Arrest Proves No Barrier to Victory: Highway Superintendent Wins Stephentown Vote After Being Accused of Operating an Illegal Mine

By Jordan Carleo-Evangelist, Albany Times Union, N.Y.

Nov. 7–STEPHENTOWN — Highway Superintendent Neil Gardner won re-election Tuesday despite being charged a day earlier with operating an illegal mine and submitting a false document, according to state prosecutors.

Gardner, 52, was booked at the State Police barracks in New Lebanon and released without bail Monday night after being arraigned in Town Court, said Lee Park, a spokesman for the state attorney general’s office.

He won 55 percent of the vote to defeated Democrat Terry E. Sykes, according to unofficial election results.

Second-degree offering a false instrument is a misdemeanor. Operating a mine without a permit is a misdemeanor under state environmental conservation law.

The charges stem from a voucher for 6,145 yards of gravel that Gardner allegedly submitted in November 2005 with an invoice from Russ Freeman Excavating, a Nassau firm that regularly works for the town’s highway department.

That voucher did not reflect that the gravel came from the illegal mine being operated on private property, according to state prosecutors.

In addition to not clearly stating the source of the material, the voucher, signed by Gardner and Russell Freeman, allegedly overstated the price of the gravel.

But Gardner’s Troy attorney, Stephen Pechenik, said the mine was not illegal, that town officials were well aware of where the gravel came from and that Gardner was being criticized by state officials only for not making the voucher more specific.

Rather than reflecting the cost of the gravel as $5 per yard, the voucher should have indicated that price included a screening fee levied by Russ Freeman Excavating, Pechenik said of the complaint.

Pechenik said the mine was legal because the excavation stemmed from the improvement of the pasture, an exception in the law. No one, however, applied for an exception with the state — essentially a paperwork error, he said.

“Stephentown had sued EnCon over some dumping that EnCon had done, and I think this was in retribution,” Pechenik said. “Unfortunately, Gardner is bearing the brunt of it.”

An informant inside the town allegedly told investigators that he used town equipment at the un-permitted mine under Gardner’s direction.

Supervisor Michael Angley could not immediately be reached for comment Tuesday.

Last month, Freeman pleaded guilty in town court to second-degree offering a false instrument for filing and was fined $1,000.

Pechenik said he hopes to have the case re-assigned to another local court.

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