I met this evening (Monday February 1) with the Ethics Board. They allowed me to submit my statement prior to the executive session at which they would discuss my allegations. The following was my statement.
Statement To The Saratoga Springs Ethics Board
February 1, 2016
In my conversation with Justin Hogan, the chair of the Ethics Board, I was unable to clarify the issue of whether the appearance of a lack of impartiality could require a member of a land use board to recuse themselves. It appeared that the only way to address the issue was to bring a concrete example to the Ethics Board for their consideration.
In the case of both Tom Lewis and William Moore, Bonacio Construction is building the former’s home and recently completed work building the latter’s home.
I believe that both these men should have and should in the future recuse themselves from matters involving Bonacio Construction because these transactions create the appearance that their respective impartiality could be compromised.
My review of the ethics code is that the only possible basis of such a recusal would be under section 13-3 B, item 1.d.
On Page 4
“(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 to be engaged in activities that are in violation of his or her trust.”
It would seem that the standard would require showing that the person is “likely to be engaged in activities that are in violation of his or her trust.” This would be a very difficult standard to establish so I come here with very low expectations that the committee will pursue the inquiry I have submitted.
My greater purpose is to demonstrate that the current standards for impartiality are inadequate.
This city should strive for the highest possible ethical standards.
Bonacio Construction regularly comes before the two boards these men sit on. The decisions these boards make can have enormous financial impacts on Bonacio Construction.
The issue as regards Mr. Moore and Mr. Lewis begins with the opaque nature of their business relationship with Bonacio Construction.
The public is unable to ascertain whether the original price that was agreed upon to build these two men’s houses involved the true cost of the construction. After all, houses are not simple commodities such as items at a hardware store where a comparison would be a simple matter. This of course assumes that these gentlemen were to make public what they have paid for their respective homes which they are not required to do.
Even assuming that it did originally reflect the true cost, if you have ever had a house built you know that the original price is usual subject to change due to the unanticipated problems attendant in construction. Some haggling over what should or should not be considered a change order and when additional fees are appropriate are common sources of conflict.
In the case of Bonacio Construction, these negotiations would take place with Bonacio Construction being acutely aware that they will be going before the boards these two men sit on. Were there to arise a conflict over the cost of the work, Bonacio Construction would have to worry that the cost of a bitter dispute over what may be a modest amount of money would be unwise given the much greater sums are at stake when Bonacio Construction appears before the land use boards.
The relationship between the customer and the builder in these cases is inherently problematic.
I offer as proof just how serious an appearance of the risk of impropriety these two cases involve, that the Times Union, the largest newspaper in the region, ran a front page story on this.
If the existing ethics code does not cover these two cases, It is my hope that the board will share my concern that they serve to undermine the public trust in our land use boards and as such our city’s code of ethics needs to be strengthened.
The executive session proceedings are by definition held outside of the public purview. While I cannot share the substance of the discussion, I can say that I felt that the board treated me with courtesy. The nature of their comments was thoughtful and probing. I felt that I was provided a serious hearing.
I have low expectations regarding any significant action regarding William Moore and Tom Lewis due to the weakness of the existing Saratoga Springs Code of Ethics. I do think that the board appeared open to reviewing the code in light of our discussion.
They will be issuing an advisory opinion and I will share it to the readers when I receive it.