As former City Councilman Gerry Seitz said at the August 9 City Council meeting, it was regrettable that so few were in the audience that night. At the top of the agenda was a detailed update on flood mitigation efforts, followed by a resolution to create a Climate Smart Communities Task Force, which passed unanimously. City staff then presented the 5-Year Capital Improvement Program, which City Manager Greg Usry explained was the largest CIP in history, both in needs and in funding sources. Mayor Josh Cohn noted that the “present cluster of priorities were arrived at after several public work sessions.” They add up to just under $100 million.
When residents were invited to come to the podium to speak on non-agenda items, there was only one who did, Mr. Seitz. He began by congratulating the Council majority, who he continues to refer to as “The Gang of Four”, not only for withdrawing their lawsuit against the Board of Ethics but for offering to pay their own legal fees. But he had questions regarding the provenance of the document entitled “New York Conference of Mayors and Municipal Officials Ethics Guidance”, dated August 2, that accompanied the press release from the Council majority. “There is no signature, and it has no letterhead.”
Councilman Bill Henderson continued that line of questioning. He asked Mayor Cohn for clarification. “Is it an official NYCOM (New York Conference of Mayors) document? Why is it not signed?”
The Mayor replied: “If people are concerned, we’ll ask NYCOM to add a letterhead.”
Councilman Henderson, a former federal prosecutor, pressed on. “But who created this document?”
Mayor Cohn, “I believe it was Wade Beltramo (General Counsel) and John Mancini (Counsel). They presented it in exactly that form.”
When Henderson asked what was the basis for NYCOM to create this document, Cohn replied, “Our extensive conversations with them.”
Henderson, increasingly incredulous, continued: “Based on those, they gave you this and prepared these topics?”
The Mayor, a retired attorney, reiterated that it was Mr. Mancini’s document and he sent it to the majority.
Councilman Josh Nathan, a practicing attorney, said he was puzzled by the document, which had struck him as “odd” when he read it. So, last week, he called NYCOM and spoke to Mr. Beltramo, Mr. Mancini, and Peter Baynes, the executive director. “All three confirmed that: they did not write this document, they neither saw nor analyzed the Board of Ethics opinion (that the Council majority had acted inappropriately), NYCOM does not issue opinions on specific matters, and it was their understanding the document was drafted by Mayor Cohn after conversations with them.”
Turning to the Mayor, Nathan said, “You are saying something different. I originally thought you would clarify that these were your notes, not a NYCOM document. People need to know what that document source is.” He added, “Our community has suffered so much through so much through this entire ordeal. We cannot continue to have things come from this dais that add insult and injury to our community.
“This is utterly deceptive or an enormous misunderstanding. I’m stunned, quite surprised.”
Mayor Cohn said calmly, “I understand your surprise. I sent the document, along with other documents, to NYCOM. They were given the document to change as they saw fit. They left the document in the form that you see it. They made come changes to our public statement but not in the guidance.”
Councilmen Henderson and Nathan peppered the Mayor with several more questions, until he finally acknowledged that he’d written the document. “I wrote it. They approved it.”
Within seconds, Mr. Seitz was back at the podium. “What we’ve heard here is absolutely damning! All the written communication you sent to NYCOM is FOIL- able and should be posted on the City website.”
The closing words of Councilman Henderson resonated through the Council Room: “I look forward to working with my colleagues, not as a gang of four but as a gang of seven.” He then praised and thanked the members of the Board of Ethics, Beth Matthews, Ted Dunn, Ted Stein, for being “an example to all of what true public service is. They’ve shown us the importance of character and principles.”
Council Majority’s Decision to End Lawsuit Against Board of Ethics
In a public statement from Mayor Josh Cohn and Councilmembers Carolina Johnson, Julie Souza, and Ben Stacks on August 2, they wrote:
“As volunteer City Councilmembers and Mayor of the City of Rye who have sacrificed countless hours for the good of our community, we find ourselves in a necessary but increasingly awkward and undesirable position: legally challenging an opinion of the volunteer board of ethics in order to clear our names. This recourse was not remotely our first choice of action, but this misguided and misinformed opinion – leaked publicly – is so factually wrong, misrepresentative of the truth and procedurally untethered that we had no choice but to try to call out a deeply flawed process, restore our credibility, and protect and encourage future volunteer officials.
“We are confident we would win in the court of law. (Our guide and counsel, Karl J. Sleight, is the former Executive Director of the NY State Ethics Commission and, in addition, after consultation, the New York Conference of Mayors and Municipal Officials (NYCOM) ethics guidance (attached) is consistent with our position.) However, after weeks of discussion, we have decided to withdraw our lawsuit and instead pursue a different path to find a long-term solution and ensure this deeply broken process cannot happen again. Why? Because our counsel’s review (and our litigation papers) and the NYCOM concurrence have taken us past the shock of our own mistreatment to an understanding that Rye’s Code of Ethics and Board of Ethics must have a holistic review beyond that which a court reviewing one wrong decision is likely to provide.
“As our attorney, Karl Sleight, puts it: ‘My clients have reconfirmed (through NYCOM) that their ethics concerns at issue in the litigation were meritorious. Although the end of the litigations means a legal answer to a legal question will not occur, a more important victory is had. Rye will start down the path of updating and improving their Code of Ethics, which will benefit everyone in the city.’
“To be clear, none of us have done anything wrong. We have served this community for years, ethically and thoughtfully, and yet, now, our professional careers are being put at risk. This is completely unacceptable, for us and for those who follow in our positions. Most prominently, the Board of Ethics’ lack of fair process must be changed. To ensure our situation never happens again, we will focus on updating and modernizing our outdated Code of Ethics, which was written in the 1960’s. To do so, we are calling for an independent working panel, including expertise in municipal ethics, that will review and provide recommendations to improve and modernize our city’s Code of Ethics. We expect to be able to present such a panel shortly.
“This has been an immensely painful and frustrating time for all of us and our families. We did not choose this fight. Nor do we believe what has transpired since February in this regard has helped anyone, especially our community that looks to us to help solve issues, not create new ones. We hope — and expect — our City Council colleagues will join us in moving forward with civility to find common ground and better solutions for our community.”
In an effort to resolve the dispute and find a commonsense solution, we repeatedly contacted the Board of Ethics in attempts to correct the opinion’s misrepresentations and to have a fair discussion of the facts. We were met with a curt lawyer’s, “No”. We raised our concerns publicly on the Council dais, to no response. We tried informal outreach through third parties, we tried a lawyer’s letter. Nothing changed. For months, we tried again and again to have the opinion revised and our case heard, but time and again we were rebuffed, often without even a response.
We have offered to meet to try to find a middle ground, only to be denied. And so, we filed a legal challenge, not just to clear our names but also to help ensure that this cannot be repeated. At the request of Rye residents, we invited the Board to formal mediation of our suit, only to be rejected. We offered to hold our suit in abeyance and work with the Board and a municipal ethics expert in review and revision of our ethics code that would test the foundations of the Board’s opinion. The Board said no. And now we are left with our city divided and in distress and no immediate resolution of the issue. We have thought long and hard over the past month and believe that at this point we have created the record we need to rebut the Board’s opinion should it be an issue in our working lives. That belief allows us to shift our focus from our lawsuit, which we have withdrawn, to fixing the system overall.
Attached to the Council majority’s statement was a document entitled New York Conference of Mayors and Municipal Officials Ethics Guidance.
“[The New York State Conference of Mayors and Municipal Officials (NYCOM) is an association of, and for, cities and villages in New York. Through the active participation of its membership, more than 12 million New Yorkers are represented. The association is a readily accessible source of practical information touching upon every area of municipal activity and is also a leader in the on-going training and education of local officials.]
-Board of Ethics mandates like Rye’s, which follow General Municipal Law Section 808, do not provide any investigative authority (including the ability to call witnesses). Such a Board’s mandate is only to respond to written questions, typically about the activities or proposed activities of the person submitting the questions. This mandate creates an advisory body, not an investigative body intended to consider third party conduct.
-Boards of Ethics may be given investigative powers by local law, however, those powers must be used according to well-considered rules and with regard to procedural due process requirements (notably notice and hearing) when appropriate. Notice and hearing should also be used as warranted to assure gathering a complete set of facts and to demonstrate fairness.
-There is no reason why a Board of Ethics in the course of preparing its advice or completing its advice should avoid dialog with those who are the subject of its advice.
-Appearance/impression of impropriety provisions are not found in modern codes due to their subjective “hair trigger” basis. Appearance/impression of impropriety allegations must be thoroughly investigated, and any findings must have a firm factual basis. Misuse or careless use of appearance/impression of impropriety provisions may chill the proper functioning of government, discourage government service (particularly among volunteers) and disenfranchise citizens.
-Recusal of an official is an extreme remedy that, particularly in small municipal settings, may interfere with government functioning and leave citizens unrepresented. Disclosure of potential conflicts is preferred to recusal because disclosure may better preserve the ability of governing panels to function and serve their constituents.
-Recusal should not be required when it would prohibit a majority of a decisional panel from acting.
A Code of Ethics should not be construed as prohibiting a municipal officer or employee from representing himself or herself, or his or her spouse of minor children before the municipality.”