Commissioner Mathiesen Takes On Reforming The City’s Ethics Code

Commissioner Chris Mathiesen has sent a draft of proposed changes to the city’s ethics code to the Ethics Board seeking their comments.  Much of our current code is more an honor system than a serious standard that properly protects our city.  Here are two simple examples.  As a member of the Zoning Board of Appeals, if your immediate boss were to come before you there is nothing in the code that would require you to recues yourself.  Similarly, if your next door neighbor came before you seeking a variance to build a garage on your property line, you would not be required to recues yourself.

Geoff Bornemann, Jerry Luhn, and I worked with the Commissioner on the document.

Below is the text of the document.

PROPOSED ETHICAL STANDARDS FOR LAND USE BOARD MEMBERS

with foreword

The standards proposed in this draft are somewhat more exacting than the present  guidelines and rules applicable to Ethics Board functions.  Notably, they would prompt more recusals by sitting members than current practices anticipate.  One of the realities animating this change is the fact that the City has grown, and continues to do so: we are not the insular,  small town of just twenty years ago.  Growth and prosperity bring with them a number of challenges to governing, even while foundational concerns, such as integrity and accountability, remain constant.

In this vein, recusals as appropriate — an admittedly  indefinite concept influenced by individual judgments — are a valuable tool, a complement if you will, to governing the City in ways that inspire confidence and trust.  That said, it is necessary to plan for recusals to avert undue burdens and delays in the functions of land use boards so as not to jeopardize their critical and timely functions, such as having quorums allowing them to proceed with their mandated tasks.

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The current standards set out in the City Code (Chapter 13, Code of Ethics) do not assure the strong and consistent ethical expectations that govern the conduct of various City land use board members.  In particular,  for example, standards which guide the Ethics Board’s actions should be grounded in common experience, explicit and easily understood by its members as well as by the public.  They should, at a minimum, aim to reduce ambiguities and thus the opportunities for inconsistency in the Board’s issuance of opinions intended for guidance of public officials in matters affecting land use in the City of Saratoga Springs.

Upon the assumption that the Ethics Board has inherent authority to recommend standards stronger than those presented in the existing City Code, it is proposed that the Board adopt and propose to the City Council standards that reflect the following principles.

REQUIRED RECUSAL

The board member of a City land use agency or board must publicly disclose and recuse him/herself from acting in a particular matter if:

1.  During any time (a) in the twenty-four (24) months preceding the filing of an application before that member’s board, the member has been employed by the applicant or property owner having an application before the relevant board, or (b) In the preceding six (6) months has supplied goods or services to the member including, but not limited to, professional services having an aggregate value greater than one thousand ($1,000) dollars.

2.   (a) At any time in the twelve (12) months preceding the filing of an application before that member’s board, the board member has received a personal gift, consisting of goods, services or favors having an aggregate monetary value of seventy-five ($75) dollars from the applicant or property owner; or (b) at any time following submission of an application by the applicant or the property owner to the member’s board, the member has accepted a gift of any kind from that applicant or property owner.

NOTE:  Personal gifts of any kind are likely to raise questions and suspicions among the public, other officials, competing applicants, etc.  Worst of all, gift-giving risks establishing a de facto pay-to-play threshold, however unintended.  By way of comparison, the NYS JCOPE rules allow for some token gifts in limited circumstances, but the City’s Ethics Board may advance stronger expectations, by enactment of codes of conduct.  If we know that arsenic is not good for our health, why allow even a drop to be added to the pitcher we intend to drink from?

During anytime in the past twenty-four (24) months preceding the filing of an application before that member’s board, the board member has been employed directly or indirectly (as by subcontract, for example) by any firm, architect, engineer,  surveyor, landscape architect or attorney who represents the applicantor property owner with business before the member’s board.

4.   During any time in the twenty-four (24) months preceding the filing of an application before that member’s board, the board member has employed or paid, in cash or in kind, a sum or thing of value greater than one thousand ($1,000) dollars for the services of the applicant or the property owner.

5.   During any time in the twenty-four (24) months preceding the filing of an application before that member’s board, the board member has made a financial investment of any kind having, in the aggregate, a value greater than one thousand ($1,000) dollars with the applicant or the property owner.

6.   The board member has any financial investment of any kind in the project pending before the relevant board.

7.    The board member has any ownership of property that lies within one hundred (100) feet of the property that is subject of the application.

8.    Any member of the board member’s family (e.g., spouse, domestic partner, sibling, parent, children, including children of spouse or domestic partner, grandchildren and the spouses of any of them, and any member of the individual’s household) is currently employed by the applicant with pending business before the member’s board, or any of the professionals representing the said applicant.

NOTE: This proposal is admittedly challenging. The courts in New York have wrestled with small-town/small community relationships and interpersonal familiarities where, in a manner of speaking, or literally in some cases, everybody knows everybody and one can’t hope to categorically avoid some intersections between civic business and broader social exchanges. The focus of this standard may have to be inherently flexible, erring on the side of no-reasonable-suspicions or the like. The courts tend to support each other up on the “know it when I see it” judgment calls but they too err on the side of standards that pass the straight-face test where latent conflict issues present themselves.

9. The board member is an officer or member of a financial institution that is, or is actively considering financing a project that is the subject of the application before the member’s board.

REQUIRED DISCLOSURES

The board member must publicly disclose, for the public record, at the most proximate board meeting:

1. Any ex parte communication or conversation with anyone about a pending application and reveal the date, name and substance of the information received or given.

2.   Whether the board member has any ownership of property that lies within five hundred (500) feet of the property that is subject of the application pending before the member’s board.

3.   The board member is an officer or a board member of a non-profit organization that intends to or has submitted comment on an application before the member’s board.

4. The board member is a personal friend of the applicant or any of the professionals representing the applicant having business before the board.

RECOMMENDED BEHAVIOR STANDARDS

The board member should scrupulously avoid the following kinds of actions:

1. Outside of a board meeting, land use board members should have no discussion about an application pending before their relevant board with the applicant, a person standing as his or her agent, or any of the professionals representing the applicant.

2.    Outside of a land use board meeting, the board members should have no discussion among themselves or with any individual that could lead a person of ordinary sensibilities to suspect undue influence, subterfuge, or doubt the integrity of the board members concerned about an application that is pending before that Board.

3.      Individual board members should refrain from making any public statement or publicly talk about an application that is pending before their land use board.

4.    A former land use board member may not be employed by any applicant, or by a professional representing an applicant whose application for action appears before the board, within twelve (12) months of the member’s departure from board service.

NOTE:  Even while enforcement of this is likely to pose challenges in select instances, it may serve as a vehicle for communicating the City’s expectation of openness and integrity in all realms of board functions.  Waivers may be sought through an established procedure that preseves the integrity of exceptions drawn in compelling cases.

5. Any action that would risk creating the public appearance of a lack of fairness or  impartiality regarding an application before the relevant land use board.