Nothing On The Tele? How About An Evening With The Ethics Board?

On Thursday, January 12th the Ethics Board will be meeting to discuss proposed changes to the city’s ethics code.  They will meet in the Council chambers in city hall at 5:30PM.  According to the posted agenda, it will be the first item of business.

This is a link to the proposal: proposed-ethical-standards-for-land-use-board-members

Here is an overview of the issues:

To: Justin Hogan and Members of Ethic Board

From: Chris Mathiesen, Geoff Bornemann, Jerry Luhn, John Kaufmann

Date: January 2, 2017

Subject: Revising Ethics Code
Mr. Hogan, please share this email with the members of your Board in preparation for the meeting now scheduled for January 12, 2017.

There were a number of issues raised at your December 12, 2016 meeting that were thought provoking. We would like to share with you and other members of the Ethics Board some comments and recommendations on those items that might prove helpful with your deliberation leading to  an advisory opinion for Commissioner Mathieson and other members of the Council you serve.

Purpose/Intent

We drafted suggested amendments to the City’s existing Ethics Code with a number of issues in mind. As we see it, the regulatory goal should be to provide the most clear and concise ethical standards in order to minimize the risk of compromising the credibility and effectiveness of our land use boards.

First, we acknowledge the impossibility of establishing clear and simple rules applicable to all situations land use board members are expected to face. Given this reality, a reasonable strategy is simply to establish clear codes where possible, assuming that the tenor of articulated standards will help influence conduct in related but unspecified transactions.

There will still remain the need for a broader statement of expectations, and it will be the responsibility of the Ethics Board to exercise its collective wisdom in assessing complaints brought before it that are not as plainly stipulated in the governing Code.

Second, we were mindful of the critical need for land use boards to maintain quorums to carry out their business. In order to carry out their duties, the boards must maintain a sufficient pool of active members at their meetings to remain effective.  Put otherwise, our municipal codes must not be so restrictive as to present a functional impediment to achieving quorums and serving the public mandate.

Would the Proposed Changes Adversely Affect the Ability of the Boards to Function?

For the passage of any motion, a majority is required and, in the case of our land use boards, a majority means the vote of at least four active members and not simply a majority of those present. Fortunately, informed by experience, the City has established the use of alternates on our land use boards. Each board now has a regular membership of seven, with two alternates.

With that architecture in mind, we believe that it is simply unreasonable to assume that proceedings convened to address any given proposal would be likely to suffer from mandated recusals sufficient to leave a given board unable to transact its business. It bears noting that one of our proposal authors is Geoff Bornemann, who served as City Planner for 22 years. Few people are more familiar with the makeup of our boards or more qualified to assess the impact of our codes on participation and effectiveness.

Would the New Standards Make Finding Qualified People To Serve a Problem?

The success of our City is rooted in its extraordinary, civic-minded citizenry. There is simply no shortage of persons interested in serving on these boards who possess the array of skills, work experience, and education that would aid such service. We are also fortunate in that the New York State Department of State and the annual conference of the Saratoga County Planning Board have extensive resources devoted to training land use boards. In addition to online tutorials and reference materials, they provide direct training as well.

Added to the above, our boards are supported by professional staff from the Planning Department who attend all of the meetings and seminars providing technical support and research.  The Planning Board and the Zoning Board of Appeals even have a land use attorney at every meeting held. This near-comprehensive professional and logistical support provides extraordinary assurance that, once in motion, applications and proceedings are guided appropriately and consistent with articulated public goals.

Addressing Issues Raised By Members of the Ethics Board.

Several members of the board questioned what they suggested are the arbitrary nature of some elements of our proposed amendments. In particular, they noted the requirement that a board member with property within one hundred feet of a project under review would need to recuse. They asked “why not one hundred and three, one hundred and fifteen…?”

We acknowledge the challenges that inhere with specifics in measures like these. Such problems are not unique to ethics codes, but are not sound reasons to dispense with standards. One might ask why a speed limit is set at thirty miles per hour within the City limits. Why not set it at thirty-one or thirty-three?  To borrow from legal realms, reasonable minds may disagree about any given foundation for a posted speed limit, but few would argue for not having one.

Our approach was to take the conservative approach. We asked what would be a number that any reasonable person would agree would potentially impact their property. We believe that anyone considering this in good faith would concede that a change in a property within one hundred feet of their home or business could impact their property in a way that they might not like, and that it would therefore impact upon their personal or familial interests.  It is that kind of realization that begs the question addressed by this proposed amendment.

How Would These New Codes Be Enforced?

Several Ethics Board members expressed doubts as to the enforceability of these new codes. This seemed to us a misplaced concern. The Ethics Board is comprised of volunteer appointees; it has no enforcement powers — or mandate — and no disciplinary authority. Paradoxically, its strength is as a public advisory body to the City Commissioners. Its members would handle the additional provisions we are recommending in the same way they handle the current ones.

Addressing the Tougher Issues

A member of the Ethics Board expressed concern that the list of very specific conflicts could imply that no other possible conflict might exist: that specifying certain conduct or practices as prohibited means that any not specified are therefore excluded from the Code’s reach. As noted at the beginning of this paper, where possible it is helpful to be clear and concise on specifics, but we had no wish to recreate something akin to the Internal Revenue Code. Accordingly, we have crafted the following language to establish that many other conflicts may exist prompting recusal:

A Board member shall recuse him/her self if their action creates the appearance of a lack of fairness or impartiality regarding an application.

As a way of understanding the intent of this language, consider the following. The current Code requires recusal if a member of one’s family came before the land use board with an application. What if an applicant had been divorced from a member of the board?

A reasonable person would consider the real possibility that the board member in question would have trouble being objective. Currently, the board member may recuse him/herself were they to advise the chair that they felt they could not be objective. We have put this language in because the Ethics Board would have an affirmative responsibility to issue an advisory opinion responsive to the circumstances presented, a classic guidance function for the City board concerned. The issue is not how a member of a board feels about their relationship with an applicant; rather, the actual issue is whether their ruling on a particular applicants proposal would create the appearance of a conflict, and therefore diminish public trust in that critical agency’s functions.

It is assumed that in thorny issues like this, the collective wisdom of the Ethics Board would lead to a fair determination worthy of the public trust. It is possible that some members might think there was no conflict, or would want to consider how long it has been since the divorce transpired, or whether property disputes were involved. The assumption is that as a body, they would consider all the factors and that as a body they would make a wise and transparently fair decision.

It is also important to note that new land use board members go through rigorous training in preparation to serve. This training includes ethics. It is the responsibility of the City Council to insure that relevant and sufficient resources for training are provided. It is also Important to note that with the authority of serving on a board goes personal responsibility to carry out that responsibility properly. It should be axiomatic that the responsibility of the Ethics Board is to establish an effective code and to examine allegations of violations. It is the responsibility of the people who serve our City to know what is expected of them.

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