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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. 1 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.

Version 2

[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 1^st, 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 15^th to May 15^th – 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 1^st 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.

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

The “Heart of SEQRA” – the Environmental Impact Statement – at the verge of extinction

Posted by Arthur J. Giacalone on February 12, 2018

Posted in: Andrew Cuomo, City of Buffalo, Development, SEQRA, SolarCity. 2 Comments

[A version of this post is published at page 8 of the print and digital version of the February 14-20, 2018 edition of “The Public” under the headline, “The Endangered Environmental Review”: https://issuu.com/dailypublic.com/docs/public_y18w7web. Once again, my thanks to Geoff Kelly, the publication’s editor-in-chief, for extending the reach of this humble blog.]

ZERO. That’s the number of times during the entirety of 2017 that a city, town, village, industrial development agency, school district, or any other local government agency in ERIE COUNTY issued a “Positive Declaration” and required preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA) prior to approving a proposed development project, enacting a new law, or adopting a change in land use policy.

ZERO. That’s also the number of times in 2017 a local government agency in NIAGARA COUNTY issued a “Positive Declaration” and required preparation of an EIS for a proposed project or law.

As a matter of fact, a review of the Environmental Notice Bulletin [ENB] – published by the New York State Department of Environmental Conservation [DEC] – reveals that during 2017 only TWO Positive Declarations requiring a proposed action to undergo the EIS environmental review process were issued for proposed projects and laws in the six counties comprising DEC’s Region 9 – Allegany, Cattaraugus, Chautauqua, Erie, Niagara, and Wyoming counties. [See here and here.]

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And it’s not only the hundreds of local agencies in the six-county “Region 9” area that spent an entire year without requiring a project sponsor – including the government entities themselves – to prepare an Environmental Impact Statement. Not one New York State agency issued a Positive Declaration during 2017 for an action proposed for Region 9’s six counties. Not the NYS Office of Parks, Recreation and Historic Preservation. Not the NYS Urban Development Corporation/Empire State Development. Not even the DEC, the state department entrusted with the duty of promulgating SEQRA regulations and protecting NYS’s environment and its human and community resources. [Click here for my compilation of DEC Region 9 – 2017 SEQR and Other Notices]

The EIS is accurately characterized by NY’s courts as “the heart of SEQRA.” It is a document which provides government agencies, the project sponsor, and the public a means to systematically consider potential environmental impacts, alternatives to a proposed action, and appropriate mitigation measures to eliminate or substantially reduce adverse impacts. Whenever a proposed project or policy – referred to by SEQRA as an “action” – may have the potential for one or more significant adverse environmental impact, the SEQRA mandates that the “lead agency” issue a “Positive Declaration” and require preparation of a draft EIS.

But the letter and spirit of SEQRA are being avoided – not followed – by local or state agencies. For example, the desire of the City of Buffalo to be “developer friendly” and place virtually every land use project on a “fast track” to approval has led even the most conscientious member of the city’s Planning Board – Cynthia Schwartz – to apologize to a developer’s lawyer during a public hearing for even mentioning her belief that a massive project on the shore of Lake Erie needed an EIS.

And it doesn’t matter how large a proposed project is, or how sensitive ecologically the site of the proposed development may be. In 2014, Gov. Andrew Cuomo’s administration – with the College of Nanoscale Science and Engineering serving as “lead agency” – allowed construction to proceed at the 90-acre, nearly one-million square-foot manufacturing and research and development complex at South Buffalo’s RiverBend site without preparation of an EIS. This glaring disregard of SEQRA’s requirements occurred despite the project’ location along the Buffalo River’s highly sensitive “Area of Concern” (AOC), one of the most toxic hotspots in the Great Lakes region.

Innovation Hub model

Given the State’s approach to the Riverbend project, it’s not surprising that the Governor’s economic development engine, Empire State Development, concluded in April 2017 that an Environmental Impact Statement wasn’t needed for the proposed Athenex Manufacturing Project in the Chautauqua County Town of Dunkirk. After all, how could there possibly be a potential adverse impact to the environment when clearing a 33.5-acre site near Lake Erie and constructing a 40-foot high, 320,000-square-foot pharmaceutical manufacturing facility housing manufacturing, warehouse, laboratories, office and central utilities spaces?

The paucity of EISs should be troubling to anyone who cherishes NY’s natural and manmade resources, who believes that our government officials and agencies are obligated to objectively and fairly comply with state law, or who believes that zoning, land use, and development decisions should be made by fully-informed agencies following meaningful public scrutiny and review.

With All Due Respect,

Art Giacalone

Confidence in judicial integrity takes another blow – but don’t tell Ralph Lorigo

Posted by Arthur J. Giacalone on January 22, 2018

Posted in: Judiciary, Ralph Lorigo. Leave a comment

[A version of this post is published in the January 24, 2018 edition of “The Public” under the headline, “A Conservative Party Payday”: https://withallduerespectblog.com/2018/01/22/confidence-in-judicial-integrity-takes-another-blow-but-dont-tell-ralph-lorigo/. My thanks to Geoff Kelly, the publication’s editor-in-chief, for extending the reach of my humble blog.]

Political analyst Bob McCarthy reports in the January 21, 2018 Sunday Buffalo News that one of the final actions taken by recently-retired Erie County Surrogate Judge Barbara Howe was to appoint Ralph C. Lorigo and Philip Tantillo trustees for the Statler Foundation. The newspaper version of the article contains the headline, “Architects of Mosey victory get trustee posts,” and – in contrast to the BuffNews website – the following subheading:

“Statler Foundation appointments raise questions about judicial elections”

In support of the suggestion of a possible link between the appointments to the independent foundation’s board – which most likely will earn Messrs. Lorigo and Tantillo annual stipends of approximately $20,000 for life – and the integrity of New York’s system for electing judges, McCarthy’s article provides the following facts:

“When Acea M. Mosey began planning to succeed Barbara Howe as Erie County surrogate judge several years ago, political advisers emphasized two important steps.

Secure backing from the county’s top political chairmen to ensure an uncontested election in 2017, they said, and raise enough money to scare off anyone even contemplating a primary challenge.

She followed the advice to a tee and glided through the November election to the bench.

Now, two of the key architects of that strategy are surfacing in a new way. Ralph C. Lorigo and Philip Tantillo have been appointed trustees for the Statler Foundation and stand to earn stipends of between $18,000 and $20,000 a year for the rest of their lives.

Howe, whom Mosey calls her mentor, last month named made the appointments in one of her last official acts as surrogate.

Lorigo, the Erie County Conservative chairman, joined with Republican and Democratic leaders last year to bestow early endorsements on Mosey and deter any others from entering the race.

Tantillo, Mosey’s treasurer, then raised more than $900,000 for her campaign — the richest judicial treasury in Western New York history. That sum also scared off anyone thinking about the surrogate’s race. …”

Whether or not a specific legal or ethical rule has been broken, I find the Statler Foundation appointments surprising and gravely disappointing. When I appeared a couple of decades ago before Barbara Howe in her capacity as a State Supreme Court Justice, she left the impression of a conscientious and cautious jurist. Judges – at the brink of retirement or otherwise – are obliged to uphold the integrity and independence of the judiciary. [See Section 100.1 of the Rules of Judicial Conduct, 22 NYCRR 100.1.] That should mean – in my professional opinion – avoiding not only impropriety, but even the appearance of impropriety.

The standard I’m expressing is by no means an extreme one. Its source is Section 100.2 of the rules of judicial conduct:

Section 100.2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.

(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.

As defined in the judicial conduct rules, an independent judiciary “is one free of outside influences or control.” Impartiality denotes absence of bias, whether for or against a person or class of people. And, not surprisingly, a judge making appointments is required to exercise her or his power “impartially”, “on the basis of merit”, and without “favoritism.” [See Sections 100.0(R) & (S) and 100.3(C)(3) of the Rules of Judicial Conduct.]

[Click here to see 22 NYCRR Part 100 – the Rules of Judicial Conduct – in its entirety.]

According to Bob McCarthy’s article, Barbara Howe urged Acea Mosey – who had served as the surrogate court’s public administrator since 2005 – to run for the office of surrogate. As he had done for Howe in 2003 and 2013, Ralph Lorigo joined Erie County Democratic and Republican chairmen and endorsed Acea Mosey for surrogate – virtually guaranteeing an uncontested election.

Only the retired judge knows whether she allowed outside influences – including political relationships – to influence her judicial judgment. As portrayed in McCarthy’s article, the new trustees “never knew vacancies existed until notified by Howe.” If that’s so, one certainly can’t say that Howe allowed the wonderful things that Lorigo had done – to advance both her own career and the judicial ambitions of Mosey – to bias her against selecting them for the Statler Foundation appointment.

I’ve previously used this forum – and others – to express my displeasure with the way New York State goes about selecting (and, protecting) the women and men who enforce and interpret our laws. [See, my posts regarding this past November’s election, and the system generally.] But I will leave it up to others with more influential platforms than this blog to determine whether the former Judge Howe – in appointing Ralph Lorigo and Philip Tantillo to the coveted position of Statler Foundation trustees – acted “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” As proclaimed in the rules of judicial conduct: “An independent and honorable judiciary is indispensable to justice in our society.” [See Sections 100.1 of the Rules of Judicial Conduct.]

But before ending this post, I’d like to perform a public service. I believe that anyone interested in discussing the Statler Foundation appointments with Ralph Lorigo, and questioning how Judge Howe’s actions might reflect on New York’s judiciary, should be prepared for the Erie County Conservative Party chairman’s potential response.

While Chairman Lorigo is mightily proud of his political clout, he dearly longs to be appreciated for his lawyering and business skills. His desire to be respected on both fronts may help explain the “amused look” described by Matt Spina – a Buffalo News investigative reporter – in a May 26, 2012 article:

“Lorigo forms an amused look when asked about the clout he carries into a courtroom where the judge might covet the Conservative line, or he argues a zoning matter in a town where board members want his party’s backing. He thinks suspicions that he often gets his way because of his chairmanship are overblown.”

Ralph’s insistence that such claims are “overblown” ring a bit hollow given the biography he was using in May 2012 at his law firm’s website. The elder Lorigo’s bio included the following assertion:

“… Ralph has a very strong interest in New York State and local politics. … [H]e became Erie County Conservative Chairman in 1994, a position he still holds today. … As the longest sitting County Chairman in Erie County, Ralph has formed many long lasting relationships with town, county and state governmental officials, as well as a strong involvement in judicial races through [sic] Erie County…”

[Note: Such statements may be considered “attorney advertising” under NY court rules. Click here to read Ralph Lorigo’s May 2012 website bio.]

While Matt Spina’s press credentials may have insulated him from anything more offensive or revealing that “an amused look,” two interactions that I experienced with Ralph Lorigo – in his role as lawyer for developers – were a bit less pleasant.

In the fall of 2009, I commented in my capacity as a resident at a Village of East Aurora Village Board meeting regarding a proposed commercial project. Mr. Lorigo represented the project sponsor. I expressed my belief that there were elected officials in Western New York who, wishing not to offend the Chairman of the Erie County Conservation Party, appeared to bend over backwards to please him. Ralph rudely interrupted my comments from the rear of the meeting room, yelling out loudly and angrily something to the tune of, “Art, you better not go there!”

Little did I know that Mr. Lorigo’s words of anger at the East Aurora meeting were just a mild sampling of how the lawyer/political operative was capable of responding when he interprets comments as somehow questioning his legal skills and effectiveness.

On December 18, 2009, I appeared in State Supreme Court before the Hon. Joseph R. Glownia. Lorigo was opposing counsel. After hearing oral argument, Judge Glownia ruled against me. As he and I were walking out the courtroom, Ralph turned around and did something I had never encountered before (or since): he told me what I had done wrong to lose the case. I jokingly told Ralph that I disagreed with his conclusion, but would perhaps change my mind if I ever became as brilliant as him.

Ralph took a few steps outside the courtroom door, and, standing a foot away from me and shouting in my face, made references to my law school alma mater, and angrily and repeatedly called me an “A**HOLE,” telling me that I was out-of-line beginning with comments I had made at the Village Board meeting a couple months earlier. When I told Ralph that I believed what I expressed at the village board meeting, and that I wasn’t the only person with that opinion, he expanded his repertoire, shouting out loud – with a number of individuals nearby – that I was a “F***ING A**HOLE.” [Note: Given the extraordinary nature of Mr. Lorigo’s 12/18/2009 verbal assault, I sent him a letter memorializing my recollection of what had occurred. Click here to read my Dec. 23, 2009 letter to Lorigo .]

So, you may wish to tread gently if and when you decide to mention the trustee appointments to the Erie County Conservative Party chairman.

With All Due Respect,

Art Giacalone

Comfy and colorful under the dome – South Buffalo’s Botanical Gardens

Posted by Arthur J. Giacalone on December 31, 2017

Posted in: South Buffalo, WNY Photos. Leave a comment

If you’re not in a hurry, and are yearning for a respite from the frigid cold, or a peaceful place to help forget about a stressful 2017, here’s a sampling of the pleasures at South Buffalo’s gem, the historic Buffalo & Erie County Botanical Gardens: