In a rare instance of bipartisanship, on June 16 the Rye City Democratic and
Republican committees issued a joint and emphatic statement demanding that
Mayor Josh Cohn and Councilmembers Carolina Johnson, Ben Stacks, and Julie
Souza withdraw their lawsuit against the City’s Board of Ethics or resign from
office. The statement was released to the media shortly before a special City
Council meeting that afternoon, which was called in order to authorize funding for
and retention of counsel(s) in the matter.
Three days earlier, the four Councilmembers, Cohn, Johnson, Souza, and Stacks,
filed suit against the Board of Ethics (BOE), charging that the board overstepped
its authority, denied them due process, and made errors in judgment in its February
13 opinion. In that opinion, the BOE stated that the actions taken by the City
Council leading up to the special February 6 Council meeting, the single purpose
of which was to propose a three-month moratorium on tree removal, violated City
Code because “the primary reason the meeting was called was to protect trees on
property immediately adjacent to the mayor’s property.”
When we asked the plaintiffs why they felt compelled to bring suit against a city-
appointed committee comprised of highly respected individuals, including the City
Manager and the Corporation Counsel, two of the four stated that they had tried
individually and as elected City officials to share their concerns with the BOE to
no avail. They had hoped to have the opportunity to plead their case to the board to
explain: their reasons for holding a special meeting on February 6, from which
Mayor Cohn recused himself; their concerns about the release of the “confidential”
BOE opinion to the press; and their hope that the opinion would be retracted.
In a phone conversation with Councilmember Souza on June 17, she said, “We
tried to work this out for months. The only response we received from the BOE
was: ‘The Board of Ethics issued a confidential advisory opinion, dated February
13, 2023, finding that the extraordinary measures taken to schedule the public
hearing at issue have resulted in an appearance of impropriety. The Board stands
behind the opinion, which speaks for itself and was provided on a confidential
basis. The Board finds no basis for retraction.’”
Souza continued, “Why did the BOE never interview any of us?”
Sadly, there are many troubling aspects of this continuing story.
Why is the Council majority pointing a finger at Councilman Bill Henderson for
asking for the BOE’s opinion on the appropriateness of holding or attending a
special meeting, given that the trees about to be clear-cut backed up to the mayor’s
property? Councilman Henderson had every right to do so, according to the City
Code.
How do you sue for an opinion which is not legally binding?
Why didn’t the Council majority vote to authorize indemnification of the Board of
Ethics at its June 14 meeting, rather than keep the community, and the BOE in
suspense?
Is it appropriate for members of the City Council who are suing the BOE to
determine the amount of funding provided to the BOE for its defense?
Shouldn’t the four members of the Council, as interested parties, have recused
themselves from the discussion and appointed a special commissioner? Should
they be given the authority to determine the amount of money taxpayers will
provide for their legal expenses?
Should the Council have given Rye taxpayers the opportunity to weigh in on the
decision?
Finally, is it right that the other three members of the Council were only apprised
of the majority’s request for funding of their legal expenses when they arrived at
the June 16 meeting?
Whatever adjectives have been bandied about in public and on social media
regarding the lawsuit brought by the majority and their ability to some extent to
control the outcome, including “surreal”, “outrageous”, “embarrassing”, have
merit.
As Rye City Democratic Committee Chair Danielle Tagger-Epstein told the paper,
“We wrote that letter cooperatively with the Rye City Republican Committee
because what is happening on the Council is not good governance. We want to
remind the Council that members are allowed to disagree.”
Rye GOP Committee Vice-Chair Katie Manger, said, “The lawsuit brought by the
Council majority and their comments and behavior at the June 14 meeting
prompted hundreds of emails and phone calls between members of both parties.
All of us were incensed.”
What’s at stake here is more than the outcome of the lawsuit. If we lose confidence
in our elected officials and volunteers and if fair-minded residents no longer step
up and run for office or agree to serve on City boards or commissions because of
this, the community will be the big loser.
Dozens of residents went to the podium at the June 16 Council meeting to convey
that all-important message, but before they did Mayor Cohn summed up why there
was a special meeting. “We are here because of litigation for a declaratory
judgment that asks for no damages. The Board of Ethics wrote an opinion without
any input from four people, each of whom tried to contact them. All we got back
was a non-response. The process lacked fundamental fairness.” He continued,
“We received a letter from the attorney engaged by the Board of Ethics informing
us that they would not engage in any further discussion. Some of us found
ourselves questioned in our workplaces. We consulted counsel.”
Directing her remarks to the Council majority, Democratic Committee member
Shari Punyon stated, “There was an appearance of impropriety. You chose to go
ahead and hold a meeting [which the Board of Ethics had already cautioned at least
one Councilmember not to hold]. Now it’s a real conflict of interest. You have a
fiduciary responsibility. Your decision calls into question your ability to govern.”
Gerry Seitz, an attorney and former City Councilmember, added: “Shari nailed it.
The issue here is judgment and common sense. You have people [the Council
majority] making decision on costs who are on the opposite side of the litigation. I
have no idea what the payout is for insurance, but every $100,000 the Council
spends costs us five miles of road improvement.”
Councilmember Ben Stacks bristled at Seitz’s remarks and voiced his frustration
with the situation he finds himself in. “I am a volunteer for this damn city and this
matter should have died, but the Board of Ethics told us to go away, despite the
fact that we found factual problems along the way.”
For Councilmember Lori Fontanes there is another problem: “It’s a technical one.
The Board of Ethics isn’t dictating, it is part of our checks and balances.”
Longtime resident Jono Peters urged the Council to postpone the filing of the suit
for a period of two weeks to give both sides the opportunity to appoint a
representative. “Let’s look to the better angels of our nature.”
John Hobbins asked the majority: “What would be a good resolution? Both
political parties have asked you to drop the suit. Don’t force the community to take
sides. Nothing good will come out of this.”
Resident Nilesh Mandhare urged the Council to demonstrate more respect.
“I came to this meeting with an open mind,” said Jim Alban-Davies. “While I’m
enormously respectful of all the work the Council does, I’m appalled that anyone’s
ego is so important that they’re willing to throw away hundreds of thousands of
dollars.” He added, “This is about the good of the community. Your reputations
will live on.”
Colleen Margiloff hadn’t planned on speaking, she said, but after hearing the
resolution by the Council majority, which grouped the legal fees for both sides
together, she wanted to be on record. “You have an argument but vote in good
faith. You’re harming yourselves with this resolution. Separate the voting on
funding. Make it a fair fight.”
The question of why the plaintiffs (the Council majority) are being indemnified,
for an amount not to exceed $45,000 as are the defendants, was answered by
Corporation Counsel pro tem Edward Dunphy (Rye’s Corporation Counsel Kristen
Wilson having recused herself as she is a member of the BOE). “The Rule of
Necessity is rarely invoked but does apply here because there is so much conflict.”
For one, the legal challenge alleges that through their Opinion, the Board of Ethics
usurped the role of the City Council and the responsibilities of Councilmembers.
The resolution passed by an expected 4-3 vote.
The questions and comments from 15-year-old Isabel Hogben were the ones that
gave everyone in the Council Room pause. She brightly began by saying she had
just arrived home after attending The School of The New York Times Academy
[which welcomes “intellectually curious” high school students]. Her first question
to the Council was what boards, aside from the Board of Ethics, provide checks
and balances on City government. When told other committees existed, she asked
for their names. She then noted that the press is the fourth branch of the U.S.
government for checks and balances. “Why do you need confidentiality in such a
small town? Why not just be transparent?” In conclusion, Ms. Hogben said, “What
I have learned from this meeting is how uncivil and disrespectful local government
representatives can be.”
Enough said.
