PUBLIC HEARING
ESSEX COUNTY LOCAL LAW NO. 3 OF 2019
A LOCAL LAW PROVIDING FOR ADDITIONAL AND
RELATED DUTIES
OF THE OFFICE OF ESSEX COUNTY CORONER
PURSUANT TO AUTHORITY
GRANTED IN COUNTY LAW SECTION 671(2).
Monday,
July 29, 2019 - 11:00 AM
Shaun Gillilland,
Chairman
Roby
Politi, Vice-Chairman
Chairman Gillilland called this Public Hearing to order at 11:00 am with the
following Supervisors in attendance: Robin DeLoria, Archie Depo, Stephanie
DeZalia, Shaun Gillilland, Joseph Giordano, Charlie Harrington, Steve McNally, Noel
Merrihew, James Monty, Gerald Morrow, Roby Politi, Tom Scozzafava, Michael
Tyler and Joe Pete Wilson. Davina
Winemiller, Ronald Jackson and Mike Marnell had been
previously excused.
Department
Heads present were: Judy Garrison, Dan
Manning, Michael Mascarenas, and Dan Palmer.
Deputies
present: Jim Dougan and Matt Thwaits.
Also
present - Dan Tedford, Kellie Valentine, Donna & Frank Whitelaw, John Kelly
and Jay Heald.
News media present: Adirondack Daily Enterprise – Elizabeth Izzo
and Laura Achouatte – Sun.
GILLILLAND: I will call this public hearing to order and
we will begin please with the reading of the public notice.
GARRISON: Notice of public hearing on proposed local law
no. 3 of 2019. Please take notice that
the Essex County Board of Supervisors will hold and conduct a Public Hearing at
the Supervisors’ Chambers at the Essex County Government Center, 7551 Court
Street, Elizabethtown, New York on the 29th of July, 2019 at 11:00
a.m., on the proposed Local Law No. 3 of 2019, a local law providing for
additional and related duties of the Office of the Essex County Coroner
pursuant to authority granted in County Law Section 671(2).
Please take further notice that at said public
hearing to be held at the time and place set forth above, the Essex County
Board of Supervisors will consider this proposed Local Law and hear all persons
interested therein concerning the same.
Please take further notice that a copy of the
full text of such proposed Local Law No. #3 of 2019, may be obtained upon
request from the Clerk of the Board’s Office, 7551 Court Street, Elizabethtown,
New York 12932. Judith A. Garrison, Clerk Essex County Board of
Supervisors
Dated:
July 2, 2019
GILLILLAND: Thank you Judy. So this is a public hearing. It is our third public hearing that we’ve had
on this particular subject so I’m going to ask that we conduct this strictly as
a public hearing and refrain from any debate or debate with any members of the
public at this time. The time for debate
will be when we consider it for regular session. I believe we have three members of the public
that wish to speak?
GARRISON:
Yes.
GILLILLAND: County Attorney, did you want to say
anything?
MANNING:
Yes, just briefly for the record two letters have been submitted as part of the
record of this public hearing. Each from
a Larry J. Cleveland one dated July 2, 2019 and the other dated July 23, 2019
copies of the letter are available to the public up at the front of the room
and as Shaun said this is I think the third of a series of public hearings that
we’ve had. I’ve consulted with numerous
counties in similar size to ours. I’ve
also consulted extensively with Mr. Cleveland, Scott Schmidt of the New York
State Coroners Association. We have spoken with the coroners and this local law
is not intended to deal with every possible situation that might arise under
the titles in the local law.
I want
to really impress upon that you’ll see that the local law does provide and can
by rule or regulation or by resolution provide for protocols and supplements to
the local law similar to the Adirondack Park Agency is an agency that is
created by law and has certain parameters within it must act but it also
granted rule making authority and that’s what we tried to do here so you can
make a lot of hey or arguments about certain things are going to happen. There will be bumps in the road but we’ll
handle these by rule, resolution or regulation. Thank you.
GILLILLAND: Thank you very much. I’ll have the Clerk call up the members of
the public who would like to speak. I
would ask them to limit their remarks to five minutes and we will be able to
get through this. We have a busy morning still going forward. Judy.
GARRISON: Donna Whitelaw
D.
WHITELAW: Good morning. First I’d like
to ask, bear with me I’m a little bit nervous but I wrote a statement out that
I’d like to read. As I retired
eight-year St. Lawrence County Coroner and currently a tax paying resident of
Essex County I’d like to share some of my thoughts on your proposed new Coroner
position legislation. Regarding the
transportation of the deceased I cannot think of a good reason why you would
restrict the Coroner from performing this function. Most coroners in this and
other counties possess the property equipment, training and knowledge of any
legalities or health issues to professional and effectively perform this
function. I’m strongly opposed to the
idea of dispatching a funeral home simultaneously with a Coroner dispatch to an
unattended death. Each death scene
involves its own set of circumstances and often the time from arrival on the
scene to the release of the body can be a protracted time as a currently
licensed and practicing funeral director I can tell you that I and the funeral
home I work for do not see this as a tenable idea. A funeral Director will not want to hang
around the scene for a protracted amount of time waiting for the release of the
body. I can hear it now, the first thing
the funeral director will say is, is the body released? Call me when it is released. This will add more time often a lot more time
waiting on the scene. This can be very
trying for the family and also will tie up agencies like law enforcement, EMS
and the Coroner from leaving the scene until the deceased has been
removed. Also, the idea of asking the
family if they have a funeral home preference at the first reporting of the
death so the funeral home can be dispatched with the Coroner I truly think is
Ludacris. Often the death of a loved one
is unexpected and a shock to the loved ones. They are not thinking clearly and
this type of question can easily be misconstrued as it’s only business to you
and you want to get this over with. And
who will ask the question? Will this be a new set of questions and information
for dispatch to be responsible to gather and people to notify? How will they feel about that? Anyway, I
believe that Coroners who transport and are properly equipped and trained and
that this function of the position should be left up to the Coroner to
determine if they will transport or they will enlist someone else. A major responsibility of the position has
always been determining whether or not to have an autopsy. The way I have
always described the Coroner position is a go between between law enforcement
and the medical profession. When there
is an unattended death law enforcement is responsible for the legal side of the
investigation like statements, evidence, circumstances surrounding the death
and the medical side is responsible for the physical reasons the body stopped
living and the legal certification of it.
Coroner’s position and function is the go between between these two
agencies. They take information gained from law enforcement and share it with
the pathologist or certifying doctor and then they take the medical results
from the autopsy or physicians records and share that information with law
enforcement this way both branches of the death being investigated are fully
informed and all pertinent circumstances are known.
Another
aspect that I would like to address is securing toxicology samples. Rather than waiting often a day or two until
the pathologist performs the autopsy if a Coroner is trained in the medical
person know and is professional comfortable with this they will often request
that we secure these samples instead of waiting the protracted time until they
can secure them. In the past as a Coroner I was trained and would perform this
function and it was appreciated by the pathologist. One of the biggest that I feel would be a
true fateful pod is the idea of having the Doctor decide if there should be an
autopsy or not. He or she would have to
depend on the information and the opinion of the Coroner on this anyway so why
is the Coroner not good enough for the initial decision? Also, I believe that not many physicians care
to be called on weekends, holidays, days off, etc. to deal with situations that
are remote from them only to have to rely on information provided. I do not feel that this is a workable or
productive situation at all. If a
Coroner is not professional, educated or trained enough to transport collect
often time sensitive samples and order an autopsy why have a Coroner at
all? Why not go completely rogue and
have only the Doctor pronounce of course often at a distance over the
telephone, order the autopsy and law enforcement and EMS on the scene can
decide on transportation. This is how ludicrous I feel your proposed
legislation regarding this important piece of death care process is. I’m sorry if I sound a little bit insolent
but as a retired, St. Lawrence County Coroner with eight years’ experience and
a current practicing funeral director I would urge you to continue to learn
about the rules and responsibilities of the medical legal death investigators and
the agencies that work with them and become more informed on the
decisions. Thank you for listening to
me. Does anyone have any questions?
GILLILLAND:
We’re not taking questions. Thank you.
GARRISON: John Kelly.
KELLY: Yes, I’d like to submit my testimony via
letter that I submitted to the Board of Supervisors and the Clerk.
GARRISON:
Everyone was provided copies of the letter.
KELLY:
I request that it be added to the official record.
GILLILLAND:
Thank you.
GARRISON: Frank Whitelaw.
MANNING: We are going to read Mr. Kelly’s statement
for the record. Okay, this is a letter
from Edward L. Kelly Funeral Home signed by John J. Kelly. We received it on July 24th. Members
of the Board of Supervisors. I submit my
testimony for the Public Hearing on Local Law #3 of 2019.
I wish to thank you for all the work that’s
been done by the County Attorney and members of the Board of Supervisors. The Local Law that you presented is well
prepared and long overdue, ti provides protection for the Board of Supervisors,
Essex County is taxpayers and will, along with the coming rules and
regulations, require all present and future Essex County Coroners to comply
will all legal statues provided in New York State Laws, Rules and Regulations
and the Rules and Regulations that will be passed by this Board of Supervisors.
I believe Essex County, the Board of
Supervisors and the taxpayers have been exposed for some time to potential
legal action by families of deceased human bodies, being illegally transported
by and invaded for toxicology purposes by a Coroner of this County. That coroner does not, in my opinion, have
any NY license issued by New York State to perform any of the functions I have
previously alluded to. If this is true,
than this Board of Supervisors is doing the right thing by passing this local
law and then adopting rules and regulations.
I have read the testimony from the
previous hearing and in my opinion Mr. Whitelaw has some ethics issues in
addition to above mentioned legal issues that the Board of Supervisor may want
to investigate or request a County or State Agency to investigate. In addition it is obvious from the testimony
that Mr. Whitelaw feels that he needs to protect his illegal removal business. The loss of $30,000.00 a year is certainly an
issue for him and particularly when some of that revenue may have come from
transferring bodies that were not coroner’s cases at all.
Essex Co7unty Funeral Homes and Funeral
Directors as well as our peers in the Counties around us are always available
24 hours a day 7 days a week and 365 days a year, we all have cell phones some
have pagers, nearly all of us having answering services and backup funeral
directors to be available at all times.
Please don’t be intimidated by the “bull” presented to you by certain
people with self-interests.
I am prepared to sign a contract with
Essex County to do necessary removals for Essex county Coroners. I look forward to assisting the Board of
Supervisors and the County Attorney in preparing that document.
Thank you for the opportunity to testify
before you. Signed, John J. Kelly.
And
for the record, this is the first time I’ve seen this letter.
GILLILLAND: Thank you.
F.
WHITELAW: First thing I’d like to
express my condolence to the loss of Randy Preston. I had a lot of respect and admiration for
Randy and I liked his style and of course he is going to be missed.
Moving
right into it Section VII transports – This section does not take into consideration the various twists and turns
that often happen at scenes during an investigation. Coroners experience those
twists and turns and have to flow with them.
It’s part of the job. I make reference to the recent Wilmington fatality
fire Mr. Thwaits was at that and we didn’t get out of there for several hours.
We started around noon and we didn’t get out until 8:30 that night. Ranger recoveries, suicides, accidents and
the occasional homicide these scenes take several hours. Funeral homes will not
respond and then wait until we finish processing a scene, hours later. Another factor to consider is, if the
funeral home is in the middle of another call or working calling hours or a
funeral. They can’t leave, which results
in another delay.
Okay, Simultaneous Funeral Home Dispatch:
To have dispatch asking family during the initial
call, if they have a preference for a funeral home won’t fly. Usually the call comes in and it starts with,
“I think my wife/husband, etc. is dead.”
Or, “There’s been an accident and I think someone is dead”. This is a high-emotion call and I have been
on the other end of that call taking them. After the dispatcher gets more
information about the circumstance, they dispatch rescue and law
enforcement. Once they get there and
determine there will be no lifesaving measures to be performed, THEN the
coroner is called. It’s more than
awkward when a coroner shows up while rescue is performing CPR. It would be much more than awkward for a
funeral home to show up during CPR. The same process takes place for most death
calls. Asking the caller about their
funeral home preference before a death is confirmed, is wrong and likely to be
met with overwhelming hostility. Now, a
whole new situation has been created for responding EMS and law enforcement.
You also take the risk of a contracted funeral home
being a funeral home that the family absolutely hates. I’ve encountered this
several times, where families say “Under no circumstances will we allow the
So-and-so Funeral Home to take their loved one”. Sometimes people either had a bad experience
or they just heard bad things and they reject them. So if your contracted funeral home is one of
those, they will be promptly invited by the family to hit the bricks when they
show up.
Additionally, as coroners, we forge personal
connections with the families. We spend
a lot of time with them and they come to trust us with their loved one. This section of law will now force the family
to send their loved one with what amounts to a removal service. Death is extremely personal and intimate.
There seems to be this belief that funeral homes are
always perfect, and never experience mishaps.
I can tell you first-hand that is not the case. If you were to go behind the scenes, you
would occasionally witness mishaps with human remains. It’s just not talked about. And the same thing with the morgue but we
just don’t talk about it.
At the last board meeting, it was said some of the
coroners are not doing removals to the standards of funeral homes. The SENSIBLE thing would be, to establish the
same removal and transport standards for the coroners, but don’t add another
cog to a machine that already works fine.
If there is or has been a problem with a coroner on
transports, then address that coroner and the problem. By taking away transports/removals, you are
telling the coroners that we can’t be trusted and are unqualified. It’s like owning a restaurant and your
servers are asked to make the coffee.
One server that overfills the coffee maker and it spills on the floor
and someone slips and falls on the spill. So what do you do? You react by taking the coffee making task
away from the servers and then declare only a trained, certified chef who has
graduated from an accredited culinary school, is authorized to make coffee.
That’s lousy management. GOOD management would dictate you approach the
offending server and take corrective action to ensure the problem doesn’t occur
with that server again. You don’t
discard a system that works, just because there was a mistake.
Once again, I remind you all……3 of 4 of us are
licensed funeral directors with the proper equipment and vehicles. The 4th
me, has a specialized vehicle, with removal equipment and the necessary
training. We’ve established the county
has more than adequate liability coverage.
The county is not in business to subsidize funeral homes. This will result in an increase of removal
costs. It leaves one to question if a
funeral director may have a political hook at the county level. If you adopt my original proposal to pay
coroners $150 per removal instead of paying a funeral home $400, you will save
money and the system will continue to work just fine. It will also eliminate the possibility of
leaving the impression of engaging in dirty backdoor politics. Additionally the funeral homes will not
absorb liability if something goes amiss it will be accusations for the county,
the county will still be sued.
So a good version of Section VII should read:
1.
No coroner shall
remove or transport human remains unless it is necessary for further
investigation or maintain custody and control pending conferral with and cause
of death certificate by a Coroner’s physician.
2.
A coroner who removes and transfer human remains, for
the purpose of Coroners investigation shall have safe and operable removal
equipment and vehicles including a gurney or a stretcher in good working order.
3.
A coroner who used a funeral home to remove and
transfer human remains for a Coroner’s investigation, shall remain at the scene
and personally supervise the removal.
4.
Personal protective equipment shall be worn by a
coroner at all times when handling human remains, evidence, and biological
material.
5.
All human remains removed and transported for the
purpose of a coroner’s investigation shall be secured in an approved body pouch
and sealed with an individually numbered body pouch seal.
6.
All biological materials shall be secured and
transported in a commercially produced plastic container or bag labeled as
biohazard.
7.
All human remains removed and transported for the
purpose of a coroner’s investigation, shall be promptly placed in a secure
morgue with adequate refrigeration.
8.
At no time shall a coroner respond to or remain at a
death scene or morgue accompanied by any unauthorized persons.
And 9 and 10 just lays out that any fees will be
determined by rule, regulation, resolution and that our mileage will be
standard mileage rates instead of that two-dollar and something mileage that
you pay for loaded.
Going on to section VIII Responding to Calls - Requiring a coroner’s
physician to authorize transport and determine the need for autopsies is a
non-starter. Doctors will not be taking
calls outside of business hours and on weekends to make these determinations. It is a basic and primary function of
coroners to determine if there should be an autopsy. Doctors will either charge a premium rate to
do this, or they will terminate the contract with Essex County. Also, these are coroner’s physicians they
work at the direction of the coroner, not the other way around. We determine how extensive an autopsy will be
and what tests to order and the doctors execute those orders at our
direction. If you want full and complete
autopsies with toxicology in each and every case then let the doctors make
those decisions. Once again, you are
telling the coroners and the public, we can’t be trusted and are unqualified to
do this, although we have done it since the dawn of time, as most coroners do
around the state. You are operating on
the allegation that unnecessary transports and autopsies are being done. In that case, you should be able to share
with us which cases were deemed as unnecessary.
If you are basing this decision upon an unsubstantiated allegation, you
are assuming the coroner/coroners are in the wrong without even verifying
ANYTHING. And there’s that lack of faith
and trust, once again. Not only are you
telling US that you don’t trust us, and don’t believe we’re qualified to
perform the very basic duties of a coroner, you’re telling EVERYONE that you
have untrustworthy, unqualified coroners with bad judgment. Not the best message a county can send to
their coroners and to the public.
Now let’s move onto this toxicology issue. There’s a big concern about that and it’s
been cited the law where it says, you can’t make any make any incision
preparatory to or during an autopsy.
GILLILLAND: I give you about two more minutes Mr.
Whitelaw.
F. WHITELAW:
Securing toxicology doesn’t require an incision they are punctures from
needles. It’s not an incision. Incision is a medical term. It’s very specific.
I’m going to move right onto the summary – Section
VIIII Penalties. Language should be
added entitled, the accused due process in a hearing with a standard proof
being the same as a criminal offense.
Now onto my summary – This law should be enacted to
ADD to the functions, responsibilities and requirements of coroners and to
enhance performance and professional standards.
Your coroners should be empowered, enabled and encouraged to develop as
professionals. If coroners are trained,
qualified and authorized by law to perform certain functions, they should be
encouraged and permitted to use those skills.
Each coroner has a varying skill set and each should operate within that
skill set. Doing this is akin to
allowing an extremely skilled mechanic to only replace windshield wipers. So if
the county only wants an official person to pronounce death, I would suggest
checking on the availability of the Wizard of Oz Coroner.
Right now, you have an opportunity to demonstrate to
the coroners and more importantly, to the public, that you are ready to bring
professionalism, and organization to the coroner system in Essex County by
establishing structure and higher standards for the office. The bulk of this proposed law brings
accountability which is a great start.
As for these challenged sections of the proposed law, the best thing
that could happen to them is, to have Dorothy’s house to drop on them and they
be declared really, most sincerely dead.
GILLILLAND: Thank you. Any other members of the public wishes to
speak? Alright this public hearing is
adjourned. Thank you.
As there was no further discussion to come before
this public hearing it was adjourned at 11:25 a.m.
Respectfully submitted,
Judy Garrison, Clerk
Board of Supervisors