Town of Greenburgh - Meeting Schedules

MINUTES OF THE MEETING OF THE BOARD OF ETHICS

TOWN OF GREENBURGH

April 7, 2010

Greenburgh Town Hall

Members Present: Jack McLaughlin, Walter Rivera, Eric Scott, Mike Sigal

Volunteer Counsel: Frank Apicella, Joseph Malara

Others Present: Glenn Eisen, Heather Murray, Ella Preiser, Hal Samis

The meeting was convened at 7:05 p.m. A quorum of the Board of Ethics was present throughout the meeting. Mr. Glenn Eisen, Ms. Heather Murray, Mrs. Ella Preiser and Mr. Hal Samis were present throughout the meeting and participated in the discussions at various points.

The agenda was accepted without any revisions.

The minutes of the meeting held on February 22, 2010 were adopted.

Mr. McLaughlin submitted a draft of an “Opinion 2010-3 Follow up” to Supervisor Paul Feiner to remind him of the 60-day compliance requirement in the opinion. Following a discussion, it was agreed by all members that the follow up email to Mr. Feiner should be sent subject to public comments.

Discussion took place regarding proposed revisions to the Code of Ethics. Mr. McLaughlin commented on the fact that the Board of Ethics has not received any response from the Town Board regarding any of the proposed revisions to the Code of Ethics submitted by the Board of Ethics to the Town Board in September 2009. The provisions of Code of Ethics Section 11G were also discussed. This section gives the Board of Ethics 30 days to comment on statutory amendments proposed by the Town Board. The consensus was that 30-day period was not triggered by general proposals which were not in the form of the actual language of proposed statutory amendments or by actual proposed amendments by an individual Town Board member.

Discussion took place regarding the New York State Comptroller’s Report S4-09-109 dated March 18, 2010 and the NYS Comptroller's March 18 letter to the Town Supervisor and members of the Town Council regarding an audit of 31 municipalities' codes of ethics, including the Town of Greenburgh Code of Ethics. Mr. Rivera commented that he happened to accidentally come across this State audit of the Town’s Ethics Code and procedures. It was noted that the Town Board has ninety days from the report to submit a Corrective Action Plan (“CAP”). The Board of Ethics members were disappointed that the Board of Ethics had not been made aware of the audit and was not invited to participate in the audit process by the Town Board. It was also questioned whether the State auditors were advised by the Town Board of the proposed changes made by the Board of Ethics in September 2009, one of which addressed recusal, an issue raised by the auditors. It was agreed that Mr. Rivera will draft an email from the Board of Ethics to the Town Board expressing the Board of Ethic’s disappointment in not being notified of the State audit by the Town Board, referencing the proposed pending revisions and desire of the Board of Ethics to review and comment on the Town’s proposed CAP.

In connection with the verified complaint filed by Mr. Samis concerning the solicitation/acceptance of refreshments at community meetings, as to which a Phase 1 investigation has been commenced, Mr. Sigal presented a Statement regarding Commissioner Madden’s request that Mr. Sigal recuse himself. As requested by Mr Sigal, the Board of Ethics then had a policy discussion regarding the process to be used with regard to recusals by members of the Board of Ethics. (Mr McLaughlin has recused himself from this complaint for unrelated reasons, but participated solely in the overall policy discussion as to the proper process for Board of Ethics members to follow, which was independent of the particulars of the recusal request related to this complaint.) All members agreed that the Board of Ethics should adhere to the established substantive and procedural process in New York for recusal. Following the discussion, Mr Sigal then stated, based on that determination and on the analysis set forth in the Statement, he was not going to recuse himself from the panel conducting this investigation. It was also stated that going forward Mr Rivera would act as Chair of the panel conducting this investigation. A copy of Mr. Sigal’s Statement is attached below to the Minutes of this meeting. Mr. Rivera commented favorably on the in-depth analysis presented by Mr. Sigal in his Statement. Mr. McLaughlin and Mr. Scott joined in the assessment of the Statement.

Hal Samis was asked to comment on what he had previously referred to as problems regarding the Form used by applicants to the Town. Mr. Samis stated that the form used did not provide for adequate disclosure of an applicant’s interest in a corporation or LLC and that different forms were being used by different departments of the Town. This item will be place on a future agenda, probably the agenda for the next meeting.

A long discussion took place regarding a complaint by Mr. Samis regarding absence of disclosure by a Town official of an alleged interest in litigation filed against the Town of Greenburgh by the Valhalla School District. Before the discussion began, Mr. Scott recused himself on the grounds that he also sat on a committee of the Valhalla School Board related to diversity issues (which potentially was affected by the funds available to the School District from the outcome of the lawsuit). Mr. Samis was questioned about the interest that the subject Town officer is alleged to have in the litigation against the Town. It was unanimously agreed by the Board of Ethics that there are sufficient questions raised by the complaint to proceed to a Phase 1 investigation. Investigatory counsel will prepare questions to send to the Town official involved, and possibly the Town Attorney's Office, pursuant to Section 12 of the Code of Ethics.

Mr. McLaughlin presented a draft of Opinion 2010-4 regarding Mr. Samis’ complaint that Mr. Feiner solicited and accepted a campaign contribution from Judith Kessler before her husband was appointed to the Hartsdale Parking Authority. Mr. McLaughlin commented that this complaint raised issues similar to those addressed in the complaint involving Mr. Saez that resulted in Opinion 2010-3. The draft opinion was adopted with minor revisions and the complaint was dismissed subject to public comments.

Mr. Sigal presented a draft of Opinion 2010-5 regarding Mr. Samis’ complaint against Mr. Feiner for accepting contributions from a PAC related to an entity with a contract with the Town. After discussion it was agreed that the Code of Ethics does not apply to solicitations and contributions from PACs. The draft opinion was adopted with minor revisions and the complaint was dismissed subject to public comments.

The Board then entertained public comments. Mrs. Preiser commented on the ability to get around the ethics law by making contributions through spouses and PACs. Mr. Samis then spoke for 20 - 25 minutes. He inquired as to why Opinion 2010-5 was approved in light of the Board of Ethics’ opinion on a different matter in 2007; how the Board of Ethics was monitoring Mr. Feiner’s compliance with its decisions; and why the Board of Ethics was reluctant to initiate a complaint against Commissioner Madden and Town Attorney Tim Lewis regarding “ugly accusations” threatened to be made against Mr. Sigal if he failed to recuse himself from the pending complaint filed by Mr. Samis regarding the solicitation/acceptance of refreshments at community meetings. Mr. Samis called for future meetings of the Board of Ethics to be set on a specific day of the month. Mr. Samis expressed his displeasure at the Board’s decision to allow contributions by a spouse of agency members, as well as the Board’s finding that agency members are not “appointed” officers of the Town. Mr. Samis then called on the Board of Ethics members who voted on the opinions at issue to resign and accused the Board members of wasting their time on writing ethics laws instead of resolving complaints. Mr. Samis then singled out a particular member of the Board of Ethics for a personal attack and his comments were halted for the duration of the meeting, with a warning that any future personal attacks could result in his being barred from speaking at future meetings of the Board of Ethics.

Mr. Sigal and Mr McLaughlin commented on the fact that setting the meeting on a specific day of the month had been discussed in the past and there were multiple reasons why meeting were set one month in advance based on members' availability.. It was agreed that the current system works. Mr Sigal also commented that the last sentence of the 2007 Opinion Mr Samis referred to had expressly left open the issue now dealt with by Opinion 2010-5.

The Board of Ethics then ratified all previous tentative decisions.

The next meeting was scheduled for May 12, 2010 at 7:00 p.m. at Town Hall, subject to room availability.

The meeting was adjourned at 10:10 p.m.

Submitted by: Walter Rivera, Secretary and

Joseph S. Malara, Esq., Voluntary Counsel to the Board of Ethics

* * *

Attachment to April 7, 2010 Minutes re Agenda Item 7

Statement by Mr. Sigal as to Recusal Request

A. Background

1. As background, the underlying verified complaint before the Board of Ethics involves allegations of solicitation and/or acceptance of gifts from a town business enterprise -- these activities are alleged to have occurred in the winter and spring of 2008. On May 8, 2009 the complaint was amended to limit its scope to the activities of Councilman Sheehan and Commissioner Madden. On May 19, 2009 the Board of Ethics started its Phase I investigation. Pursuant to Section 12 of the Code of Ethics, the Board of Ethics has: (a) made document requests; (b) reviewed the documents submitted; (c) made requests for answers to questions; (d) reviewed files of the Building Dept; (e) reviewed files of the Board of Assessment Review; and (f) reviewed tax certiorari petitions filed in Westchester County Supreme Court. At this point, the Board of Ethics is still in its Phase I investigation; it has not yet determined whether to dismiss the verified complaint or to commence a more formal Phase II investigation.

On October 20, 2009 Commissioner Madden filed a request that I recuse myself. Commissioner Madden has been represented by counsel, Town Attorney Lewis, in this investigation. I will proceed on this recusal request on the papers submitted.

2. The Board of Ethics' full complement is five members; at present, there is one vacancy, resulting in the Board of Ethics having four members. With regard to this complaint, there is one recusal. Thus only three members are functioning on this investigation at present: Mr Rivera, Mr Scott, and myself. Under New York law, an absolute majority of a board is required for any act, and thus all three of the members of the Board of Ethics functioning on this complaint are required to unanimously approve any act of the Board of Ethics.

B. Legal Framework in New York

1. In New York, recusal of a municipal board member is governed by the substantive standards and procedures developed under NY Judiciary Law Section 14, which provides for recusal in certain circumstances such as (a) the person sought to be recused being a party or (b) the person sought to be recused having a direct financial or proprietary interest in the matter being decided from which she/he might profit or lose .

2. Canons of Judicial Conduct are not applicable to members of municipal boards of ethics in New York. There is clear ruling on this from the NYS Bar Ass'n Committee on Judicial Ethics (2008).

3. The New York Court of Appeals cases are clear that, in a situation such as this where the specific grounds under the Judiciary Law are not established, (a) the decision as to recusal is a discretionary one and (b) the person sought to be recused is the "sole arbiter" of the recusal request.

4. If a request for recusal is brought, but recusal is not made and the requesting party believes she/he is adversely affected by the ultimate decisions on the merits, then that decision may be appealed -- and, on appeal, the appealing party has to show (a) there was prejudice and (b) that it affected the decision.

5. There are a number of decisions of the New York Court of Appeals with respect to recusal. Among these decisions are decisions of the NY Court of Appeals ruling:

(a) Firstly, as noted above, where recusal is sought, the person sought to be recused is the "sole arbiter" of whether to recuse her/himself, where the specific grounds under the Judiciary Law are not at issue. (1987, 1943, 1905)

(b) Secondly: In analyzing a recusal request, New York does not have an "appearance of impropriety test premised on a presumption of irregularity or bias." (1987)

(c) Thirdly: "Strong opposition" by two members of the NY Board of Regents was not grounds for disqualification, where there were to be "further investigations": "The statements [of the board members], in the light of the subsequent actions [to be taken], do not evidence an inability on the part of the particular regents or the whole board to make an unbiased evaluation of the application once all the facts were in." (1981)

(d) Fourthly: There is an institutional cost where "delicacy [as to recusal is] indulged in to an excessive degree." (1905)

6. There is no authority in New York that a party being investigated (in this case, Commissioner Madden) can determine who can sit on the panel. Similarly, there is no authority that the appointing authority (in this case, the Town Board) can determine who can sit on the panel. The process to be followed, substantively and procedurally, is the normal recusal process.

7. The practice of members of public bodies in the Town of Greenburgh appears to be consistent with the NY procedural and substantive standards outlined above. For example, at the August 5, 2009 meeting of the Planning Board, nine residents requested that the Chair of the Planning Board recuse herself. Tr. at 74. The grounds asserted were "appearance of impropriety", Tr. at 68-69, and actions alleged to have affected the "integrity of the process." Tr. at 69, 74. The Chair of the Planning Board, properly acting as "sole arbiter" with respect to allegations of conduct affecting the integrity of the proceeding and appearance of impropriety, stated: "I absolutely will not recuse myself." Tr. at 74. The Town's First Deputy Town Attorney was present at the Planning Board meeting, as counsel to the Planning Board, and stated no objection to the process followed by the Planning Board Chair.

C. Recusal Request - Legal Overview

Now, looking at this recusal request from a legal perspective:

1. In the first paragraph of the request, it is stated there is a "doubt of impartiality". In the last paragraph of the request, it is broadly asserted that "a Board of Ethics member must act as to avoid all appearances of unfairness and impropriety."

2. There is no assertion of any of the specific grounds for legal disqualification under Section 14 of the Judiciary Law (e.g., I am a party; I am an attorney for a party; I am related to a party; I have a direct financial or proprietary interest in the matter being decided from which I might profit or lose).

3. So, under NY law, there is no mandatory grounds for disqualification. The decision to made is a discretionary one as to which, under a century of NY process, I am to be the sole arbiter.

D. Analysis

Here's my analysis of the request for recusal:

1. Looking at the legal basis asserted in the recusal request for discretionary recusal:

(a) It is asserted that I should recuse myself because there is a "doubt of impartiality".

As noted above, the NY Court of Appeals has ruled that New York does not have an "appearance of impropriety" standard. So, a fortiori, there isno legal standard in New York that says one should recuse oneself if there is a doubt of impartiality.

(b) Furthermore, it is stated in the recusal request that board members have an affirmative duty to "avoid all appearances of unfairness and impropriety."

New York law as to recusal is expressly to the contrary: There is no such duty in New York.

- As previously stated, New York's highest court has expressly ruled that New York does not have an "appearance of impropriety test premised on a presumption of irregularity or bias."

- As also previously stated, the NY Court of Appeals has ruled that recusal is not required even where two members of the Board of Regents had publicly stated "strong opposition" to a proceeding before the Board of Regents.

2. So, on its face, the request for recusal from the panel focusing on this verified complaint is legally insufficient in all respects.

There are no asserted basis for mandatory recusal.

The legal basis asserted for discretionary recusal are just wrong. It is not New York law.

Failing to meet the applicable legal standard, there is no legal reason to go any further.

3. But, I will briefly analyze the 2 conceptual grounds asserted in this unsworn filing as to why I should recuse myself from participating on the panel focusing on this complaint.

(a) Expressing Opinion:

The first conceptual rationale in the unsworn filing is expression of an opinion.

Commissioner Madden asserts that I told two members of the Town Board that I "did not believe there was any merit to the case." The assertion is unsworn, and I would think "hearsay" even if sworn -- and, in any event, as noted above, would not constitute grounds for recusal. This statement is asserted to have been made before the Board of Ethics' commencement of investigation in May 09.

It is not alleged that I expressed a conclusion as to what the outcome of an investigation would be. I have never said that I have concluded, or that a Board of Ethics investigation would conclude, there is, or is not, merit to this verified complaint.

I don't know if there is, or is not, merit to the complaint. That's why the whole Board of Ethics does an investigation.

(b) Perception of Unfairness:

The second conceptual rationale in the unsworn filing is that, because of past differences over land use issues, there might be a perception of unfairness.

The grounds are unsworn and involve much subjective speculation. There would be a lot of disagreement as to what's said in the unsworn filing, but passing over that, taken on a conceptual level, past differences over land use issues are not grounds for recusal.

One land use issue was a 2008 decision by the Town Board regarding a permit issued by the Forestry Officer, which was appealed by a group of neighbors. The Forestry Officer is one of the officials who reports to Commissioner Madden. The other is a set of 2007 decisions by the Town Court and the Planning Board with respect to an adjacent property, which adjacent property is within the regulated buffer of a wetlands on our property. Though in varying degrees the Planning Dep't was involved in both of these land use matters, in neither of these did Commissioner Madden have any decision-making authority.

Land use differences and one's perceptions about those differences are, in my judgment, not grounds for recusal. Let me give several examples:

- Since the time of the Town Board's decision adverse to the neighborhood group, I have participated in a number of matters that have come before the Board of Ethics affecting a member of the Town Board (that being, Supervisor Feiner). Some of those matters have been decided favorably to Supervisor Feiner; some have been decided unfavorably to Supervisor Feiner; and some are pending and could be decided favorably or unfavorably. Under Commissioner Madden's theory, a member of the Board of Ethics who ever was part of an unsuccessful appeal to the Town Board could, never, then participate on a panel affecting a Town Board member. Under Commissioner Madden's theory, the same would apparently follow if a member of the Board of Ethics ever had a matter in which a municipal department was involved. There is no precedent in the way the Board of Ethics functions for that purely theoretical procedure.

- Also, differences are not recusal grounds. Differences on land use issues do not have any affect whatsoever on issues as to whether the Code of Ethics has been violated, nor on my ability to act fairly in participating on a panel investigating whether the Code of Ethics has been violated. I recall being in Court when Herbert, Bunker and Lamar Hunt asserted that Judge Sanders of the United States District Court in Texas should recuse himself because he had for a long time opposed the Hunts politically. He properly declined to recuse himself on the grounds that past differences are not grounds for recusal. That was under Federal law, but as far as I can tell that is perfectly consistent with New York law.

- On a broader policy level, it seems to me that past intersections within a local community cannot be grounds for recusal from a multi-member agency. The protection lies in the personal integrity of the agency members. For Commissioner Madden's theory to have any traction: firstly, I would have to lack integrity and decide something improperly; secondly, I would have to lack integrity and try to influence the other members of the panel to also act improperly; and thirdly, in addition, at least two other members of the panel would have lack the integrity to act properly and them themselves deliberately do something wrong. I reject that as having any soundness, either in theory or in fact.

E. Further Analysis

1. Based on my legal analysis and my conceptual analysis of what's asserted, I do not believe that the recusal request is well-founded for to me to recuse myself from participating on the panel focusing on this verified complaint.

(a) The New York legal standards are not met.

(b) The grounds cited in the unsworn filing are not, as a conceptual matter, new and novel grounds. There is a 100-year history in New York as to how to analyze assertions of pre-opinion and something in the past being the basis for actual bias. As stated above, there is nothing in the unsworn filing, or otherwise, which would prevent me from acting fairly on this panel, and there is no basis whatsoever to conclude that the other members of the panel would not act properly.

2. But, I have not stopped my analysis there. I have considered additional factors.

(a) It seems clear that Commissioner Madden's subjective belief is likely to remain. I've thought about this a lot -- should I recuse myself because of his subjective feelings, even if they do not constitute grounds to do so. The easy thing to do would be to recuse myself if he objects to my being on the panel functioning on this investigation.

After careful evaluation, that is not, in my judgment, the right thing to do. On a policy level, subjective belief of unfairness cannot be a sound basis for recusal. Otherwise, all a party has to do is to make a strongly-worded statement for recusal to get rid of someone for whatever reason. And, in addition, one could "game the system", and use strongly-worded statements to reduce a board of ethics below the number legally required to act on a complaint.

(b) Moreover, there are substantial protections built into the system. Before any finding is made adverse to a public officer, he/she has the right to appear and present evidence and arguments. As noted above, one person cannot carry what the Board of Ethics is going to do. Under New York law, an absolute majority of a board is required for any act, and at least three members of the Board would be required to find a violation. Even if Commissioner Madden were to unfortunately subjectively believe that I would "hold a grudge" against him, I can't legally do that. At least three members have to agree to everything.

(c) Furthermore, I note that, going forward, the investigation will be principally conducted by one of the new volunteer counsel, rather than members of the panel.

(d) In addition, in order to build even more additional protections into the system, one of the other members of the panel, Mr Rivera, has agreed to act as Chair of the panel conducting this investigation.

(e) Finally, about a month before the recusal request was filed, I and two of the other members of the Board of Ethics functioning on this complaint were told by Commissioner Madden's counsel, Tim Lewis, that there would be "ugly accusations" against me and/or the Board of Ethics if I do not recuse myself. After talking about "ugly accusations", Mr Lewis continued: "that's how politics go around here". It seems to me that it is even worse public policy to recuse oneself unnecessarily under those circumstances. It is not in the public interest of this community to let threats be effective.

3. Thus, in sum, in my view:

(a) the recusal request lacks merit as a legal matter;

(b) there is nothing, cited in this unsworn filing or otherwise, that precludes me from participating on this panel in a fair manner;

(d) after careful and I think comprehensive thought, discretionary recusal would be very bad public policy.

F. Process

1. Before finalizing this, however, I think the Board of Ethics members should have a policy discussion as to "process" regarding recusal. Given the importance of the issue conceptually, I think it is appropriate for the Board of Ethics to have a policy discussion as to the proper process for Board of Ethics members to follow. This discussion would be independent of the instant request that a particular member recuse himself from a particular panel with respect to a particular complaint.

(a) If the Board of Ethics as a group determines that the normal New York process is the proper process for members of the Board of Ethics to follow, I will follow that process.

(b) If the Board of Ethics as a group determines that Board of Ethics members should follow a different process, I will abide by that decision. I will follow that different process, and my recusal will be determined ultimately by the outcome of that process.

2. [Board of Ethics Discussion/Conclusion]

3. The Board of Ethics has concluded, in the discussion we just had and in which every member participated in, that the proper process for its members to follow with respect to recusal is the normal New York process.

Based on that and based on the analysis above, which I think is extensive and as to which I have given a lot of thought, I will not recuse myself from participating on the panel focusing on this verified complaint.

Going forward, Mr. Rivera will be acting as Chair of the panel conducting this investigation.

4. I will submit to the Secretary a written statement to be attached to the minutes of this meeting as a part of the Board of Ethics records.