Ethics Board Takes up Proposed Amendments to City’s Ethics Code…Kind of

By Joseph Levy

[This blogger was unable to attend this Ethics Board meeting.  Joseph Levy was kind enough to attend and this is his report regarding the proceedings.]

On Thursday, December 8th the Ethics Board met.  Present were:

Justin Hogan, Chairman – Mr. Hogan is in charge of “Government Relations” with the law firm and lobbying organization Featherstonehaugh, Wiley, and Clyne.  Mr. Featherstonehaugh is one of the principle owners of Saratoga Gaming and Hotel (previously the Racino).

Brendan Chudy – Director of the Legal Department at Global Foundries

Marilyn Rivers –  Director of Risk and Safety in the city’s Accounts Department

John Ellis – He currently works for the Civil Service Employees Association (CSEA).  He has served on the Saratoga Springs Board of Education and worked for the Ballston Spa School System for twenty-one years.

Also present were Tony Izzo, the assistant City Attorney, and Micelle Groce who serves as executive assistant to Vince DeLeonardis, the City Attorney.

Three members of the public attended the meeting including Jerry Luhn, one of the authors of the proposed revisions to the Ethics Code.  Mr. Luhn recently retired from the State of New York.  [JK: I first met Jerry when he was the director of Legal Aid for Saratoga County.] In addition, Joseph Levy, most recently a candidate for the New York State Senate on the Green Party Line attended as well as  Commissioner Mathiesen (whose arrival at 5:30 coincided with the erroneous posting of the meeting start time on the city website.)

While the public was entitled to sit in under the New York State Open Meetings Law (and did, as just noted), this Board took no note of the public’s attendance, nor did they introduce themselves prior to commencing discussion.

Mr. Hogan complained that the Ethics Board’s website links weren’t working properly, that the 2015 Annual Report had yet to be posted, and that there were tardy replies to email communications.  In particular, Mr. Hogan complained about a several-weeks’ delay in his receipt of the ethics reform proposal before the Board that evening, noting that such failures make them look bad.  Mr. Izzo assumed responsibility for the lapse and promised to remedy the web-related problems.

Conspicuously missing from Mr. Hogan’s complaints was the fact that the time of the meeting was inaccurately posted on the city website.  He had been advised of the error but apparently took no action to correct it.

The Board immediately turned to the sole public issue before it: a proposal to strengthen the City’s Ethics Code, sponsored by Commissioner Mathiesen in consultation with former City Planner Geoff Bornemann, attorney Jerry Luhn, and John Kaufmann.

Mr. Izzo distributed copies of the proposal, as well as notes that he had written about it, to Board members. He informed the Board that the draft proposal applied specifically to the three land use boards:  zoning, planning, and design review.  (Note: there are a number of City boards in addition to those focusing on land use issues.)  Referencing the draft proposal [see previous post] Mr. Izzo summarized what he viewed as the principal points to be considered, including a novel (and unverified) concern:  contrasting the ethical responsibilities and/or potential liabilities of paid City employees with those — if any — of unpaid citizen volunteers serving City agencies.

Mr. Izzo capped his briefing on this point with two related assessments:  (a) in its present form, the municipal Code of Ethics applies generally to all City boards; and (b) the Ethics Board has discretion to narrowly recommend measures to the Commissioners, such as limiting certain ethics rules exclusively to land use boards.

Questions seemed to abound regarding the what-ifs of an enhanced Code of Ethics — a more muscular one, if you will — which the Board was plainly not prepared to address at its December 8 meeting:

*  Mr. Hogan asked: Are other municipalities pursuing ethics code reforms?  (The answer is unknown, so Mr. Izzo committed himself to find out.)

*  Where is the line separating affirmative obligations of board members to simply disclose a potential conflict of interest, without recusal, versus circumstances which compel recusal?  [JK: An excellent question which Mr. Hogan might have asked when he assumed the chair of this committee some years ago.]

*  What is the remedy for material violations of the Code revealed after a given project begins — e.g., after the concrete footings are poured or the building is razed? [JK: Another excellent queston]

*  How should the City address ethical questions presented when an officer of a financial institution having a potential stake in a project proposal also sits on a relevant municipal board? Per Ms. Rivers, “it’s not academic” — it is a real and recurrent issue.

Other questions persisted, some plainly hostile to the very idea of reform.  For example, Mr. Chudy appeared to suggest that drafting rules to cure past ills or abuses “is a bottomless pit” —  a logic that would preclude nearly all forms of remedial legislation and rulemaking; that the proposed ex parte communication rules might include “see ya tomorrow!” and thus ensnare the unwary; and that creating a “checklist” approach to proscribed activity would just create “more problems that we did not anticipate”, such as by exempting from enforcement all actions not itemized.  Unfortunately, the initial responses of some Board members appeared to ignore  a verity of reform rule making:  you have to start somewhere, and build on experience.  If the City were that cautious with issuance of its permits, we’d still have the great hotels.  [JK:There is a certain irony that someone who is the director of the legal department at Global Foundries would find these issues vexing].

Addressing the proposed ex parte communication rule, Ms. Rivers simply noted the need to define what is being proposed, given that, in her estimation, “all kinds of people all over town talk about projects.”  Mr Izzo took that into account and appeared to endorse clarification of the proposal.  [JK: The Department of State that trains land use boards has extensive materials on ex parte and both Mr. Hogan and Mr. Izzo received emails with links to these months ago].

Working toward a wrap of the meeting, Mr. Izzo posed the broad question:  “is there anything in this proposal worth considering?” The responses were mixed, with Mr. Hogan appearing to commence answering in the negative and Ms. Rivers answering in the affirmative.  Mr. Chudy complained that he does not favor “an academic exercise” if “we can’t affirmatively make people behave in certain ways”, a task that, he declared, would be difficult and “disruptive”.  He was joined by the Chair who mocked a particular [100-foot] provision pertaining to recusals, asking rhetorically, “why not 103 feet?”  (In fairness, many regulatory guidelines have elements of arbitrariness — as do posted speed limits, DWI laws, and ages for marriage and voting.)

In the end, it was decided that Mr. Izzo would research the ethics policies and initiatives of other cities, and that the Ethics Board members would read and consider the reform proposal over the next few weeks.  It was agreed to invite public comments — and likely debate among Board members and others present — at the next meeting, which is scheduled for Thursday, January 12th, at 5:30PM.

Commissioner Mathiesen, Jerry Luhn and I were then asked to adjourn to the hall while the board met in executive session. After five minutes, we were invited back in and the meeting was formally adjourned without further discussion at 6:20PM.

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