Should a 2013 Reconstituted Ethics Board....cont'd

Let's recap...

We have...

• A town ethics code that hasn't been updated since 1970.

• A town board that until 2013 was depending on the County Board of Ethics to resolve any complaints received; although we never heard of any complaints being sent to the County prior to January 2012.

• A January 2012 town board resolution with a 4-1 vote in favor of sending a third party complaint to the County Board of Ethics for an advisory opinion.

• A County Ethics Board sending the complaint back to the town without investigation because of what we were told was a smell of being politically motivated.

• A town supervisor who decides its time to reconstitute the town ethics board in 2013.

• A town board that has made one major blunder [oops!] two major blunders.

The first blunder...

General Municipal Law, Article 18 § 808 (3) allows any municipality to create a Board of Ethics. According to the law, an Ethics Board may:

Render advisory opinions to officers and employees pursuant to the written request of any such officer or employee under such rules and regulations as the board may prescribe and shall have the advice of counsel employed by the board, or if none, the municipal attorney.

Make recommendations with respect to the drafting and adoption of a code of ethics or amendments thereto upon the request of the governing body of any municipality in the county.

That's exactly what Chapter 10 of Town of New Hartford code says the Board of Ethics was established to do...it's actually nothing more than a carbon copy of General Municipal Law.

However, Municipal Home Rule Law §10(1)(i) and (ii)(a)(1) allows the town to adopt a local law to amend or supersede Section 808 by local law, thus giving the Ethics Board other powers, such as investigatory powers; the town board can also, by local law, increase the size of the board from three (3) members to five (5) or seven (7) or even nine (9) members as well as set term limits.

Unfortunately, the Town of New Hartford did not include these measures in the 1970 adopted local law that created the Ethics Board and they have never updated their code since the adoption of this local law.

After reading many municipal attorney articles found online and also reading information available on the Association of Towns website, we realized that without the additional language in the Local Law adopted by the Town of New Hartford in 1970, the reconstituted Ethics Board really has no investigatory powers; meaning they have no authority to listen to complaints or administer and enforce penalties.

The Attorney General [who is right 100% of the time...wink, wink] has made available a brochure on Ethic Laws and Ethics Boards:

Click here for a larger print version

The brochure confirms our findings...in order for an Ethics Board to have investigatory powers, specific language has to be included in the town's local law. Absent a local law to amend the powers given to the Board of Ethics by General Municipal Law Section 18, the Board of Ethics has no other powers than the ones contained in General Municipal Law...PERIOD!

No where in the Town of New Hartford Ethics Code does it say that the Board of Ethics has investigatory powers or the power to recommend, enforce or administer disciplinary action.

Equally as important, according to the Association of Towns, a local law providing for enforcement must include the right of the officers or employee to appear with legal counsel to defend him or herself. No where in the Town of New Hartford Code did we find the language that we so often found in other town's Code of Ethics or even similar wording to:

Any person aggrieved by a decision of the Board of Ethics or the Town Board may seek judicial review and relief pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York.

Where does the town supervisor think this "supposed" ethics complaint is going? We would suggest in the circular file, unless the town supervisor's "need" to retaliate on behalf of a third party is greater than the "need" to obey the law. And wouldn't it be wrong for the town board to ask these three (3) people who were appointed to serve on this Board to do something that by law they cannot do?

Our suggestion would be that the Ethics Board start meeting as soon as possible to discuss possible recommendations to the town board for updating our archaic Ethics Code...in case town leaders have been too busy to notice, the world has changed over the last 43 years!!!

By the way, according to Robert Freeman, Ethics Board meetings need to be in accordance with the Open Meetings Law with executive sessions held only if the reason fits into one of the exceptions allowed by law.  Even then, the ethics board, just like any other board, has to start with a duly noticed open session and then a majority vote to go to executive session.  Robert Freeman also opines that, under some scenarios, Ethics Board records are also FOILable.

The second blunder...

The town supervisor looked right into our camera a year ago and named "the accused" person and their "alleged violation" stating that the complaint was being sent to the County Board of Ethics for an advisory opinion.

Then, a couple of days later, "the accuser" who is head of another board, did the exact same thing...looked right into our camera, named "the accused" and expounded on what "the accused" supposedly did. Problem is, town code specifically states:

The opinions of the Board of Ethics shall be advisory and confidential and in no event shall the identity of the town employee be disclosed except to authorized persons and agencies.

A copy of both videotapes, along with both adopted board minutes where "the accused's" name is in print for all to read, has been delivered to "the accused".

We are left asking ourselves...Why is the town attorney silent in this matter?

to be continued...