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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Ethics Board Fails to Properly Post Meeting…You Can’t Make This Stuff Up

I received an email from Justin Hogan today.  As you will see, in his email he advises me that the time of the meeting, as stated in the agenda for his board posted on the city’s web site, is wrong.  He notes that the correct time is a half hour earlier and that it is posted on the city website’s calendar.  The problem is that if one click’s on the calendar option on the website, all the other meetings of city board’s are listed but not the Ethics Board.

I think the documents below pretty much speak for themselves.  I would make just one additional observation.  Mr. Hogan refers to the proposed amendments to the city’s code of ethics as my (as in John Kaufmann’s) document.  In fact the amendments were drafted by myself, Jerry Luhn, and Geoff Bornemann in consultation with Commissioner Mathiesen and they were submitted to the Ethics Board for comment by Commissioner Mathiesen.  <Link To The Proposed Amendments>


From:    Justin Hogan [justahogan@yahoo.com]

Sent:     Wednesday, December 07, 2016 1:34 PM

To:          John Kaufmann

Cc:          jerry luhn; jerry luhn; Geoff Bornemann; John Ellis; Marilyn Rivers; Brendan

Chudy; Tony Izzo

Subject: Re: Ethics Code

Mr. Kaufmann,

Yes, the board will be reviewing and discussing your submission. General discussion regarding your submission will be open and like any other submission or inquiry if the board seeks legal guidance from counsel those discussions will be closed.

Also, as a point of clarification, tomorrow’s meeting is at 5pm in City Council Chambers (5pm is the stated time on the city web site).  Typically our meetings begin at 5:30 and tomorrows agenda states 5:30. However, I was made aware today there is a scheduling conflict and will need to begin at 5pm.

Thanks,

Justin Hogan

[My original email] On Dec 4, 2016, at 9:01 AM, John Kaufmann <john.kaufmann21@gmail.com> wrote:

I see that you have posted an agenda for a meeting of the Ethics Committee for December 8.  The agenda is rather vague.  Do you plan to take up the proposed changes in the city’s ethics code as sent by Commissioner Mathiesen to Tony Izzo?  If so, will the discussion of the proposed changes be held in executive session or open to the public?


My response to Mr. Hogan

From: John Kaufmann [john.kaufmann21@gmail.com]
Sent: Wednesday, December 07, 2016 9:03 PM
To: ‘Justin Hogan’
Cc: ‘jerry luhn’; ‘jerry luhn’; ‘Geoff Bornemann’; ‘John Ellis’; ‘Marilyn Rivers’;
‘Brendan Chudy’; ‘Tony Izzo’; ‘Joanne Yepsen’; ‘Michele Madigan’; Christian
Mathiesen; John Franck (johnfranck@your-cpas.com); ‘Skip Sciroco’; ‘Joseph
Levy’
Subject: RE: Ethics Code

Thank you for advising me of the correct time.  Many people rely as I did though on the agenda posted by the boards to check on the time, date, and place as well as what issues the boards will address.  I just went up on the city website and found that the incorrect time is still on your agenda.

Worse, if you go to the calendar page of the city website, you will see that while all the other boards show their date and time, there is no listing for your board at all.  The only way to find the correct time would require that a person clicked on each date in the calendar to see what meetings are occurring.  Since your board does not meet regularly there would be no reason for someone to assume that there was a meeting this month and go through the laborious process of clicking on each day to try to find it.

It’s a little late now but you need to contact whomever is responsible for the city’s calendar to fix this along with the agenda.

Given the history of the Ethics Board’s problems with open meeting compliance the failure to properly post the time of this meeting in an accessible way is quite problematic.

Image of city’s calendar page for December

calendar-on-city-website

City Ethics Board’s Unethical Record Continues Unblemished

Some time ago, Commissioner Mathiesen sent a proposal for comprehensive reform of the city’s ethics code to the Saratoga Springs Board of Ethics for their review and input.  Several days ago I visited the city’s website and found that after a three month hiatus (they last met in September), the Ethics Board had posted the agenda for a meeting to take place on Thursday, December 8th.  To their credit, after routinely violating the Open Meetings Law for months (possibly years) by failing to post notices of their meetings on the city’s website in a timely basis, they were finally in compliance.  On the other hand, their agenda was as uninformative as ever.  Here is the agenda:

ethics-agenda-for-december-8

So I sent the following email to Justin Hogan, the chair of the Board:

From:   John Kaufmann []

Sent:    Sunday, December 04, 2016 9:01 AM

To:       ‘Justin Hogan’

Cc:      

Subject:            Ethics Code 

I see that you have posted an agenda for a meeting of the Ethics Committee for December 8.  The agenda is rather vague.  Do you plan to take up the proposed changes in the city’s ethics code as sent by Commissioner Mathiesen to Tony Izzo?  If so, will the discussion of the proposed changes be held in executive session or open to the public? 

Consistent with the history of this Board I heard nothing.


I contacted Commissioner Mathiesen who told me that Tony Izzo had advised him that  the proposed changes to the ethics code will be discussed at the Board’s meeting on December 8.  Whether they will discuss these changes in public remains to be seen.

For those interested in who Justin Hogan is they can use the search function on my blog.

 

Ethics Board Finds Mayor Violated Code Of Ethics In Soliciting Business From Hospital; Scirocco Offers Censure Resolution

Ethics Board Finding

This is a link to the PDF: Board_of_Ethics_Inquiry_Finding__6-2016 Yepsen

Board_of_Ethics_Inquiry_Finding__6-2016 Yepsen-1

Board_of_Ethics_Inquiry_Finding__6-2016 Yepsen-2

The Ethics Board has released a letter to Mayor Joanne Yepsen formally notifying her of their advisory opinion regarding her dealings with Saratoga Hospital while they had business pending before the Council.  Apparently the Board drafted their original opinion on March 24th.  According to the document posted on the city’s website, Yepsen declined to meet with the Ethics Board but instead had her attorney send a response to the board. Her attorney’s memorandum was dated June 10th.   On June 20th the Ethics Board held a “hearing” (their term/euphemism since this session occurred in executive session and there is no public record of their deliberations).  Why the delay?  What was the Mayor’s defense?  None of this was made available as part of the decision/letter.

The decision cited section 13-3(I) of the city’s ethics code:

“Outside Employer of Business.  Officers shall not engage in, solicit, negotiate for or promise to accept work for an outside employer or business who does business with the city which creates an implied conflict with or impairs the proper discharge of his official duties or results in personal gain.”

The decision asserts that the statute does not allow for mitigating circumstances.

It then states that “as a matter of law”, Mayor Yepsen violated the city’s ethics code.

Resolution to Censure

Link To PDF of Resolution: Resolution_re_Ethics_Board_Findings_D3_071916

Resolution_re_Ethics_Board_Findings_D3_071916-1Resolution_re_Ethics_Board_Findings_D3_071916-2

Commissioner Scirocco has placed on his agenda for tomorrow night a resolution to censure Mayor Yepsen and to refer the matter to the New York State Attorney General’s Public Integrity Bureau and the New York State Joint Commission on Public Ethics.

 

 

 

 

Apparent Violation Of Proper Notice By The Ethics Board Places Cloud Over Deliberations On The Inquiry Regarding The Mayor

I recently learned that the Ethics Board would be issuing an opinion on the complaint made by Commissioners Madigan, Mathiesen, and Scirocco that Mayor Yepsen violated the city’s ethics code by entering into negotiations with Saratoga Hospital while the hospital had business before the Council.  I would note that this “inquiry” was made on February 1, over five months ago.  This is a link to the complaint:  ComplaintRegardingMayor

This prompted me to go to the city’s website to check on the Ethics Board’s recorded activities.  What I found was that the last item posted on the site related to the Ethics Board was a meeting on May 2, 2016.

After further investigation I was told by a source that the Ethics Board had met on June 20th, 2016.  I emailed its chair, Justin Hogan, asking if he could confirm this.  He emailed back that his committee had met on that date.  I then emailed noting that there was no notice of this meeting on the city website. He responded that it was “posted” on June 14th.  He did not share with me how or where or by whom this posting occurred (The emails are below).

I then contacted the New York State Committee on Open Government asking what the regulations were on notices for meetings under the Open Meetings Law.  They referred me to Public Officers Law 7 (104) [I have highlighted the pertinent section].  I provide below the section in full with my emphasis:

§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If video conferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that video conferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.


A Tour Of The City Bulletin Boards

Planning Bulletin Board
Bulletin Board In Planning Office

 

MayorsBulletinBoard
Mayor’s Bulletin Board

 

GlassBulletinBoard
Glassed In Bulletin Board Near Front Door

 

Community Bulletin Board
Community Bulletin Board Near Front Door

So, however the posting might have been done, the fact that it was not done on the city’s website violates the Open Meetings Law.

Being the obsessive person I am, I still went down to city hall seeking to find out where such notices are physically posted and whether a copy of the Ethics Board notice was still up.

The city has numerous bulletin boards on the first floor of city hall.  I have been told that the board near the front doors of the building entitled “Community Bulletin Board” is where notices go but I found no notices there pertaining to formal city boards.  The glassed in bulletin board seemed to deal with OSHA safety issues.  The one by the Mayor’s office promoted a variety of programs and included press releases.  The bulletin board in the Planning Office was entitled “Agendas” and while there were agendas for a number of boards, there was none from the Ethics Board.  Given the fact that the meeting took place some weeks ago this is not surprising.  Still, the question remains as to what record might exist that such an item was ever posted.

Of course, even if it was posted on a bulletin board that does not meet the requirements of the open meetings statute.

Without proper notice, any action taken at a meeting would be subject to challenge under the open meetings law.  In light of the fact that it is possible that the inquiry regarding the Mayor may have been decided at the June meeting, it makes the issue all the more serious.  With this in mind I emailed the Mayor asking whether, as it appears, the proper notice was not given for the June 20th meeting and if so whether any action at the June 20 meeting would now be invalidated.

From: John Kaufmann [john.kaufmann21@gmail.com]
Sent: Sunday, July 10, 2016 12:55 PM
To: ‘Joanne Yepsen’
Cc: ‘Christian Mathiesen’; ‘Michele Madigan’; ‘Skip Sciroco’; ‘John Franck’;’Tony Izzo’; ‘Vincent DeLeonardis’; ‘Justin Hogan’
Subject: Potential Violation Of Open Meetings Law


I am writing you regarding an apparent violation of the Open Meetings Law by
the Ethics Board. 

As confirmed by Justin Hogan, its chair, his Board met on June 20, 2016.  Even as of today, July 9th, there is no record of this meeting on the City web site, let alone a record of notice to the public that such a meeting would be convened.


I contacted Mr. Hogan regarding this apparent failure and he responded by  stating that the notice was allegedly “posted” on June 14.  In part because he  did not share with me where or how this posting took place, I did visit City  Hall today.  There are a number of bulletin boards on the first floor of the  building, and I did find a bulletin board in the City Planning Office with the  title “Meeting Agendas” affixed to it.

While it is possible that timely notice of the meeting was posted on that space, now, some weeks following the Board’s meeting, there is no such notice on the bulletin board regarding the June 20 meeting.  As far as I can tell, there is no record that the June 20 meeting was ever properly posted so as to give meaningful notice to the public of that event.  Accordingly, would you please inform me by email as to by whom the notice was posted, and its location(s)?

The following are the requirements for notices to the public of meetings under Article 7, section 104 of the Public Officers Law. (I have underscored the most pertinent section):
§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be
given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a
reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If video conferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that video conferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.5. When a public body has the ability to do so, notice of the time
and place of a meeting given in accordance with subdivision one
or two of this section, shall also be conspicuously posted on the
public body’s internet website.

Drawing from the above, even if there was documentation to show that a notice was posted on a bulletin board in City Hall, the statutory requirement for notices of meetings would not have been met.  Based on my correspondence with Mr. Hogan, it would appear that the Ethics Board has been violating this provision for some time.  While not venturing a legal opinion here, it is my understanding that any business transacted at a meeting that lacks proper notice is not valid.

Timing appears rather important here because the Ethics Board is currently dealing with a controversial inquiry.  It would be unfortunate were the Board to publish an opinion whose authority is undermined by something as elemental as lack of required public notice, before this matter is resolved.
Thank you.

I am now waiting for her response.  When she responds I will post her answer promptly on this site.


The following is my email exchange with Mr. Hogan:
From: John Kaufmann []
Sent: Friday, July 08, 2016 4:17 PM
To: ‘Justin Hogan’
Cc: ‘Brendan Chudy’; ‘Courtney DeLeonardis’; ‘Marilyn Rivers’; ‘John Ellis’;
‘Tony Izzo’; ‘Vincent DeLeonardis’
Subject: RE: May Meeting

I would have assumed that someone in your profession would be both more familiar with the open meetings law and more interested in following the spirit of the law as well as its letter.

The following is taken from the New York State Open Meetings Law:
§104. Public notice.
1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.
2. Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.
3. The public notice provided for by this section shall not be construed to require publication as a legal notice.
4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.
5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.

As you are the chair of this committee, the responsibility of insuring that the notice is properly executed rests with you. If I am correct and proper notice was not given, this raises questions about the validity of any discussions or actions the Ethics Board may have taken at the June meeting. [my emphasis]

From: Justin Hogan [mailto:justahogan@yahoo.com]
Sent: Friday, July 08, 2016 2:47 PM
To: John Kaufmann
Cc: Brendan Chudy; Courtney DeLeonardis; Marilyn Rivers; John Ellis; Tony Izzo
Subject: Re: May Meeting

Mr. Kaufmann,

The Board of Ethics did meet on June 20. The agenda/notice was posted on June 14.
The minutes are not on the web site because the Board has not yet reviewed and approved them.

Thanks,

Justin Hogan

From: John Kaufmann <john.kaufmann21@gmail.com>
To: ‘Justin Hogan’ <justahogan@yahoo.com>
Sent: Friday, July 8, 2016 2:17 PM
Subject: RE: May Meeting

Did you hold a meeting on June 20th? If so can you explain why there was no notice, no agenda, and no minutes posted on the city web site?

Has Mayor Yepsen Been Delaying Inquiry With Help Of Ethics Board?

A reliable source informed me that Mayor Yepsen has been postponing meeting with the Ethics Board for months.

As I have noted in previous emails, the Ethics Board operates with an impenetrability that would make the CIA blush.  I went back through the available public records of this board and there was literally no record in any of the minutes or the agendas of the Ethics Board that referenced Mayor Yepsen’s name let alone that there was an inquiry pending regarding her dealings with Saratoga Hospital.  I know that an inquiry regarding this matter was lodged by Michele Madigan and Skip Scirocco because Ms. Madigan confirmed it.

With no other choice, I emailed the mayor on June 30th asking if she could confirm that she had postponed meeting with the Ethics Board and why it was necessary to make these postponements.  When I did not get a response, I followed up a week later with similar results.

 


From:    John Kaufmann []

Sent:     Tuesday, July 05, 2016 9:17 AM

To:          ‘Joanne Yepsen’

Cc:          ‘Christian Mathiesen’; ‘Michele Madigan’; ‘John Franck’; ‘Skip Sciroco’;

‘Vincent DeLeonardis’; ‘jerry luhn’; ‘jerry luhn’

Subject:               FW: Ethics Board

 

I thought I would follow up one more time, could you respond to my June 30 questions?

 


From: John Kaufmann [mailto:john.kaufmann21@gmail.com]

Sent: Thursday, June 30, 2016 10:09 PM

To: ‘Joanne Yepsen’

Cc: ‘Michele Madigan’; ‘Skip Sciroco’; ‘John Franck’; ‘Christian Mathiesen’; ‘Vincent DeLeonardis’; ‘Tony

Izzo’

Subject: Ethics Board

 

Joanne:

I understand that you have postponed meeting with the Ethics Board a number of times during the

last three months.  Can you confirm this and if so, can you indicate why you have postponed?

Thank you