[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.
With All Due Respect 