July 17, 2007

Hon. Paul J. Feiner

Supervisor

Town of Greenburgh

177 Hillside Avenue

Greenburgh, NY 10607

Dear Paul:

By letter dated April 2, 2007, you requested our review and comments on a draft of proposed changes to Chapter 570, Code of Ethics of the Town of Greenburgh.  By letter dated April 19, 2007, we provided comments on those proposed changes.  Thereafter, you advised that additional changes had been made to the previously reviewed proposed amendments to Chapter 570 and asked that we review those additional changes.  On July 6, 2007, Town Councilman, Francis Sheehan, provided us with a red-line version of amendments to Chapter 570 that are to be the subject of a public hearing on July 18, 2007.

Given the limited time available for our review of those latest revisions, we have the following general observations regarding the proposed legislation:

1.      We commend the Town on its efforts to ensure that public business is conducted without actual conflict of interest or the appearance of impropriety.  However, a code of ethics must be easy for lay persons to understand and apply without resort to lawyers in order to achieve its primary purpose of providing guidance to officials, employees and citizens.  Given the legislation’s complexity, the criminal and civil sanctions for its violation and the overbreadth and privacy concerns discussed below, we are concerned that this standard has not been met and that enactment of the proposed legislation may discourage persons from serving the Town. 

2.      Notwithstanding commendable efforts to ensure a pristine ethical environment within the Town, we are concerned that the prohibitions and mandates in §§ 570-4, 570-7 and 570-8 relating to the acceptance of contributions and the filing of campaign contribution reports may sweep too broadly, infringing upon the First Amendment rights of both contributors and candidates (see generally Buckley v. Valeo, 424 U.S.1 (1976); Randall v. Sorrell, 126 S.Ct. 2479 (2006)) and/or intruding into areas of campaign finance regulation where the State has preempted the field.^[1]

3.      We are also concerned that certain restrictions placed on the actions of elected Town officials will impair their ability to effectively serve their constituents and/or unduly restrict their use of information that is otherwise publicly available for the use of others.  See § 570-4(L)(4) which would preclude or deter a Town Board member from appearing before the Planning Board or Zoning Board of Appeals to support a Town project or a project deemed to be in the best interest of his or her constituents;  § 570-4(B)(1) which would prohibit use of information that is otherwise publicly available and § 570-4(B)(2), (3) which prohibits elected officials from publicly disclosing information potentially material to the discharge of their duties notwithstanding that such information is not made confidential by Federal or State law.  Moreover, no provision is made to permit elected or appointed officials or employees to disclose conduct known or reasonably believed to involve waste, inefficiency, corruption, criminal activity or conflicts of interest even under circumstances where such disclosure is expressly protected by State law.  See Civil Service Law § 75-b.

4.      We recommend that the Town Board consider protecting the privacy interests of those who seek an advisory opinion from the ethics board and those who are required to complete and file financial disclosure forms.  See generally “Running a Local Municipal Ethics Board: Is Ethics Advice Confidential?”, by Steven G. Leventhal and Susan Ulrich, Municipal Lawyer, Spring 2004.  Confidentiality in the exercise of an Ethics Board’s advisory function is justified as a matter of public policy because it encourages officials to seek ethics advice without fear that the making of such inquiry will be used against them.  The Committee on Open Government has opined that the advisory opinions of a town ethics board would be exempt from disclosure under the Freedom of Information Law unless adopted by the town board as a final determination that the subject officer or employee engaged in official misconduct.  N.Y.Comm. on Open Gov’t, FOIL Advisory Op. 8922 (1995).

Similarly, mandatory financial disclosure requirements must be accompanied by a “mechanism to prevent automatic public disclosure of all information provided.”  Hunter v. City of New York, 58 A.D. 2d 136, aff’d, 44 N.Y. 2d 708 (1978). See also Barry v. City of New York, 712 F.2d 1554, 1564 (2^nd Cir. 1983) upholding New York City’s revised mandatory financial disclosure requirements where provisions of that law enabled an employee to indicate upon submission of his or her financial disclosure information form such information that the person wished to remain confidential.  Upon request for public inspection of the employee’s financial disclosure form, the Board of Ethics would evaluate the individual’s privacy request, and based on the personal nature of the information, whether the information was related to the individual’s duties, and whether the information involved a potential conflict of interest, the Board of Ethics would then determine whether to keep parts of the disclosure confidential. Id at 1561-1562.^[2]

5.      Consideration should be to given to including a waiver provision where strict compliance with a provision or provisions of the legislation would create undue hardship or where a waiver would not be in conflict with the principles and interests of the Town.

6.      On a more technical level we have the following additional observations:

(a)   § 570-4(L)(1) would appear to require recusal of Planning Board and Zoning Board of Appeals members where a merchant in town seeks an approval and the members have at one time or another purchased goods or services from such merchant.  An application by a local supermarket could result in the entire board having to recuse itself.

(b)   § 570-11 (A)(1) states inconsistenty that the members of the Board of Ethics “shall serve at the pleasure of the Town Board” for “terms of three (3) years.”  Typically, outside civil service, public officers or employees appointed for a fixed term may not be removed except for cause.  By contrast, those serving at the pleasure of the appointing authority may be removed without such protection. 

(c)   § 570-4(A)(1)(a) could be construed to prohibit inter alia acceptance of a tax refund by a Town resident or the ceremonial acceptance of a gift to the Town, on Town property.

We hope that these comments and observations are helpful in your consideration of the subject legislation. 

            This memorandum is provided for informational purposes only and may not be relied upon as formal opinion of counsel.

                                                                                    Very truly yours,

                                                                                    Lester D. Steinman

LDS/dl