Ethics Board: Not Tone Deaf; Just Plain Deaf

[JK:Both courtesy and  protocol required that that those of us working to improve the city’s ethics code ask for input from the city’s Ethics Board before seeking action by the City Council.

Cynical as I can be about our public institutions, even I was not prepared for the unabashed indifference the Ethics Board showed the public who had come out on a cold night to hear their deliberations on the proposed changes.  Emblematic of this was the Ethics Board’s decision to dispense with microphones and audio equipment which would have allowed them to be heard by the citizens in the audience. (The acoustics in the council chambers are notoriously poor).  There were no name plaques to identify the members of the board nor any introductions.  For all intents and purposes the chair never really acknowledged the presence of the public.

There was no public comment period.  Most strikingly the committee never engaged the authors who were present about the proposed amendments.

Still, it was necessary to have gone through this step before approaching the City Council which has the actual authority to act on the proposed changes.]

Below is Joseph Levy’s wonderfully acerbic report on the meeting.

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Meeting of the Bored [JK: Didn’t want anyone to miss this]

By Joseph Levy

I took John’s advice and skipped a rerun of “The Simpsons” to attend the January meeting of the city’s Ethics Board, which convened at 5:30PM, January 12th, in the City Council chambers. The major topic was a continuation of its discussion of the proposed reforms drafted by Your Faithful Blogger, John Kaufmann, attorney Jerry Luhn who is retired from New York State service, former City Planner Geoff Bornemann, and its sponsor, Public Safety Commissioner Chris Mathiesen. In a way, it felt as if the December meeting had briefly adjourned and was just reconvening following a break for beer and sandwiches. This was underscored by Board members arriving seemingly aware of the agenda and, with a few exceptions, unarmed with fresh insights.

Members in attendance 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 principals of Saratoga Casino Hotel, formerly the Racino and before that, Saratoga Harness.

Brendan Chudy – Director of the Legal Department at Global Foundries in Malta.

Marilyn Rivers – Director of Risk and Safety in the Saratoga Springs Accounts Department.

John Ellis – who currently works for the Civil Service Employees Association (CSEA), has served on the Saratoga Springs Board of Education and previously worked for the Ballston Spa School System for 21 years.

Also present was Tony Izzo, the Assistant City Attorney.

As before, there were no identifying plaques, no microphones, and no opportunity for audience members to participate in this public meeting. In fact the only acknowledgment of the eight people in the gallery was a comment by one of the members that, apparently, for the first time in its history the board was outnumbered by the public.

While Mr. Hogan opened by saying that the principal business was to discuss the draft reform proposal, he never mentioned the authors or sponsor by name.

Mr. Izzo reported conducting a random online search and looking at codes from across the country, mentioning San Antonio and Miami by name. Those cities, among others, all had ethics codes that applied to every board and department and not restricted to a particular municipal group, such as the land use boards, the specific area of interest here. When queried, he said that he could find no separate ethics code from any comparable city in New York State, but would continue to research this point. In the end, he said that the concept of a code which was limited in its application to certain named boards (land use, in this case), but not as a blanket code for all municipal entities, appeared to be without precedent.

Mr. Izzo also mentioned that while the draft proposal was principally written to cover the city’s three major land boards – the Zoning Board of Appeals, the Planning Board, and the Design Review Board — other panels, such as the Special Assessment Board, occasionally took on issues that also dealt with that general area.

Mr. Hogan asked somewhat rhetorically, “Is there an issue to be fixed?” and wondered aloud what exactly prompted the need for such a proposal in the first place. Though several audience members were likely prepared to answer, without a format that invited their participation, the question was left hanging awkwardly in midair. It bears noting that the same question was raised in a similar manner at the Board’s first meeting on this subject, so for all appearances, it looked like little headway was made in answering the Chair’s own question.

The heart of the discussion which followed involved revisiting the four main concepts within the proposal, as Mr. Izzo saw them, modified by recent revisions submitted by the original authors. He then produced copies of the existing code and, at Mr. Chudy’s request, a line-by-line search ensued to seek out elements of the proposal which were already incorporated into the existing municipal code. To some extent, it was an exercise in “compare and contrast.” A few examples:

• Ms. Rivers pointed out that the existing clause regarding gifts between parties to an application and members of the board reviewing same, was actually stricter in its current wording and expressed support for retaining it in its current form. It seemed like there was at least some interest in maintaining a strong code.

 

• Mr. Izzo introduced a refined definition of the phrase ex parte, which in this context references inappropriate communication between an applicant and a board member outside of the formal meeting setting. He suggested that for a communication to cross the line, it must “substantively relate to the merits of an application” before a board and that currently there is no provision to address this issue. There was also some discussion about how one might prove that such communication actually took place. Parroting Mr. Hogan’s earlier question, Mr. Chudy wondered aloud what issue was out there that needed fixing and said, in effect, that just because there have been a few complaints, it didn’t mean there was a real problem. However, Mr. Hogan responded by saying that there may be some basis for certain allegations along these lines.

 

Mr. Izzo then asked what, in parliamentary terms, does the relevant board do with a public disclosure that is followed by the recusal of a member, saying that the present code has sparse language or guidance on this point.

 

• The concept of defining how far from a proposed project a board member had to have a property interest before a conflict arose (for example, 100 feet), was analogized in the proposal to that of defining the speed limit on a road — it could be 30 mph or 31 mph, but at some point the line had to be drawn. Mr. Hogan said that he was mystified by the analogy and seemed to mock the entire concept of defining a specific distance before recusal on the part of a board member was necessary.

 

• Returning to the current ethics code, Mr. Chudy felt that the existing “private interest” clause regarding ethical conflicts already covered much of the ground which the draft tried to define in greater detail, such as the last point, above.

 

As the meeting continued, diving deeper and deeper into the minutiae of the draft, I couldn’t help but feel that the members, especially Mr. Hogan and Mr. Chudy, regarded the reform proposal as if it were a party crasher, albeit one whom everyone knew and who nobody really had the nerve to escort to the door.

The discussion continued along these lines until about 6:45, at which point people started arriving for the Planning Board’s meeting, which was scheduled to begin at 7PM in the same chambers. With a few apparently unrelated items yet to be covered, the Ethics Board retired to Mr. Izzo’s office at 6:55 to convene in executive session without indicating how they might proceed with the draft and we called it a night, looking forward to some comic relief on “the tele.”