White Plains Ad Hoc Code of Ethics October 1997 report

[REPORT OF THE CITY OF WHITE PLAINS AD HOD CODE OF ETHICS REVIEW COMMITTE PRESENTED ON OCT 1, 1997]

October 1, 1997

MAYOR SCHULMAN AND MEMBERS OF THE COMMON COUNCIL OF THE CITY OF WHITE PLAINS:

The Ad Hoc Code of Ethics Review Committee ("the Committee") appointed by the Mayor in April 1997, and charged with the task of reviewing and making recommendations for revisions to the existing Code of Ethics of the City of White Plains, hereby submits for your information and consideration its preliminary report which is annexed hereto. The Committee has agreed, in principle, to the recommendations presented, and now awaits your comments and approval before proceeding with the drafting of the necessary language to the City's current ethics law needed to effectuate the Committee's recommendations set forth herein.

The Committee further requests that the annexed preliminary report be placed on the agenda for the November 3, 1997 meeting of the Common Council together with a resolution authorizing and directing the Committee to proceed with its work.

Respectfully submitted,

Members of the Ad Hoc Code of Ethics Review Committee

THEODORE KADIN

Chairman

PRELIMINARY REPORT

OF THE

AD HOC COMMITTEE TO REVIEW THE CODE OF ETHICS

To The Mayor and Members of The Common Council

OCTOBER 1, 1997

Background

In April 1997, Mayor S.J. Schulman appointed seven members of an ad hoc committee to review the White Plains Code of Ethics, which sets forth substantive provisions governing the public and private conduct of city public officials and city employees, and to determine whether there is an adequate process in White Plains to consider complaints that public officials have violated the Code of Ethics. One of the specific issues that the Committee was charged with considering is who may request an Advisory Opinion by the Ethics Board.¹

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^{1Mayor Schulman's letter of April 21, 1997 to the Members of the Committee
states:

Your charge is to conduct a thorough review of the Code of Ethics of the City of White
Plains and to report your recommendations for amendments to the Mayor and members of the
Common Council. Among the issues the Committee will consider, without in any way
suggesting a limitation on the thoroughness of the scope of your review, will be who can
ask for an Ethics Board opinion, whether the Ethics board should review past conduct and
what investigative, enforcement and punishment powers the Ethics Board should have.

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The primary purpose of the Ethics Board is to render advisory opinions upon request.
The opinions are unenforceable. If a public official were to obtain an opinion and then
reject it, the Board would have no authority to take action. If a public official were to
act in a manner that raised ethical issues, the Ethics Board would have no authority to
render an advisory opinion unless the official had sought one.

This report is intended to advise the Mayor and members of the Common Council of the
Committee's progress and to seek further guidance. The Committee has not yet considered
the provisions of the Code of Ethics. The Committee intends to present its views on the
Code at a later point.

As its first priority, the Committee decided to consider whether existing procedures
were adequate to deal with the occasional allegations of misconduct that arise, and what
role, if any, the Board of Ethics should play in considering both requests for advisory
opinions about prospective conduct and investigating complaints of misconduct.

In considering procedures needed to ensure that some mechanism exists to provide
advisory opinions and act on complaints that officials have violated the Ethics
Code, the Committee reviewed the applicable procedures of other municipalities as well as
a report of the Temporary State Commission on Local Government Ethics, dated March 20,
1991. The Temporary State Commission studied deficiencies in current Ethics laws and
considered the issue whether existing Ethics Boards have adequate powers and authority to
investigate allegations of violations of Codes of Ethics by public officials.

The Ad Hoc Committee's Findings

The Committee has concluded that the present state of the law in White Plains is
unsatisfactory as it relates to dealing with allegations that public officials may have
violated the Code of Ethics.

The primary purpose of the Board of Ethics is to give advisory opinions to city
officials and city employees who ask for such opinions. The Board of Ethics has no
authority or power to investigate, on its own motion or at the request of any person,
allegations of past conduct of any city official. Such authority and power should be
provided by local law.

There is an open question whether a city official or city employee may seek an opinion
about another city official or city employee. It is our firm belief that the Board should
continue to provide advisory opinions as to prospective conduct; and that such opinions
should be given to any city employee or official who asks about his or her own prospective
conduct or to a manager or agency head who seeks clearance for a subordinate.

With respect to allegations of misconduct (which we define as a substantial violation
of the Code of Ethics), we believe that any person should be able to make a complaint to
the Board concerning alleged acts of any city public official or city employee; and that
the Board should be given authority and power to commence and conduct investigations of
those complaints that appear to have merit on their face, and issue reports as to its
findings and conclusions within a system that assures due process protections against
unfair damage to the reputations of those officials who might be criticized by the Board.
This report will set forth the protections that we believe are essential.

Due Process

The rendering of advisory opinions is an important function. A well-intentioned city
official or employee who is uncertain of the ethics of his or her prospective plans may
now seek an opinion from a Board of White Plains citizens who will consider the question
against the backdrop of the Code of Ethics. The advisory opinion is based on the facts
provided by the person seeking the opinion. The Board has no independent investigative
powers. It lacks the resources, the staff, and the power to conduct investigations, and
certainly lacks the authority to conduct proceedings and criticize the conduct of a public
official.

Public officials and city employees who are subject to punitive measures, including
official condemnation of their conduct, must be afforded certain protections that are
basic to our system of justice. The United States Constitution provides broad protection
for any person to criticize a public official without fear of an action in slander. But an
official body must act only within a framework of due process of law. Any person under
investigation has certain basic rights. Before a municipal or State board, with authority
to discipline, issues a disciplinary sanction, the board should have followed the
essential components of due process of law. In its most elementary form, no public
official or city employee should be disciplined without having received written charges of
misconduct and the right to be heard and to challenge the allegations². The
right to challenge encompasses the right to counsel, the right to cross examine any person
whose testimony would be considered in support of the allegations, and the right to
introduce contrary evidence. Within these broad parameters, there must be fair procedures
and sufficient time to marshall and present a defense. In the absence of fair procedures,
a determination that an official has acted improperly will not be upheld in the courts and
is subject to criticism. It is essential that such procedures be developed if the Ethics
Board is to be given the expanded authority to investigate past conduct and to be critical
of public officials.

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^{2Although we envision the Board having no greater disciplinary power than to
condemn past misconduct, basic due process requirements are essential.

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Expanding the Authority and Powers of the Ethics Board

It is the strong belief of this committee that the Ethics Board can carry out its
existing function of rendering advisory opinions and, with new procedures established by
local law, can undertake the additional functions of investigating allegations of
misconduct and condemning conduct found to be in violation of the Code of Ethics³.
We envision a dual system whereby the Ethics Board would respond to all requests for
advisory opinions by the individual concerned or his or her superior, and would
investigate those complaints that appear to have validity on their face. In fact, even in
the absence of a written complaint, the Board should have the authority to conduct an
investigation, and it should be given the power to issue subpoenas, to take testimony
under oath, and to conduct comprehensive investigations when they appear to be
appropriate. Strong investigative powers will not violate rights, as long as
well-established protective procedures are followed. There should be a forum to consider
allegations that public officials and others in top management positions have violated the
White Plains Code of Ethics.

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^{3 By letter of October 25, 1991, the New York State Attorney General's Office, in
response to a request for an opinion by the city of White Plains, rendered an opinion that
the city could, by local law, grant to the Board of Ethics, "the authority to receive
complaints alleging violations of ethics regulations, to investigate these complaints, and
to conduct investigations on its own initiative as to whether violations of ethics
standards have occurred. Further, we believe the board may be given enforcement authority
and the local law may provide for the administering of penalties."

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As the Temporary State Commission on Local Government Ethics found more than six years
ago:

The shocking truth about the enforcement of municipal ethics laws is this: there is no
enforcement. No local agencies exist to enforce local ethics codes . . . In other words,
laws have been enacted with no means to enforce them.

The "laws" referred to by the Temporary Commission are the Codes of Ethics.
Without enforcement, they provide a guide for well-intentioned public officers, but in the
absence of a crime, there can be no enforcement. Most municipalities have no procedures to
enforce the ethical standards. We have found two municipalities,

Bronxville and New York City, that have established procedures to enforce their
respective Codes since the date of the report of the Temporary Commission⁴. It
is time for the City of White Plains to act.

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^{4Both municipalities have given their respective Boards of Ethics the authority
to issue advisory opinions and undertake investigations of alleged violations of ethical
standards set forth in the Codes of Ethics. We have not undertaken an exhaustive survey of
all jurisdictions to determine whether other municipalities have acted since the time of
the report of the Temporary Commission.

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The Common Council should provide the expanded powers that are needed to give the Board
of Ethics authority to investigate and take appropriate action, limited to the power to
issue a public report that discloses the Board's findings and conclusions. The adequacy of
investigations, filing charges, and presentations of evidence will depend in large part on
the adequacy of staff to carry out these responsibilities. Although the Department of Law
has the necessary staff to lend such support to the Ethics Board, a potential conflict
would exist if the investigation concerned a member of the Common Council or the Mayor.
Accordingly, with respect to these officials, it would be far preferable for the Board to
appoint special counsel to conduct investigations that are authorized by the Board, file
charges approved by the Board, and present evidence in support of charges.

The issue of who may request an advisory opinion becomes moot if the Board is given
power to investigate. The present language of Section 2-5-110 (b) of the White Plains
Municipal Code provides for the Board of Ethics to render advisory opinions upon written
request. The law is silent as to whether the request must originate from the officer or
employee whose conduct is in issue. The implication is that only the person who is
contemplating the conduct may inquire. Permitting any other person, besides a superior of
the person who is considering the conduct, would raise substantial due process problems
and could be used for improper purposes, since the opinion-process does not protect
rights. If our essential recommendation is adopted, there would be no need to permit any
other person to request an opinion. Further, if an individual did not request an advisory
opinion before he or she acted, that individual would be subject to the disciplinary power
of the Board if the conduct were later found to be in violation of the Code of Ethics.
Similarly, if an individual were to disregard the Board's advisory opinion, that
individual would be vulnerable to a subsequent finding that the conduct was improper. The
added authority in the Ethics Board would serve to encourage more requests for advisory
opinions, and would encourage all city officials and employees to take the advisory
opinions seriously.

The Ethics Board Should Have Authority to Enforce the Code of Ethics Against All Those
Who Are Governed By The Code But Are Not Presently Subject to Discipline

Most White Plains city employees are governed by disciplinary procedures in State law.
If the Board were given expanded powers and were to receive a complaint about a city
employee who is already subject to discipline within his or her own agency, the Board
would refer the complaint to the appropriate agency head. In this report, we address the
need to handle complaints against public officials who presently are not subject to
discipline.

The new procedures would apply to elected officials, agency heads, and private citizens
who serve on various boards -- whether or not they receive stipends for their public
service. Board members must avoid well-defined conflicts of interest, and if they fail to
do so, they, too, should be subject to public criticism by the Ethics Board.

Further Work of This Committee

There is much work to be done, but we are inclined to await further instructions from
the Mayor and the Common Council before we undertake a revision of the Code of Ethics and
provide a more detailed set of procedures for expanding the authority and power of the
Board of Ethics. We could provide the basic details of the proposed expanded authority, or
we could develop and propose to you a specific amendment to the Municipal Code. A proposal
for an amendment to local law would take considerable effort, and, respectfully, we would
like to have a response to our recommendations before we undertake that responsibility.}}}}

Respectfully submitted,

Members of the Ad Hoc Committee to Review the Code of Ethics:

CHARLES BRADLEY
JOHN G. CALLAHAN
THEODORE KADIN
DOROTHY B. ROER
GERALD STERN
WILLIAM VROOMAN____

Mr. Greer offered the following resolution and moved its adoption.

RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF WHITE PLAINS AUTHORIZING, DIRECTING AND ENCOURAGING THE AD HOC CODE OF ETHICS REVIEW COMMITTEE TO PROCEED WITH ITS TASK OF DEVELOPING THE BASIC DETAILS OF ANY PROPOSED CHANGES IN THE AUTHORITY AND PROCEDURES OF THE CITY'S BOARD OF ETHICS.

WHEREAS, in April of 1997, the Mayor of the City of White Plains appointed seven individuals to serve on an ad hoc committee, the Ad Hoc Code of Ethics Review Committee, to undertake a thorough review of the Code of Ethics of the City of White Plains, Sections 2-5-106 - 2-5-113 of the White Plains Municipal Code, which sets forth substantive provisions governing the public and private conduct of City officials and employees, and report their recommendations for amendments to the Mayor and other members of the Common Council; and

WHEREAS, among the issues the Ad Hoc Code of Ethics Review Committee ("the Committee") has been charged with considering, include who can ask for an opinion from the City's Board of Ethics, whether the Board of Ethics should review past conduct of officers and employees, and what investigative, enforcement and punishment powers the Board of Ethics should be authorized to possess; and

WHEREAS, in addition to reviewing the Code of Ethics adopted by the City of White Plains, the Committee has examined ethics legislation enacted by New York State, the County of Westchester, New York City, Rochester, Buffalo, and local laws, ordinances and resolutions governing ethics adopted by ten (10) municipalities in Westchester County, including the Cities of Rye and Mount Vernon, the Towns of Greenburgh, North Castle, Harrison, and New Castle and the Villages of Briarcliff Manor, Scarsdale, Bronxville, and Larchmont; and

WHEREAS, the Committee has also reviewed a report of the former New York State Temporary Commission on Local Government Ethics, dated March 20, 1991, in which said Commission studied deficiencies in current New York State and municipal ethics laws and considered the issue whether existing local ethics boards have adequate powers and authority to investigate allegations of violations of codes of ethics by public officials; and

WHEREAS, after reviewing and examining the City's present ethics law, the ethics legislation of other communities, and the aforementioned report of the former New York State Temporary Commission on Local Government Ethics, and evaluating and debating the merits and shortcomings of same, the Committee issued a preliminary report to the Mayor and Common Council dated October 1, 1997, advising them of its progress in addressing the issues it has been charged with considering, including a summary of the Committee's consensus to date concerning the City's existing Code of Ethics; and

WHEREAS, upon a preliminary review, it is the position of the Committee that the language contained in the City's present ethics law, requires, at a minimum, tightening and fine-tuning and overall revisions, particularly as to the procedures concerning requests for advisory opinions and the scope thereof, and the addition of provisions of law giving the Board of Ethics investigatory powers, establishing a complaint procedure for the Board to receive and investigate complaints from members of the public and others, and empowering the Board to impose penalties, where applicable and appropriate; and

WHEREAS, the Committee has requested direction and authorization from the Common Council to proceed with its work before it undertakes the task of drafting revisions to the Code of Ethics and providing a more detailed set of procedures for enhancing the authority and power of the Board of Ethics; now, therefore be it

RESOLVED, that the Common Council wishes to acknowledge receipt of the "Preliminary Report of the Ad Hoc Committee to review the Code of Ethics" dated October 1, 1997, and wishes to express its appreciation to the Committee for its hard work and dedication in developing its initial findings and rendering its preliminary report reflecting same; and be it further

RESOLVED, that the Committee is authorized, directed and encouraged to continue its task of developing the basic details of any proposed changes in authority and procedures of the City's Board of Ethics.

Mr. Brown seconded the motion.

Carried.