Town Board Considers Weakening the Ethics Law

YORKTOWN HEIGHTS, N.Y. -- After doing nothing for three years, the Town Board is finally getting around to addressing the deficiencies in the town’s ethics law. 

A public hearing on proposed amendments is scheduled for March 19.

The problem, though, is that in the name of strengthening the law, the amendments actually weaken it. 

Weakens independence of Ethics Board

It goes without saying that to be meaningful, an Ethics Board must be independent of the elected officials on the Town Board. However, the Board’s proposed amendments actually make the Ethics Board less independent by increasing the role of the town attorney, a position beholden to the elected Town Board. 

To start, the proposed amendments require the town attorney’s participation in Ethics Board investigations of complaints. This is a clear conflict of interest as complaints often target town officials, which the town attorney represents. Additionally, the Town Board’s amendments do not include two key provisions recommended by the Ethics Board itself: eliminating the provision that requires the town attorney to be an ex officio member of the Ethics Board, and adding a provision that allows the Ethics Board to request, if needed, the services of an outside attorney to assist in an investigation. 

Weakens what is considered a violation of the Ethics Law

The current Ethics Law makes it clear that a town official or employee may not participate in any decision or take any official action regarding a matter than could confer a direct or indirect material benefit to himself, a family member or private organization in which he has an interest. In the proposed amendments, the word “indirect” is deleted. What this means is that a Town Board member could vote to award a contract to a company that employs a family member, e.g., a parent or an uncle, or waive a town fee for a private organization when the family member was on that organization’s board. 

Weakens scope of Ethics Board investigations  

Another amendment in the Town Board’s proposal adds a provision that limits the Ethics Board’s ability to conduct a thorough investigation. It does this by limiting the Board to investigate only the specific matter raised in the complaint — even when it becomes apparent to the Board during the investigation that there is a clear pattern of similar alleged violations. 

Weakens the First Amendment right to free speech

An additional proposed amendment makes it a violation for a town official or employee to disclose confidential information, yet there is no definition of what constitutes “confidential information” within the law itself. Just because the Town Board says something is confidential doesn’t make it so. On this issue, the courts have held that information is confidential only when a state, federal or local law says it is.  

And there are more problems with the proposed local law.

How violations of the Law are made public

Remember 2021 when the Town Board announced the surprise resignation of a Planning Board member? No reason was cited for the resignation, nor was there any mention of the Ethics Board finding that this same person had violated the Ethics Law. Only after the report was leaked to the press did the public learn that the Planning Board member who resigned was the same person named in the Ethics Board report. This is unacceptable. The Ethics Board’s diligence over many months investigating the complaint, as well as writing a final report, deserved acknowledgement at the very least. Yet the Town Board saw fit to sweep the report under the rug.

With the 2021 “leakgate” incident in mind, one of the Town Board’s proposed amendments would require that 60 days after the Board receives a report about a violation of the Ethics Law from the Ethics Board, it would be required to “announce” the Ethics Board opinion, but in doing so it could, at its discretion, redact the name and identifying information within the report. While requiring the Board to disclose the Ethics Board’s report is positive, the Board’s ability not to disclose the full nature of the violation as well as the name of the offender is a critical negative. 

Investigations that drag on an on

The amendments fail to include time guidelines for the completion of an investigation. In 2018, I filed a simple straightforward complaint with a clear fact pattern; it took the Ethics Board over a year before it delivered its final report. 

Failure to communicate

The Town Board’s amendments fail to include a requirement that the Ethics Board notify the complainant of the result of the investigation. Certainly, the individual that stepped forward to alert the authorities regarding suspected violations deserves, at the very least, notification of the matter’s conclusion. This omission is especially important given the loopholes cited above regarding what the Town Board must make public. 

Penalties for violating the law

The current law states that the Town shall warn, censure or reprimand any person who violates the ethics law and may suspend without pay or remove from office or employment any nonelected Town official or employee who violates the law. “Shall” is not the same as “may.” “Shall” implies a requirement to act accordingly. But if the censure or reprimand is given behind closed doors, there is no accountability for the public or the original complainant. It may as well have not happened at all. Remember the 2021 incident. 

What should happen next?

Given the many defects with the proposed local law, the Town Board should close the public hearing, reject the local law, go back to the drawing board and come back with a revised local law that strengthens, not weakens, the existing ethics law.

A copy of the Town’s proposed local law is available online on the Town Clerk’s page. But note that the text only includes what is being changed. You’ll need to refer to the existing ethics law to make sense of the changes.