re a public benefit corporation, they understand the concept of FOIL differently: When someone asks to see records, they’re bound by law to present them.

In relatively short order, and well within the 20-day limit to reply to a FOIL request, ECMC attorneys gave me all the meeting minutes they had available. They could not help me with financial records, because they were never shown such things. (These minutes have been available at AV Daily since May 23.)

With this success, I decided to FOIL UB President John Simpson, asking him for the same things I’d been denied by Wild. It figured that UB, being a fairly public institution, might be as open as ECMC had been. No dice. I received a letter dated June 3 from UB Records Officer Jim Jarvis, saying he was determining the availability and accessibility of the documents and would contact me again in 20 business days, as prescribed by FOIL law. In sports, they call this running out the clock.

Why is all of this important? We are approaching a June 30 deadline to consolidate Kaleida and ECMC. County Executive Chris Collins has concerns that a new arrangement could be mishandled—behind closed doors—to the point of screwing county taxpayers far into the future. In just a few years, ECMC CEO Michael Young has stabilized a hemorrhaging hospital and turned it around to become a money-maker while still caring for 42 percent of the county’s uninsured and underinsured—something he also did with great success at his previous jobs in Pennsylvania.

Meanwhile, evidence suggests that Kaleida’s books may not be nearly as impressive. That’s one reason why some of the parties who have been labeled “obstructionist” have been saying that a $1.5 billion dollar agreement ought to be accompanied by a signed contract that describes this bold future, rather than relying on verbal promises from people who refuse to comment on difficult questions, when not flatly denying access to public information.

Presently, the WNYHS board acts like there’s no time for that. But then, they frequently seem to play hard and fast with rules, like Section 130 of the General Business Law that says they have to register a new name (Newco) with either the New York Secretary of State or the County of Erie—which they haven’t done, although they’ve been calling themselves “Newco” for months. The law says that people in violation of that law may be committing a misdemeanor.

—buck quigley