Some weeks ago the city put on an ethics workshop for its land use boards. Mark Schachner, who routinely consults for the city on land use law, was the instructor. Mr. Schachner is, by all accounts, one of the top attorneys in this field. His workshop was both entertaining and informative. At the end of this post is a long article by Jenny Grey describing the workshop. For me, it was great fun since it reconfirmed most of my criticisms of the land use boards.
The Planning Board and Zoning Board of Appeals members were well represented. Oddly, no one from the Design Review Commission attended.
Mr. Schachner began by discussing ex parte. Basically, the land use boards, particularly the ZBA, are to avoid any discussion regarding their respective boards’ activities outside of the regular meetings. Any information should be presented and discussed before the full bodies. Mr. Schachner was quite stern about this. He noted that it is difficult to avoid situations outside of the meetings at which parties might attempt discussion with the members of the boards. He advised them to diplomatically cut off the conversations and to urge the person to either attend a meeting or submit their questions/comments in writing. In the event it was impossible to avoid an interaction, he advised that at the earliest time, they share the information with the rest of their board members either in writing or at the next meeting.
Members of the public (other than elected officials and Ms. Grey, I was the only one who fell under this category) were not allowed to speak during the training but at the end they were allowed to ask questions. I asked two questions.
#1. I asked whether discussions about issues other than the merits of an application were ex parte. In particular I gave the example of an applicant calling the members of a board to determine whether they would be attending an upcoming meeting. Given the varying views of different members of these boards, not to mention the alternates who may be sitting on the Board on any particular night , who attends a particular meeting can very much affect a decision. Mr. Schachner could not have been clearer: ex parte extends beyond the “merits” of a particular application and it would be inappropriate to poll a member of a board regarding their attendance.
#2. I asked Mr. Schachner to define “conflict of interest” as it applied to land use board members. Mr. Schachner included in his definition of “conflict of interest” a contractual relationship between an applicant and a member of a land use board. A board member involved in a contract with an applicant must recuse themselves. He also explained that this conflict was considered to exist for twenty four months beyond the life of the contract.
The Ethics Board’s Decision on Ex Parte
As the readers of this blog know, I made a complaint to the Ethics Board over what appeared to have been an ex parte conversation between John Witt and ZBA Board member Keith Kaplan.
Subsequent to this complaint, Mr. Kaplan assured me that he had had no conversation with Mr. Witt outside of the meeting and I have accepted him at his word.
The handling of this complaint, however, by the Ethics Board was very troubling.
First of all, in an email to its chair, Justin Hogan, I asked to address the Ethics Board regarding my complaint. I was denied this opportunity by Mr. Hogan in an email that would have impressed the Soviet Politburo. I have included his email at the bottom of this post. In his email reply, rather than offering me a yes or no, he simply responded that the Ethics Board would follow its procedures. Since he did not advise me at which meeting they would take up my complaint (they call it an inquiry) I took his response as a no.
I eventually received the Ethics Board’s decision.
One of the most interesting things about this decision is that the standard used for ex parte comes from one used by the Federal Reserve. I showed this to a friend who was an attorney for a New York State Agency for many years and to another friend who was a planner for many years and who served on land use boards in our city. They both wondered the same thing. Why would the Ethics Board go so far afield for this definition? In fact, the New York State Department of State has a division on local government that is tasked with doing training for land use boards and has copious materials on their website on the issue of ex parte. In fact they have user friendly materials specifically on ethics for land use boards that include cartoons!
According to the decision by the Ethics Board “First, an ex parte conversation must be relevant to the merits [this is the Ethics Board’s emphasis] of the proceeding. Second, communications regarding the status of a proceeding are not ex parte.” Mr. Schachner, however, could not have been clearer at the training session for board members that this definition of ex parte is not consistent with New York State standards.
I regret that my friend, Tony Izzo, appeared to be the source for this definition from the Federal Reserve. When, subsequent to this decision I pointed out to him that he had ignored New York State’s standards he expressed surprise and asked me to send him information on this. I emailed him a link to the pertinent documents on the NYS Department of State website and subsequently sent the following email to Mr. Hogan.
From: John Kaufmann [email@example.com]
Sent: Tuesday, April 05, 2016 10:48 PM
To: ‘Justin Hogan’
Cc: ‘Joanne Yepsen’; Christian Mathiesen; ‘Skip Sciroco’; ‘Michele Madigan’;
Vincent DeLeonardis; tony izzo
Subject: Ex Parte
I have reviewed the decision of the Ethics Board regarding Keith Kaplan and ex parte.
I am struck by the fact that the decision is based on an interpretation of ex parte drawn from the Federal Reserve. This seems particularly odd since this is a very remote source. There is easily accessible information on this issue as it relates directly to New York State Law. The New York State Department of State which is charged with training zoning boards has extensive resources on its website. This includes training videos as well as on line pamphlets and links to the actual legal basis of ex parte.
You state in your decision that “First, an ex parte conversation must be relevant to the merits of the proceeding. Second, communications regarding the status of a proceeding are not ex parte communications.”
Last week the city did training for the land use boards on the issue of ethics. Mark Schachner, who provides specialized legal advice on land use issues for the city, did the training. Mr. Schachner focused much of his presentation on the meaning of ex parte. He made it very clear that ex parte was not limited to the merits of applications.
I have had an email exchange with Keith Kaplan in which Mr. Kaplan assured me that he had no conversations with John Witt regarding his application outside the meetings of the ZBA. I will take him at his word.
The issue then is not about a particular conversation Mr. Kaplan had with an applicant. The issue that remains and that is very troubling is that, based on the materials from the Department of State and Mr. Schachner’s training, the standard put forward in the Ethics Board’s decision leaves our city vulnerable to damaging lawsuits.
In this context I am suggesting the following:
- The board consider viewing the video made by Tony Izzo of Mr. Schachner’s training session.
- The board solicits Mr. Schachner’s counsel regarding the meaning of ex parte.
- The board redrafts the city’s Code of Ethics to lay out clearly the issue of ex parte and provide
the new language to the City Council for adoption.
It would be in the best interest of the city to have a standard of ex parte that more accurately reflects New York State standards.
Please share copies of this email with the rest of your board.
I never heard anything from Mr. Hogan, Mr. Izzo, or the board. As made very clear by the NYSDOS, ex parte is not some obscure, anachronistic issue. It is central to maintaining the integrity of the decisions of the land use boards. Regrettably, the city’s Ethics Board does not seem to share a sense of urgency about this issue.
I also received a decision regarding my complaint (inquiry) regarding Sonny Bonacio going before Tom Lewis (Planning Board) and William Moore (ZBA) having built or being in the process of building their homes.
In their opinion the Ethic Board notes that neither Mr. Moore nor Mr. Lewis had violated the city’s ethics code. The code, they note, only covers a board member hearing an application in which they have a direct financial interest. They do note that under New York State Municipal Law there are certain circumstances “in which the officer/board member is deemed to have an interest in the application sufficient to require disclosure,” but then go on to say “The list does not include situations where the officer/board member is the applicant’s customer.” So having excluded Mr. Moore and Mr. Lewis from falling under any definition of conflict of interest they then add that “The responsibility to disclose in all the situations listed falls on the applicant, not the officer/board member” and ”Disclosure, not recusal is required.” So for some reason they felt the need to document that by precedent, there is no issue in the case of Lewis and Moore.
Finally, they admit that “it is appropriate to avoid the appearance of impropriety whenever possible.” They conclude that in cases where board members “know they have made a substantial purchase of goods and/or services from the applicant before them, they should disclose that fact on the record.” So having documented that there is no requirement under municipal law nor provision in the city’s ethics code, they decide that the board member should disclose their financial connection to the applicant. Why simply disclosing the relationship is sufficient rather than recusal is never really addressed.
They also restate the city’s ethics code honor system. If a board member feels they cannot be impartial, they should recuse themselves. This is the standard used most famously by Mayor Yepsen in the case Saratoga Hospital’s expansion. I find this standard especially amusing. It, in effect, does not require recusal in cases where, by common sense, someone should be required to recuse themselves but provides for anyone to recuse themselves when it is expedient for them to do so. So if I were in partnership with John Smith to build a ten million dollar office building and he came before me on a land uses board regarding a different project of which I was not a partner I could recuse myself if I wanted to or I could vote on his/her project if I wanted to.
In effect, our city operates largely on an honor code for land use board members. At worst, they must disclose a financial connection and still vote. If they know in their heart that they are untainted by whatever favors an applicant may have or is planning on bestowing on them, they may hear the case and vote on it. The fact that Sonny Bonacio was building Tom Lewis’s home or had recently built William Moore’s home would not preclude a member from hearing the case according to the Ethics Board. I guess it is helpful to know that a board member is in a compromising position when they vote for an applicant.
But What About Schachner’s Training?
Mr. Schachner, in his training, made clear he did not view conflict of interest as restrictively as the Ethics Board.
As noted above, at Mr. Schachner’s training I had specifically cited a hypothetical case in which a board member was having a house built for them by an applicant coming before them. Mr. Schachner was clear that they should recuse themselves. In addition he had included a twenty-four month waiting period subsequent to the end of the contract associated with such a project.
Elated by Mr. Schachner’s advice, I sought its legal basis. I could find nothing in the City’s Code of Ethics that seemed to say this and using my own meager knowledge of the law, I attempted to find the basis for this standard with no luck.
I reviewed the video and confirmed that this is what Mr. Schachner had said. In fact, Jenny Grey’s story included this.
Since I do not work for the city, I could not ask Mr. Schachner for the legal source of his opinion so I emailed Tony Izzo asking if he would contact Mr. Schachner on this. Tony had attended the training and he is the attorney that supports both the ZBA and the Planning Board. An innocent would expect that Tony would be as interested in finding this out as I was since, if true, Mr. Lewis and Mr. Moore would compromise any deliberations regarding Mr. Bonacio’s applications. Several emails to Tony produced no response. I subsequently ran into him at City Hall. He was apologetic about not getting back to me and said he was not clear on what it was that I was seeking. He offered to call me, which he subsequently did. We talked about it. He said that Mr. Schachner was having some sort of oral surgery so there might be some delay. I subsequently emailed Tony two additional times but to date (three weeks) I have heard nothing.
All of this is to say that the state of the city’s Ethics Board is deeply troubling. It is symptomatic of the problem that Mr. Hogan, its chair, works for a firm that specializes in lobbying and public relations. I leave it to the readers as to the significance and meaning of the fact that he was originally appointed chair by Republican City Mayor Scott Johnson and reappointed by Democratic Mayor Joanne Yepsen.
Email Exchange With Justin Hogan, Ethics Board Chair
On Mar 15, 2016, at 6:11 PM, John Kaufmann <firstname.lastname@example.org> wrote:
I would like to address the board.
From: Justin Hogan [mailto:email@example.com]
Sent: Tuesday, March 15, 2016 7:09 PM
To: John Kaufmann
Cc: Brendan Chudy; Courtneydeleonardis@yahoo.com; John Ellis; Marilyn Rivers; Tony Izzo; Trish Bush
Subject: Re: Formal Complaint
Thank you for reaching out. As previously stated the board will review your submitted inquiry and notify you of any action taken, pursuant to the Procedures of the Board of Ethics.
If you have any further questions regarding provisions of the Code and or Procedures myself or Tony Izzo would be happy to speak with you.
From: John Kaufmann [firstname.lastname@example.org]
Sent: Wednesday, March 16, 2016 5:23 AM
To: ‘Justin Hogan’
Subject: RE: Formal Complaint
I cannot find anything in the by-laws your board that requires you to allow me to address the board.
Do I take your response as a “no” that I may not attend a meeting to address the board?
Mr. Hogan did not respond to this last email
Jenny Grey Article
Land-use boards meet for ethics training
By Jennie Grey, The Saratogian
Posted: 04/05/16, 5:34 PM EDT |
SARATOGA SPRINGS >> Members of the city’s planning board, zoning board of appeals and design review commission (DRC) met with attorney Mark Schachner March 31 to discuss guidelines for ethical and proper land-use decision-making, a tricky process in a small community where many people know one another. Many people know the boards as well.
“Board members here have been diligent, objective and responsible,” Schachner said.
The Saratoga Springs Planning Board is a seven-member citizen board appointed by the mayor to seven-year staggered terms. The city council gives the planning board independent authority to review the following development activities within city boundaries: subdivision review, soil erosion and sediment control, floodplain variances, site plan review and special use permits.
The Saratoga Springs Zoning Board of Appeals is a quasi-judicial seven-member citizen board also appointed by the mayor to seven-year staggered terms. State regulations require communities to have a zoning board of appeals to review the following types of requests for waivers from any of the regulations in the zoning ordinance: area variances, use variances and interpretations.
The Saratoga Springs Design Review Commission is a seven-member citizen board appointed by the mayor to five-year staggered terms. The city council gives the DRC independent authority to review the following development activities within city boundaries: historic review and architectural review.
Alongside the board members, Mayor Joanne Yepsen, Public Safety Commissioner Christian Mathiesen and most of the planning staff attended the session. So did Saratoga Springs Politics blogger John Kaufmann, who often writes about land-use controversies.
Schachner, the senior principal attorney at Miller, Mannix, Schachner and Hafner of Glens Falls, is Saratoga Springs’ planning/zoning counsel.
“Members of the land-use boards here have the city’s ethics code to follow, as well as the more user-friendly ethics guide,” Schachner said. “Some rules are hard and fast; black or white — and some rules are soft and gray.”
He presented the general principles members should follow: All information must be presented and reviewed at open public meetings. Officials should be objective and unbiased. Decisions should be made on the merits of the application, regardless of who were applicants, proponents or opponents.
“You need to review the same way whether the applicant is Mother Theresa or Jack the Ripper,” he said.
Maintain integrity, he added. Avoid conflicts of interest and appearances of impropriety. Seek more than just minimal compliance. Know what is permissible as well.
“Four board members are allowed to go out to eat together if they don’t do the budget while they’re in the restaurant,” Schachner said.
When in doubt, board members should err toward disclosure and recusal, the act of removing one’s self from review of a compromising application. In Saratoga Springs, the recused member physically leaves the council room as well as the conference table, and waits outside the door to be called in on the next application.
Automatic recusals come when financial incentives or involvements are at stake. If a board member has been in a contractual relationship with an applicant — say the applicant is the board member’s roofer; or the board member is the applicant’s stock broker — in the past 24 months, the member must recuse himself. If an applicant is a board member’s boss, the member should recuse himself.
If an applicant is a board member’s brother-in-law, the board member should likewise recuse himself from the review.
Schachner said, “I once heard a board member in a rural community say, ‘This is my sister’s application. I can’t stand her. I’m going to be completely objective.”
Being too much against an applicant is obviously just as bad as being too much for him.
If the applicant is a coworker, the board member should probably recuse himself from the review. They might work in different departments and never interact; possibly the board member could be objective.
If the applicant went to nursery school with a board member, but the two haven’t seen one another since, the board member can probably participate with the review.
Schachner emphasized that if a board member is in doubt over what best to do, that points to the decision of recusal.
“Disclosing the relationship with the applicant is healthy, open and aboveboard for the member,” he said.
Other shady areas include ex-parte communications, from a Latin phrase meaning “by one party.” A board member should not meet or communicate by telephone, text or email alone with applicants, agents, proponents, opponents or fellow members about matters to be considered by the board. Such matters must be discussed in open meetings with all the board present.
Another issue Saratoga Springs has recently tackled is alternate board members. Yepsen has appointed enough alternates so that the boards can carry on if members are absent or in recusal.
Schachner said, “I’ve seen some boards paralyzed by members being absent. I believe using alternates is a very good idea.”
“We are working out rules for all three boards’ alternate members, to be consistent,” said Bradley Birge, the city’s administrator of planning and economic development.
The mayor said she would like the city council to approve these rules and then write them into city law.