November 24, 2009
Greenburgh Town Hall

Board of Ethics Members Present:  Jack McLaughlin, Eric Scott, Mike Sigal
Town Board Members Present:  Paul Feiner, Diana Juettner, Francis Sheehan, Sonia Brown and Kevin Morgan
Others Present:  Town Clerk Judith Beville; Town Attorney Timothy Lewis; Members of the public

        1.  The Joint Meeting with the Town Board was commenced at approximately 7:45 pm.

        2.  The Joint Meeting with the Town Board was requested by the Board of Ethics, and at the beginning the Board of Ethics Chair read a written statement, which is posted below as Appendix A, approved by all the members of the Board of Ethics.  The Board of Ethics members also stated that most of the topics arose from the circumstance that, under the Code of Ethics as amended in July 2007, citizen complaints were allowed and as a consequence, as part of their public service, Board of Ethics members are now required to conduct investigations, that the Board of Ethics investigations would not have public credibility unless the Board of Ethics had appropriate resources and unless attempts were not made to interfere with or influence the investigations, and that the Board of Ethics cannot do appropriate investigations without the Town Board support on the issues raised.

        3.  Each of the topics addressed in the statement of the Board of Ethics was discussed in series:
       
                -  Independent Counsel (# 1A):  It was agreed that renewed efforts would be made to obtain volunteer counsel, with appropriate experience and investigatory skill sets, for the Board of Ethics.   Candidates would be interviewed by the Board of Ethics.  The Board of Ethics could, if it wished, have more than one volunteer counsel if there were several lawyers with appropriate experience and skill sets who wished to undertake this public service.   The Board of Ethics will consult with the Town Board before any specific candidate for volunteer counsel is engaged.

                -  Staff (# 1B):  It was agreed that the Town Board would designate an existing staff member or a public volunteer to perform routine administrative tasks for the Board of Ethics, such as copying and distributing to members.   There was some discussions regarding confidentiality of documents filed with the Board of Ethics and it was the view of the Board of Ethics members that most documents filed with it are not confidential.

                -  Filings (# 1C):  It was agreed that all documents for the Board of Ethics could be filed with the Town Clerk's Office, and that except where otherwise provided in the Code of Ethics (such as with respect to citizen complaints) it would be the responsibility of the filer to notify the Board of Ethics that the document(s) had been filed.

                -  Transcripts (# 1D):  The Code of Ethics requires that transcripts be provided in some situations, and also provides that the Town Board shall provide an adequate budget for the operations of the Board of Ethics.  It was pointed out that, at this point, the Board of Ethics has no budget.   The Town Board will look into and address the funding of transcript cost when transcripts are required by the Code of Ethics.

                -  Protection Against Threats (# 2):  It was pointed out that, under the Code of Ethics as amended in 2007, members of the Board of Ethics have a role unique from any other board member in the Town in that they have the statutory obligation to investigate members of the Town Board and senior Town officials.   The Board of Ethics requested that the Town Board adopt a policy protecting members of the Board of Ethics against threats and retaliatory actions.  It was agreed that the Board of Ethics will formulate a recommendation for the Town Board to consider.  

                The Supervisor suggested that the meeting go into non-public executive session to discuss the circumstances which generated this concern, but that did not materialize as the Board of Ethics stated that the issue the Board of Ethics wanted to discuss with the Town Board was not a particular past incident but rather a publicly stated policy for the future.

                - Vacancy (# 3):  The Town Board pointed out that other boards frequently suggest candidates for membership on their boards, and the Town Board invited the Board of Ethics to suggest who should be considered for the existing fifth member vacancy on the Board of Ethics.

        4.  The Town Board and the Board of Ethics then discussed potential amendments to the Code of Ethics.  The discussion started with a report by Mr. McLaughlin on the year-long work of the Board of Ethics on refinements (but not policy changes) to the Code of Ethics as amended in 2007, focusing particularly on the need for a data base of persons/entities from whom contributions cannot be solicited or accepted and tightening-up the definition of "affiliates" so as to make the process more administrable.   The section on recusal by members of the Town Board and Board of Ethics was also discussed as was the process for appeals of decisions of the Board of Ethics.

        The discussion then moved into a discussion of potential policy changes in the Code of Ethics which the Town Board may want to consider.  Among other things, these could involve some policy changes in simplifying the persons/entities from which contributions cannot be solicited or accepted.   It was agreed that the Town Board would develop a 1 to 1-1/2 page outline giving a conceptual framework of the policy changes the Town Board would like to be considered, and then a subcommittee of the Town Board (consisting of Supervisor Feiner and Councilman Sheehan) and a subcommittee of the Board of Ethics (consisting of Mr. McLaughlin, Chair of the Statutory and Rules Subcommittee, and Mr. Sigal, Board Chair) would meet to discuss.   After these discussions, there would be another joint meeting of the Town Board and Board of Ethics.

        5.  Comments from the public were not generally taken, although one member of the public made comments on several occasions.

        6.  The Joint Meeting was adjourned at approximately 11:00 pm.

                                                                _________________________
                                                                John P. McLaughlin
                                                                Acting Secretary for the Meeting

 

 

Appendix A
                                        BOARD OF ETHICS STATEMENT
                               NOV 24, 2009 JOINT MEETING TOWN BOARD

                We would like to start with a short 5-minute statement, which has been approved by all of the members of the Board of Ethics.

                In July 2007, the Town adopted massive changes to the Code of Ethics.   A core feature adopted by the Town Board in 2007 was to allow residents to file "citizen complaints", alleging that public officials have violated the Code of Ethics.  Under the statute, these complaints then trigger investigations and ultimately determinations of violations or not.

                As pointed-out in our two Annual Reports to the Town Board, it is not uncommon for massive statutory amendments to require revisiting to work-out and solve problems that arise over time under the new statutory scheme.   A number of problems have arisen resulting from the new process of citizen complaints and the fact that the members of the Board of Ethics are now required, by statute, to conduct investigations.  

               1.Support Needed for Functioning of the Town's Board of Ethics

                State law mandates that a municipal board of ethics have counsel ("shall have the advice of counsel employed by the board").

                In Greenburgh, the only counsel we have is internal counsel, who must recuse himself from virtually all investigations -- because it turns out that the persons against whom citizen complaints are filed, and thus are being investigated, are for the most part Town Board members who determine his employment and set his compensation.

                As a consequence of now being required to conduct investigations, we need independent counsel, with legal experience and legal skill sets appropriate to taking a lead role in investigations.

                We are prepared to see if this can be done by a lawyer with the appropriate experience and skill sets who is willing to volunteer her/his time, but so far no one has been willing to do so. 

                This need for independent counsel needs solving.

                B. Staff
               
                On a more minor level, in addition to counsel, we need some member of the existing Town staff to be assigned to do routine administrative tasks for the Board of Ethics, such as copying and distribution by mail or email to Board of Ethics members.   Investigations sometimes entail the production of documents, and this requires things like copying and distribution.  These tasks are such that they can easily be worked around someone's other duties.              

                C. Filings

                Complaints and resulting investigations require that documents be filed with the Board of Ethics.  We have no staff of our own, so documents have to be filed some place and we need to be notified that they have been filed. 

                The Board of Ethics is neutral as to who does this function, but this function needs to exist within the Town.  The Town Board needs to designate a place within Town Hall where documents for the Board of Ethics can be filed and assign responsibility to that office for notifying the Board of Ethics members by simple email that something has been filed.   Then, the staff person (that we have talked above) can pick-up, copy and distribute.

                D. Transcripts

                The Code of Ethics requires that there shall be a written transcript of some aspects of investigations.  While this is not a large cost, the Board of Ethics does not have any budget whatsoever to pay for this.  So far, there have been waivers by the parties being investigated of the right to have a transcript, but that may not occur in all cases in the future.   We need to have some solution from the Town Board (such a budget of our own, or the access to tap another budget or unallocated funds) so that we can pay for this cost when required under the Code of Ethics.

                2. Protection of Board of Ethics Members Against Threats
               
                Focusing on protecting against threats those who are providing a public service to the Town, the members of the Board of Ethics believe that the Town Board needs to take some strong and public action, such as issuing a directive that Town officials are not to make threats against members of the Board of Ethics or take action retaliatory against them.   The Town Board appoints all the members of the Board of Ethics, and we believe that it is the right thing to do for the Town Board to protect the Board of Ethics members as they endeavor to perform this public service, which now encompasses investigating citizen complaints.

              3.Vacancy on Board of Ethics

                The Board of Ethics is to be composed of five members.  At present there are 4 members, and there is 1 vacancy.   In the way we operate, we essentially divide up the work; so the work is now divided among 4.   As a consequence of now being required to conduct investigations, the Board of Ethics is impeded by being undermanned and requests that the fifth member slot be filled.