Stories from

St. Joe's teacher Anne Marie Starowitz got to take her class on a field trip for the first time since the arrival of the coronavirus pandemic today, walking her students over to the Batavia Cemetery to visit the gravesites of many of the historically important people buried or memorialized there.

Students are undertaking projects that include researching and writing about these people as well as created related artwork.

Above, students learn about Philemon Tracy, who was a colonel in the Confederate Army. His uncle, who lived in Batavia, had his body disguised in a Union officer uniform and transported to Batavia to be buried here. He's the only Confederate officer who died in action who is buried north of the Mason-Dixon Line.

Below, students visit the William Morgan monument, a one-time Batavia resident who disappeared under mysterious circumstances after publishing a book that purportedly revealed Masonic secrets. His death helped ignite the Anti-Masonic Party.

Press release:

New Cases – As of 2 p.m.

• Genesee County Due to ongoing technology/internet issues, we do not have an update for Genesee County.  We expect to report more information on these cases tomorrow. We apologize for the inconvenience.
  • Monday there was one new positive case.
  • Tuesday there were two new positive cases.
  • Wednesday there are two new positive cases.
  • Since Oct. 9, 37 new individuals are on precautionary quarantine due to travel from restricted states.
• Orleans County received two new positive cases of COVID-19.
  • The new positive cases reside in Albion.
  • The individuals are in their 20s, and 30s.
  • Both of the individuals were not on mandatory quarantine prior to testing positive.
  • Fifteen new individuals are on precautionary quarantine due to travel from restricted states.

Steve Robinson, white shirt, was honored with a proclamation Tuesday night by the Batavia City Council for his 30 years of service to the residents of Batavia.

Robinson started his career as a dispatcher for Batavia Police Department, continued as a dispatcher when the county and city 9-1-1 centers were consolidated, and stayed on part time with Batavia PD in a desk role after the consolidation.

On a vote of 7-2, the Batavia City Council approved an additional $1,000 a month stipend for interim City Manager Rachael Tabelski, who has been filling the role since June after the resignation of Martin Moore.

Council members Bob Bialkowski and Rose Mary Christian voted against the stipend.

Christian said she opposed the same stipend for Matt Worth when he was interim city manager after Jason Molino left, and to be consistent, she needed to oppose it for Tabelski.

"I'm concerned about a lot of people," Christian said. "We have long lines at food banks; people can't pay their rent or mortgage."

Bialkowski said he was applying the standard of the private sector, that when you're on salary you do the work assigned even if you fill in for a vacant slot at the same salary you were getting.

Council President Eugene Jankowski spoke in favor of the stipend. The assistant acts as a department head for administrative staff as well as other administrative duties and while department heads have helped pick up some duties the workload for Tabelski has increased substantially.

He also noted the City Charter requires the city to have a city manager and assistant manager. 

"If you're doing both jobs, it's a burden," Jankowski said.

Tabelski's base salary is $52,339.

Moore's salary was $110,838.

Jankowski noted that the stipend is not a cost that will put the city in a hole because they're currently saving money operating without a city manager.

The Council is in the process of identifying candidates, which may include Tabelski, to become the city's next city manager.

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To trick-or-treat or not to trick-or-treat? That seems to be the question on the minds of a lot of families in Batavia as our first pandemic-era Halloween approaches.

Councilman Bob Bialkowski said he's received calls from residents wondering if the city will permit traditional Halloween activities and he said there are even residents concerned that if they don't leave a light on for young ghosts and ghouls their houses might be targeted for vandalism.

Interim City Manager Rachel Tabelski said after reviewing information from the Centers for Disease Control (CDC), including a chart she said shows Genesee County as one of the few counties in the area the CDC has marked safe for trick-or-treating, she sees no reason right now to cancel Halloween in the city.

She said residents should be informed of the CDC's guidelines, which include:

• Avoid direct contact with trick-or-treaters.
• Give out treats outdoors, if possible.
• Set up a station with individually bagged treats for kids to take.
• Wash hands before handling treats.
• Wear a mask.

Tabelski suggested residents who want to hand out treats, not have trick-or-treaters come to their door but instead meet them one at a time on their sidewalk.

"We are not banning trick-or-treat unless the county or state come down and ask us to ban it," Tabelski said. "We think it's a great idea for parents and residents to be informed to help them feel safe."

She said she didn't anticipate any trouble for residents who choose to turn off their porch light and not participate.

"I think people understand some people may not feel comfortable opening their doors," Tabelski said.

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When the coronavirus pandemic first hit Genesee County, the revenue outlook for the City of Batavia was pretty bleak -- a projected $2.4 million in losses because of an anticipated 30-percent decrease in economic activity.

As it turns out, sales tax revenue in the county is down only 4 percent, Interim City Manager Rachel Tabelski informed the City Council on Tuesday night.

The city also received an 80-percent payment from the state for video lottery terminal (VTL) revenue from Batavia Downs.

Better news but not necessarily good news. There's still a shortage in revenue of $793,000.

"While we still have many freezes and cuts to the departments, we are weathering the storm well of comfort," Tabelski said.

City department managers continue to work to control costs, making cuts in purchasing in vehicles, equipment and supplies, deferring what they can, and some departments are still under a hiring freeze. Those cost-saving measures are projected to save $611,000.

Whether those cuts are for the long term is yet to be seen.

"That's definitely hard to predict," Tabelski said. "We have rising contractual costs of employees coming into next year's budget and we still have New York State's 2 percent property tax cap that we try to look at and maintain, and stay within if we possibly can. The hope is that as we get closer and closer to the next quarter of sales tax collection, we'll have a better revenue picture and we'll be able to tell if we have a better budget outlook to present to Council in January."

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Brandon Payne caught another large pike at DeWitt Recreation Area yesterday.

Submitted photo.

Press release from AAA:

Today’s national average price for a gallon of gasoline is $2.19, the same as one week ago (and the same as the week before that.) One year ago, the price was $2.64. The New York State average is $2.25 – down 1 cent since last week. A year ago, the NYS average was $2.71.

AAA Western and Central New York (AAA WCNY) reports the following averages:

• Batavia -- $2.20 (down 1 cent since last week)
• Buffalo -- $2.22 (down 1 cent since last week)
• Ithaca -- $2.19 (no change since last week)
• Rochester -- $2.24 (no change since last week)
• Rome -- $2.31 (no change since last week)
• Syracuse -- $2.19 (no change since last week)
• Watertown -- $2.30 (no change since last week)

The national average for a gallon of regular gasoline remains at $2.19, which is significantly cheaper than last year (-45 cents).

In a recent report from the Energy Information Administration (EIA), gas demand grew, however, the current rate is approximately 600,000 barrels per day below last year’s rate in early October allowing prices to hold steady. Pump prices could decline if demand drops due to fewer road trips taken as the weather cools.

From GasBuddy:

"Average gasoline prices largely remain rangebound as the tug of war between market forces continues to keep prices confined near current levels," said Patrick De Haan, head of petroleum analysis for GasBuddy. "On one side, the coronavirus situation would be pulling prices down as year-to-date gasoline demand stands some 13-percent lower than last year, but on the positive side is the possibility of economic stimulus that could boost households ahead of the election if the two parties can manage to agree.

"For now, with little action on either issue, oil markets are seeing a good amount of speculation and seesawing, and that will continue until we have a clear answer on whether Washington will deliver more economic aid to hard hit Americans."

It's now a felony in New York for a police officer to use a chokehold that results in the serious injury or death of a person, but Batavia police officers who have come through the academy in the past 10 years haven't even learned that maneuver, Chief Shawn Heubusch told the city's stakeholders' group at Thursday's meeting.

Since officers aren't trained in the procedure, it isn't even mentioned in the city's use of force policy, Heubusch said.

The Batavia's Police Collaboration Advisory Stakeholder Group was formed in response to an executive order from Gov. Andrew Cuomo mandating that all municipalities with a police force form a community-based group that reviews all of a police department's policies and procedures.

Thursday meeting concentrated on Batavia's use of force policy (pdf).

Chokeholds fell out of favor more than a decade ago, but their use declined steeply after New York legislators passed a law in the wake of the 2014 death of Eric Garner. He died in New York City while in police custody and restrained in a chokehold. Even while officers continued to restrain him, Garner warned them, "I can't breathe."

As a result, the State Legislature approved the Eric Garner Anti-Chokehold Act, making "aggravated strangulation" by a police officer a Class C felony punishable up to 15 years in prison.

While the city's use of policy is silent specifically on the use of a chokehold, it does allow a police officer to use any means necessary to protect his or her life or the life of another person if somebody is in imminent danger of being killed.

An officer, for example, fighting for his or her life, could use a chokehold.

"If the officer is in serious peril, you are going to do whatever you can to prevent yourself or somebody else from being killed," Heubusch said.

The use of force policy outlines when a police officer is authorized to employ a reasonable level of force in order to effect an arrest or protect him or herself or another person, up to the use of deadly force.

Reasonable, of course, is a subjective term but a 1989 Supreme Court decision, Graham vs. Connor, provides police with a method to evaluate reasonable use of force.

What is deemed reasonable? Basically, what any other typical officer would have done under a similar set of circumstances with the knowledge the officer had the time of the incident without the benefit of hindsight. In other words, if an officer has substantial reason to believe a subject has a weapon and is likely to use it, an action taken to neutralize the ability of the subject to use that weapon is reasonable, even if it turns out later the subject didn't have a weapon.

"No policy can possibly predict every situation a police officer will face," Heubusch said. "We can't reasonably think of everything and put in a policy when there is so much judgment involved in every single action an officer takes on a daily basis."

While an officer wants to avoid or minimize the use of force, nothing in the law or policy requires an officer to retreat (unlike a civilian in a public place) in the face of a threat.

When an officer uses unreasonable force, his or her fellow officers have a duty to intervene, and a duty to report under Federal law and local policy.

"We've always had a duty to intercede in our policy," Heubusch said.

Use of force can be authorized to try and capture a fleeing criminal suspect but again, sometimes the use of force is reasonable, and sometimes it isn't. An officer wouldn't use the same force to apprehend a shoplifter that he would for a bank robber. The officer must also evaluate whether the subject is a physical threat to other people.

It's never acceptable to fire a weapon at a moving vehicle. Unlike the movies, it's rarely effective and it's a danger to others.

Deadly force is only authorized when the officer or another person is in imminent threat of death or serious injury. Imminent doesn't mean immediate, Heubusch said. 

"If you point a gun at me I don’t have to wait for that trigger to be pulled," Heubusch said. "It doesn’t matter if the gun is loaded or not. We don’t have to find out if there are actually bullets in the weapon."

Anytime any level of use of force is deployed, Heubusch said, the officers must complete a report, which is another reason officers, he said, would rather avoid the use of force if at all possible.

The report is reviewed by supervisors. The information can sometimes help identify training needs and corrective measures and in rare circumstances result in disciplinary action.

"Officers hate paperwork and when they use force, they have to report it every time they wrestle with somebody," Heubusch said.

Heubusch said the use of force reports are not public even though New York recently repealed the law, Civil Rights Law 50a, which used to make records private used to evaluation police officer performance.

The reports are apparently not aggregated into any kind of statistical table.

Committee members wanted to know more about how the police department handles complaints about the possible use of force violations, particularly what protections are in place to protect an officer who cites a possible violation by a fellow officer.

Some committee members wanted to know just how thick that "thin blue line" is that supposedly protects police officers from being reported by fellow officers.

Heubusch said the department does have a whistlerblower policy that protects employees who file complaints but also noted, it's a small department -- only 33 officers on the force -- so it's hard to remain anonymous. 

That being said, Heubusch added, "supervisors know what their job is. They are not going to put their careers on the line. It's their job and their living on the line. I think our officers are comfortable coming forward if they run into a situation. I have yet to uncover a problem of an officer reporting something to a supervisor."

Public Defender Jerry Ader

Top photo: Chief Shawn Heubusch

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A 3-percent pay raise for City School's Superintendent Anibal Soler Jr. was primarily a cost-of-living adjustment, a couple of members of the board of education told The Batavian in response to a set of emailed questions.

But not all board members responded to the request for comment.

Not responding were:

• Shawna Murphy
• Barbara Bowman
• John Reigle

Trustee Tanni Bromley provided the most detailed response.

During the annual review process, the Board approved the raise of Mr. Soler after thorough discussion during the executive session. The Board felt it was justified for a few reasons which included cost of living increase, the longevity bonus would support and promote Mr. Soler's tenure in education. And finally, the Board did feel that Mr. Soler provided a well-structured plan for our district's reopening. 

The Board always takes the public's thoughts and feelings into account when making such decisions however it is also known that our decisions will not please every community member. Our objective always remains to provide our kids with the best educational experience possible, especially during these difficult and unprecedented times. 

The board approved the raise for Soler, lifting his annual pay from $160,000 to $164,800, unanimously near the end of the same meeting where Soler outlined a looming financial crisis for the school district. The governor's office is withholding at least 20 percent of state funding because of the pandemic and that could lead to a revenue shortfall of more than $5.4 million.

The seeming incongruity of the revenue discussion and the board approving a raise for Soler was questioned by members of the local community, so The Batavian asked each board member to provide their individual reasons for approving the raise.

Board President Alice Ann Benedict first responded:

As per School law, we discuss any employee issues in executive session. We had an in-depth discussion. We then put it on the agenda under consent items and voted on the raise. It is a cost of living increase. Three percent of $160,000 is $4,800.

In an attempt to get Benedict to expand on her answer, The Batavian, in a response email, noted that state law allows elected officials to discuss personnel matters in executive session (what some call "secret session") but doesn't require personnel matters be discussed behind closed doors, nor does state law prohibit elected officials from publically discussing their thoughts on matters taken up in executive session.

In a subsequent email, Benedict said the board held a thorough, in-depth discussion about the raise in closed session.

In a follow-up, we asked Benedict about the size of the raise -- 3 percent -- when the inflation rate in 2020 has been less than 1 percent and the consumer price index in 2019 was less than 2 percent.

"We choose a combination of cost of living, merit, and equity," Benedict said. "This was all decided during a very lengthy executive session meeting." 

Peter Cecere apologized for the delayed response because of a significant family matter. He again cited that the discussion was an executive session matter:

All decisions we arrive at are done with the utmost of thought and consideration from all angles and all sides. Many times not easy and often very laborious.

Rest assured we negotiated as a group, of one voice, and consent.

In response, The Batavian again noted that as a matter of law, he is not prohibited from discussing his decision to support a raise. We got no response.

John Marucci also apologized for a delayed response, citing long hours at work, and said:

What I can tell you is that any and all decisions made by the board of education are discussed thoroughly and we come together as a group on decisions that are made. Anything that is discussed in executive session is confidential.

In response, The Batavian again informed Marucci that we were seeking his individual thoughts on the raise and that state law does not prohibit him from answering questions for the public about matters discussed in executive session. He did not respond.

As for Anibal Soler Jr., he acknowledges that the optics of the raise being approved at a meeting where he spoke about the revenue issue -- the executive session where the raise was discussed was at a prior meeting -- don't look good, but he pointed out that:

• His contract includes an annual raise;
• The board was supposed to approve a raise for him in July but Soler asked that the matter be delayed because he was busy dealing with pandemic-related issues in the district;
• Every bargaining unit in the district, the various unions, and other individual administrators have contracts that mandate annual raises. "Should I be the only one to go without a raise?" he said.

Yes, he said, the timing of the meeting, the optics, do not look good but the district, he said, is facing such a serious revenue shortfall that forgoing a $4,800 raise isn't going to fill in the hole.

He said last year he offered to skip a raise if all the other bargain units would forego their raises and the unions didn't take him up on the offer.

While the size of Genesee County's labor force shows a significant drop for August, some of this explained by normal seasonal fluctuations, says Tammy Marino, a labor analyst for the Department of Labor.

The labor force expands in the summer with students taking on jobs and for the season. This year, many college-age workers returned to campuses earlier than usual.

The August labor force for Genesee County was 29,800, down from 30,300 the month before, and down from 30,200 the year before.

Marino noted that the August number is close to the spring number. In May, the local labor force contained 29,500 workers.

There are also people who have dropped out of the labor force for various reasons, Marino said.

"There are many factors that influence people’s decision to (not) participate in the labor force," Marino said. "No child care, fear of the virus, a need to take care of a sick relative, etc. Also, long-term trends come into play here as well, a general aging of the population overall has resulted in a shrinking labor force in recent years."

There are 27,400 people with jobs living in the county, down from 29,200 a year ago. There are 2,400 people who are out of work but looking for an appropriate job, up from 1,000 a year ago.

That puts the August unemployment rate at 8.1 percent. In August of 2019, it was 3.5 percent.

Since the start of the pandemic the monthly unemployment rate has been:

• April: 14.4 percent
• May: 10.1 percent
• June: 9.5 percent
• July: 10.5 percent
• August: 8.1 percent

The September estimate has not yet been released.

Yes. I would pack the Supreme Court to save choice, marriage equality and pre-existing conditions.

Pack the hell out of it.

— Nate McMurray for Congress 2020 (@Nate_McMurray) October 8, 2020

Press release:

Congressman Chris Jacobs (NY-27) criticized his opponent Nate McMurray for supporting the radical left agenda of “packing the Supreme Court,” which refers to dramatically expanding the number of Supreme Court Justices on the bench and appointing far-left justices in all the new seats.

“Pack the hell out of it.” wrote McMurray in a recent tweet.

“This is very dangerous to the future of our democracy,” Jacobs said. “This radical left ‘packing’ effort would undermine the separation of powers and the independence of our judiciary.

“AOC, Ilhan Omar, and now Nate McMurray, will do whatever they can to force their radical agenda on the American people, even if it means destroying our core and fundamental democratic institutions. We must all denounce this radical and destructive agenda."

A rainbow in Byron yesterday. Submitted by Dan Kemp.

In Le Roy. Submitted by Angela Torcello.

An apparent serious injury accident is reported in the area of 8251 W. Bergen Road, Le Roy.

Le Roy fire and Pavilion fire dispatched.

Traffic is shut down between Randall Road and Selden Road.

UPDATE(S) (By Billie) 5:01 p.m.: A Mercy medic unit that was also dispatched to the scene is put back in service.

UPDATE 5:04 p.m.: Two vehicles are involved and two tows are requested to the scene.

UPDATE 5:41 p.m.: The road is reopened.

UPDATE 6:11 p.m.: Troopers responded to a two-vehicle accident on West Bergen Road in the Town of Le Roy. Preliminary investigation reveals that a Chevy Monte Carlo traveling northbound lost control and crossed into the southbound lane, and was T-boned by a Ford pickup truck. After extrication, the Monte Carlo operator was taken via ambulance to Strong Memorial Hospital in critical condition. The driver and a passenger in the pickup truck, which was not heavily damaged, were taken to UMMC in Batavia for evaluation. The investigation is still pending. -- From NYS Police Troop A in Batavia, Public Information Officer James O'Callahan, courtesy of Alecia Kaus, Video News Service.

Photos courtesy of Alecia Kaus, Video News Service.

In this interview, Paul Pettit, director of Health for Genesee and Orleans counties, talks about: the recent uptick in cases; the level of community spread; how things are going with the schools; the arrival of flu season; the ongoing difficulty in getting adequate testing locally; and what the future holds.

Regarding the outbreak in Elba, Pettit said:

"What we can see is there is some connection, obviously, on the social side. I do want to say we haven't seen any school spread among these different students in Elba. They're more connected on the community side. There are some different things that we're identifying as some commonality and connections with some of these cases, some of them involved in social gathering, some birthday parties, different types of events that may have lent itself, again, maybe closer contact, prolonged contact that would have potentially led to some of these transmissions."

On guidelines and restrictions:

"We're continuing to advocate daily, locally, here, especially in the rural areas, for the testing capacity or some additional relief on some of these guidelines, some of the closures and capacity issues. We do believe that there should be a little more flexibility in some of these areas, especially with low infection rates overall. So we are advocating. We are working with all of our elected officials, to push back at some of these things."

After talking about eased guidelines for doctors in clearing students to return to school, Petit brought up ongoing issues with testing:

"Ultimately, that leads us into another area which continues to be a challenge for us -- access to testing. This has not improved for us here in Genesee County or pretty much any rural county in the state. We've been beating the drums significantly since the peak in March when we started to see our first cases. Unfortunately, we still are very, very limited with our access to testing. It actually became more restrictive about a month and a half ago when our health care facilities, most of the primary care docs, started doing testing of symptomatic folks only.

"The requirements for screens for going back to college or for people to want to go visit their loved ones in the nursing home now have to have a negative test within seven days. None of our local facilities were offering those types of tests if folks weren't symptomatic. And if they were able to get them, they were getting charged a pretty significant amount. That is not appropriate. It's something that we have, I myself personally advocated for almost every day, really, for our elected officials from local all the way up to our state elected officials to continue to push the governor's office for increased free testing for our residents. I mean, it's essential the way the governor has set up these guidelines with testing requirements and the need to have negative tests for various reasons. It's not rational in that we should be able to meet these guidelines without having the testing. ...

"We have to have the ability to meet the intent of the guidelines. So we're not in violation and we're not putting pressures and challenges on our residents that they have to make choices. Do I get tested to visit a loved one or do I potentially have money to go get groceries this week? ...  

"(We) need to get rapid testing. We need it now and we are working on it. We're working at Oak Orchard, both in Orleans, Genesee County. They do have some of these testing machines and we're just waiting on the test kits antigen to be able to use them. We're also working on getting some rapid testing machines from the state that we could deploy and potentially use more broadly for some of these testing needs. But that's really key. We need to get access to this rapid testing so that we can get folks to where they need to go."

Submitted by Lynette Skelton, storm clouds roll in over Starowitz Farm in Byron.

Submitted by Lisa Ace.

Press release:

New Cases – As of 2 p.m.

• Genesee County received two new positive cases of COVID-19.
  • The new positive cases reside in Elba.
  • The positive individuals are between the ages of 0-20.
  • The individuals were not on mandatory quarantine prior to testing positive.
  • One of the previous positive individuals has recovered and has been released from isolation.
  • One of the positive individuals is hospitalized.
• Orleans County received three new positive cases of COVID-19.
  • The new positive cases reside in Albion, Gaines and Ridgeway.
  • Two of the individuals are in their 50s and one individual is in their 60s.
  • The individuals were not on mandatory quarantine prior to testing positive.
  • Seven new individuals are on precautionary quarantine due to travel from restricted states.

Alice Ann Benedict is in only her fourth month as president of the Board of Education for Batavia city schools but she's already looking to make a significant change to a board policy that she said has bothered her for a long time.

Under the previous leadership of Pat Burk, who resigned suddenly over the summer, if a member of the public came to a board meeting and asked a question, Burk would inform the speaker, "We don't answer questions from the public."

Benedict wants to provide the public with public answers to board questions.

She brought the issue to the board's attention at Monday's meeting and Superintendent Anibal Soler Jr. suggested after the board discussion that the board hold off on changing the policy until staff can formalize the language and make a recommendation.

If the board adopts Benedict's suggestion, the district will offer a form on the district's website where members of the public could ask questions of the board. If the question is submitted prior to a set deadline -- such as 5 p.m. on the Thursday before the board's Monday meeting -- then either the board president or the superintendent would prepare an answer. At the next board meeting, during the "public speaks" portion of the agenda, the question and answer would be read aloud. 

Currently, Benedict said, if a question is sent to the district, either she or Soler answer it and the board never sees the question unless Benedict forwards it to them. Benedict would like the entire board to be informed of questions from the public.

During COVID-19 restrictions, members of the public are not attending meetings but once restrictions are lifted, Benedict wants the board to have in place a policy that would allow members of the public to ask questions. If questions are submitted in advance, they will be answered at the meeting. If not, the board president or superintendent will answer the question at a subsequent meeting.

Benedict expressed concern that some people, like herself, are not "quick on their feet" when it comes to answering questions, which is why she wants a built-in delay on answering questions so there is time for research and consideration.

"I always felt like before when I was on the board, I never liked the idea that if a community member took time to come to the board to make a comment or ask a question, we would never answer," Benedict said. "We would never answer the question. That really bothered me."

At first, Trustee Shawna Murphy seemed a little confused by the suggestion, noting that the public has always been allowed to speak at meetings.  After Benedict spoke more about her idea, Murphy said, "sounds beautiful."

Soler said it usually takes two readings for the board to adopt a new policy. He said the policy should incorporate best practices for dealing with public speakers and also suggested the policy should mimic what he said other districts do, which requires public speakers to sign up to speak hours in advance of the meeting "so people can't come and disrupt the meeting."