Lilacs, Magnolias and Frederick Douglass – Rochester’s Olmsted Jewel

Posted by Arthur J. Giacalone on May 18, 2018
Posted in: Uncategorized. Leave a comment

We Buffalonians exude pride and gratitude for our historic connection to Frederick Law Olmsted and our legacy of Olmsted designed and inspired parks and parkways.  My days are certainly more energetic and promising when they start with a walk through my neighborhood’s gem, Cazenovia Park (even during the winter months).  And I recall fondly my young adult years when I would daringly cross Parkside Avenue during the PM rush hour to jog along Delaware Park’s ring road, enjoying the expanse of green grass, shade of the trees, and glimpses of the inhabitants of the Buffalo zoo.  Generations of Queen City residents have similar positive feelings and memories for their nearby Olmsted parkland, whether it’s Front Park, MLJ, Jr. Park, Riverside Park, or South Park (and its glorious botanical gardens).

But I’m also a native of Rochester, New York, and I find it near-impossible this time of year not to be lured 75-miles eastward down the I-90 to re-visit my first Olmsted Park – Highland Park – nestled in a stunningly beautiful and hilly area of the “Flower City” [f/k/a “Flour City”].  While Highland touts its 1,200 lilac shrubs, and is in the midst of the 120th annual Lilac Festival  (being held this year from May 11th through May 20th), the park’s magnolia trees made the deepest impression on me during my May 16, 2018 sojourn.  And my quick trip to the city of my birth also reminded me that 2018 is the 200th anniversary of the birth of legendary social reformer Frederick Douglass – who called Rochester home for a quarter of a century.

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Here are other images from my visit to Rochester’s Olmsted park:

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CHERRY BLOSSOMS:

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MAGNOLIAS:

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LILACS:

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TULIPS:

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FREDERICK DOUGLASS/HIGHLAND BOWL:

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With All Due Respect,

Art Giacalone

P.S.  The City of Rochester has events to commemorate the bicentennial of Frederick Douglass’ birth throughout 2018.  For additional information, click here.

DEC – enlightened by public comment – partially scales back SEQRA “streamlining”

Posted by Arthur J. Giacalone on May 4, 2018
Posted in: SEQRA, Uncategorized. Leave a comment

There’s some encouraging news to share with anyone who cares about the environment and believes that government decision-making should be well-informed and objective.  But there’s also no time for complacency, with a rapidly approaching May 11, 2018 deadline for submitting comments to New York’s Department of Environmental Conservation [DEC] – via email to seqr617@dec.ny.gov – to ensure continued forward progress.

The Good News

As I expressed in a Buffalo Law Journal article a year ago, the DEC – under the pretext of “streamlining” and “updating” regulations implementing SEQRA (State Environmental Quality Review Act) – was about to significantly weaken environmental protections and lessen the public’s role in zoning and land use decision-making.

The proposed regulatory changes issued by the DEC in February 2017 recommended a substantial increase in the categories of so-called Type II actions – the proposed projects and policy changes that do not have to undergo any SEQRA review – from the current 37 to 54.  By expanding the list of projects completely insulated from SEQRA review, the DEC’s proposed regulations would likely result in the following impacts:

  • Decrease the information available to the public, as well as to the government decision-makers, to intelligently assess a proposed project’s potential impacts on the environment;
  • Reduce the ability of a municipality or a concerned public to objectively consider a proposed project’s specific natural and manmade surroundings, or the existing neighborhood or community character, when determining whether a proposed project may have a negative environmental effect;
  • Eliminate the obligation of a project sponsor or government agency to systematically consider alternatives and mitigation measures.

But something quite unusual happened in Albany.  The DEC allowed itself to be enlightened by the written and oral public comments it received last spring.  On April 4, 2018, the revised proposal for amending the SEQRA regulations was revealed.  Significantly, the latest iteration of proposed changes reduces the number of new “Type II” categories from 17 to 9.  Unless the inevitable push-back by developers and municipal “stakeholders” causes a reversal, the following types of proposed actions will not be treated as “Type II actions” and will still need to undergo environmental review under SEQRA:

– area variance applications to a city, town or village zoning board of appeals [other than the previously-excluded individual setback and lot-line modifications and area variances for one-, two- and three-family residences];

– brownfield clean-up agreements;

– acquisitions of less than 100 acres of land for parkland [although, as revised, an agency’s acquisition and dedication of 25 acres or less of land for parkland, or acquisition of a conservation easement, would be treated as a Type II action and not undergo SEQRA review];

– minor subdivisions;

– installation of cellular antennas or repeaters; and, perhaps most importantly,

– so-called “sustainable development” projects on a “previously disturbed site in the municipal center of a city, town or village”.

SEQRA’s “Cooperative Venture”

The DEC’s revised draft EIS for the proposed amendments to the SEQRA regulations is an excellent example of how the SEQRA environmental review process is intended to function.

More than three decades ago, New York’s highest court, the Court of Appeals, explained that “SEQRA makes environmental protection a concern of every agency [and] insures that agency decision-makers – enlightened by public comment where appropriate – will identify and focus attention on any environmental impact of a proposed action.”  [See Jackson v. NYS Urban Dev. Corp., 67 NY2d 400 (1986).]  That court accurately characterized the Environmental Impact Statement [EIS] process as “the heart of SEQRA … designed as a cooperative venture, the intent being that an agency have the benefit of public comment” before approving a proposed action.  As recognized by our state’s top jurists, “a primary purpose of a [draft] EIS is to inform the public and the public agencies … and to solicit comments which will assist the agency in the decision-making process.”

The public spoke – in the form of hundreds of written and oral comments – and the DEC was enlightened and pulled back on many of its most troubling proposals.

The fact that the SEQRA review process for the proposed regulatory changes worked precisely as envisioned by NY’s legislators when the statute was enacted is more than a bit ironic.  The DEC’s February 2017 proposal for “streamlining” and “updating” the SEQRA regulations (which are found at 6 NYCRR Part 617) by significantly adding to the “Type II” list of actions not subject to review under SEQRA was – from my perspective – little more than a capitulation by the DEC and Cuomo administration to pressures from the business community and government officials.  These “stakeholders” wished to eliminate what they perceive as two obstacles in the way of proposed development projects: public comment, and the objective information obtained when the SEQRA review process works as intended.

The SEQRA review process has – so far – reduced the number of new “Type II actions,” and, by doing so, has preserved the opportunities for the public to impact future development decisions by exerting the power that accompanies knowledge.

The Need for Immediate Action

With the May 11, 2018 deadline for submitting comments on the Revised Draft Generic Environmental Impact Statement looming near, here are a number of points that I recommend sending to the DEC – via email to seqra617@dec.ny.gov – to ensure protection of NY’s natural and man-made resources and preservation of the public’s ability to enlighten our government decision-makers:

  1. The DEC’s removal of several categories of new Type II actions from the proposed changes to the SEQRA regulations is laudable. The DEC should resist any pressure to reinstate the eliminated categories.
  2. The DEC has made the correct decision to require all future Environmental Impact Statements [EISs] (other than Supplemental EISs) to undergo the “Scoping” process. This proposal will help make certain that future EISs focus on potentially significant adverse impacts, and not irrelevant or non-significant impacts.
  3. The proposed changes to the SEQRA regulations fail to take any steps to reverse the regrettable trend of agencies failing to meet the low threshold for requiring an EIS, the “heart of SEQRA.” As noted in the Revised DGEIS, there are only about 200 EISs being prepared annually statewide – despite the thousands of proposed actions under consideration by the state’s 1,500 local municipalities and the myriad of NYS departments, agencies and authorities obligated to comply with SEQRA.  Most troubling for Western New Yorkers, there were ZERO EISs required in 2017 throughout all of Erie County (including the City of Buffalo) and Niagara County, and only two EISs required in 2016 throughout the DEC’s entire six-county Region 9 (including Erie and Niagara counties).  The DEC must take effective steps to reverse this trend, and firmly instruct local and state agencies that it is their obligation to “insure that agencies will err on the side of meticulous care in their environmental review,” and not “cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.” [ See New York’s highest court’s decision in King v. Saratoga County Bd. of Supervisors, 89 NY2d 341 (NYCA 1996).]  At a minimum, the SEQRA regulations must be amended – perhaps as an introductory paragraph at Section 617.7 (Determining Significance) – to include the language contained in the SEQRA statute at ECL Section 8-0109(2):  “All agencies (or applicant as hereinafter provided) shall prepare, or cause to be prepared by contract or otherwise an environmental impact statement on any action they propose or approve which may have a significant effect on the environment.”  [Emphasis added.]
  4. To ensure that any proposed action that may have a significant adverse impact on any one or more aspects of the environment undergoes the SEQRA review process, the DEC should follow the “no action” alternative and eliminate the remaining proposed additions to the Type II actions list.

With All Due Respect,

Art Giacalone

Frank B. Mesiah and Luke Easter: Two men who graced the City of Buffalo

Posted by Arthur J. Giacalone on April 29, 2018
Posted in: City of Buffalo, Political Contributions. Leave a comment

It was my plan to write yet another piece on the “pay-to-play” environment that appears to have tainted so much of the development landscape in Buffalo and the State of New York.  The post would start by mentioning an April 27, 2018 headline at the Buffalo News website – “Prosecutors seek use of donations to Cuomo campaign as evidence in Buffalo Billion trial” – and proceed to reference postings which, in my opinion, reflect (at a minimum) the appearance of “pay to play” politics in Western New York.  Examples would include U.S. Representative Brian Higgins and Gerry Buchheit’s Queen City Landing project, Buffalo City Council Member Joel Feroleto and Chason Affinity‘s Elmwood and Forest avenue travesty, the Jacobs and Pegula’s contributions to Gov. Andrew Cuomo, etc., etc.]

But my visit to http://BuffaloNews.com in search of the article regarding the Ciminelli donations to Cuomo altered those plans.  Before I could locate the “pay-to-play” article, two very different headlines caught my eye and changed my attitude from disdain to gratitude.  Rather than address actions fueled by self-interest, greed, and a sense of entitlement, I would use my blog to honor two men who made Buffalo, New York a better place.

The first headline sadly announced the death on April 27, 2018 of Frank B. Mesiah, a Buffalo native who spent decades fighting for racial justice in his hometown and beyond:  “Frank B. Mesiah, longtime civil rights leader and former NAACP president, dies at 89.”

I barely knew Mr. Mesiah, but I deeply respected his tireless effort to confront racial discrimination and injustice.  His dedication and countless accomplishments – as outlined in the above article – are  remarkable.  Our community has lost a true leader.

The second headline that altered my plan belonged to Sean Kirst’s column:  “A year from now, in Buffalo, how about Luke Easter Park?  In contrast to Frank Mesiah’s lifetime of advocacy in the Queen City, the Mississippi-born Easter – who died tragically in 1979 – spent a mere three years hitting home runs as a Buffalo Bison.  But, after reading Kirst’s column, it is difficult not embrace his characterization of Luke Easter as “a lasting symbol of community.”

As a kid growing up in Rochester, where Easter played after he was let go by the Bisons, I can attest to the way that this beloved ballplayer could – in the words of Sean Kirst – “galvanize a community, an entire community.”  Despite the passage of nearly six decades, I can still recall the respect and affection Easter engendered throughout my hometown.  And I can still hear the “knot hole club” screaming L-U-U-U-U-KE whenever our hero came to the plate.

It would be wonderful if Buffalo’s downtown ballpark could be named “Luke Easter Park.”  And then, perhaps, our city could find a fitting way to remember Frank Mesiah.

With All Due Respect,

Art Giacalone

 

 

 

 

 

 

 

Sean Kirst: A year from now, in Buffalo, how about Luke Easter Park?

 

 

 

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Battle to Stop Queen City Landing project continues – without me

Posted by Arthur J. Giacalone on April 13, 2018
Posted in: Development, Gerald A. Buchheit Jr., Waterfront. Leave a comment

I have immense admiration for Buffalo environmentalists and Outer Harbor advocates Margaret Wooster, Jay Burney and James E. Carr. They have decided to continue their effort to utilize the zoning and judicial processes to stop Queen City Landing, LLC’s plan to construct a 23-story tower complex at the former Freezer Queen site.

Bird's Eye View from Fuhrmann Blvd.

But I will no longer be their legal representative. After decades of public hearings and court proceedings – where I have attempted, with mixed results, to convince public officials to faithfully comply with the letter and spirit of New York’s development and environmental laws – I have decided to take a break from the solo practice of law. [Please note, I am not ready to call it retirement.]

On April 12, a “notice of appeal” was filed on behalf of Margaret, Jay and Jim in the Erie County Clerk’s office.  It expresses their intention to appeal the March 12, 2018 dismissal of their lawsuit – by the Hon. Catherine Nugent Panepinto – to the Appellate Division, Fourth Department, the state’s intermediate appellate court in Rochester.

Notice of Appeal p1

As addressed in detail in prior posts here [for example], the mixed-use development proposed by Queen City Landing (QCL) is located in the heart of Buffalos Outer Harbor, adjacent or within walking distance to marinas and significant wildlife habitats (including the Small Boat Harbor, Times Beach and Tifft Nature Preserves), popular fishing spots, and public parks and walkways, such as the Greenway Nature Trail, Gallagher Beach and Wilkeson Pointe. The site (referred to as “Subject Parcel” in the image below) lies in a 100-year floodplain along Lake Erie’s ecologically fragile coastline.

LWRP map detail rec areas - LEGEND

I join in the belief held by my “former clients” that the setting chosen by developer Gerald Buchheit and his partners at R & P Oak Hill for a 23-story, glass-and-steel tower is unique, environmentally vulnerable, and utterly inappropriate for a massive residential/mixed-use development. Not only does the site lie in a floodplain and along a globally significant migratory bird flyway, there are hidden concerns. QCL’s geotechnical engineers have determined that the project’s “heavy foundation loads” – a 305-foot tower and large parking ramp – would be perched on “soft to very soft clays” with “very marginal (weight) bearing capacity” that extend to bedrock 70 to 75 feet below the existing ground level.  [Note:  QCL chose not to make public its consultant’s May 2016 “Geotechnical Evaluation Report” until after the project had received its approvals – without preparation of an Environmental Impact Statement – from the city Planning Board and Common Council.]

And the nature of the subsurface soils is not the only source of potential environmental and “constructability” issues at the former Freezer Queen site.  QCL’s engineering consultants proved prescient when making the following observation in their geotechnical evaluation report: “Lake Erie is also prone to a seiche effect from a strong sustained wind event out of the southwest. During these events the water levels in the northeastern end of the lake can rise several feet.” As aptly described and caught on videotape by Jay Burney on April 4, 2018, a historically-moderate seiche occurred along the Outer Harbor, elevating water levels an estimated 5 to 8 feet, and inundating a substantial portion of the proposed tower site.

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[Above photo, showing seiche’s impact on QCL site on April 4, 2018, courtesy of Jay Burney.]

I’d be curious to see an objective market-feasibility study for QCL’s proposed 200-unit residential tower. No matter what Mr. Buchheit and his agents suggest at public hearings, I find it hard to imagine a strong interest in luxury apartments at a site that, for much of the year, is frozen, wind-slept, threatened by floods, and far from most urban amenities. Those desiring a residence that is simultaneously close to the Lake Erie shore and high above the mere mortals below might be better off patiently waiting for a condominium or apartment located downtown in Buffalo’s tallest building, One Seneca Tower.

With All Due Respect,

Art Giacalone

P.S. Inquiries concerning the appeal should be addressed to Margaret Wooster at (716) 833-5892 or by email at miwooster@gmail.com.

For What It’s Worth – Young people, once again, speaking their minds

Posted by Arthur J. Giacalone on March 30, 2018
Posted in: Uncategorized. Leave a comment

Listening to the passionate and articulate voices of WNY’s youthful speakers at the March 24, 2018 “March for Our Lives” rally at Buffalo City Hall was inspiring. Realizing that similar gatherings were occurring across our nation and around the world filled me with a sense of optimism in the future of our divided country, and a feeling of confidence that the generation that is currently coming of age will indeed compel the changes that their parents and grandparents have been unable – or unwilling – to make.

Something else occurred at the downtown Buffalo rally. I found myself singing along with – and proudly remembering the words to – a song embraced by the youthful opponents to the Viet Nam war during the late 1960s: Buffalo Springfield’s “For What It’s Worth.”  Stephen Stills’ lyrics, written more than a half-century ago, still resonated in my heart and mind. And they embodied, for me, a tangible connection between the protestors of that earlier era, and the energy and fierce resolve of today’s students who are demanding “timely passage of legislation to effectively address the gun violence issues that are rampant in our country.”

I was 17-years-old and a high school senior in February 1967 when the Canadian-American folk rock group (which, in addition to Stills, included Neil Young and Richie Furay) released “For What It’s Worth.” The USA was experiencing social upheaval on a variety of fronts with demonstrators taking to the streets and college campuses to express outrage over civil rights injustices and the Viet Nam war. I was still living in the protective cocoon of my parents’ working-class home, not quite ready to march in solidarity with those enraged by what they saw.

In contrast to the high school and middle-school activists who organized and participated in the March For Our Lives event on March 24th, my overt expression of outrage did not occur until my college days. The best that I could do in early 1967 was immerse myself in the raw emotions reflected in the music and lyrics to Stephen Stills’ protest song:

For What It’s Worth

by Stephen Stills

There’s something happening here.  What it is ain’t exactly clear.  There’s a man with a gun over there.  Telling me I got to beware.  I think it’s time we stop, children, what’s that sound Everybody look what’s going down

There’s battle lines being drawn. Nobody’s right if everybody’s wrong. Young people speaking their minds. Getting so much resistance from behind. It’s time we stop, hey, what’s that sound Everybody look what’s going down

What a field-day for the heat. A thousand people in the street. Singing songs and carrying signs. Mostly say, hooray for our side. It’s s time we stop, hey, what’s that sound Everybody look what’s going down’ 

Paranoia strikes deep. Into your life it will creep. It starts when you’re always afraid .You step out of line, the man come and take you away. We better stop, hey, what’s that sound Everybody look what’s going down.

Stop, hey, what’s that sound .Everybody look what’s going down. Stop, now, what’s that sound. Everybody look what’s going down. Stop, children, what’s that sound. Everybody look what’s going down.

 © Warner/Chappell Music, Inc. For non-commercial use only.

[As an aside, Rolling Stone magazine places Buffalo Springfield’s “For What It’s Worth” No. 63 on its “definitive list of the 500 greatest songs of all time,” right behind the Beatles’ “She Loves You,” and one ahead of Bo Diddley’s eponymous single “Bo Diddley.”]

The hopeful images of “young people speaking their minds,” and “a thousand people in the streets, singing songs and carrying signs,” are tempered by the knowledge that “paranoia runs deep” in our society, and, indeed, “there is a man over there telling me (and, you) we’ve got to beware.”

DSCN9413 40 Indian Church Rd., Buffalo, New York

But, I am optimistic that the generation coming of age – including my son, a 17-year-old high school senior, and daughter, a 20-year-old college student – will succeed in the battle to end gun violence and heal our divided nation.

With All Due Respect (and, admiration),

Art Giacalone

P.S.  Here is the March For Our Lives “Mission Statement.”

Dear Mr. Poloncarz, Set the ethics bar higher!

Posted by Arthur J. Giacalone on March 14, 2018
Posted in: Erie County. Leave a comment

[I apologize for this late notice.  Erie County Executive Mark C. Poloncarz will hold a public hearing on the proposed new code of ethics at 2 PM this afternoon, Wednesday, March 14, 2018, in the 14th Floor Conference Room at 95 Franklin Street, Buffalo, NY.  Here are the comments I plan to express at the hearing.]

Dear County Executive Poloncarz:

I have no axe to grind. I sincerely wish that I could be praising Erie County for drafting a strong, exemplary code of ethics. But, I can’t. And, I am unable to figure out a legitimate reason why this proposed local law was approved unanimously by Erie County legislators on March 1st, and why you announced that you would sign the new code of ethics into law even before conducting today’s public hearing.

It is – with all due respect – a mediocrity. The proposed code of ethics is neither strong, nor easy to understand. It adds little of substance to the pre-existing ethics code, fails to comply with the State mandates for municipal codes of ethics, further politicizes the County’s Board of Ethics by adding three non-voting, politically-appointed members, and is riddled with ambiguities, typographical errors, and incongruities.

As County Executive, you can do so much better for the residents and taxpayers of Erie County.

I. NON-COMPLIANCE WITH STATE LAW

What troubles me most about the proposed code of ethics is its failure to comply with the requirements set forth in Article 18 of the State’s General Municipal Law. Although the provisions found in the State’s Conflict of Interest law do not “pre-empt the field,” the State’s Legislature placed an important limitation on a county’s powers to enact its own code of ethics: A county’s code “MAY NOT AUTHORIZE CONDUCT OTHERWISE PROHIBITED” by GML Article 18.

Astonishingly, the proposed code of ethics does not prohibit “conflicts of interest” as required by GML 801, and fails to adopt GML 804’s provision voiding contracts willfully entered into despite a prohibited conflict of interest. These mandates are at the very core of Article 18’s ethics standards.

For Erie County officials to claim – as reported in the Buffalo News – that “these provisions are covered under state law and implied in the language of the local law,” makes a mockery of both the intent of a municipal ethics code, and your expressed goal of a code of ethics that is “easier to understand” and provides “definitive answers to officials.” It would be highly unrealistic to expect county officials and employees to be fully versed in the mandates of NY’s General Municipal Law (when county legislators and the county attorney’s office appear to have been unaware of the significance of the provisions). And, it would be markedly unfair to punish a county worker for violating a prohibition that is merely “implied” in the county’s official code of ethics.

Furthermore, one cannot persuasively argue that the proposed new code of ethics impliedly incorporates Article 18’s prohibition against an official’s conflict-of-interest when it expressly allows an Erie County legislator to voluntarily decide whether or not to divest himself[1] or herself of the “substantial personal economic interest” creating the conflict situation. The legislative process is tainted by the existence of the conflict-of-interest, whether or not the conflicted elected official “abstains from participation” in a particular action. [See proposed Code of Ethics, Section 5(b).]

Additionally, the proposed code of ethics contradicts Article 18’s definition of “employee” – which expressly includes individuals “whether paid or unpaid” – by restricting the definition of “employee” to a person “who receives a salary or wage.”   In doing so, it authorizes conduct prohibited by GML Article 18’s provisions by excluding unpaid officers and employees from the standards of conduct and disclosure mandated by State law.

II. UNDERWHELMING “IMPROVEMENTS” TO THE EXISTING CODE OF ETHICS

I could understand a desire to immediately approve a new-and-improved code of ethics if truly significant changes to the current set of standards were being enacted. But, it is difficult to see how the public would be materially harmed if enactment of a new code of ethics was delayed while the proposed local law was strengthened and brought into compliance with State mandates. Here, as a reminder, are the primary changes from the existing ethics code:

** Section 3(j) adds a definition for the term “services,” excluding “work on a pro bono or volunteer basis where no remuneration is received for the work performed.”

** Section 4 gives elected officials, employees, and political party officials an extra month – from April 15th to May 15th – to file their annual financial disclosure statement.

** Section 5(c) requires elected officials to file a list of all family members employed by any government organization “in any capacity.”

** Section 6(a) changes the maximum value of a gift that a county official may solicit or accept from $75 to “ a nominal value,” but fails to define “nominal value” and greatly benefits elected officials, county officers and employees by adding a page-and-a-half of items that will not be considered “gifts.”

** Section 6(h) requires elected officials and candidates for elected office, who are hired by a third party to provide any services, to disclose the identity of such clients within five days of being hired if the third party is seeking any action [or lack of action] from a county agency or board.

Beyond these additions, the proposed ethics code – without explanation (and, frankly, an explanation is called for when the legislature chairman, minority leader, and county executive are all licensed attorneys) – deletes a provision in the current financial disclosure form which requires a reporting individual who practices law to give “a general description of the principal subject areas of matters undertaken” by the individual, and, if applicable, the firm or corporation with whom he or she practices. Surely, the public interest will not be harmed if the elimination of this disclosure requirement is delayed.

III. AMBIGUITY AND INCREASED “GIFTING” UNDER NEW ETHICS CODE

Mr. Poloncarz, as you know, the proposed new code passed on March 1st by the Erie County Legislature ostensibly prohibits county officials and employees from soliciting or accepting any gift having more than a “nominal value.” I assume county lawmakers were attempting to show how tough they can be when establishing a set of standards. Frankly, I’m not impressed.

The county legislators have failed to define the term “nominal value” – a truly subjective concept. And, even more troubling – if a goal of a new ethics code is to reinforce public faith in government – they have made it safe for county officials and employees to accept (and, apparently, solicit) a host of items that would no longer be considered a “gift.”

I can’t see how the Board of Ethics – much less an individual county official or employee – will be able to determine what is or is not a permissible gift without a clear definition for “nominal value.” The difficulties, at least from my perspective as a lawyer and resident, are compounded by the page-and-a-half list of “non-gifts.” Here are just a few examples:

?? If “food or beverages valued at fifteen dollars or less” is not a “gift,” would it be proper for a county legislator to be treated to a $14.99 lunch by the same person once a week for a year? Does the $15.00 maximum include tax and tip? Could a county official treat a $15.45 lunch at the Town Restaurant, consisting of a club sandwich ($10.95) and small Greek salad ($4.50), as a gift having less than a nominal value? Would it depend on how hungry the official was at the time?

?? If the “complimentary attendance at a widely attended event” exclusion “is not intended to include professional sporting events,” could one of your department heads accept an invitation to a sold-out, high-demand collegiate sporting event where tickets were being scalped for $40? $60? $75? $100? [Note: Tickets for the Men’s Mid-American Conference Basketball Championship semi-final and final games last week were priced at $34.00 each.]

?? If “honorary jerseys or other sports-related clothing” publicly presented in recognition of public service and “otherwise reasonable under the circumstances” are not a “gift” for purposes of the code of ethics, would it be a violation of the no-gift-exceeding-a-nominal-value provision for a county official to privately accept a Bills T-shirt ($25)? Bills long-sleeve T-shirt ($40)? New Era Cap ($25 to $40)? Bill’s Women’s Hoodie ($70)? A personalized UB Bulls long-sleeve T-shirt ($42.99)?

Although one might question whether the maximum $75 value limitation in the current ethics code should be higher (e.g., the City of Buffalo’s limit is $100) or lower (e.g., East Aurora’s limit is $25), at least the current code draws a tangible line-in-the-sand for county officials and employees (and, Ethics Board members) to apply. As drafted, the proposed code of ethics contradicts your expressed wish for “a Code of Ethics that was easier to understand and would give more definitive answers to officials.”

IV. TYPOS AND INCONGRUITIES

I admit, increasingly, as my eyes and mind weaken with the passage of time, my writings contain more typographical errors. That fact annoys and, on occasion, embarrasses me. But, I’m just one person, I often have significant time constraints, and my blog posts and court papers are not official enactments adopted by elected officials intended to bind thousands of county employees, officers, and elected officials.

In contrast, the proposed code of ethics has been under consideration in various drafts since September 2016, has (theoretically) been reviewed and re-read by the eleven legislators and their individual staffs in at least three iterations, has obtained the blessing of County Attorney Siragusa, constitutes binding legislation setting standards of conduct for the county’s workforce and board members, and faced no imminent deadline. Despite these circumstances, this dreary-eyed and uncompensated senior citizen has – so far – discovered a host of typographical errors and incongruities in the proposed local law, including, for example, the following:

        A.  Eliminating necessary authority. The latest version of the ethics code retains the following provision from the original county ethics law: “It is the intent of the legislature to exercise all authority granted under subdivision three of section eight hundred twelve of the General Municipal Law.” GML Section 812(3) provides a county with the authority to “elect to remove itself from the ambit of all (but not some) provisions” of Section 812. It is unclear to this lawyer whether my county lawmakers truly intended to exercise that option.

GML 812 is the only provision in the State law that empowers municipalities to enact an ethics code which includes a requirement that candidates for elected offices submit financial disclosure statements. GML 811 does not contain that power. By exercising the authority granted in GML 812(3), Erie County has eliminated the legal basis to demand financial disclosure from candidates. Nonetheless, the proposed ethics code mandates financial disclosure from candidates for elected offices.

        B.  Allowing the indefensible. As approved on March 1, 2018, the new code of ethics would literally allow county officials who are also lawyers to represent clients in what is clearly a conflict-of-interest situation:

Section 7. Non prohibited activities.

Nothing contained in this section shall be construed as prohibiting an elected official, officer or employee from:

                                                            …

        d. representing or filing any action against an agency of the county, or officer or employee thereof, in which the subject matter involves the normal functions or is within the scope of duties of his office or position.

Despite any conscious or unconscious desire to make life easier for members of the bar, I doubt that the county’s legislators intended to approve the above-quoted provision. (But, apparently, no one at County Hall read the proposal closely enough to detect this obvious error.)

C.  Referencing incorrect sections. A code of ethics that provides county employees and officials with incorrect citations to other sections within the code can hardly be called “easier to understand.” One example: Section 4 of the proposed local law deals with financial disclosure obligations, and refers elected officials, employees and political party officers to financial disclosure forms found at “section seven of this local law.” However, section 7 is entitled “Non prohibited activities”, and has nothing to do with disclosure. Similarly, Section 6(i) refers county officials to the definition of “relative” as defined in “section 3 sub h of this local law. When the reader flips back to section 3(h) they will find the extensive definition for “political party official,” with nary a mention of “relative.”

In conclusion, I sincerely believe that you, as County Executive, can agree that Erie County residents and taxpayers deserve a county code of ethics that complies with the mandates of state law while clearly and unambiguously establishing the highest standards for the conduct of county elected officials, officers and employees. I respectfully ask that you give careful consideration to my comments, and refrain from giving your approval to a new code of ethics until this attainable goal is met.

With All Due Respect,

 Arthur J. Giacalone

[1] How can Erie County, in the year 2018, adopt an official code of ethics that only refers to elected officials, officers and employees using the masculine pronouns he, him, and his? Incredibly disappointing.

Ethics Code chatter masks real problem: Political Contributions

Posted by Arthur J. Giacalone on February 23, 2018
Posted in: Buffalo News, Erie County, Political Contributions. Leave a comment

[A version of this post is published at The Public – click here – beneath the headline:  “On the Ethics Code, It’s not the Sabres tickets, Folks…”]

The Buffalo News has expended substantial space and ink reporting and editorializing on the effort of Erie County’s elected officials to determine what is or isn’t a “nominal” gift that county officers and employees may accept without running afoul of his or her ethical obligations. The discussion arises in the midst of the county legislature’s unimpressive effort to rewrite the county’s Code of Ethics.

The focus of the public debate – by the newspaper and county legislators – has been on a rather mundane issue: Should a 200-level Sabres ticket be considered an allowable gift?

I.  Elephant in the room?

According to the News editorial board, the “nominal gift” question and other complex ethical concerns could be appropriately resolved if county lawmakers consider the following question: “How best can we instill and protect the public’s confidence in government?” From my perspective, it would be more useful (and, more honest) if our county officials, the media, and Erie County residents asked the following question:

“What is more likely to improperly influence our county’s elected officials, a Sabres ticket (which, this season, virtually no one wants), or the generous political contributions the county executive, members of the county legislature, the district attorney, the sheriff, the county comptroller, and the county clerk pursue and receive each time they run for office?”

I have little doubt that an overwhelming majority of residents would perceive political contributions as the bigger threat to their confidence in government. To help place my suggested inquiry into a tangible context, I visited the website of NYS’s Board of Elections – at http://www.elections.ny.gov/contribandexpend.html – and retrieved information concerning the contributions various Erie County officials have received between January 2010 and February 2018. Here are some thought-provoking results:

** County Executive Mark C. Poloncarz’s campaign was the beneficiary of over $2.4 million in contributions over the eight-year period. As a member of the public, my confidence in Mr. Poloncarz’s decision-making is shaken much less by the thought that someone might offer him a Sabres ticket or a ceremonial plaque, than by the fact that he has received $28,000 in contributions from the Clover property management group, $31,000 from Mosey Associates/Mosey Persico LLP, $23,297 from the Lippes Mathias Wexler Friedman law firm, $22,484 from Phillips Lytle LLP, a one-time $5,000 contribution in 2015 from R & P Oak Hill Development LLC, etc., etc.    

** County Legislator Joseph C. Lorigo received in excess of $230,000 in campaign contributions between January 2010 and February 2018. The generosity of his campaign contributors – including the $7,000 he received from his father and Erie County Conservative Party chair, Ralph Lorigo – seems much more likely to influence legislator Lorigo’s conduct in office than any nominal gift an organization or individual might toss his way.

** County Legislator Barbara Miller-Williams’ receipt of $34,330 in political contributions pales in relative size to the funds accepted by other county officials. But, is it unfair to wonder how much influence City of Buffalo Mayor Byron Brown could exert, if he wished, on Ms. Miller-Williams when nearly ten percent (10%) of all contributions she received ($3,224) came from the mayor’s campaign coffers?  

Given the stunning contrast between the value of the token gifts offered to our elected officials, and the size and significance of campaign “war chests,” it seems rather frivolous for our county’s lawmakers to prepare, discuss and argue over a detailed list of what should or should not be treated as a “gift” under the new Code of Ethics. Can our lawmakers actually quibble, with a straight face, over promotional hats and t-shirts, publicly-presented sports memorabilia, or invitations to attend personal or family social events, when political contributions of $1,000, $5,000, or even $10,000 are the metaphorical “elephant in the room”? Apparently, they can.

Elephant in room per Michalek

Mind you, I don’t mean to suggest that the topic of political contributions has been totally ignored by our intrepid legislators. Erie County legislators have managed to slip into their latest Code of Ethics proposal a provision meant to shield county officials from any suggestion that political contributions – even if they violate the state’s election law – are to be considered “gifts” intended to influence the performance of an elected official’s duties:

“Proposed Code of Ethics, Section 6(a) … For purposes of this sub-section, the term “gift” shall not include … (viii) contributions reportable under article fourteen of the Election Law, including contributions made in violation of that article of the election law; …”

Please note that I am not suggesting that a municipality’s code of ethics is the appropriate mechanism to address as vexing and complicated an issue as the corrupting impact of political contributions on the integrity of our democratic institutions. On the other hand, I would find it terribly refreshing if one of our elected officials were to decide that a political contribution offered to her or him appears to be an improper attempt to influence her/him in the conduct of her/his office, and files an official report pursuant to Section 11 – “Duty to report” – a provision found in both the current and proposed county code of ethics:

“Section 11.      Duty to report.

Every county office or employee shall report to the Erie County Board of Ethics, district attorney and county attorney any action which may reasonably be interpreted as an improper attempt to influence him in the conduct of his office.”

II. The proposed Code of Ethics – exceeding its authority.

The county’s authority to adopt a code of ethics is found in Article 18 of the state’s General Municipal Law [GML], entitled “Conflicts of Interest of Municipal Officers and Employees.” GML Section 806 provides the following instructions:

GML Section 806. Code of ethics. 1. (a) The governing body of each county, city, town, village, school district and fire district shall … adopt a code of ethics setting forth for the guidance of its officers and employees the standards of conduct reasonably expected of them… Codes of ethics shall provide standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties, private employment in conflict with official duties, future employment and such other standards relating to the conduct of officers and employees as may be deemed advisable. Such codes may regulate or prescribe conduct which is not expressly prohibited by this article but may not authorize conduct otherwise prohibited… [Emphasis added.]

[Here’s the entire text of GML Article 18: General Municipal Law Article 18.  And, here’s a brief history of NY’s “conflict of interest” legislation included in a hand-out I prepared in 2005 for a NYS Bar Association Continuing Legal Education program: GML Art. 18 – AJG’s CLE outline June 2005.]

In an opinion letter dated February 14, 2018, County Attorney Michael A. Siragusa advised the Erie County Legislature of his conclusion that “there is no evident conflict” between the proposed Code of Ethics and the ethics laws enacted by the NYS legislature. [Here’s the County Attorney’s letter: Code of Ethics 02-14-18 Dept of Law letter.]  I respectfully disagree:

A. Failure to prohibit “conflicts of interest” banned by GML Article 18.

The heart of Article 18 of the state’s General Municipal Law is found at GML Section 801, titled “Conflicts of interest prohibited.” That provision – with exceptions found at GML Section 802 – expressly prohibits a municipal officer or employee from having “an interest in any contract with the municipality of which he is an officer or employee” when such officer or employee, individually or as a member of a board, has the power or duty to: “(a) negotiate, prepare, authorize or approve the contract or authorize or approve payment thereunder (b) audit bills or claims under the contract, or (c) appoint an officer or employee who has any of the powers or duties set forth above.”

Amazingly, neither Erie County’s current Code of Ethics, nor the proposal now under consideration, includes this ban against a county officer or employee having an “interest” – defined as “a direct or indirect pecuniary or material benefit accruing to a covered individual or his relative” – in a contract with Erie County. Rather than prohibiting the proscribed “conflicts of interest,” county lawmakers (as set forth at Section 5, “Disclosure of interest in county business”) merely require a county officer or employee with an interest in an actual or proposed contract with the county to: (i) “publicly disclose the nature and extent of the interest in writing”; (ii) “consider divesting himself of the interest, if he can do so without undue hardship” (with the conflicted officer or employee’s conclusion in that regard being “conclusive”); and, (iii) “If he does not divest himself of that interest, he must abstain from participation in such action.”

By allowing elected officials and other county officers and employees to decide whether they wish to divest themselves of an interest in a county contract, rather than prohibiting the conflict, the current and proposed codes violate GML Section 806 by, in effect, “authoriz[ing] conduct otherwise prohibited” by GML Article 18. I suggest that our county lawmakers, as well as the County Attorney, go back to the statute that authorizes (and, mandates) a code of ethics, and slowly and carefully read the “Conflicts of interest prohibited” provisions.

Constructiin and Corruption logo

B. Failure to include GML Article 18’s “Contracts void” provision.

Reflecting the significance of its prohibition against conflicts of interest, GML Article 18 makes contracts intentionally entered into despite a prohibited conflict of interest “null, void and wholly unenforceable”:

“GML Section 804. Contracts void.

Any contract willfully entered into by or with a municipality in which there is an interest prohibited by this article shall be null, void and wholly unenforceable.”

It appears that Erie County’s lawmakers have willfully excluded this fundamental provision from the county’s Code of Ethics, and, in doing so, have authorized contracts prohibited under GML Article 18.

C. Requiring financial disclosure by candidates for elected offices.

The language is less than clear, but the current and proposed code of ethics compel candidates for elected office to file extensive financial disclosure statements. While it may be beneficial to voters (and, to incumbents facing a challenger) for candidates to publicly disclose their financial information prior to election day (after all, many Americans wanted presidential candidate Donald Trump to make his tax returns public), the issue for county lawmakers is whether they possess the authority to require candidates for elected office in Erie County, as part of the county’s ethics code, to file financial disclosure statements.

I have no knowledge of any court decisions addressing this legal issue. In my opinion, the answer is pretty clear: GML Article 18, at Section 811, only authorizes a municipality – such as the County of Erie – to require the filing of financial disclosure statements from two categories of individuals: municipal officers, employees, and elected officials, on one hand, and local political party officials, on the other. There is no authority – at least in GML Article 18 – to compel such disclosure by candidates for elected office.

III. The proposed Code of Ethics – exclusion of unpaid officials.

GML Article 18’s definition of “municipal officer or employee” is appropriately broad, and includes an officer or employee “whether paid or unpaid,” as well as “members of any administrative board, commission or other agency” of the municipality. In doing do, it ensures that conflict-of-interest and disclosure provisions apply to individuals who serve without compensation on administrative and policy-making boards – individuals who often are well-connected politicos, influential business women and men, and/or campaign contributors.

Additionally, the state’s conflict-of-interest law expressly includes members, officers and employees of a municipality’s “industrial development agency” as a “local officer or employee” required to file an annual financial disclosure statement.

County lawmakers have chosen to limit the term “employee” to a person “who receives a salary or wage” from Erie County. They also have not mentioned in their definition of “officer or employee” whether the term applies to the members, officers and employees of the Erie County Industrial Development Agency [ECIDA].

While members of the ECIDA board of directors are not compensated, they possess the power to dole out millions of dollars in tax abatements and other forms of “corporate welfare” to Erie County businesses and organizations. As legislator Lorigo expressed in a press release when he was appointed to the ECIDA board: “The ECIDA can have a significant impact on our community, providing valuable incentive programs that will make Western New York stronger for the long-term.” [Note: Mr. Lorigo is no longer on the ECIDA board.] Given the policy-making powers of the ECIDA, the updated Code of Ethics must make it clear that the code’s financial disclosure provisions apply to the ECIDA members and staff.

DSCN9111

Clarification is also needed on the status of members of the county’s Board of Ethics. As with ECIDA members, appointees to the Erie County Board of Ethics are uncompensated, but possess significant discretionary powers. The public has the right to know as much as possible about the financial, family, political, and business connections of individuals entrusted with the authority to pursue – or not – county officers and employees accused of violating the code of ethics.

IV. The proposed Code of Ethics – making Board of Ethics even more political?

The current Code of Ethics calls for a six-member Board of Ethics. Each member is appointed by the county executive subject to confirmation by the county legislature, and all six members possess full voting powers.

In contrast, the current proposal would increase the size of the board to eight members, five of whom would be full voting members appointed by the county executive subject to confirmation by the county legislature, and three of whom would be non-voting “ex-officio members.” One ex-officio member would be appointed by the Chair of the Erie County Legislature (currently, Peter J. Savage, III), one by the Legislature’s Majority Leader (currently, April N.M. Baskin), and one by the Legislature’s Minority Leader (currently, Joseph C. Lorigo).

I can’t help but question the wisdom of this change. Given the sensitive and confidential nature of Board of Ethics proceedings, what constructive role would non-voting members play? How would the investigation of alleged ethical violations be enhanced by the presence of individuals who would almost certainly act as his or her appointee’s “eyes and ears”?

Conclusion

Our elected officials and their advisors must invest as least as much time and energy to ensure compliance with the letter and spirit of Article 18 of New York’s General Municipal Law – the source of their authority to adopt and amend a code of ethics – as they have drafting and quibbling over what is or isn’t an acceptable gift. If they do, the public might actually regain some confidence in government.

With All Due Respect,

Art Giacalone