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Board of Ethics
Updated 05/02/08
This is the Web site of the Brookhaven Town Board of Ethics. It is our charge to interpret the Town’s Ethics statutes and educate Town officials and employees to avoid possible conflicts. We are sensitive to the balance between encouraging the highest level of ethics and minimizing paperwork and forms.
[If you wish to search the Ethics Website for a specific word or phrase, pull down the Edit menu, click on “Find” and insert the word(s) you are looking for].
The following links are to provide more information on the Ethics Statutes, our procedures and Opinions that we rendered.
Ethics Statutes
Listed below are links to the most relevant sections of the Ethics Code:
For the full Ethics Code, see Chapter 28:
CHAPTER 28, BROOKHAVEN TOWN CODE OF ETHICS AND DISCLOSURE
On General Purpose
Section 28-1 (B) of the Code of Ethics states, in part:
"The proper administration of the government of the Town of Brookhaven requires its officers and employees, whether elected or appointed, paid or unpaid, including members of any administrative boards, commissions or other agencies, to be impartial and free from conflicts of interest, or even the appearance of conflicts, and free from partisan political influences in fulfilling their public responsibilities."
See our Opinions on the above topics
On General Prohibition of Using the Office for Gain
Section 28-5 A. (2) states the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons:
- the Town officer or employee;
- his or her outside employer or business;
- a member of his or her household;
- a customer or client (current or within the past five years); or
- a family member.
See our Opinions on the above topics
On Receiving Gifts
Section 28-5 A. (3) states the following:
“Gifts. A Town officer or employee shall not solicit anything of value from any person who has received or sought a financial benefit from the Town, nor accept anything of value from any person the Town officer or employee knows or has reason to know is seeking or has received or sought a financial benefit from the Town within the previous 24 months.”
Section 28-5 B. lists the following exclusions:
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- Received by the Town officer or employee from his or her parent, spouse, child or sibling; or
- Accepted on behalf of the Town and transferred to the Town; or
- Refreshments and meals received at a widely attended gathering as defined by the rules and regulations of the Ethics Board; or
- Motivated by a pre-existing personal relationship, as defined by the rules and regulations of the Ethics Board.
- Gifts or benefits having a value of $100 or less that are received by a Town officer or employee listed in § 11 of the Domestic Relations Law for the solemnization of a marriage by that officer or employee at a place other than his or her normal place of business or at a time other than his or her normal hours of business.
- Non-monetary awards from charitable organizations.
See our Opinions on the above topics
On Recusal Requirements
Section 28-5 A. (4) states the following:
“Recusal.
A Town officer or employee shall promptly recuse himself or herself from acting on a matter before the Town when acting on the matter, or failing to act on the matter, may benefit any of the persons listed below:
- Town officers or employees;
- His or her outside employer or business;
- A member of his or her household;
- A customer or client (current or within the past five years), or
- A family member.
See our Opinions on the above topics
On Representation before the Town
Section 28-5 A. (5) states the following:
“Representation. A Town officer or employee shall not represent any other person in any matter that person has before the Town nor represent any other person in any matter against the interests of the Town except in matters involving collective bargaining.”
See our Opinions on the above topics
On Appearances before a Town Agency
Section 28-5 A. (6) states the following:
“Appearances. A Town officer or employee shall not appear before any agency of the Town, except on his or her own behalf or on behalf of his of her own constituents or on behalf of the Town.”
See our Opinions on the above topics
On Political Activity, On and Off Site
Section 28-6 states the following:
“Political activities prohibited.
A. No person shall engage in any political activities on any Town premises at any time. Such prohibited activities include but are not limited to the following:
- Sales or purchases of tickets to political events.
- Discussion of tickets to political events.
- Solicitation to join a political party or activity.
- Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
- Solicitation of funds or good or services for political purposes.
S ee our Opinions on the above topics
Agent’s Notice of Appearance
Section 28-7 states the following:
“Agent's notice of appearance. An official of the Town having discretionary duties shall require the filing of a written notice of appearance by any agent.
A. Filing required. An official of the Town having discretionary duty shall require the filing of a written notice of appearance by any agent retained by a person, business entity, association or other client prior to any discussion or meeting with such agent.
B. Form. A sworn notice of appearance shall either be by letter or on a form prepared by the Town Attorney's office and must include the business name, individual name, address and telephone number of both the agent and client, the date the agent was retained by the client, the matter the agent is appearing on and the department the agent is appearing before and relationship of agent or client to any Town officer or employee and shall certify that any written application is truthful and complete.
C. Filing. The department with which the notice of appearance has been filed shall keep the original, and a copy shall be forwarded to and maintained by the Town Clerk, as a readily available public document.”
See our Opinions on the above topics
Use of Town Property
Section 28-8 A. states the following:
“Use of Town property. No Town officer or employee of the Town of Brookhaven shall use or permit the use of Town property, including land, vehicles, equipment, computers, Internet, e-mail, telephones, materials and any other Town property, for personal convenience or profit, except when such use is available to Town citizens generally or is authorized by law or as a matter of general Town policy to all persons similarly situated.”
See our Opinions on the above topics
Revolving Door: Post Employment
Section 28-9 A. (2) states the following:
“A Town officer or employee shall not appear or practice before the Town, except on his or her own behalf, or receive compensation for any services rendered in relation to any case, proceeding, application, or transaction before the Town, for a period of one year after the termination of his or her Town service or employment; however, the bar shall be two (2) years as to cases, proceedings, applications or transactions in which the Town officer or employee was directly concerned and personally participated during Town service or were under the Town officer's or employee's active consideration.”
See our Opinions on the above topics
Financial Disclosure Requirements
Section 28-13 states the following:
Disclosure of interest by outside entities in certain applications.
A. Disclosure requirements. Every application, petition or request submitted for a tax grievance for a nonresidential parcel, variance, amendment, change of zone, approval of a plat, exemption from a plat or official map, license or permit, pursuant to the provisions of this Code shall contain a transactional disclosure statement as set forth at the end of this chapter completed to the best extent known to such applicant on such form or amended form as shall be approved by the Town Board by resolution.
See our Opinions on the above topics
Ethics Board Meetings
The Ethics Board meets once or twice a month at times when the board members are available. Most of the discussion at our EB meetings is confidential and is held in executive session. Other Ethics Boards that we are aware of have their entire meetings in executive session. However, to comply with the Open Meetings Law the following policy has been adopted:
- The meeting begins at an announced time as an open meeting.
- Those topics, which are not confidential in nature, are discussed in the open meeting.
- Once the confidential portion of the agenda is reached the open portion of the meeting is adjourned and the meeting reconvenes. Usually, the bulk of the meeting is closed.
- The topics on the closed agenda are to be described only in the most general terms. Even when a topic involves a request by an individual for an opinion concerning him or her self, the deliberation may refer to other more confidential cases and is best held in executive session.
- Requests for opinions on ethics decisions are accepted only in written form. If the written requests are from non-Brookhaven Town employees or officials they must be notarized. No questions are accepted from the floor in the open portion of the meeting.
- The Opinions reached by the Ethics Board will be published on our web site in an encrypted form with names removed to protect confidentiality.
Submitting a Request for an Ethics Board Opinion
The Ethics Board is interested in receiving requests for Opinions.
- Individuals might ask for an opinion as to whether a past or contemplated action is a conflict.
- A person, or a group, might inform us of an action by others that may be unethical as defined by the Brookhaven Ethics Statutes.
Our Board is interested in receiving all such requests and giving them all attention and deliberation. These leads are important for the Ethics Board to our mission. We also consider all of these requests in a confidential manner. Some may not appear to require confidential deliberation, however, our deliberations may refer to other requests that are clearly sensitive and confidential. We also must respect the person(s) that are the object of the allegations.
These requests are treated as a first step of a possible litigation sequence.
If a non-Brookhaven employee or official is initiating the request, we ask that the request be in a notarized affidavit form. We ask that you:
- Outline what you feel has been at variance with the Brookhaven Ethics Code, the parties concerned, and enough particulars for us to understand the allegation.
- You should cite the Sections of the Ethics Code that are being violated. Often, the Ethics Board gets requests for opinions for actions outside of the Ethics Statutes.
- Finally, the note should be signed and notarized and sent to the attention of the Ethics Board.
A Brookhaven employee or official need not have the request letter notarized.
Note: Earlier when the Ethics Board had a request backlog, in order to not appear to dwell on technicalities, we waived the notarizing requirement. However, this requirement is part of the statute.
Please note that we do not accept requests for opinion by telephone. We wish to have a written or e-mail record of any communication about opinions that we have rendered. Therefore, we would discourage phone calls or in person questions about ethics decisions and direct any questions to be submitted in written or e-mail form.
Ethics Board Opinions Policy
The Ethics Board renders opinions both in response to being asked and also on its own motion. Much of what the Board deals with is confidential. Many of the Ethics Boards procedures were adopted to respect this confidentiality. We also have an obligation to “publish” our findings.
Once we have deliberated and have made our decision using the specifics of the allegation, etc., we construct the “encrypted” version called our opinion. The “encrypted” opinion has no reference to the person making the allegation. The position of the person charged and the facts surrounding the allegation are couched in generalities. The final blurb is now a general “morality tale” hopefully useful to aid in the understanding of the Ethics Boards interpretation of the Statutes.
The “encrypted” blurb is published below in the Web Site and is grouped by Statute category.
The person making the request for opinion receives a response letter that has
- A paragraph about the original request so he/she can identify what is the subject of the letter.
- The “encrypted” blurb
- A closing paragraph
- If the person chose to cc others, they will receive copies.
The person who was the object of the request will receive:
- An opening paragraph about the original request particulars with all identifying reference as to who originated the request removed.
- The “encrypted” blurb
- A closing paragraph. If the action was deemed in conflict, remediation alternatives are outlined. The party is asked to respond in writing or via e-mail.
[Home]
Opinions Rendered
Opinions on General Purpose
OPINION 34
Section 28-1 (B) of the Code of Ethics states, in part:
“The proper administration of the government of the Town of Brookhaven requires its officers and employees, whether elected or appointed, …to be impartial and free from conflicts of interest, or even the appearance of conflicts…in fulfilling their public responsibilities.”
Elected officials presently accept campaign contributions, often from those with applications or contracts before the Town. Pending major campaign finance reforms, this is the accepted procedure.
However, if the elected official has dealings with a contributor, he/she must exercise great care that any negotiations are open and transparent to avoid any perception of a conflict of interest.
Opinions on General Prohibition of Using the Office for Gain
OPINION 4
The Board of Ethics was asked to render an opinion regarding a Town employee who wanted to rent an apartment s/he owned to another Brookhaven Town employee. The renter stated that s/he would treat the tenant as any regular tenant, with normal terms and conditions and would enter into a six-month lease at the usual renting price and request a standard one-month security deposit. The Town employee stated that to avoid violation of ethics rules, s/he wanted the Board to review this matter.
The Board decided that by revealing this issue s/he has avoided any question of a conflict. His/her voluntary full disclosure of this matter has alleviated any appearance of impropriety.
OPINION 8
The Board of Ethics was asked for an opinion as to whether a Town official is permitted to vote on a public proposal if the official’s employer stands to gain financial benefits from the proposed project.
Section 28-5 A. (2) of the Town Code states, in part, the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: (a) the Town officer or employee, or (b) His or her outside employer or business...”
Since the employee is an elected official representing a district, and not the individual official or employer, we do not feel that any direct benefit exists for either the official or outside employer. Therefore, after extensive deliberation, the Board of Ethics concludes that there does not appear to be a sustainable conflict of interest.
OPINION 11
The Board of Ethics was asked to render an opinion inquiring whether it is permissible for an employee of the Town to be an officer of a not-for-profit corporation that receives funding from or has a contract for services with the Town.
The Ethics Board has considered this issue and does not want to unnecessarily preclude Town employees from participating in not-for-profit organizations. However, the Ethics Board wants to avoid any appearance of a conflict. The central question is does the employee’s job responsibilities substantially influence the not-for-profit’s grant-awarding process? If it does, the employee should recuse him or her self. If the recusal rate is anticipated to be greater than 5 percent then the employee should resign from the not-for-profit organization.
OPINION 13
The Board of Ethics was asked to render an opinion concerning whether a business owner who operates a profit-making business on Town property may be employed as a part-time employee while running one of the Town’s recreational leagues.
(See Statute above).
As such, the Board of Ethics has decided that a conflict does exist in this case.
OPINION 15
The Board of Ethics was asked to render an opinion regarding a candidate for a management position in the Town and his/her suitability to serve in that capacity, considering their previous private sector employment.
The potential employee has a minority, non-controlling (10 percent) interest in a locally-based corporation that provides specialty construction materials and equipment to municipalities and other government and private customers all across the U.S. In this instance, the corporation provided materials to a contractor who has been engaged to do construction work for the Town of Brookhaven.
This potential employee also happens to have significant credentials, expertise, and experience in an area of government administration completely unrelated to the Town construction project. The current Town Administration is considering this individual for either a full-time or part-time position within Town government, either on a Board or within a Department. Neither position has had, or will have, any responsibility, involvement, oversight, or accountability with respect to this construction project.
As this project is not yet complete, the Town may require the corporation to perform repairs or provide replacement materials or equipment for the project. This would be handled only by employees or representatives of the corporation, not the potential employee.
Under the circumstances described above, the Board of Ethics rules that no conflict of interest exists in hiring this potential employee so long as the position that he/she will be serving does not provide oversight to any projects that the corporation may still be working on.
OPINION 20
The Board of Ethics was asked to render an opinion regarding whether is it suitable for an elected official to appoint a spouse as his or her deputy, even if the spouse serves without salary.
(See Statute above).
As such, the Board of Ethics has decided that a conflict does exist in this case.
OPINION 28
The Board of Ethics was asked for an opinion as to whether a Town employee (A) may be hired by another Town employee (B) to do work at employee B’s private residence. Employee A will charge the standard rate of service as s/he would charge all clients, work will be done after his/her regular work hours and all work will be done off-site on Employee B’s own property.
(See Statute above).
Considering the fact that 1) Town property is not being used, 2) the employee will be working on his/her own time and 3) the employee will not charge a discounted rate, there does not appear to be a personal or financial benefit to the employee in having this work done and is therefore not a conflict.
OPINION 41
The Board of Ethics was asked if there is a conflict of interest if a Town official also serves on the Board of Directors of an outside organization.
Section 28-5 A. (2) of the Ethics Code states the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: (a) the Town officer or employee; (b) his or her outside employer or business…”
The Ethics Board has no a priori objections to the Town Officer serving on a Board of Directors of an outside organization. However, the Board looks for possible conflicts such as but not limited to: 1) an expectation of receiving funds from the Town of Brookhaven or 2) using the Town Official’s position to be a spokesperson for this outside organization.
Therefore, to avoid any appearance of conflict with these provisions, the Ethics Board advises that the Town official, as a member of an outside Board, should abstain from those responsibilities in these areas.
OPINION 43
The Board of Ethics was asked for an opinion on whether a Town employee may also hold an appointive office as a member of a Brookhaven Town board.
Some review boards might have a potential conflict with a person’s Town job. However, there is no prohibition against an employee having a second job outside the Town, as long as there is no incompatibility between the two and the second position does not conflict with the working hours of the Town job.
OPINION 49
The Board of Ethics was asked if a Town employee might accept an invitation to attend an outing given by a firm that will be doing business with the Town.
(See Statute above).
If the outing were an ancillary part of a conference that had educational value for Town employees, then it would not be a conflict. However, if the outing appears to be blatant lobbying, offering entertainment or recreation, it would be a conflict.
Since the company offering the outing will be submitting applications to the Town for a pending project, the Ethics Board finds that it would be a conflict for Town employees to attend the outing.
See related Opinion #46.
OPINION 68
The Board of Ethics was asked to render an opinion concerning whether a seasonal employee with the Town's summer youth recreational program may run a profit-making Fall athletic league on Town fields after his/her seasonal employment has ended. This employee may have access to teams and athletic staff that utilize the Town's program during the season.
Section 28-5 A. (2) states, in part, the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: (a) the Town officer or employee; (b) his or her outside employer or business…”
The employee’s seasonal employment terminates at the end of summer, prior to the start of the Fall athletic league. Therefore, once the season is over, he/she reverts to being a Town resident, with all the rights that that entails, including running a league on Town property after obtaining a permit and providing insurance. As such, the Board of Ethics has decided that a conflict does not exist in this case.
OPINION 74
The Board of Ethics was asked if a Town employee may use store coupons that were mailed to his/her work address. The Town does not do business with the store, and the coupons appear to be part of a bulk mailing. The coupons would be for the employee’s personal use using his/her own money.
Section 28-5 A. (2) states, in part, the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons:
- the Town officer or employee;
- his or her outside employer or business;
- a member of his or her household;
- a customer or client (current or within the past five years); or
- a family member.”
Since the Town does not conduct any business with the store and this is a general mailing to individuals in the area, the Board of Ethics has decided that a conflict does not exist in this case.
OPINION 86
A consulting company that is working on a project for the Town inquired whether it would be a conflict of interest for them to compete for additional work at the Town while working on their current project for the Town.
There is no a priori conflict for vendors to pursue multiple contracts from Brookhaven Town. However, if a firm is involved in a Town contract in which they are writing specifications for subsequent Town contracts, then there is a danger that they might write the specifications that are tailor made to their expertise. This would be a conflict if they would then bid on the subsequent contract. The question in which the possible conflict hinges is does the first job involve writing detailed specifications for the subsequent contracts. If it does, there is a conflict. If it does not, no conflict exists. However, in the course of bidding for the other contract, previous involvement should be disclosed.
OPINION 92
The Board of Ethics was asked if a Town building inspector may conduct his/her own business as an architect for the general public in Brookhaven Town. If so, may a homeowner or contractor hire the building inspector if the homeowner/ contractor knows the building inspector through his/her work as a building inspector with the Town?
Section 28-5 A. (2) of the Town Code states, in part, the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: (a) the Town officer or employee, or (b) His or her outside employer or business...”
If the building inspector informs a Town client that she/he is an architect, the client may feel pressured to give the building inspector work as an architect. Therefore, the building inspector should not discuss architectural work with any Town clients.
Also, if the building inspector does architectural work for a private client and, later on, is assigned that person by the Town for a building inspection, the building inspector should recuse him/herself from that assignment.
Section 28-9 of the Town Code, which is also relevant in this case, states, in part, that:
“A Town officer or employee shall not appear or practice before the Town, except on his or her own behalf, or receive compensation for any services rendered in relation to any case, proceeding, application, or transaction before the Town, for a period of one year after the termination of his or her Town service or employment; however, the bar shall be two (2) years as to cases, proceedings, applications or transactions in which the Town officer or employee was directly concerned and personally participated during Town service or were under the Town officer's or employee's active consideration.”
The above statute addresses those who leave Town employment. In order to not penalize Town employees if an inspector remains employed at the Town, he/she may conduct his/her architectural business with Town clients after a 2-year period has expired. During this interim period, the inspector should not have any contact with the Town client.
In summary, it is the opinion of the Ethics Board that the building inspector may accept architectural clients as long as they are not current Town building inspection clients or former ones more recent than a two-year period. Additionally, if an architectural client is assigned to him/her for building inspection, s/he should recuse. Accepting a work relationship in violation of the above would be a great potential for conflict.
OPINION 93
The Board of Ethics was asked if the Town may hire a Bingo inspector whose spouse is an avid Bingo player. Are there any restrictions that need to be placed on the spouse’s ability to play Bingo in the Town?
The Bingo inspector’s duty is to make sure the game is running fairly, efficiently and with good moral character. The inspector verifies financial transactions that occur at Bingo games for any improprieties.
Often Town personnel regulate categories of activities such as Bingo games, homeowners applying for permits, applicants for license, etc. The question pertains to whether a family member (the spouse) can be a member of this regulated category (Bingo players). The Ethics Board finds that a conflict or need for recusal comes about if there is a specific interaction between the regulator and the family member that can have the appearance of conflict. If the family member is a general person in the Township playing Bingo and not receiving any special treatment, there is no conflict.
The Ethics Board does not find a conflict with hiring the Bingo inspector and it is their opinion that no restrictions need to be placed on the spouse playing Bingo in the Town of Brookhaven.
OPINION 94
The Board of Ethics was asked whether there would be a conflict if someone were a member of an advisory committee to the ZBA as well as an officer of a property owner’s association.
As the advisory committee member, he/she is the contact person for problems in his/her community, such as sidewalks, garbage, etc. He/she contacts various Town, State and Federal departments to communicate the problems and sometimes attends ZBA meetings as a community representative to provide additional information.
A similar situation exists for a civic association member who sits on the HDAC committee. Such a relation affords an opportunity to pass relevant information to the HDAC. The HDAC is not a body that actually makes decisions but passes recommendations on to the Planning Board. There would be a conflict should the advisory committee member attempt to sit as a member of the ZBA since the ZBA is a judiciary body.
The Ethics Code does not restrict property owner association members from appearing before a Town Board or serving as a member on a Town advisory committee.
Therefore, the Ethics Board does not find a conflict in this matter.
OPINION 97
The Board of Ethics was asked if it is a conflict if a vendor does business with the Town when his/her spouse is an employee in the Finance department.
Section 28-5 A. (2) of the Code states the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: a) the Town officer or employee; b) his or her outside employer or business; c) a member of his or her household; d) a customer or client (current or within the past five years); or e) a family member.
If Finance is separate from the vendor selection process then it is not a problem. If, in fact, people in Finance can influence the decision, or if the spouse worked in Purchasing, it would be a conflict. If the spouse worked in a department that is decoupled from the selection process, it is not a perceived conflict. If it is a line item purchase by the vendor, the Finance staff must recuse.
The Ethics Board inquired about the interaction between the Finance and Purchasing departments to see if there is any influence in vendor selection between the two departments. It was determined that Finance is rarely involved in vendor selection. Purchasing vouchers go through Finance but this is only ministerial. Therefore, it is the opinion of the Ethics Board that there is no conflict.
OPINION 100
The Board of Ethics was asked if it would be an ethical conflict if a Town attorney rents office space from a law firm that regularly conducts business against the Town.
Section 28-5 A. (7) of the Town Code states:
“Avoidance of conflicts. Town officers and employees shall not knowingly acquire, solicit, negotiate for, or accept any interest, employment, or other thing of value which would put them in violation of this Code of Ethics.”
The Board discussed questioning whether or not the Town attorney would be sharing anything else besides office space, such as supplies, work staff, copy machines, etc. as this could present a conflict. It was also suggested that the Town attorney check with the NY State Bar Association for any rules or regulations on this subject. The idea to separate the sharing of business between the landlord and tenant was also discussed.
However, the Ethics Board concluded that because both the Town attorney and landlord are in the same business of law, and because the landlord derives part of his/her income from its business against the Town, there would be an appearance of conflict. Therefore, it is the opinion of the Ethics Board that the Town attorney should not rent space from the law firm doing business against the Town.
Opinions on Receiving Gifts
OPINION 6
The Board of Ethics was asked to render an opinion on whether the Town may authorize acceptance of a public service grant program for tuition at a college on Long Island. The college proposed that eligible Town employees receive a 25% reduction of regular tuition charges pursuant to the public service grant program.
The Board decided that a conflict does not exist in this case.
OPINION 23
The Board of Ethics was asked for an opinion as to whether a Town official may attend a seminar as a guest of a not-for-profit corporation whose mission is to promote economically and environmentally responsible growth in the area. The organization works with municipalities and other groups to encourage comprehensive land use planning.
Section 28-5 A. (3) of the Town Code states the following:
“Gifts. A Town officer or employee shall not solicit anything of value from any person who has received or sought a financial benefit from the Town, nor accept anything of value from any person the Town officer or employee knows or has reason to know is seeking or has received or sought a financial benefit from the Town within the previous 24 months.”
Section 28-5 B. lists, in part, the following exclusions:
(3) (c) Refreshments and meals received at a widely attended gathering as defined by the rules and regulations of the Ethics Board;
The Ethics Board has examined a program of the seminar and its supporters. We do not consider the invitation a gift, but an opportunity for a Town Official to become aware of planning ideas. Further, if a meal should be provided at the seminar, this would be exempt as a gift, per the Code. If, however, the invitation was for an expensive destination, this would trigger an ethical conflict.
OPINION 24
The Board of Ethics was asked for an opinion as to whether a sanitation worker may receive a Christmas gift from a customer.
The Ethics Board does not have jurisdiction in this matter as the sanitation workers are not directly employed by the Town. However, if the gift is small and is just a token thank you and not in return for any additional service, then it is not a conflict.
OPINION 27 and 31 (combined)
The Board of Ethics was asked for an opinion regarding a Town Commissioner and several members of his/her department who received an invitation from an engineering firm that does business with the Town. It is an invitation to celebrate the holidays with cocktails and a buffet dinner.
The Commissioner also said that in the past the Town has been given gift baskets, caps or shirts with a company logo on them for appreciation. May a Town employee accept them?
(See Statute and Gift exclusions above).
In the first question, since the buffet dinner is received at a widely attended gathering, and is a typical holiday celebration, the Board does not find a conflict in attending the event.
In the second question, free caps, shirts, etc. are not included in the gift exclusions, therefore they should not be accepted. Further, it would be unethical for the Town employee to wear a cap or shirt with a company logo as it gives an appearance of a conflict. Town employees should decline receiving these particular gifts or return them to the donor.
OPINION 32
Town policy on receiving gifts:
If a Town employee receives a gift such as a basket of cookies, candies or similar item, the employee should put the gift out on a table or other common area, without disclosing the source, for public consumption by Town employees. However, any gifts that contain a company logo, including calendars, should not be displayed as this gives an appearance of a conflict. If a Town employee receives any gift intended specifically for the employee (such as a gift certificate) the employee should decline receiving it, give it to charity or return the gift to the donor.
The prohibition on receiving gifts does not apply to gifts between Town employees or officials, assuming that it is a small gift and has no political connotations. The statute only applies to gifts originating from outside the Town.
OPINION 46
The Board of Ethics was asked for an opinion regarding a Town employee who will be attending a conference, hosted by an engineering firm. An off-site dinner invitation was extended to a smaller group of conference attendees (most likely potential clients of the host) including the Town employee as well as people from other townships. The employee asked if attending the dinner would be a conflict.
(See Statute and Gift exclusions above).
Since the off-site dinner is for a select group of people, it is the Ethics Board’s opinion that there is an appearance of a conflict. The gift exclusion is not applicable in this case since the dinner is not "widely attended".
Furthermore, if the Town employee does attend the dinner and, at a later time, the Town started to conduct business with the dinner host, it could be problematic since any relationship would be viewed as compromised.
OPINION 56
The Board of Ethics was asked for an opinion as to whether a Town official may attend an awards luncheon as a guest of a not-for-profit corporation whose mission is to promote economically and environmentally responsible growth in the area. The organization works with municipalities and other groups to encourage comprehensive land use planning.
(See Statute and Gift exclusions above).
The Ethics Board has examined a program of the seminar and its supporters. We do not consider the invitation a gift, but an opportunity for a Town Official to become aware of planning ideas. Further, if a meal should be provided at the seminar, this would be exempt as a gift, per the Code.
If, however, the invitation were for an expensive destination, this would trigger an ethical conflict.
For more Ethics Board’s opinions about attending seminars, see Opinions 23 and 46.
OPINION 64
An event promoter, after paying a fee to Brookhaven Town, uses Brookhaven Town property to produce an event. The promoter charges admission to the general public to participate in the event.
The Board of Ethics was asked three questions about possible conflicts regarding admission by Brookhaven employees:
1) Can those Brookhaven Town people actually working on the event be issued complimentary passes in order to have access to all areas of the event site to discharge their duties?
There is no ethical conflict in this group of people receiving these access passes. These are the Town liaisons to the event.
(See Statute above).
The purpose of discouraging gifts is to prevent undue influence in subsequent decisions or awarding of contracts. We choose to look at the population that actually are involved in the decision-making process -- in this case, the awarding of contracts for organizing the event. We focus on precluding the decision makers from accepting such gifts and exempting others.
2) Can Town elected officials, their families and staff accept complimentary passes from the event promoter to attend the event?
The following Brookhaven Town employees and officers should decline discounted or complimentary passes for these events:
- Brookhaven Town Supervisor and management staff
- Town Council and their managerial staff
- Ethics
- Administration of the Town facilities hosting the event
- Town Attorney and management staff
These people are either involved or have the appearance of being involved in the awarding of such event-promotion contracts.
3) The Ethics Board was asked if other Town workers may receive discounts from the event promoter. These discounts are offered to other members of the public.
The Ethics Board has interpreted that those not involved in decision making may participate in a discount program offered to other members of the public if they can negotiate such an agreement with the event promoter.
We are concerned that the Brookhaven Town rank and file may do lobbying of the Town Board on behalf of a preferred promoter in the future. If such lobbying is exhibited, the Ethics Board may choose to modify this opinion.
This Ethics Board opinion is in response to a request about a specific event. Note that the Ethics Board looks at each specific situation on a case-by-case basis to determine if there is any conflict.
OPINION 72
A private company that maintains a Town-owned facility is holding a special promotional event open to all Town employees. The event consists of a sports event, which would be free to Town employees, and a meal, which would be paid by Town employees at a discounted rate.
The Board of Ethics was asked if Town employees might participate in the complimentary sports event. Would this be considered an ethical conflict?
(See Statute above).
The purpose of discouraging gifts is to prevent undue influence in subsequent decisions or awarding of contracts. We choose to look at the population that actually are involved in the decision-making process and focus on precluding the decision makers from accepting such gifts and exempting others.
The following Brookhaven Town employees and officers (the decision-makers) should decline the complimentary admission to the sporting event, but may pay to attend the meal:
- Brookhaven Town Supervisor and management staff
- Town Council and their managerial staff
- Ethics
- Administration of the Town facilities hosting the event
- Town Attorney and management staff
These people are either involved or have the appearance of being involved in the awarding of contracts to private vendors. Therefore, they may attend the sporting event if they pay the regular fees charged to the general public.
While the above addresses actuality of conflict, the Ethics Board is concerned with the appearance of a conflict. We are concerned that certain functions may appear too elaborate and the implication is that these functions would unduly influence the attendees. It is difficult to define a threshold for different types of functions as context varies. The Ethics Board notes that the State and County uses a $75 gift threshold for various functions.
The Ethics Board looks at each specific situation on a case-by-case basis to determine if there is any conflict.
This Ethics Board opinion is in response to a request about a specific event. We concluded that this particular event is promotional and not an excessive affair. Therefore, the Ethics Board decided that this is not a conflict for non-decision-making employees.
See related opinion #64.
OPINION 73
A Town department is holding a luncheon event that is open to Town employees, a Town vendor and the media. A Town employee asked the Ethics Board whether it would be a conflict if the vendor who supplied products to the Town may pay for the food.
(See Statute above).
The Town vendor had already been awarded the vendor contract prior to the luncheon; there is no quid pro quo involved so it would not be considered a gift to the Town. Therefore, the Ethics Board does not find a conflict in this case.
OPINION 77
A Town employee contacted the Board of Ethics regarding an invitation to a charity event. The event requires an admission fee, which provides a meal as well as the opportunity for networking. Town employees of a specific department were invited to attend the event by both a non-profit professional association and a private company that does business with the Town. For similar events, employees pay the admission and get reimbursed by the Town. The employee asked if it was appropriate for Town employees to 1) attend as guests of the private company, or 2) attend as guests of the professional association.
Section 28-5 A. (3) of the Town Code states the following:
“Gifts. A Town officer or employee shall not solicit anything of value from any person who has received or sought a financial benefit from the Town, nor accept anything of value from any person the Town officer or employee knows or has reason to know is seeking or has received or sought a financial benefit from the Town within the previous 24 months.”
The Board of Ethics has reached the following opinion:
1) Town employees should not accept an invitation or gift from any company that does business with the Town as this would be considered an ethical conflict. The employee can pay the admission fee and, if they so choose, be reimbursed by the Town.
2) If Town employees attend the charity event as guests of the professional association it would not be a conflict.
OPINION 87
The Board of Ethics was asked for an opinion regarding a Town Commissioner who received an invitation to attend a 3-day conference held by a private company that currently works for the Town through an IMA with another Township. The company also plans to propose a future contract with the Town after the IMA expires. The conference would focus on pending legislation affecting the industry and would be paid entirely by the private company, including air travel, hotel, dinner cruise and all meals.
(See Statute above).
It is the opinion of the Ethics Board that the subject matter of the conference is not directly relevant to the work of the Town Commissioner. Furthermore, since the private company hosting the conference plans to seek a contract with the Town, this presents an ethical conflict. Therefore, the Town Commissioner should decline the invitation.
OPINION 91
The Board of Ethics was asked if a Town Councilperson may accept a ticket to a charity event with a face value of $75 per ticket. The ticket was offered by a party that has both charitable and real estate and development interests in Brookhaven. At future times they may have applications for developing their properties in Brookhaven.
(See Statute above).
It is the opinion of the Board of Ethics that Town officers and employees should not accept this invitation or gift. Anticipating the future when a development may come before the Town Councilperson from this party and questions of recusal may need to be addressed, it is best if the gift of tickets is not accepted. This would avoid any appearance of an ethical conflict. However, if the Councilperson chooses to attend the charity event, s/he should instead pay the face value of the ticket.
OPINION 95
The Board of Ethics was asked if a Town official may accept dinner invitations in conjunction with a conference of several Townships throughout New York.
The dinner parties follow an annual, statewide conference being held for which over 2,800 town officials from more than three-quarters of the State's 932 towns are invited.
(See Statute above).
Section 28-5 B. lists, in part, the following exclusions:
(3) (c) Refreshments and meals received at a widely attended gathering as defined by the rules and regulations of the Ethics Board
The Ethics Board attempts to judge how much benefit the Town accrues from accepting an invitation. Social gatherings such as these have value to the Town as a whole since they offer an opportunity for our Town officials to network with their peers and exchange ideas. Also, the dinners do not appear to be elaborate affairs. Furthermore, since the dinners following the conference are widely-attended by town officials, it does not appear that these dinners are exclusive to any individual of the Town.
Therefore, it is the opinion of the Ethics Board that attending the dinners would not present any conflict.
Opinions on Recusal Requirements
OPINION 10 and 21
The Board of Ethics was asked to render an opinion on whether a Civic Association Board Member, when appointed to a Town Board, needs to resign from the Civic position to avoid a conflict of interest.
The Ethics Board has chosen to write a more general policy opinion. We consider Civic Associations to be one of a number of advocacy groups attempting to influence decisions of the Town towards what they view as best. This would include builders’ associations, environmental advocates, etc.
Clearly, on a specific Town decision an appointee should recuse him or her self when a decision in question is a topic that his/her advocacy group has an active position.
The Ethics Board envisions a test as to whether the advocacy group’s active positions would necessitate numerous recusal situations. If the group’s focus is of narrow or regional scope and recusal situations are envisioned to be limited, there is no need to resign from the advocacy group’s Board. However, if the group’s active positions are envisioned to lead to numerous recusal situations, then the appointee must resign from the advocacy group’s Board.
If conflicts, warranting recusal, are anticipated in over 5 percent of the hearing items of the appointed Board, then the candidate for public office must resign from the advocacy board.
Finally, Section 28-5, Conflicts of Interest, Article A.6, Appearances, precludes an advocacy board officer who is also a Town appointee from addressing the multiple Town Boards on behalf of the advocacy group.
OPINION 16
The Board of Ethics received an email concerning a combined ethics complaint and demand for recusal by Town Officials from any proceedings or votes involving a Town energy project.
The Ethics Board is limited to addressing questions concerning Brookhaven Town’s Statute Chapter 28 of the Code of Ethics and Disclosure. The writer of the opinion was asked to resubmit the complaint as a written signed, sworn and notarized affidavit addressed to the Ethics Board. In the affidavit the charge is to be outlined with specific reference to what section of Chapter 28 has been violated. If the writer still has concerns and they are not found in the Ethics Code, there are other law enforcement channels and courts that have a broader scope than the Ethics Board.
OPINION 22
The Board of Ethics was asked for an opinion as to whether a Town official who publicly advocates a position on an application may subsequently vote on that application.
While this might be a problem in a court of law for an empanelled jury or jurist, the Brookhaven Town Ethics Code does not require that public officials be impartial. Should public officials be forced to remain silent on their positions, this would mute any public or political debate, which is not good public policy. It is probably best that there is no prohibition in statute on officials publicly stating their position prior to a vote.
After deliberation, The Board of Ethics found no conflict of interest in this case.
OPINION 38
The Board of Ethics was asked for our opinion on a recusal policy, in the case where a Town official has a spouse or spouse’s organization appearing in front of the official’s Board. We were asked under what conditions is recusal appropriate and when is it not necessary.
Section 28-5 A. (4) of the Ethics Code states the following:
“Recusal: A Town officer or employee shall promptly recuse himself or herself from acting on a matter before the Town when acting on the matter, or failing to act on the matter, may benefit…a) Town officers or employees; b) His or her outside employer or business; c) A member of his or her household; d) A customer or client (current or within the past five years), or e) A family member.”
There have been a number of requests for opinion in this area. If the benefit to any of the recipients listed in A through E above were clearly substantive and non-negligible, the Ethics Board would view this as a conflict. If, however, the benefit to the employer or the employee who is actually voting is considered negligible, the Ethics Board does not find conflict.
Where the spouse fits into the organizational structure of the applicant petitioning the Board is important. If the spouse is in the leadership of a company or a head of an organization whose career would benefit from a positive vote, then there is a strong appearance of conflict and recusal is appropriate. If, on the other hand, the spouse is outside the leadership ranks, then the test of how much benefit does he/she receive is important. If the benefit is negligible, then there is no need for recusal. Who actually appeals before the Board is less relevant.
In cases involving a gray area, the Ethics Board reserves the right to deliberate and judge conflicts on a case-by-case basis.
OPINION 57
The Board of Ethics was asked if a Town employee, after obtaining a professional engineering license, might take extra work outside the Town preparing construction documents that could be submitted to the Town for review.
Section 28-5 A. of the Town Code states:
“(4) Recusal. A Town officer or employee shall promptly recuse himself or herself from acting on a matter before the Town when acting on the matter, or failing to act on the matter, may benefit any of the persons listed in Subsection A(2) of this section.” (This includes the Town employee, his/her outside employer or business, or customer or client within the past five years).
“(6) Appearances. A Town officer or employee shall not appear before any agency of the Town, except on his or her own behalf or on behalf of his of her own constituents or on behalf of the Town.”
To avoid any appearance of a conflict, the Town employee may not appear before a Town agency for projects on which he has worked on with his outside job nor participate in any hearings.
However, if he normally appears before the Town or participates in any hearings as part of his Brookhaven Town job, then he/she must recuse him/herself and file the paperwork associated with recusal.
OPINION 89
The Board of Ethics was asked whether an assistant attorney of the Town may serve as a Board Member for his/her local Civic association.
Section 28-5 A. (4) of the Ethics Code states the following:
“Recusal: A Town officer or employee shall promptly recuse himself or herself from acting on a matter before the Town when acting on the matter, or failing to act on the matter, may benefit…a) Town officers or employees; b) His or her outside employer or business; c) A member of his or her household; d) A customer or client (current or within the past five years), or e) A family member.”
The Ethics Board has no problem with Brookhaven employees discharging their civic duty by serving on a Civic Association Board.
However, as attorneys, they would have to recuse on any projects in which the Civic board was also involved.
Additionally, Bar associations have extensive conflict of interest restrictions. These would also demand recusal in these conflicting situations.
Opinions on Representation Before the Town
Opinions on Appearances Before a Town Agency
OPINION 3
The Board of Ethics received a letter from a Town employee who stated s/he was in a personal relationship with someone who performs expediting work for the Town. The Town employee stated that to avoid any conflict of interest or violate any ethics rules, s/he will not review or process any of his/her planning applications now or in the future.
The Board decided that by revealing this relationship and not processing any of the partner’s applications, s/he has avoided any question of a conflict. His/her voluntary full disclosure of this matter has alleviated any appearance of impropriety.
OPINION 10
The Board of Ethics was asked to render an opinion on whether a Civic Association Board Member, when appointed to a Town Board, needs to resign from the Civic position to avoid a conflict of interest.
The Ethics Board has chosen to write a more general policy opinion. We consider Civic Associations to be one of a number of advocacy groups attempting to influence decisions of the Town towards what they view as best. This would include builders’ associations, environmental advocates, etc.
Clearly, on a specific Town decision an appointee should recuse him or her self when a decision in question is a topic that his/her advocacy group has an active position.
The Ethics Board envisions a test as to whether the advocacy group’s active positions would necessitate numerous recusal situations. If the group’s focus is of narrow or regional scope and recusal situations are envisioned to be limited, there is no need to resign from the advocacy group’s Board. However, if the group’s active positions are envisioned to lead to numerous recusal situations, then the appointee must resign from the advocacy group’s Board.
If conflicts, warranting recusal, are anticipated in over 5 percent of the hearing items of the appointed Board, then the candidate for public office must resign from the advocacy board.
Finally, Section 28-5, Conflicts of Interest, Article A.6, Appearances, precludes an advocacy board officer who is also a Town appointee from addressing the multiple Town Boards on behalf of the advocacy group.
Opinions on Political Activity, Both On and Off Site
OPINION 61
The Board of Ethics was asked if a Town employee may conduct political activities off-site if s/he was on a leave of absence.
Section 28-6 (B) and (C) of the Town Code states:
“Political activities prohibited.
B. No person having supervisory control or who is superior in title to any official or employee of the Town shall engage in any of the following actions with subordinates at any time on or off Town premises:
- Discussion of or solicitation of ticket purchases or sales.
- Solicitation to join a political party or political activity.
- Use of political considerations in discussing duties, positions, compensation, changes in titles or work assignments.
- Use of political considerations as the reason for promotions, assignment changes, demotions or termination.
C. No officer or employee of the Town shall solicit or discuss political contributions with Town vendors or consultants at any time, on or off Town premises.”
An employee on a leave of absence does not receive any paid benefits or compensation from the Town. However, employees on a leave of absence are still considered employees of the Town of Brookhaven and must therefore follow the rules and regulations set forth by the Town, including its Code of Ethics.
If the Town employee is in a supervisory position and engages in political activity with his/her subordinates or conducts political activities with Town vendors or consultants, on or off Town premises as outlined above, this would be a conflict. If the employee actually resigns and no longer has the expectation of returning to Town employment, then s/he is free to pursue political actions. It is the expectation of returning that implies a potential for intimidation.
OPINION 67
A current Town of Brookhaven employee was running for a position as a Town official. A fundraising campaign kick-off event was being held at the home of another Town employee who is a supervisor to the Town official candidate. Several hundred invitations were mailed out to community members to attend the event.
The Board of Ethics was asked if it is a conflict if the event is held at this Town employee’s home.
(See Statute above).
The above statute is to guard against coercing politically neutral Town employees into supporting designated candidates.
There are two parties in this conflict: the candidate and the fundraiser host. This mailing list is really targeted more toward partisan supporters with the objective of raising money. It is clear that if the fundraiser host had sent out invitations, and if these invitations were primarily to Town employees under his/her authority, this would be considered initiating a “discussion” as mentioned above and thereby pose an ethical conflict. If the mailing list were to be mainly non-Brookhaven employees and include a small number of Town employees under his/her supervision this would be less suspect.
It is clear that the fundraiser host can make a financial contribution to the candidate; nothing in the Ethics Code prohibits this. One might consider making a house available for a function to be a donation.
It was determined, in this case, that:
- The fundraising host did not mail out the invitations
- The mailing list was not primarily targeted to Brookhaven employees
- The fundraising host only contributed the use of his/her home, which can be considered a donation.
Therefore, the Board of Ethics does not find a conflict in this situation.
OPINION 70
A former Town employee approached a current Town employee during work hours on Town property without permission. The purpose of his visit was to ask the current Town employee to distribute political campaign materials on Town property.
(See Statute above).
It appeared that the former Town employee was coercing the current employee to violate the political activities statute. If the employee had distributed the materials, this would have been an ethical conflict. By not distributing the materials, the current employee did not violate the Code.
However, the Board of Ethics will inform the former Town employee that his request was inappropriate and appeared coercive. The Board has the right to invoke a number of penalties for this action, including punishment as a Class A misdemeanor, per Section 28-14 (E) of the Ethics Code.
OPINION 78
It was brought to the attention of the Ethics Board that a Town employee was distributing campaign literature in his/her department at the Town. Is this considered an ethical conflict?
Section 28-6 of the Town code states the following:
“Political activities prohibited.
A. No person shall engage in any political activities on any Town premises at any time. Such prohibited activities include but are not limited to the following:
- Sales or purchases of tickets to political events.
- Discussion of tickets to political events.
- Solicitation to join a political party or activity.
- Discussion of promotions or transfers or changes of assignments or compensation on the basis of any political considerations.
- Solicitation of funds or good or services for political purposes.”
Per the Code, "political activities" is defined as "any activities related to partisan politics, including recruiting, solicitation for fundraising, invoking political reprisals, and any action that uses political influence to affect the duties and responsibilities of any officer or employee of the Town."
It is the Board’s opinion that political activity directed towards electing a candidate should not take place in Town working environments.
OPINION 81
Periodically, the Town Board passes referenda to be placed on the ballot. The Ethics Board discussed the limitations by which the Board can support the passage of the referenda.
There is no statute that specifically addresses ballot proposition advocacy; however, there is a body of court cases and opinions of the Attorney General that give guidance.
The Ethics Board position is:
- The Town cannot expend public money to support political candidates and political campaign literature.
- There is no problem expending taxpayer funds on educating the voters on the upcoming proposition.
- Use of funds to advocate how to vote on a referendum has been addressed by a number of court cases and is prohibited.
The first point is prohibited by the New York State Constitution, as stated in the Matter of Schulz v State of New York, 86 NY2d 225 (1995):
“We think it is unassailable that the use of public funds out of a State agency’s appropriation to pay for the production and distribution of campaign materials for a political party or a political candidate or partisan cause in any election would fall squarely within the prohibition of article VII, section 8, paragraph 1 of the Constitution…”
The second point is clarified by a number of court cases. The Schulz decision continues with the following:
“Contrastingly, a governmental agency does not violate article VII, section 8, paragraph 1 merely by using taxpayers’ funds for the valid governmental purpose of encouraging the public to participate in the democratic process by voting in an election. Nor would that constitutional provision prevent the use of public funds to inform and educate the public, in a reasonably neutral fashion, on the issues in an election so that voters will more knowledgeably exercise their franchise.” Emphasis supplied; 86 NY2d at 234.
The third point is also based on court cases:
“The Court reiterated the view it took in Phillips v Maurer, 67 NY2d 672 (1986). In that case, the Court examined material distributed by a school district which described the need for passage of a proposed bond issue and expressly urged readers to vote “yes.” The Court acknowledged that the school board was authorized to spend public money to educate the public about its budget proposals but held that the board’s authority did not extend to dissemination of information, at the taxpayers’ expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board.” 67 NY2d at 674.
The source of the above reference is from the Attorney General Formal Opinion No. 96-F8 which may be viewed in its entirety at:
http://www.oag.state.ny.us/lawyers/opinions/1996/formal/96_f8.pdf
OPINION 83
The Ethics Board was asked whether it was proper for a senior Town employee to instruct an elected official as well as a candidate for elected office to remove a bus bearing political advertising from a Town parking area and further instruct the elected official and candidate that campaigning within said park was improper.
Section 28-6 A. of the Town Code states the following:
“No person shall engage in any political activities on any Town premises at any time.”
Therefore, the Town has the right to restrict political activities within Town buildings and parking lots in order to maintain order for Town business. Since the bus and campaigning candidate were in a Town parking lot, this presents an ethical conflict.
However, the First Amendment gives the freedom to campaign in public areas such as parks and sidewalks.
OPINION 88
The Board of Ethics was asked if political party leaders or vice-chairs may be hired to work at the Town.
While not specifically prohibited in the Town of Brookhaven Code, New York State law states that employees in policy-making positions (i.e., decision-making positions) should not serve simultaneously as leaders in a political party. State’s Executive Law, §94[16][a] that states: “No head of a State department, individual who serves as one of the four statewide elected officials, individuals who serve in a policymaking position . . . shall serve as an officer of any political party or political organization.”
A “political organization” is defined as “any organization that is affiliated with or subsidiary to a political party, and shall include, for example, partisan political clubs.” An “officer” is defined as a president, vice president, secretary or treasurer.
As a policymaker, State employees are barred from serving as an officer of any political party or political organization (19 NYCRR Part 932.2[a]).
According to the New York State Ethics Commission’s advisory opinion no. 04-3:
“The Executive Law gives the Commission the authority to regulate the ‘outside activities’ of persons subject to its jurisdiction.” (See, Executive Law §94[16][a].) “The Executive Order requires covered individuals not to serve as officers of political organizations or as members of any political party committee. Based on the wording of the Executive Order, the Board has required covered individuals to resign from national, state, county, and town political committees.”
Therefore, it is the opinion of the Ethics Board that employees should follow the State law stating that employees in policy-making positions in Town government should not serve simultaneously as officers in a political party, which is prohibited by Commission regulation.
Opinions on Agent’s Notice of Appearance
OPINION 3
The Board of Ethics received a letter from a Town employee who stated s/he was in a personal relationship with someone who performs expediting work for the Town. The Town employee stated that to avoid any conflict of interest or violate any ethics rules, s/he will not review or process any of his/her planning applications now or in the future.
The Board decided that by revealing this relationship and not processing any of the partner’s applications, s/he has avoided any question of a conflict. His/her voluntary full disclosure of this matter has alleviated any appearance of impropriety.
OPINION 19
The Board of Ethics was asked to render an opinion regarding a Brookhaven Town employee’s daughter, who works for a permit expeditor. The daughter is an employee of the expeditor and not a principal of the company.
The Board was asked if the owner of the company must disclose that the daughter is an employee on all of their applications and whether the Town employee is prohibited from dealing with this expediting company’s applications, even those that don’t involve the daughter.
After deliberation, the Board of Ethics decided that the Town employee, as the Agent, may state before the Board that he or she is related to the daughter as a simple disclosure. If the daughter is the expeditor, the Town employee must recuse him or her self from all applications he or she processes. If the daughter is not the expeditor, and the disclosure is made, then there is no conflict.
Opinions on Use of Town Property
OPINION 25
May a Brookhaven Town employee who plows roads accept additional money to plow someone’s driveway during work time?
Section 28-8 A. of the Town Code states:
“Use of Town property. No Town officer or employee of the Town of Brookhaven shall use or permit the use of Town property, including land, vehicles, equipment * and any other Town property, for personal convenience or profit, except when such use is available to Town citizens generally or is authorized by law or as a matter of general Town policy to all persons similarly situated.”
As such, the Board of Ethics has decided that a conflict would exist in this case. However, if the employee owns his own equipment, is plowing on his own time and has fully completed his obligation to the Town, there would not be a conflict.
OPINION 26
The Board of Ethics was asked for an opinion as to whether employees may use their Town email to solicit other employees for items and/or donations as a fundraising tool. Further, it was asked whether it was ethical for a collection area to be set up at Town Hall for donations.
(See Statute above).
This is a not-for-profit organization and there is currently no Town policy on this matter. Therefore, there does not appear to be an ethical conflict at the present time. However, this could change should the Town adopt a more restrictive use on charitable initiatives. Should a restrictive policy be adopted, a conflict might be in effect.
OPINION 50
The Board of Ethics was asked if a local business could distribute coupons to Town employees for complimentary activities offered by the business. The coupons would be put out on Town counters for the general public.
(See Statute above).
The Ethics Board views this as a promotional program by a for-profit business. Allowing the coupons to be available on a counter in the Town would be permitting the use of Town property, which is a conflict, per the Code.
For the Ethics Board’s opinion on a not-for-profit organization using Town property for a fundraiser, please see Opinion 26.
OPINION 52
The Board of Ethics was asked if a Town employee might sell raffle tickets on Town property in order to raise money for one of the Town’s non-profit initiatives that is funded, in part, by public donations.
(See Statute above).
Since the Town regularly accepts public donations to cover expenses for this particular initiative, the Ethics Board does not find a conflict in conducting a fundraiser on Town property, using donated gifts. Any funds raised benefit the Town’s mission at no cost to the taxpayer.
See related Opinions #26 and #50 regarding fundraising on Town property.
OPINION 55
The Board of Ethics was asked if a Town employee might utilize Town email or distribute flyers to solicit other employees for a private fundraiser.
(See Statute above).
Though many fundraisers are for a worthy cause, it is the Ethics Board's opinion that fundraisers should be discouraged on Town property since it could lead to a multitude of fundraisers at the Town. The Ethics Board believes that a fundraising policy should be adopted at the Town regarding charitable initiatives.
For the Ethics Board’s opinion relating to for-profit solicitations, see Opinion 50.
Opinions on Revolving Door: Post Employment
OPINION 1
The Board of Ethics was asked to render an opinion on whether a former town official can act as an outside consultant to expedite Town permits for his/her clients.
Section 28-9 of the Town Code states, in part, that:
“A Town officer or employee shall not appear or practice before the Town, except on his or her own behalf, or receive compensation for any services rendered in relation to any case, proceeding, application, or transaction before the Town, for a period of one year after the termination of his or her Town service or employment; however, the bar shall be two (2) years as to cases, proceedings, applications or transactions in which the Town officer or employee was directly concerned and personally participated during Town service or were under the Town officer's or employee's active consideration.”
As such, this former town official cannot, for a one-year period, represent a client on matters related to Town applications and permits. In addition, this former town official cannot, for a two-year period, represent a client on matters related to the department that he/she was appointed.
OPINION 5
The Board of Ethics was asked to render an opinion regarding a former town official who was retained to represent a company on matters related to Town permits.
(See Statute above).
As such, this former town official cannot, for a one-year period, represent a client on matters related to Town applications and permits. In addition, this former town official cannot, for a two-year period, represent a client on matters related to the department that he/she was appointed.
OPINION 9
The Board of Ethics was asked to render an opinion regarding a former town official who is a partner in a professional service firm. The partners of the firm represent their clients on land use matters in front of town boards. This former town official and their business partner share revenue that comes into the firm.
(See Statute above).
As this former town official shares in the revenue generated by his/her partner, and since this former town official cannot “receive compensation for any services rendered in relation to any case, proceeding, application, or transaction before the Town, for a period of one year,” this Board of Ethics mandates that in order to allow this partner to continue to represent clients in front of town boards, that the firm create a “Chinese Wall,” as it is often referred to in the legal sector, for the balance of the one year period as outlined in Section 28-9, to separate the sharing of revenues, as well as to keep separate professional strategies in cases involving town matters.
OPINION 12
The Board of Ethics received a letter from a Town employee requesting an opinion on the following three questions:
- Is an outside consultant hired by the Town (such as an engineer or attorney retained to represent the Town in a lawsuit) determined to be an employee of the Town under the Code of Ethics?
- Would such an outside consultant or attorney be precluded from representing clients before any Town Board or agency or in any litigation that is adverse to the Town?
- If precluded and if the outside consultant is an attorney, would such prohibition apply to his or her law firm?
In response to the first question, outside consultants hired by the Town are not considered employees of the Town. The Ethics Board extensively debated this and explored ramifications of considering outside consultants as employees and concluded that they are not employees.
In reference to the second and third questions, if the attorney or members of the attorney’s law firm were outside consultants, and not employees of Brookhaven Town, the above prohibitions would not apply.
OPINION 14
The Board was asked to render an opinion concerning whether a former employee of one department may now assist with projects in other Town Departments, with the exception of any projects in the department in which the employee worked.
(See Statute above).
The Board has decided to interpret the above paragraph to allow a former employee to consult in an area other than his or her former department. However, any project involving the area of previous employment expertise would fall under the 2-year time limit ban.
OPINION 18
The Board of Ethics was asked for an opinion on whether a former chairman of a Town advisory committee, who is currently a private contractor, may participate in meetings with current Town officials and provide plans and applications for his projects.
(See Statute above).
However, there are possible exceptions to this. If the employee is, in fact, a contractor, as indicated by his security badge; his salary is paid quarterly, and he is not provided either a financial disclosure form or an ethics package, that person is considered, by the Ethics Board, to be exempt from the revolving door statute.
Considering the above, the Ethics Board does not find that any conflict of interest exists.
OPINION 36
The Board of Ethics was asked to render an opinion as to whether a former Town employee may continue to work outside the Town in a similar capacity.
(See Statute above).
Projects that appear before the Town often have many components. Some interact with the county, state, funding agencies and not-for-profits. The Ethics Board has determined that only that component between former employees and Brookhaven Town must be avoided during the statutory period. The former Town employee may work on non-Brookhaven Town aspects of projects so long as there is no direct interaction with the Town.
OPINION 45
The Board of Ethics was asked for an opinion on whether a retired Brookhaven Town employee may work on Town projects two years after his/her retirement date.
(See Statute above).
The Ethics Board checks the date of retirement to determine when the one- or two-year restriction on conducting business expires for each employee. For this particular employee, it was determined that the employee will soon satisfy his/her two-year restriction. Once that date has arrived, the employee may conduct Town business as desired. Therefore, the Ethics Board does not find that any conflict of interest exists.
OPINION 62
The Board of Ethics was asked if a retired Town employee may be hired as a consultant to train a new Town employee for a few hours, on a paid basis.
(See Statute above).
This prohibition deals with employees appearing before the Town on behalf of someone with an application or someone suing the Town. There is no preclusion for the Town hiring a Town retiree as a consultant, as in this case. Actually, rehiring a retired person to full employment or to a consultant position is common practice in government or industry.
The retiree must keep in mind, however, that s/he would have to recalculate the one- or two-year preclusion period for representing someone before or against the Town for the new "hire date."
OPINION 66
A vendor candidate for a Town contract previously employed a current Town employee over two years ago. The Board of Ethics was asked if the employee must recuse him/herself from voting on the candidate’s Request for Proposal (RFP) or working on this candidate’s project, should the vendor be selected.
(See Statute above).
The above statute pertains to “revolving door,” where a Town employee leaves to go to the private sector and certain abuses can occur. In the case of a private sector person joining the Town, the above “revolving door” statute does not apply. The ethical conflict in this case pertains to the possibility of a person inappropriately serving a former employee’s interests as a Town employee.
A use of information gained in the employee’s previous employment could be very helpful in discharging his/her Town duties and could be beneficial to his/her Town employment.
The Ethics Board has decided that the former private sector employee may immediately work on projects using expertise gained with his/her former employer, including working on the former employer’s projects, except in the following two cases:
- It would be a conflict if the employee maintained a financial interest in the former employer
- It would have an appearance of conflict if s/he were involved in the awarding of contracts to his/her former employer.
OPINION 92
The Board of Ethics was asked if a Town building inspector may conduct his/her own business as an architect for the general public in Brookhaven Town. If so, may a homeowner or contractor hire the building inspector if the homeowner/ contractor knows the building inspector through his/her work as a building inspector with the Town?
Section 28-5 A. (2) of the Town Code states, in part, the following:
“General prohibition. A town officer or employee shall not use his or her official position or office to take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal benefit, financial or otherwise, for any of the following persons: (a) the Town officer or employee, or (b) His or her outside employer or business...”
If the building inspector informs a Town client that she/he is an architect, the client may feel pressured to give the building inspector work as an architect. Therefore, the building inspector should not discuss architectural work with any Town clients.
Also, if the building inspector does architectural work for a private client and, later on, is assigned that person by the Town for a building inspection, the building inspector should recuse him/herself from that assignment.
Section 28-9 of the Town Code, which is also relevant in this case, states, in part, that:
“A Town officer or employee shall not appear or practice before the Town, except on his or her own behalf, or receive compensation for any services rendered in relation to any case, proceeding, application, or transaction before the Town, for a period of one year after the termination of his or her Town service or employment; however, the bar shall be two (2) years as to cases, proceedings, applications or transactions in which the Town officer or employee was directly concerned and personally participated during Town service or were under the Town officer's or employee's active consideration.”
The above statute addresses those who leave Town employment. In order to not penalize Town employees if an inspector remains employed at the Town, he/she may conduct his/her architectural business with Town clients after a 2-year period has expired. During this interim period, the inspector should not have any contact with the Town client.
In summary, it is the opinion of the Ethics Board that the building inspector may accept architectural clients as long as they are not current Town building inspection clients or former ones more recent than a two-year period. Additionally, if an architectural client is assigned to him/her for building inspection, s/he should recuse. Accepting a work relationship in violation of the above would be a great potential for conflict.
OPINION 96
The Board of Ethics was asked if the following would present any ethical conflict:
Several companies responded to an RFP to perform services at Town Hall. One of the company’s project people is a former Town commissioner who was employed at the Town a little over one year ago. Several years ago, the commissioner was a key person in providing reconstruction services for the Town. However, his position at the Town was not connected in any way to the current project with the RFP.
(See Statute above).
It is the opinion of the Ethics Board that since the Commissioner’s prior work had no connection to the new Town project, and the Commissioner has not been employed at the Town in over one year, there is no conflict.
OPINION 99
The Ethics Board was asked if there is any conflict with an individual, while serving as a member of one Board, being invited to address another Board to provide testimony. The | |