Blogger Follows Ethics Board Through The Looking Glass

Every once in a while I have an experience with a public institution that is so bizarre that it challenges the sensibilities.  This usually involves an institution that is so sufficiently insulated that it feels no need for even the veneer of concern for public input.  It usually involves a display of arrogance that for some people who serve on these boards provides a perverse sense of power no matter how tiny the stage they may be playing on.

Such was my experience with the “ethics board.”  I put its name in quotes because it should not be confused with any sense of actual ethics.

I was drawn to the meeting by its published agenda.

ethics agenda
Ethics Board Agenda

As the readers of this blog know,  Jerry Luhn, Geoff Bornemann and myself working with Commissioner of Public Safety Chris Mathiesen developed an extensive set of revisions to the existing city ethics code.  The revisions were sent to the city’s Ethics Board for their comments. At a previous meeting, the board took up the document.  As is all too typical of their behavior, they did not even acknowledge that members of the public were present let alone engage the authors of the revisions who were in the audience then.  Instead they amused each other by poking fun at the document in a way that sadly exposed their resentment that anyone should have the temerity to usurp their authority.

It is worth noting that after months of failing to adhere to the Open Meetings Law’s requirements to properly notice their meetings on the city’s website, they now have not bothered to post the minutes of their meetings since December.

I arrived a few minutes late for this recent meeting. Since they were discussing what ex parte meant, an issue we dealt with in our document, I assumed they were continuing to discuss the proposed revisions we had submitted.  After all, the agenda item posted stated “Continue discussion of proposed Code of Ethics revisions regarding Land Use Boards and review legal research.”  Eventually it became clear that they were not discussing what we had submitted but instead were talking about revisions to the code offered by Assistant City Attorney Tony Izzo.

This seemed very strange since at the previous meeting there was no public discussion of anything but our proposal. The next February meeting was canceled.  So where did the request for Tony Izzo’s draft come from? (a rhetorical question).

Ex Parte is a legal term for inappropriate discussions between parties.   Tony offered them basically the same language that he had used during an earlier controversy over ZBA board member Kieth Kaplan’s apparent violation of ex parte.  Mr. Izzo used an obscure definition from the Federal Security and Exchange Commission.  The definition he used was severely limited in that improper conversations were limited to discussions “material” to an application that is, related to the specifics of that specific application.

But there are other definitions of ex parte. The New York State Department of State is charged with training land use boards about ethics in general and ex parte in particular.  It makes it very clear that members of land use boards should stop any discussion regarding an application outside of public meetings.   Why, one might ask, would attorney Izzo not use these materials in crafting his revision?

Here is a link to their pamphlet on the issue titled “Ethical Standards for Planning and Zoning Boards:  Link To Department Of State Pamphlet On Land Use Ethics

The city actually paid attorney Mark Schachner to do a workshop for land use boards last year on ethics.  Schachner could not have been clearer on the importance of board members avoiding improper discussions.  At that meeting I asked a simple question.  If an applicant to a land use board called a board member up to check whether they would be attending a meeting, would that be considered ex parte.  Schachner unequivocally stated that it would.  Such a conversation would not fall under a “material” discussion of the application but would still be considered unethical.   Attorney Izzo was at that meeting and was videotaping it.  The city has a copy of the video.  Strangely, Izzo conceded that he remembered Schachner on this but his acknowledgement bizarrely had no impact on the deliberations.

I courteously asked chair Justin Hogan if I could get clarification about “material” and was told that I would have to wait until the end of the meeting.

I then sat through the most absurd discussion of ex parte.  One board member wondered whether they should be considering what kind of penalty there should be for breaching the code.  The readers of this blog should understand that the Ethics Board has no disciplinary authority.  They simply issue opinions.  One would have thought that either Justin Hogan, who makes his living as a lobbyist specializing in government, or Tony Izzo who has thirty years experience in this would have advised her that the question was not germane.  Instead, the conversation about penalties meandered for quite some time.

Another member who is a lawyer, worried at length about the vulnerable position ex parte put board members in.  How were they to protect themselves from people coming up to them in a restaurant and launching into their opinion on an application?  Again this line of thought went on interminably while attorney Izzo failed to share with them Schachner’s explanation about how to handle situations like this.

Finally, the members of this board finished, and Justin Hogan offered to let me speak.  First I expressed concern about the vagueness of the agenda.  I told them I had come because I thought they might be continuing their discussion of Commissioner Mathiesen’s proposal.    Mr. Hogan oddly told me that the proposal had not come from Commissioner Mathiesen.  Technically he is probably correct although the document referenced Mathiesen as one of its four authors. I then tried to point out that at the last meeting they had discussed a proposal to extensively revise the existing ethics code and that the item on the agenda was written so vaguely that it was impossible to know whether they were continuing the discussion of it as the description suggested.  Mr. Hogan found this concern amusing and rejected the idea that there was any problem.

I regret that I got a little snarky and I responded that I thought that the average citizen reading this agenda would have sympathy for my confusion and I found it odd that a professional who made his living working with local governments as a consultant should find it hard to understand that there was a problem.

I then pointed out that it was troubling that the revisions that the board would be considering as drafted by attorney Izzo were not posted on the site as a supporting document.  This would have not only avoided any confusion but it would be consistent with the other boards who regularly post documents on the city website related to their agenda.  Mr. Izzo then offered that he was not sure about whether they were required to post such a document.  I asked why, if they were considering these changes, there was any compelling reason that the public should not have access to them in order to decide both whether to attend  and whether they had any thoughts they might want to share with the ethics board.

Mr. Hogan found this suggestion amusing.  No one felt the need to address the concern.

I then asked Attorney Izzo whether in crafting the language on ex parte he had reviewed the New York State Department of State’s training materials for land use boards on this issue.  He said he had not.  I pointed out to him that months ago, at his request, I had sent him a link to these materials.

I asked him also why he did not draw from the training by Mark Schachner in preparing his draft since he had attended the workshop.  I pointed out to him that Schachner had explicitly addressed the fact that the “material” argument was too restrictive.  At that point Justin Hogan intervened and told me that the Department of State materials and the Schachner training were not germane to their deliberations.  He praised attorney Izzo as doing a superb job and asked if I had anything else I wanted to address.

I must confess dear readers that I rather lost it.  I told the ethics board that their self enforced ignorance was simply appalling.

I am very sorry that unlike most of the other city’s boards, there is not a video of the meeting because I do not do it justice in this post.

 

 

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8 thoughts on “Blogger Follows Ethics Board Through The Looking Glass”

  1. Terrible experience, I am sure. And I do sympathize, JK. The arrogance…..the attitude…..and no apology.
    Another sad example our city’s dysfunction. As you said, too bad it’s not on video. But, as a suggestion, maybe you should bring your own video equipment with you. It’s not against the law.

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  2. John,

    Why torture yourself? Is it really worth the aggravation?

    Ex parte communications, no matter how innocent, particularly between a member of a land use board and an applicant, the general public or an elected or political operative, pose real problems for all interests. First, of course, ex parte contact diminishes public confidence in the integrity of land use decisions and encourages the belief – even when not warranted – that a monied or political elite can manipulate the process outside of public view.

    What, unless I missed it, has not been discussed is that ex parte contacts can violate the Open Meetings Law, particularly if such contact is not reported on the record. Many, if not most, of Planning Board reviews and ZBA actions require formal public hearing. The hearing is the forum for applicants, the public, opponents and advocates of a particular proposal to present comment and, in the case of the ZBA, testimony intended to inform and influence the outcome.

    Comment and testimony at public hearing is “heard” by all at the same time and is subject to review and analysis by all interests. Not so ex parte contact with a board member. Even if the contact is subsequently entered on the record, as it should be, it is essentially impossible to know its context and influence, if any. A hard and fast standard regarding ex parte contact protects all parties in interest (applicants as well as those who may be in support or in opposition) against potential unknown influences. It also buffers board members from attempts of outside influence by giving them the support to politely turn them away.

    And ex parte contact has the potential expose board decisions to litigation.

    In a rapidly developing community such as ours, planning and zoning actions are frequently politically charged. Here ex parte contact can and has attempted to actually dictate the outcome of a specific land use proposal BEFORE the public hearing was even held. This not only violates the Open Meetings Law but totally compromises those faced with deciding a matter equally supported and opposed by public and the political leadership.

    So ex parte contact should, in my opinion, be liberally defined (such as it is in the Dept. of State’s guide) in the City Ethics Code.

    Reference by a Ethics Board member to casual contact between the public and a board member, say, in a chance meeting in the supper market is silly. In such cases the board member simply says: “Sorry, I cannot discuss this privately but please come to the hearing and share your thoughts with the entire board.”

    I assume that the Ethics Board has had the draft recommend amendments to the Code for some time but it is uncertain how they are to proceed. The Ethics Board cannot amend so perhaps the best thing is to simply request the City Council to schedule a hearing on the changes and go from there.

    Lew Benton

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      1. Ex parte could be at play here…who has influence with this group? Why treat you with such arrogance? There’s a reason JK..Mr Benton’s comment is strong….this whole thing brings to mind a RFK saying and I respectfully quote”Some see things as they are and ask why”?….”Some see things that never were and ask why not”?

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  3. John, your observations are consistent with my experiences reporting on the prior two meetings. The board operates as if they’re holding their meetings inside a fish bowl, with an impenetrable barrier between themselves and the outside world — basically a closed universe. While they may be aware of observers from the outside world peeking in, it’s never really acknowledged.

    Clearly, members are annoyed at having to show up and go through the motions, so why do they continue to serve? It would be more productive if they resigned and allowed citizens who are genuinely interested in government ethics to take over. I can’t imagine that any member really needs this position as a line on their résumé.

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