Blogger Files Complaint With City Ethics Board Re: Moore and Lewis

I decided to follow-up on the recent Times Union article that focused on Tom Lewis, member of the Saratoga Springs Planning Board, and William Moore, chair of the Saratoga Springs Zoning Board of Appeals regarding  issues of recusal.

I contacted the chair of the city’s Ethics Board to better understand what the standards for recusal are for Saratoga Springs land use board members.

Justin Hogan is the Ethics Board chair.  Here is a link to his biography from the website of J Strategies Link To Bio where he is employed.  J Strategies appears to be a hybrid public relations/lobbying/media consulting firm.  For a number of years Mr. Hogan worked for the New York Senate “members’ services” office.  Both the Democratic New York State Assembly and the Republican dominated Senate have these offices.  It is common knowledge that these two offices basically are political operations meant to help elect the members.  They sail very close to the wind so to speak.  Mr. Hogan was also the political director for Republican Jeanine Pirro’s 2006 failed campaign for Attorney General.  Back in 2004 he was field director for the Bush/Cheney campaign in West Virginia and the head of media operations for the Republican convention that year.  Most recently, and before taking his current job, he was Director of Development for the Rockefeller College of Public Affairs & Policy at the University at Albany.

Lest my Republican friends think I am going after them, J Strategies president, Jaime Venditti was an analyst for Democratic Speaker Sheldon Silver.  Following that she was “the Vice President of a Central New York government affairs firm where she oversaw the management of all clients. Jaime was responsible for all client media campaigns ranging from media tours, event planning, press conferences, editorial boards, and media placement. In addition, she managed the firm’s lobbying, legislative affairs and public relations efforts for many of the firm’s corporate and not-for-profit clients.”

There is nothing partisan about J Strategies…

Mr. Hogan was originally appointed as chair of the Ethics Board by Mayor Scott Johnson in 2009.  Most recently he was reappointed by Mayor Joanne Yepsen.

On Wednesday, January 27 I spoke with Mr. Hogan on the phone.  As you might expect he is quite affable but trying to clarify the city’s ethics codes was something of a challenge.  I was able to clarify a very few things.  First, the Ethics Board’s opinions are only advice.  The board has no enforcement authority.  Second, they have subpoena power but it has never been used.

When I tried to clarify if there were circumstances in which the appearance of a lack of impartiality would require recusal I found myself in a verbal maze with Mr. Hogan.  When I raised the question about whether a board member would have to recuse themselves if their best friend appeared before them, he responded about how it is a small town and everyone knows everyone, and in the famous words of Jerry Seinfeld: yada yada yada.  So I asked him what he would do if he were on a board and his best friend came before that board.  I never could get an answer.  As for the issue of Tom Lewis, his house that Sonny Bonacio is building, and Bonacio’s appearances before the board that Lewis is on, Mr. Hogan’s first response was that we lacked the facts.  I pointed out that it was unlikely that we would be able to determine whether Bonacio had done anything special for Mr. Lewis.  I also noted to him, as proof of the “appearance” of a potential lack of impartiality, the front page story in the Times Union.  He then indicated that the only way he would answer that question was if it was formally submitted to the Ethics Board.

So Wednesday, January 27th I formally submitted the appropriate inquiry form to his board regarding Tom Lewis and William Moore.  This will at least clarify for me and for the public whether these cases involving Lewis’ and Moore’s refusal to recuse themselves have violated the city’s ethic code.

Subsequent to our conversation I received the following email from Mr. Hogan:

From:      Justin Hogan [justahogan@yahoo.com]

Sent:       Wednesday, January 27, 2016 2:06 PM

To:          John Kaufmann

Subject:  Re: Board of Ethics

Mr. Kaufmann,

To follow up on your question regarding the code of ethics and the conduct of City employees and officers please see section 13-3 B. (d), http://www.saratoga-springs.org/DocumentCenter/Home/View/3948. I have also pasted the section below. Please let

me know if there is any further information I can provide or if you have any more general

questions about the ethics board and procedures.

Sincerely,

Justin

(d) The foregoing City officers and employees are listed due to the unique nature of their offices and positions which, in turn, raise ethical conflicts unique to those offices and positions. This list is not to be deemed all-inclusive. Every City officer and employee shall endeavor to pursue a course of conduct consistent with the spirit of this Chapter as well as the actual provisions and strive to act so as not to raise suspicion among the public that he or she is likely [my emphasis] to be engaged in activities that are in violation of his or her trust.

====================================================================

The standard seems to be that one must show that the person is “likely to be engaged in activities that are in violation of his or her trust.”  Proving “likely” would seem to be an unnecessarily high hurdle to get over.

I know that it is difficult to draw the line at what point one’s closeness to another person becomes a problem.  I am reminded of the problem the legal community had in dealing with the outlawing of pornography.  I know that one wag put it well when they said, “I do not know how to define pornography but I know it when I see it.”  I would say the same about the appearance of a lack of impartiality.

7 thoughts on “Blogger Files Complaint With City Ethics Board Re: Moore and Lewis”

  1. A referral to the ethics board is a good way to go. Meanwhile, I’ll take another shot at this.

    Deciding when it is appropriate for a city officer or employee to recuse requires a thorough understanding of the city’s ethics code, which is based on a template that is used in many cities across the state. In a nutshell, recusal is required if a decision could FINANCIALLY benefit the official, a family member, or someone with certain defined business relationships. Each decision is very fact-dependent, and should not be made casually. On the other hand, recusal when not required is a bad thing. And it can be very hard to know where the line is.

    The official should not recuse simply because a decision involves a friend. Why? That’s a long conversation. But here are a few points that come to mind.

    Who’s a friend? And who decides? Is it someone you grew up with? Someone you work with, but don’t spend time with outside work? Your neighbor, with whom you chat occasionally about tulips? If you keep following this curve, pretty soon you find out you’re friends with just about everybody.

    Then, what kind of potential benefit would your decision confer upon your soul mate – or poker buddy – or fellow dog walker? Again, the ethics code focuses on financial benefits – and for good reason. We want to make sure our government makes decisions in the public interest, not to put money in the pockets of a favored few. But should the notion of benefit extend to anything that could make your fellow dog walker smile? Like, say, a variance to let him put a tool shed in his back yard a few feet closer to the fence than the setback requirements of the zoning ordinance?

    Mr. Hogan was right on when he said this is a small town. The point is, as an elected official, employee or member of a board or committee, you have a fair chance of dealing with people you know. A liberal recusal policy could regularly result in a change in the voting balance of a public body. And most times that just isn’t necessary. Officials should disclose any relationship they might have with people closely affected by an issue under their consideration. That would alert people who might be concerned about ethics to a possible financial connection. But recusing when not necessary could reasonably be seen as an abdication of official responsibility.

    The assumption that seems to underlie the notion that an official should not participate in a decision affecting a friend is that people simply can’t be trusted to expect their friends to obey the law. What kinds of friends are those? Trying to think of good analogies. If my friend worked at the DMV, would I expect him not to charge me to renew my registration? If I get a parking ticket, do I expect my friend in Public Safety to throw it out?

    We elect people – who in turn appoint people – to take the job of government seriously. We should expect them to actively participate in decisions on matters that come before them, and to do what’s right – and not just when their decisions affect people they don’t know.

    Liked by 2 people

    1. I couldn’t agree more with Mr. Fenton.
      Interestingly, his post points out why the recusals by the Mayor and Accounts Commissioner on the Hospital PUD issue beat further scrutiny.

      Liked by 2 people

  2. I have not served on the Ethics Committee. I am, however, trained in value theory (rather than, say, political science). Fenton states that “recusal is required if a decision could FINANCIALLY benefit the official, a family member, or someone with certain defined business relationships.” A contract to build a home is certainly “a defined business relationship.” As a conditional verb, “could” covers every case where there is a possibility of financial benefit. Anybody who has built a home knows that the original contract is a starting point for discussion and is frequently amended. “Could” an official in the process of building a home or seeking bids financially benefit by approving her/his contractor’s re-zonings or variances for other projects? To a reasonable person, it is clear that they could so benefit. Therefore, recusal is warranted. One does not have to have a direct financial benefit for a quid pro quo situation to exist.

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    1. My discussion was limited to the question whether an official should recuse if a matter before him involved a friend. My reference to defined business relationships was shorthand for the actual, lengthier wording of the code, which see. Issues involving financial or contractual relationships can be seen in different ways by different people, even experts. There is no doubt that it is illegal for an official to receive a gift in exchange for an official decision favoring the giver. But it can take some research and discussion to determine what situations, in which a relationship merely presents an opportunity for an illegal gift, warrant recusal. Because they are difficult and fact-dependent decisions, it’s hard to generalize. Officials should always seek the advice of the ethics board.

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